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HOUSE AMENDED
PRIOR PRINTER'S NOS. 1400, 1679
PRINTER'S NO. 2109
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1062
Session of
2015
INTRODUCED BY RAFFERTY, SABATINA, EICHELBERGER, FONTANA,
YUDICHAK, COSTA, TARTAGLIONE, WOZNIAK, BOSCOLA, AUMENT,
MENSCH, HUGHES, FARNESE AND BROWNE, NOVEMBER 13, 2015
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
SEPTEMBER 28, 2016
AN ACT
Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in burglary and other criminal intrusions, further
providing for burglary; IN MINORS, FURTHER PROVIDING FOR
SENTENCING AND PENALTIES FOR TRAFFICKING DRUGS TO MINORS AND
FOR DRUG-FREE SCHOOL ZONES; IN OTHER OFFENSES, FURTHER
PROVIDING FOR DRUG TRAFFICKING SENTENCING AND PENALTIES; AND,
IN SENTENCING, FURTHER PROVIDING FOR SENTENCES FOR OFFENSES
COMMITTED WITH FIREARMS, FOR SENTENCES FOR CERTAIN DRUG
OFFENSES COMMITTED WITH FIREARMS, FOR SENTENCES FOR OFFENSES
COMMITTED ON PUBLIC TRANSPORTATION, FOR SENTENCES FOR
OFFENSES AGAINST ELDERLY PERSONS, FOR SENTENCES FOR OFFENSES
AGAINST INFANT PERSONS, FOR SENTENCE FOR FAILURE TO COMPLY
WITH REGISTRATION OF SEXUAL OFFENDERS, FOR SENTENCES FOR
OFFENSES COMMITTED WHILE IMPERSONATING A LAW ENFORCEMENT
OFFICER and, in sentencing, providing for sentencing for
burglary.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 3502(a)(1) of Title 18 of the
Pennsylvania Consolidated Statutes is amended and the section is
amended by adding a subsection to read:
§ 3502. Burglary.
(a) Offense defined.--A person commits the offense of
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burglary if, with the intent to commit a crime therein, the
person:
(1) (i) enters a building or occupied structure, or
separately secured or occupied portion thereof, that is
adapted for overnight accommodations in which at the time
of the offense any person is present and the person
commits, attempts or threatens to commit a bodily injury
crime therein;
(II) ENTERS A BUILDING OR OCCUPIED STRUCTURE, OR
SEPARATELY SECURED OR OCCUPIED PORTION THEREOF, THAT IS
ADAPTED FOR OVERNIGHT ACCOMMODATIONS IN WHICH AT THE TIME
OF THE OFFENSE ANY MINOR IS PRESENT;
(ii) (III) enters a building or occupied structure,
or separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the time
of the offense any person is present;
* * *
(e) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Bodily injury crime." As follows:
(1) An act, attempt or threat to commit an act which
would constitute a misdemeanor or felony under the following:
Chapter 25 (relating to criminal homicide).
Chapter 27 (relating to assault).
Chapter 29 (relating to kidnapping).
Chapter 31 (relating to sexual offenses).
Section 3301 (relating to arson and related
offenses).
Chapter 37 (relating to robbery).
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Chapter 49 Subch. B (relating to victim and witness
intimidation).
(2) The term includes violations of any protective order
issued as a result of an act related to domestic violence.
SECTION 2. SECTIONS 6314, 6317 AND 7508(A), (B) AND (D) OF
TITLE 18 ARE AMENDED TO READ:
§ 6314. SENTENCING AND PENALTIES FOR TRAFFICKING DRUGS TO
MINORS.
(A) GENERAL RULE.--A PERSON OVER 18 YEARS OF AGE WHO IS
CONVICTED IN ANY COURT OF THIS COMMONWEALTH OF A VIOLATION OF
SECTION 13(A)(14) OR (30) OF THE ACT OF APRIL 14, 1972 (P.L.233,
NO.64), KNOWN AS THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
COSMETIC ACT, SHALL, IF THE DELIVERY OR POSSESSION WITH INTENT
TO DELIVER OF THE CONTROLLED SUBSTANCE WAS TO A MINOR, BE
SENTENCED TO A MINIMUM SENTENCE OF AT LEAST ONE YEAR TOTAL
CONFINEMENT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS TITLE
OR OTHER STATUTE TO THE CONTRARY.
(B) ADDITIONAL PENALTIES.--IN ADDITION TO THE MANDATORY
MINIMUM SENTENCE SET FORTH IN SUBSECTION (A), THE PERSON SHALL
BE SENTENCED TO AN ADDITIONAL MINIMUM SENTENCE OF AT LEAST TWO
YEARS TOTAL CONFINEMENT, NOTWITHSTANDING ANY OTHER PROVISION OF
THIS TITLE OR OTHER STATUTE TO THE CONTRARY, IF THE PERSON DID
ANY OF THE FOLLOWING:
(1) COMMITTED THE OFFENSE WITH THE INTENT TO PROMOTE THE
HABITUAL USE OF THE CONTROLLED SUBSTANCE.
(2) INTENDED TO ENGAGE THE MINOR IN THE TRAFFICKING,
TRANSPORTATION, DELIVERY, MANUFACTURING, SALE OR CONVEYANCE.
