THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, WAUGH, O'PAKE, ERICKSON, McILHINNEY, WASHINGTON, WOZNIAK, M. WHITE, WILLIAMS, EARLL, CORMAN AND TARTAGLIONE, MARCH 30, 2010

REFERRED TO JUDICIARY, MARCH 30, 2010  

AN ACT

Amending Titles 42 (Judiciary and Judicial Procedure) and 61

(Prisons and Parole) of the Pennsylvania Consolidated

Statutes, further providing for sentences for second and

subsequent offenses, for sentencing generally, for sentence

of county intermediate punishment and for county intermediate

punishment programs; in State intermediate punishment,

further providing for definitions and for referral to State

intermediate punishment program; and, in recidivism risk

reduction incentive, further providing for definitions.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 9714(g) and 9721(a.1) of Title 42 of the

Pennsylvania Consolidated Statutes are amended to read:

§ 9714.  Sentences for second and subsequent offenses.

* * *

(g)  Definition.--As used in this section, the term "crime of

violence" means murder of the third degree, voluntary

manslaughter, manslaughter of a law enforcement officer as

defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal

homicide of law enforcement officer), murder of the third degree

involving an unborn child as defined in 18 Pa.C.S. § 2604(c)

(relating to murder of unborn child), aggravated assault of an

unborn child as defined in 18 Pa.C.S. § 2606 (relating to

aggravated assault of unborn child), aggravated assault as

defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to

aggravated assault), assault of law enforcement officer as

defined in 18 Pa.C.S. § 2702.1 (relating to assault of law

enforcement officer), use of weapons of mass destruction as

defined in 18 Pa.C.S. § 2716(b) (relating to weapons of mass

destruction), terrorism as defined in 18 Pa.C.S. § 2717(b)(2)

(relating to terrorism), trafficking of persons when the offense

is graded as a felony of the first degree as provided in 18

Pa.C.S. § 3002 (relating to trafficking of persons), rape,

involuntary deviate sexual intercourse, aggravated indecent

assault, incest, sexual assault, arson as defined in 18 Pa.C.S.

§ 3301(a) (relating to arson and related offenses), ecoterrorism

as defined in 18 Pa.C.S. § 3311(b)(2) (relating to

ecoterrorism), kidnapping, burglary of a structure adapted for

overnight accommodation in which at the time of the offense any

person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(1)

(i), (ii) or (iii) (relating to robbery), or robbery of a motor

vehicle, or criminal attempt, criminal conspiracy or criminal

solicitation to commit murder or any of the offenses listed

above, or an equivalent crime under the laws of this

Commonwealth in effect at the time of the commission of that

offense or an equivalent crime in another jurisdiction.

§ 9721.  Sentencing generally.

* * *

(a.1)  Exception.--

(1)  Unless specifically authorized under section 9763

(relating to a sentence of county intermediate punishment) or

Chapter 99 (relating to State intermediate punishment),

subsection (a) shall not apply where a mandatory minimum

sentence is otherwise provided by law.

(2)  An eligible offender may be sentenced to State

intermediate punishment pursuant to subsection (a)(7) and as

described in Chapter 99 or to State motivational boot camp as

described in 61 Pa.C.S. Ch. 39 (relating to motivational boot

camp), even if a mandatory minimum sentence would otherwise

be provided by law.

(3)  An eligible offender may be sentenced to total

confinement pursuant to subsection (a)(4) and a recidivism

reduction incentive minimum sentence pursuant to section

9756(b.1) (relating to sentence of total confinement), even

if a mandatory minimum sentence would otherwise be provided

by law.

* * *

Section 2.  Section 9763(c) heading of Title 42 is amended

and the section is amended by adding a subsection to read:

§ 9763.  Sentence of county intermediate punishment.

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(c)  Restriction for certain Vehicle Code violations.--

* * *

(c.1)  Restriction for drug trafficking.--

(1)  Any person receiving a penalty imposed pursuant to

18 Pa.C.S. § 7508 (relating to drug trafficking sentencing

and penalties) where the sentence is imposed pursuant to 18

Pa.C.S. § 7508(a)(1)(i), (2)(i), (3)(i), (4)(i) or (7)(i) may

only be sentenced to county intermediate punishment after

undergoing a diagnostic assessment of dependency on alcohol

or other drugs.

(2)  If the defendant is determined to be in need of drug

and alcohol treatment, the defendant may only be sentenced to

county intermediate punishment which includes participation

in clinically prescribed drug and alcohol treatment combined

with one or more of the following programs:

(i)  a residential inpatient program or a residential

rehabilitative center;

(ii)  house arrest with electronic surveillance; or

(iii)  a partial confinement program, including, but

not limited to, work release, work camp and halfway

facility.

