THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY DeLUCA, D. COSTA, KOTIK, M. O'BRIEN AND READSHAW, FEBRUARY 2, 2011

REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 2, 2011  

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, further providing for

sentences for offenses committed with firearms.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 9712 of Title 42 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 9712.  Sentences for offenses committed with firearms.

(a)  Mandatory sentence.--Except as provided under section

9716 (relating to two or more mandatory minimum sentences

applicable), any person who is convicted in any court of this

Commonwealth of a crime of violence as defined in section

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

offenses), shall, if the person visibly possessed a firearm or a

replica of a firearm, whether or not the firearm or replica was

loaded or functional, that placed the victim in reasonable fear

of death or serious bodily injury, during the commission of the

offense, be sentenced to a minimum sentence of at least five

years of total confinement notwithstanding any other provision

of this title or other statute to the contrary. Such persons

shall not be eligible for parole, probation, work release or

furlough. The mandatory sentence imposed under this subsection

shall be imposed consecutively to any other sentence imposed by

the court.

(b)  Proof at sentencing.--Provisions of this section shall

not be an element of the crime and notice thereof to the

defendant shall not be required prior to conviction, but

reasonable notice of the Commonwealth's intention to proceed

under this section shall be provided after conviction and before

sentencing. The applicability of this section shall be

determined at sentencing. The court shall consider any evidence

presented at trial and shall afford the Commonwealth and the

defendant an opportunity to present any necessary additional

evidence and shall determine, by a preponderance of the

evidence, if this section is applicable.

(c)  Authority of court in sentencing.--There shall be no

authority in any court to impose on an offender to which this

section is applicable any lesser sentence than provided for in

subsection (a) [or], to place such offender on probation [or], 

to suspend sentence or to impose the mandatory sentence

concurrent to any other sentence. Nothing in this section shall

prevent the sentencing court from imposing a sentence greater

than that provided in this section. Sentencing guidelines

promulgated by the Pennsylvania Commission on Sentencing shall

not supersede the mandatory sentences provided in this section.

(d)  Appeal by Commonwealth.--If a sentencing court refuses

to apply this section where applicable, the Commonwealth shall

have the right to appellate review of the action of the

sentencing court. The appellate court shall vacate the sentence

and remand the case to the sentencing court for imposition of a

sentence in accordance with this section if it finds that the

sentence was imposed in violation of this section.

(e)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Firearm."  Any weapon, including a starter gun, which will

or is designed to or may readily be converted to expel a

projectile by the action of an explosive or the expansion of gas

therein.

"Replica of a firearm."  An item that can reasonably be

perceived to be a firearm.

Section 2.  This act shall take effect in 60 days.