(3) COMMITTED THE OFFENSE WITHIN 1,000 FEET OF THE REAL
PROPERTY ON WHICH IS LOCATED A PUBLIC, PRIVATE OR PAROCHIAL
SCHOOL OR A COLLEGE OR UNIVERSITY.
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(4) COMMITTED THE OFFENSE ON A SCHOOL BUS OR WITHIN 500
FEET OF A SCHOOL BUS STOP.
(C) [PROOF AT SENTENCING.--THE PROVISIONS OF THIS SECTION
SHALL NOT BE AN ELEMENT OF THE CRIME. NOTICE OF THE
APPLICABILITY OF THIS SECTION 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 EVIDENCE PRESENTED AT TRIAL, SHALL
AFFORD THE COMMONWEALTH AND THE DEFENDANT AN OPPORTUNITY TO
PRESENT NECESSARY ADDITIONAL EVIDENCE, AND SHALL DETERMINE, BY A
PREPONDERANCE OF THE EVIDENCE, IF THIS SECTION IS APPLICABLE.]
APPLICATION OF MANDATORY MINIMUM PENALTY.--ANY PROVISION OF THIS
SECTION THAT REQUIRES IMPOSITION OF A MANDATORY MINIMUM SENTENCE
SHALL CONSTITUTE AN ELEMENT ENHANCING THE UNDERLYING OFFENSE.
ANY ENHANCING ELEMENT MUST BE PROVEN BEYOND A REASONABLE DOUBT
AT TRIAL ON THE UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE
FACT-FINDER FOR DELIBERATION TOGETHER WITH THE UNDERLYING
OFFENSE. IF THE FACT-FINDER FINDS THE DEFENDANT GUILTY OF THE
UNDERLYING OFFENSE, THE FACT-FINDER SHALL THEN ALSO DECIDE
WHETHER ANY ENHANCING ELEMENT HAS BEEN PROVEN.
(D) AUTHORITY OF COURT IN SENTENCING.--THERE SHALL BE NO
AUTHORITY FOR A COURT TO IMPOSE ON A DEFENDANT TO WHICH THIS
SECTION IS APPLICABLE A LESSER SENTENCE THAN PROVIDED FOR IN
[SUBSECTION (A)] SUBSECTIONS (A) AND (B), TO PLACE THE DEFENDANT
ON PROBATION OR TO SUSPEND 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
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SENTENCING SHALL NOT SUPERSEDE THE MANDATORY SENTENCES PROVIDED
IN THIS SECTION. DISPOSITION UNDER SECTION 17 OR 18 OF THE
CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT SHALL NOT BE
AVAILABLE TO A DEFENDANT TO WHICH THIS SECTION APPLIES.
(E) 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.] IF THE FACT-
FINDER HAS FOUND ANY ENHANCING ELEMENT AND A SENTENCING COURT
IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE, THE
COMMONWEALTH SHALL HAVE THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT SHALL VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
(F) FORFEITURE.--ASSETS AGAINST WHICH A FORFEITURE PETITION
HAS BEEN FILED AND IS PENDING OR AGAINST WHICH THE COMMONWEALTH
HAS INDICATED AN INTENTION TO FILE A FORFEITURE PETITION SHALL
NOT BE SUBJECT TO A FINE UNDER THIS SECTION.
(G) DEFINITION.--AS USED IN THIS SECTION, THE TERM "MINOR"
MEANS AN INDIVIDUAL UNDER 18 YEARS OF AGE.
§ 6317. DRUG-FREE SCHOOL ZONES.
(A) GENERAL RULE.--A PERSON 18 YEARS OF AGE OR OLDER WHO IS
CONVICTED IN ANY COURT OF THIS COMMONWEALTH OF A VIOLATION OF
SECTION 13(A)(14) OR (30) OF THE ACT OF APRIL 14, 1972 (P.L.233,
NO.64), KNOWN AS THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
COSMETIC ACT, SHALL, IF THE DELIVERY OR POSSESSION WITH INTENT
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TO DELIVER OF THE CONTROLLED SUBSTANCE OCCURRED WITHIN 1,000
FEET OF THE REAL PROPERTY ON WHICH IS LOCATED A PUBLIC, PRIVATE
OR PAROCHIAL SCHOOL OR A COLLEGE OR UNIVERSITY OR WITHIN 250
FEET OF THE REAL PROPERTY ON WHICH IS LOCATED A RECREATION
CENTER OR PLAYGROUND OR ON A SCHOOL BUS, BE SENTENCED TO A
MINIMUM SENTENCE OF AT LEAST TWO YEARS OF TOTAL CONFINEMENT,
NOTWITHSTANDING ANY OTHER PROVISION OF THIS TITLE, THE
CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT OR OTHER
STATUTE TO THE CONTRARY. THE MAXIMUM TERM OF IMPRISONMENT SHALL
BE FOUR YEARS FOR ANY OFFENSE:
(1) SUBJECT TO THIS SECTION; AND
(2) FOR WHICH THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
COSMETIC ACT PROVIDES FOR A MAXIMUM TERM OF IMPRISONMENT OF
LESS THAN FOUR YEARS.