(3)  If the defendant is determined not to be in need of

drug and alcohol treatment, the defendant may only be

sentenced to county intermediate punishment in:

(i)  house arrest with electronic surveillance;

(ii)  a partial confinement program, including, but

not limited to, work release, work camp and halfway

facility; or

(iii)  any combination of the programs specified in

this paragraph.

(4)  Each day of participation in a restrictive

intermediate punishment program or combination of programs

shall be considered the equivalent of and satisfy one day of

total confinement required pursuant to 18 Pa.C.S. § 7508

where the sentence is imposed pursuant to 18 Pa.C.S. §

7508(a)(1)(i), (2)(i), (3)(i), (4)(i) or (7)(i).

* * *

Section 3.  Section 9804(b) of Title 42 is amended by adding

a paragraph to read:

§ 9804.  County intermediate punishment programs.

* * *

(b)  Eligibility.--

* * *

(6)  (i)  Any person receiving a penalty imposed pursuant

to 18 Pa.C.S. § 7508 (relating to drug trafficking

sentencing and penalties) where the sentence is imposed

pursuant to 18 Pa.C.S. § 7508(a)(1)(i), (2)(i), (3)(i),

(4)(i) or (7)(i) may only be sentenced to county

intermediate punishment after undergoing a diagnostic

assessment of dependency on alcohol or other drugs.

(ii)  If the defendant is determined to be in need of

drug and alcohol treatment, the defendant may only be

sentenced to county intermediate punishment which

includes participation in clinically prescribed drug and

alcohol treatment combined with one or more of the

following programs:

(A)  a residential inpatient program or a

residential rehabilitative center;

(B)  house arrest with electronic surveillance;

or

(C)  a partial confinement program, including,

but not limited to, work release, work camp and

halfway facility.

(iii)  If the defendant is determined not to be in

need of drug and alcohol treatment, the defendant may

only be sentenced to county intermediate punishment in:

(A)  house arrest with electronic surveillance;

(B)  a partial confinement program, including,

but not limited to, work release, work camp and

halfway facility; or

(C)  any combination of the programs specified in

this paragraph.

(iv)  Each day of participation in a restrictive

intermediate punishment program or combination of

programs shall be considered the equivalent of and

satisfy one day of total confinement required pursuant to

18 Pa.C.S. § 7508 where the sentence is imposed pursuant

to 18 Pa.C.S. § 7508(a)(1)(i), (2)(i), (3)(i), (4)(i) or

(7)(i).

Section 4.  The definitions of "defendant" and "eligible

offender" in section 4103 of Title 61 are amended to read:

§ 4103.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

"Defendant."  An individual charged with a drug-related

offense, including an individual convicted of violating section

13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L.233,

No.64), known as The Controlled Substance, Drug, Device and

Cosmetic Act, where the sentence was imposed pursuant 18 Pa.C.S.

§ 7508(a)(1)(i), (2)(i), (3)(i), (4)(i) or (7)(i) (relating to

drug trafficking sentencing and penalties).

* * *

"Eligible offender."  Subject to 42 Pa.C.S. § 9721(a.1)

(relating to sentencing generally), a defendant designated by

the sentencing court as a person convicted of a drug-related

offense who:

(1)  Has undergone an assessment performed by the

Department of Corrections, which assessment has concluded

that the defendant is in need of drug and alcohol addiction

treatment and would benefit from commitment to a drug

offender treatment program and that placement in a drug

offender treatment program would be appropriate.

(2)  Does not demonstrate a history of present or past

violent behavior.

(3)  Would be placed in the custody of the department if

not sentenced to State intermediate punishment.

(4)  Provides written consent permitting release of

information pertaining to the defendant's participation in a

drug offender treatment program.

The term shall not include a defendant who is subject to a

sentence the calculation of which includes an enhancement for

the use of a deadly weapon, as defined pursuant to law or the

sentencing guidelines promulgated by the Pennsylvania Commission

on Sentencing, or a defendant who has been convicted of a

[personal injury crime as defined in section 103 of the act of

November 24, 1998 (P.L.882, No.111), known as the Crime Victims

Act, or an attempt or conspiracy to commit such a crime or who

has been convicted of violating 18 Pa.C.S. § 4302 (relating to

incest), 5901] crime of violence as defined in 42 Pa.C.S. §

9714(g) (relating to sentences for second and subsequent

offenses) or a violation of 18 Pa.C.S. § 5901 (relating to open

lewdness), 6312 (relating to sexual abuse of children), 6318

(relating to unlawful contact with minor) or 6320 (relating to

sexual exploitation of children) or Ch. 76 Subch. C (relating to

Internet child pornography).