IF THE SENTENCING COURT FINDS THAT THE DELIVERY OR POSSESSION
WITH INTENT TO DELIVER WAS TO AN INDIVIDUAL UNDER 18 YEARS OF
AGE, THEN THIS SECTION SHALL NOT BE APPLICABLE AND THE OFFENSE
SHALL BE SUBJECT TO SECTION 6314 (RELATING TO SENTENCING AND
PENALTIES FOR TRAFFICKING DRUGS TO MINORS).
(B) [PROOF AT SENTENCING.--THE PROVISIONS OF THIS SECTION
SHALL NOT BE AN ELEMENT OF THE CRIME. NOTICE OF THE
APPLICABILITY OF THIS SECTION 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 EVIDENCE PRESENTED AT TRIAL, SHALL
AFFORD THE COMMONWEALTH AND THE DEFENDANT AN OPPORTUNITY TO
PRESENT NECESSARY ADDITIONAL EVIDENCE AND SHALL DETERMINE BY A
PREPONDERANCE OF THE EVIDENCE IF THIS SECTION IS APPLICABLE.]
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APPLICATION OF MANDATORY MINIMUM PENALTY.--ANY PROVISION OF THIS
SECTION THAT REQUIRES IMPOSITION OF A MANDATORY MINIMUM SENTENCE
SHALL CONSTITUTE AN ELEMENT ENHANCING THE UNDERLYING OFFENSE.
ANY ENHANCING ELEMENT MUST BE PROVEN BEYOND A REASONABLE DOUBT
AT TRIAL ON THE UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE
FACT-FINDER FOR DELIBERATION TOGETHER WITH THE UNDERLYING
OFFENSE. IF THE FACT-FINDER FINDS THE DEFENDANT GUILTY OF THE
UNDERLYING OFFENSE, THE FACT-FINDER SHALL THEN ALSO DECIDE
WHETHER ANY ENHANCING ELEMENT HAS BEEN PROVEN.
(C) AUTHORITY OF COURT IN SENTENCING.--THERE SHALL BE NO
AUTHORITY FOR A COURT TO IMPOSE ON A DEFENDANT TO WHICH THIS
SECTION IS APPLICABLE A LESSER SENTENCE THAN PROVIDED FOR IN
SUBSECTION (A), TO PLACE THE DEFENDANT ON PROBATION OR TO
SUSPEND 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. DISPOSITION
UNDER SECTION 17 OR 18 OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT SHALL NOT BE AVAILABLE TO A DEFENDANT TO WHICH
THIS SECTION APPLIES.
(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.] IF THE FACT-
FINDER HAS FOUND ANY ENHANCING ELEMENT AND A SENTENCING COURT
IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE, THE
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COMMONWEALTH SHALL HAVE THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT SHALL VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
§ 7508. DRUG TRAFFICKING SENTENCING AND PENALTIES.
(A) GENERAL RULE.--NOTWITHSTANDING ANY OTHER PROVISIONS OF
THIS OR ANY OTHER ACT TO THE CONTRARY, THE FOLLOWING PROVISIONS
SHALL APPLY:
(1) A PERSON WHO IS 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 CONTROLLED SUBSTANCE IS MARIJUANA
SHALL, UPON CONVICTION, BE SENTENCED TO A MANDATORY MINIMUM
TERM OF IMPRISONMENT AND A FINE AS SET FORTH IN THIS
SUBSECTION:
(I) WHEN THE AMOUNT OF MARIJUANA INVOLVED IS AT
LEAST TWO POUNDS, BUT LESS THAN TEN POUNDS, OR AT LEAST
TEN LIVE PLANTS BUT LESS THAN 21 LIVE PLANTS[; ONE YEAR
IN PRISON AND A FINE OF $5,000 OR SUCH LARGER AMOUNT AS
IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER], AND IF AT
THE TIME OF SENTENCING THE DEFENDANT HAS BEEN CONVICTED
OF ANOTHER DRUG TRAFFICKING OFFENSE: [TWO YEARS] ONE YEAR
IN PRISON AND A FINE OF $10,000 OR SUCH LARGER AMOUNT AS
IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY;
(II) WHEN THE AMOUNT OF MARIJUANA INVOLVED IS AT
LEAST TEN POUNDS, BUT LESS THAN 50 POUNDS, OR AT LEAST 21
LIVE PLANTS BUT LESS THAN 51 LIVE PLANTS; [THREE YEARS]
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ONE YEAR IN PRISON AND A FINE OF $15,000 OR SUCH LARGER
AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN
AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER, IF
AT THE TIME OF SENTENCING THE DEFENDANT HAS BEEN
CONVICTED OF ANOTHER DRUG TRAFFICKING OFFENSE: [FOUR] TWO
YEARS IN PRISON AND A FINE OF $30,000 OR SUCH LARGER
AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN
AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY; AND
(III) WHEN THE AMOUNT OF MARIJUANA INVOLVED IS AT
LEAST 50 POUNDS, OR AT LEAST 51 LIVE PLANTS; [FIVE] THREE
YEARS IN PRISON AND A FINE OF $50,000 OR SUCH LARGER
AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN
AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY[.]; HOWEVER,
IF AT THE TIME OF SENTENCING THE DEFENDANT HAS BEEN
CONVICTED OF ANOTHER DRUG TRAFFICKING OFFENSE: FIVE YEARS
IN PRISON AND A FINE OF $50,000 OR SUCH LARGER AMOUNT AS
IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY.
(2) A PERSON WHO IS CONVICTED OF VIOLATING SECTION 13(A)
(14), (30) OR (37) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT WHERE THE CONTROLLED SUBSTANCE OR A MIXTURE
CONTAINING IT IS CLASSIFIED IN SCHEDULE I OR SCHEDULE II
UNDER SECTION 4 OF THAT ACT AND IS A NARCOTIC DRUG SHALL,
UPON CONVICTION, BE SENTENCED TO A MANDATORY MINIMUM TERM OF
IMPRISONMENT AND A FINE AS SET FORTH IN THIS SUBSECTION:
(I) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 2.0
GRAMS AND LESS THAN TEN GRAMS; TWO YEARS IN PRISON AND A
FINE OF $5,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO
EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE
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ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF SENTENCING
THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER DRUG
TRAFFICKING OFFENSE: THREE YEARS IN PRISON AND $10,000 OR
SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY;
(II) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST TEN
GRAMS AND LESS THAN 100 GRAMS; THREE YEARS IN PRISON AND
A FINE OF $15,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT
TO EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM
THE ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF
SENTENCING THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER
DRUG TRAFFICKING OFFENSE: FIVE YEARS IN PRISON AND
$30,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST
THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL
ACTIVITY; AND
(III) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 100
GRAMS; FIVE YEARS IN PRISON AND A FINE OF $25,000 OR SUCH
LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY;
HOWEVER, IF AT THE TIME OF SENTENCING THE DEFENDANT HAS
BEEN CONVICTED OF ANOTHER DRUG TRAFFICKING OFFENSE: SEVEN
YEARS IN PRISON AND $50,000 OR SUCH LARGER AMOUNT AS IS
SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY.
(3) A PERSON WHO IS CONVICTED OF VIOLATING SECTION 13(A)
(14), (30) OR (37) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT WHERE THE CONTROLLED SUBSTANCE IS COCA
LEAVES OR IS ANY SALT, COMPOUND, DERIVATIVE OR PREPARATION OF
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COCA LEAVES OR IS ANY SALT, COMPOUND, DERIVATIVE OR
PREPARATION WHICH IS CHEMICALLY EQUIVALENT OR IDENTICAL WITH
ANY OF THESE SUBSTANCES OR IS ANY MIXTURE CONTAINING ANY OF
THESE SUBSTANCES EXCEPT DECOCAINIZED COCA LEAVES OR EXTRACTS
OF COCA LEAVES WHICH (EXTRACTS) DO NOT CONTAIN COCAINE OR
ECGONINE SHALL, UPON CONVICTION, BE SENTENCED TO A MANDATORY
MINIMUM TERM OF IMPRISONMENT AND A FINE AS SET FORTH IN THIS
SUBSECTION:
(I) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST
[2.0] 5.0 GRAMS AND LESS THAN [TEN] 25 GRAMS; ONE YEAR IN
PRISON AND A FINE OF $5,000 OR SUCH LARGER AMOUNT AS IS
SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER, IF AT THE
TIME OF SENTENCING THE DEFENDANT HAS BEEN CONVICTED OF
ANOTHER DRUG TRAFFICKING OFFENSE: [THREE] TWO YEARS IN
PRISON AND $10,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT
TO EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM
THE ILLEGAL ACTIVITY;
(II) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST
[TEN] 25 GRAMS AND LESS THAN 100 GRAMS; [THREE] TWO YEARS
IN PRISON AND A FINE OF $15,000 OR SUCH LARGER AMOUNT AS
IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER, IF AT THE
TIME OF SENTENCING THE DEFENDANT HAS BEEN CONVICTED OF
ANOTHER DRUG TRAFFICKING OFFENSE: [FIVE] FOUR YEARS IN
PRISON AND $30,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT
TO EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM
THE ILLEGAL ACTIVITY; AND
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(III) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE OF THE SUBSTANCE INVOLVED IS AT LEAST 100 GRAMS;
FOUR YEARS IN PRISON AND A FINE OF $25,000 OR SUCH LARGER
AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN
AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER, IF
AT THE TIME OF SENTENCING THE DEFENDANT HAS BEEN
CONVICTED OF ANOTHER DRUG TRAFFICKING OFFENSE: [SEVEN]
EIGHT YEARS IN PRISON AND $50,000 OR SUCH LARGER AMOUNT
AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND
THE PROCEEDS FROM THE ILLEGAL ACTIVITY.