* * *

Section 5.  Section 4104(a)(1), (d) and (e) of Title 61 are

amended to read:

§ 4104.  Referral to State intermediate punishment program.

(a)  Referral for evaluation.--

(1)  Prior to imposing a sentence, the court may[, upon

motion of the Commonwealth and agreement of the defendant,]

commit a defendant to the custody of the department for the

purpose of evaluating whether the defendant would benefit

from a drug offender treatment program and whether placement

in the drug offender treatment program is appropriate.

* * *

(d)  Prerequisites for commitment.--Upon receipt of a

recommendation for placement in a drug offender treatment

program from the department [and agreement of the attorney for

the Commonwealth and the defendant], the court may sentence an

eligible offender to a period of 24 months of State intermediate

punishment if the court finds that:

(1)  The eligible offender is likely to benefit from

State intermediate punishment.

(2)  Public safety would be enhanced by the eligible

offender's participation in State intermediate punishment.

(3)  Sentencing the eligible offender to State

intermediate punishment would not depreciate the seriousness

of the offense.

(e)  Resentencing.--The department may make a written request

to the sentencing court that an offender who is otherwise

eligible but has not been referred for evaluation or originally

sentenced to State intermediate punishment be sentenced to State

intermediate punishment. The court may resentence the offender

to State intermediate punishment if all of the following apply:

(1)  The department has recommended placement in a drug

offender treatment program.

[(2)  The attorney for the Commonwealth and the offender

have agreed to the placement and modification of sentence.]

(3)  The court makes the findings set forth under

subsection (d).

(4)  The resentencing has occurred within 365 days of the

date of the defendant's admission to the custody of the

department.

(5)  The court has otherwise complied with all other

requirements for the imposition of sentence including victim

notification under the act of November 24, 1998 (P.L.882,

No.111), known as the Crime Victims Act.

* * *

Section 6.  The definition of "eligible offender" in section

4503 of Title 61 is amended to read:

§ 4503.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

"Eligible offender."  A defendant or inmate convicted of a

criminal offense who will be committed to the custody of the

department and who meets all of the following eligibility

requirements:

(1)  Does not demonstrate a history of present or past

violent behavior.

(2)  Has not been subject to a sentence the calculation

of which includes an enhancement for the use of a deadly

weapon as defined under law or the sentencing guidelines

promulgated by the Pennsylvania Commission on Sentencing or

the attorney for the Commonwealth has not demonstrated that

the defendant has been found guilty of or was convicted of an

offense involving a deadly weapon or offense under 18 Pa.C.S.

Ch. 61 (relating to firearms and other dangerous articles) or

the equivalent offense under the laws of the United States or

one of its territories or possessions, another state, the

District of Columbia, the Commonwealth of Puerto Rico or a

foreign nation.

(3)  Has not been found guilty of or previously convicted

of or adjudicated delinquent for or an attempt or conspiracy

to commit a [personal injury crime as defined under section

103 of the act of November 24, 1998 (P.L.882, No.111), known

as the Crime Victims Act] crime of violence as defined in 42

Pa.C.S. § 9714(g) (relating to sentences for second and

subsequent offenses), or an equivalent offense under the laws

of the United States or one of its territories or

possessions, another state, the District of Columbia, the

Commonwealth of Puerto Rico or a foreign nation.

(4)  Has not been found guilty or previously convicted or

adjudicated delinquent for violating any of the following

provisions or an equivalent offense under the laws of the

United States or one of its territories or possessions,

another state, the District of Columbia, the Commonwealth of

Puerto Rico or a foreign nation:

[18 Pa.C.S. § 4302 (relating to incest).]

18 Pa.C.S. § 5901 (relating to open lewdness).

18 Pa.C.S. § 6312 (relating to sexual abuse of

children).

18 Pa.C.S. § 6318 (relating to unlawful contact with

minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of

children).

18 Pa.C.S. Ch. 76 Subch. C (relating to Internet

child pornography).

Received a criminal sentence pursuant to 42 Pa.C.S. §

9712.1 (relating to sentences for certain drug offenses

committed with firearms).

Any offense listed under 42 Pa.C.S. § 9795.1

(relating to registration).

(5)  Is not awaiting trial or sentencing for additional

criminal charges, if a conviction or sentence on the

additional charges would cause the defendant to become

ineligible under this definition.

(6)  Has not been found guilty or previously convicted of

violating section 13(a)(14), (30) or (37) of the act of April

14, 1972 (P.L.233, No.64), known as The Controlled Substance,

Drug, Device and Cosmetic Act, where the sentence was imposed

pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii),

(4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking

sentencing and penalties).

* * *

Section 7.  This act shall take effect in 60 days.