(4) A PERSON WHO IS CONVICTED OF VIOLATING SECTION 13(A)
(14), (30) OR (37) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT WHERE THE CONTROLLED SUBSTANCE IS
METHAMPHETAMINE OR PHENCYCLIDINE OR IS A SALT, ISOMER OR SALT
OF AN ISOMER OF METHAMPHETAMINE OR PHENCYCLIDINE OR IS A
MIXTURE CONTAINING METHAMPHETAMINE OR PHENCYCLIDINE,
CONTAINING A SALT OF METHAMPHETAMINE OR PHENCYCLIDINE,
CONTAINING AN ISOMER OF METHAMPHETAMINE OR PHENCYCLIDINE,
CONTAINING A SALT OF AN ISOMER OF METHAMPHETAMINE OR
PHENCYCLIDINE SHALL, UPON CONVICTION, BE SENTENCED TO A
MANDATORY MINIMUM TERM OF IMPRISONMENT AND A FINE AS SET
FORTH IN THIS SUBSECTION:
(I) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST
FIVE GRAMS AND LESS THAN TEN GRAMS; THREE YEARS IN PRISON
AND A FINE OF $15,000 OR SUCH LARGER AMOUNT AS IS
SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER, IF AT THE
TIME OF SENTENCING THE DEFENDANT HAS BEEN CONVICTED OF
ANOTHER DRUG TRAFFICKING OFFENSE: FIVE YEARS IN PRISON
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AND $30,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO
EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE
ILLEGAL ACTIVITY;
(II) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST TEN
GRAMS AND LESS THAN 100 GRAMS; FOUR YEARS IN PRISON AND A
FINE OF $25,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO
EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE
ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF SENTENCING
THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER DRUG
TRAFFICKING OFFENSE: SEVEN YEARS IN PRISON AND $50,000 OR
SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY;
AND
(III) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 100
GRAMS; FIVE YEARS IN PRISON AND A FINE OF $50,000 OR SUCH
LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY;
HOWEVER, IF AT THE TIME OF SENTENCING THE DEFENDANT HAS
BEEN CONVICTED OF ANOTHER DRUG TRAFFICKING OFFENSE: EIGHT
YEARS IN PRISON AND $50,000 OR SUCH LARGER AMOUNT AS IS
SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY.
[(5) A PERSON WHO IS CONVICTED OF VIOLATING SECTION
13(A)(14), (30) OR (37) OF THE CONTROLLED SUBSTANCE, DRUG,
DEVICE AND COSMETIC ACT, AND WHO, IN THE COURSE OF THE
OFFENSE, MANUFACTURES, DELIVERS, BRINGS INTO THIS
COMMONWEALTH OR POSSESSES WITH INTENT TO MANUFACTURE OR
DELIVER AMPHETAMINE OR ANY SALT, OPTICAL ISOMER, OR SALT OF
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AN OPTICAL ISOMER, OR A MIXTURE CONTAINING ANY SUCH
SUBSTANCES SHALL, WHEN THE AGGREGATE WEIGHT OF THE COMPOUND
OR MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST FIVE
GRAMS, BE SENTENCED TO TWO AND ONE-HALF YEARS IN PRISON AND A
FINE OF $15,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO
EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE
ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF SENTENCING THE
DEFENDANT HAS BEEN CONVICTED OF ANOTHER DRUG TRAFFICKING
OFFENSE: BE SENTENCED TO FIVE YEARS IN PRISON AND $30,000 OR
SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY.
(6) A PERSON WHO IS CONVICTED OF VIOLATING SECTION 13(A)
(14), (30) OR (37) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT WHERE THE CONTROLLED SUBSTANCE IS
METHAQUALONE SHALL, UPON CONVICTION, BE SENTENCED TO A
MANDATORY MINIMUM TERM OF IMPRISONMENT AND A FINE AS SET
FORTH IN THIS SUBSECTION:
(I) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 50
TABLETS, CAPSULES, CAPLETS OR OTHER DOSAGE UNITS, OR 25
GRAMS AND LESS THAN 200 TABLETS, CAPSULES, CAPLETS OR
OTHER DOSAGE UNITS, OR 100 GRAMS; ONE YEAR IN PRISON AND
A FINE OF $2,500 OR SUCH LARGER AMOUNT AS IS SUFFICIENT
TO EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM
THE ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF
SENTENCING THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER
DRUG TRAFFICKING OFFENSE: THREE YEARS IN PRISON AND
$5,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST
THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL
ACTIVITY; AND
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(II) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 200
TABLETS, CAPSULES, CAPLETS OR OTHER DOSAGE UNITS, OR MORE
THAN 100 GRAMS; TWO AND ONE-HALF YEARS IN PRISON AND A
FINE OF $15,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO
EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE
ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF SENTENCING
THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER DRUG
TRAFFICKING OFFENSE: FIVE YEARS IN PRISON AND $30,000 OR
SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY.]
(7) A PERSON WHO IS CONVICTED OF VIOLATING SECTION 13(A)
(14), (30) OR (37) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT WHERE THE CONTROLLED SUBSTANCE OR A MIXTURE
CONTAINING IT IS HEROIN SHALL, UPON CONVICTION, BE SENTENCED
AS SET FORTH IN THIS PARAGRAPH:
(I) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE HEROIN INVOLVED IS AT LEAST 1.0
GRAM BUT LESS THAN 5.0 GRAMS THE SENTENCE SHALL BE A
MANDATORY MINIMUM TERM OF TWO YEARS IN PRISON AND A FINE
OF $5,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO
EXHAUST THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE
ILLEGAL ACTIVITY; HOWEVER, IF AT THE TIME OF SENTENCING
THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER DRUG
TRAFFICKING OFFENSE: A MANDATORY MINIMUM TERM OF THREE
YEARS IN PRISON AND $10,000 OR SUCH LARGER AMOUNT AS IS
SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY;
(II) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE HEROIN INVOLVED IS AT LEAST 5.0
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GRAMS BUT LESS THAN 50 GRAMS: A MANDATORY MINIMUM TERM OF
THREE YEARS IN PRISON AND A FINE OF $15,000 OR SUCH
LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS
UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY;
HOWEVER, IF AT THE TIME OF SENTENCING THE DEFENDANT HAS
BEEN CONVICTED OF ANOTHER DRUG TRAFFICKING OFFENSE: A
MANDATORY MINIMUM TERM OF FIVE YEARS IN PRISON AND
$30,000 OR SUCH LARGER AMOUNT AS IS SUFFICIENT TO EXHAUST
THE ASSETS UTILIZED IN AND THE PROCEEDS FROM THE ILLEGAL
ACTIVITY; AND
(III) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE HEROIN INVOLVED IS 50 GRAMS OR
GREATER: A MANDATORY MINIMUM TERM OF FIVE YEARS IN PRISON
AND A FINE OF $25,000 OR SUCH LARGER AMOUNT AS IS
SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND THE
PROCEEDS FROM THE ILLEGAL ACTIVITY; HOWEVER, IF AT THE
TIME OF SENTENCING THE DEFENDANT HAS BEEN CONVICTED OF
ANOTHER DRUG TRAFFICKING OFFENSE: A MANDATORY MINIMUM
TERM OF SEVEN YEARS IN PRISON AND $50,000 OR SUCH LARGER
AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN
AND THE PROCEEDS FROM THE ILLEGAL ACTIVITY.
(8) A PERSON WHO IS CONVICTED OF VIOLATING SECTION 13(A)
(12), (14) OR (30) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT WHERE THE CONTROLLED SUBSTANCE OR A MIXTURE
CONTAINING IT IS 3,4-METHYLENEDIOXYAMPHETAMINE (MDA); 3,4-
METHYLENEDIOXYMETHAMPHETAMINE (MDMA); 5-METHOXY-3,4-
METHYLENEDIOXYAMPHETAMINE (MMDA); 3,4-METHYLENEDIOXY-N-
ETHYLAMPHETAMINE; N-HYDROXY-3,4-METHYLENEDIOXYAMPHETAMINE; OR
THEIR SALTS, ISOMERS AND SALTS OF ISOMERS, WHENEVER THE
EXISTENCE OF SUCH SALTS, ISOMERS AND SALTS OF ISOMERS IS
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POSSIBLE WITHIN THE SPECIFIC CHEMICAL DESIGNATION, SHALL,
UPON CONVICTION, BE SENTENCED AS SET FORTH IN THIS PARAGRAPH:
(I) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 50
TABLETS, CAPSULES, CAPLETS OR OTHER DOSAGE UNITS, OR 15
GRAMS AND LESS THAN 100 TABLETS, CAPSULES, CAPLETS OR
OTHER DOSAGE UNITS, OR LESS THAN 30 GRAMS, THE PERSON IS
GUILTY OF A FELONY AND, UPON CONVICTION THEREOF, SHALL BE
SENTENCED TO IMPRISONMENT NOT EXCEEDING FIVE YEARS OR TO
PAY A FINE NOT EXCEEDING $15,000, OR BOTH.
(II) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST 100
TABLETS, CAPSULES, CAPLETS OR OTHER DOSAGE UNITS, OR 30
GRAMS AND LESS THAN 1,000 TABLETS, CAPSULES, CAPLETS OR
OTHER DOSAGE UNITS, OR LESS THAN 300 GRAMS, THE PERSON IS
GUILTY OF A FELONY AND, UPON CONVICTION THEREOF, SHALL BE
SENTENCED TO IMPRISONMENT NOT EXCEEDING TEN YEARS OR TO
PAY A FINE NOT EXCEEDING $100,000, OR BOTH.
(III) WHEN THE AGGREGATE WEIGHT OF THE COMPOUND OR
MIXTURE CONTAINING THE SUBSTANCE INVOLVED IS AT LEAST
1,000 TABLETS, CAPSULES, CAPLETS OR OTHER DOSAGE UNITS,
OR 300 GRAMS, THE PERSON IS GUILTY OF A FELONY AND, UPON
CONVICTION THEREOF, SHALL BE SENTENCED TO IMPRISONMENT
NOT EXCEEDING 15 YEARS OR TO PAY A FINE NOT EXCEEDING
$250,000, OR BOTH.
* * *
(B) [PROOF OF SENTENCING.--PROVISIONS OF THIS SECTION SHALL
NOT BE AN ELEMENT OF THE CRIME. NOTICE OF THE APPLICABILITY OF
THIS SECTION TO THE DEFENDANT SHALL NOT BE REQUIRED PRIOR TO
CONVICTION, BUT REASONABLE NOTICE OF THE COMMONWEALTH'S
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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 EVIDENCE PRESENTED AT TRIAL, SHALL AFFORD THE
COMMONWEALTH AND THE DEFENDANT AN OPPORTUNITY TO PRESENT
NECESSARY ADDITIONAL EVIDENCE AND SHALL DETERMINE, BY A
PREPONDERANCE OF THE EVIDENCE, IF THIS SECTION IS APPLICABLE.]
APPLICATION OF MANDATORY MINIMUM PENALTY.--WITH THE EXCEPTION OF
PRIOR CONVICTIONS, ANY PROVISION OF THIS SECTION THAT REQUIRES
IMPOSITION OF A MANDATORY MINIMUM SENTENCE SHALL CONSTITUTE AN
ELEMENT ENHANCING THE UNDERLYING OFFENSE. ANY ENHANCING ELEMENT
MUST BE PROVEN BEYOND A REASONABLE DOUBT AT TRIAL ON THE
UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE FACT-FINDER FOR
DELIBERATION TOGETHER WITH THE UNDERLYING OFFENSE. IF THE FACT-
FINDER FINDS THE DEFENDANT GUILTY OF THE UNDERLYING OFFENSE, THE
FACT-FINDER SHALL THEN ALSO DECIDE WHETHER ANY ENHANCING ELEMENT
HAS BEEN PROVEN.
* * *
(D) [APPELLATE REVIEW.--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.] APPEAL BY THE
COMMONWEALTH.--IF THE FACT-FINDER HAS FOUND ANY ENHANCING
ELEMENT AND A SENTENCING COURT IMPOSES A SENTENCE BELOW THE
MANDATORY MINIMUM SENTENCE, THE COMMONWEALTH SHALL HAVE THE
RIGHT TO APPELLATE REVIEW OF THE SENTENCE. IF THE APPELLATE
COURT FINDS THAT THE MANDATORY SENTENCING PROVISION WAS
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APPLICABLE, THE COURT SHALL VACATE THE SENTENCE AND REMAND FOR
RESENTENCING IN ACCORDANCE WITH THAT PROVISION.
* * *
SECTION 3. SECTIONS 9712(B) AND (D), 9712.1(C) AND (E) AND
9713(C) AND (E) OF TITLE 42 ARE AMENDED TO READ:
§ 9712. SENTENCES FOR OFFENSES COMMITTED WITH FIREARMS.
* * *
(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.] APPLICATION OF
MANDATORY MINIMUM PENALTY.--ANY PROVISION OF THIS SECTION THAT
REQUIRES IMPOSITION OF A MANDATORY MINIMUM SENTENCE SHALL
CONSTITUTE AN ELEMENT ENHANCING THE UNDERLYING OFFENSE. ANY
ENHANCING ELEMENT MUST BE PROVEN BEYOND A REASONABLE DOUBT AT
TRIAL ON THE UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE
FACT-FINDER FOR DELIBERATION TOGETHER WITH THE UNDERLYING
OFFENSE. IF THE FACT-FINDER FINDS THE DEFENDANT GUILTY OF THE
UNDERLYING OFFENSE, THE FACT-FINDER SHALL THEN ALSO DECIDE
WHETHER ANY ENHANCING ELEMENT HAS BEEN PROVEN.
* * *
(D) APPEAL BY COMMONWEALTH.--[IF A SENTENCING COURT REFUSES
TO APPLY THIS SECTION WHERE APPLICABLE, THE COMMONWEALTH SHALL
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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.] IF THE FACT-
FINDER HAS FOUND ANY ENHANCING ELEMENT AND A SENTENCING COURT
IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE, THE
COMMONWEALTH SHALL HAVE THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT SHALL VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
* * *
§ 9712.1. SENTENCES FOR CERTAIN DRUG OFFENSES COMMITTED WITH
FIREARMS.
* * *
(C) [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.] APPLICATION OF
MANDATORY MINIMUM PENALTY.--ANY PROVISION OF THIS SECTION THAT
REQUIRES IMPOSITION OF A MANDATORY MINIMUM SENTENCE SHALL
CONSTITUTE AN ELEMENT ENHANCING THE UNDERLYING OFFENSE. ANY
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ENHANCING ELEMENT MUST BE PROVEN BEYOND A REASONABLE DOUBT AT
TRIAL ON THE UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE
FACT-FINDER FOR DELIBERATION TOGETHER WITH THE UNDERLYING
OFFENSE. IF THE FACT-FINDER FINDS THE DEFENDANT GUILTY OF THE
UNDERLYING OFFENSE, THE FACT-FINDER SHALL THEN ALSO DECIDE
WHETHER ANY ENHANCING ELEMENT HAS BEEN PROVEN.
* * *
(E) 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.] IF THE FACT-
FINDER HAS FOUND ANY ENHANCING ELEMENT AND A SENTENCING COURT
IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE, THE
COMMONWEALTH SHALL HAVE THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT SHALL VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
* * *
§ 9713. SENTENCES FOR OFFENSES COMMITTED ON PUBLIC
TRANSPORTATION.
* * *
(C) [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
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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.] APPLICATION OF
MANDATORY MINIMUM PENALTY.--ANY PROVISION OF THIS SECTION THAT
REQUIRES IMPOSITION OF A MANDATORY MINIMUM SENTENCE CONSTITUTES
AN ELEMENT ENHANCING THE UNDERLYING OFFENSE. AN ENHANCING
ELEMENT MUST BE PROVEN BEYOND A REASONABLE DOUBT AT TRIAL ON THE
UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE FINDER OF FACT
FOR DELIBERATION TOGETHER WITH THE UNDERLYING OFFENSE. IF THE
FINDER OF FACT DETERMINES THE DEFENDANT IS GUILTY OF THE
UNDERLYING OFFENSE, THE FINDER OF FACT WILL THEN DECIDE WHETHER
AN ENHANCING ELEMENT HAS BEEN PROVEN.
* * *
(E) 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.] IF THE
FINDER OF FACT HAS FOUND AN ENHANCING ELEMENT AND A SENTENCING
COURT IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE,
THE COMMONWEALTH HAS THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT MUST VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
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SECTION 4. SECTION 9717 OF TITLE 42 IS AMENDED BY ADDING
SUBSECTIONS TO READ:
§ 9717. SENTENCES FOR OFFENSES AGAINST ELDERLY PERSONS.
* * *
(C) APPLICATION OF MANDATORY MINIMUM PENALTY.--ANY PROVISION
OF THIS SECTION THAT REQUIRES IMPOSITION OF A MANDATORY MINIMUM
SENTENCE SHALL CONSTITUTE AN ELEMENT ENHANCING THE UNDERLYING
OFFENSE. AN ENHANCING ELEMENT MUST BE PROVEN BEYOND A REASONABLE
DOUBT AT TRIAL ON THE UNDERLYING OFFENSE AND MUST BE SUBMITTED
TO THE FINDER OF FACT FOR DELIBERATION TOGETHER WITH THE
UNDERLYING OFFENSE. IF THE FINDER OF FACT DETERMINES THE
DEFENDANT IS GUILTY OF THE UNDERLYING OFFENSE, THE FINDER OF
FACT SHALL THEN DECIDE WHETHER AN ENHANCING ELEMENT HAS BEEN
PROVEN.
(D) APPEAL BY COMMONWEALTH.--IF THE FINDER OF FACT HAS FOUND
AN ENHANCING ELEMENT AND A SENTENCING COURT IMPOSES A SENTENCE
BELOW THE MANDATORY MINIMUM SENTENCE, THE COMMONWEALTH HAS THE
RIGHT TO APPELLATE REVIEW OF THE SENTENCE. IF THE APPELLATE
COURT FINDS THAT THE MANDATORY SENTENCING PROVISION WAS
APPLICABLE, THE COURT MUST VACATE THE SENTENCE AND REMAND FOR
RESENTENCING IN ACCORDANCE WITH THAT PROVISION.
SECTION 5. SECTIONS 9718(C) AND (E), 9718.4 AND 9719(B) AND
(D) OF TITLE 42 ARE AMENDED TO READ:
§ 9718. SENTENCES FOR OFFENSES AGAINST INFANT PERSONS.
* * *
(C) [PROOF AT SENTENCING.--THE PROVISIONS OF THIS SECTION
SHALL NOT BE AN ELEMENT OF THE CRIME, AND NOTICE OF THE
PROVISIONS OF THIS SECTION 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
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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.] APPLICATION OF MANDATORY MINIMUM PENALTY.--ANY
PROVISION OF THIS SECTION THAT REQUIRES IMPOSITION OF A
MANDATORY MINIMUM SENTENCE CONSTITUTES AN ELEMENT ENHANCING THE
UNDERLYING OFFENSE. AN ENHANCING ELEMENT MUST BE PROVEN BEYOND A
REASONABLE DOUBT AT TRIAL ON THE UNDERLYING OFFENSE AND MUST BE
SUBMITTED TO THE FINDER OF FACT FOR DELIBERATION TOGETHER WITH
THE UNDERLYING OFFENSE. IF THE FINDER OF FACT DETERMINES THE
DEFENDANT IS GUILTY OF THE UNDERLYING OFFENSE, THE FINDER OF
FACT WILL THEN DECIDE WHETHER AN ENHANCING ELEMENT HAS BEEN
PROVEN.
* * *
(E) 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.] IF THE
FINDER OF FACT HAS FOUND AN ENHANCING ELEMENT AND A SENTENCING
COURT IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE,
THE COMMONWEALTH HAS THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT MUST VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
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PROVISION.
§ 9718.4. SENTENCE FOR FAILURE TO COMPLY WITH REGISTRATION OF
SEXUAL OFFENDERS.
(A) MANDATORY SENTENCE.--MANDATORY SENTENCING SHALL BE AS
FOLLOWS:
(1) SENTENCING UPON CONVICTION FOR A FIRST OFFENSE SHALL
BE AS FOLLOWS:
(I) NOT LESS THAN TWO YEARS FOR AN INDIVIDUAL WHO:
(A) IS SUBJECT TO SECTION 9799.13 (RELATING TO
APPLICABILITY) AND MUST REGISTER FOR A PERIOD OF 15
YEARS UNDER SECTION 9799.15 (RELATING TO PERIOD OF
REGISTRATION) OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A)(1) OR (2)
(RELATING TO FAILURE TO COMPLY WITH REGISTRATION
REQUIREMENTS).
(II) NOT LESS THAN THREE YEARS FOR AN INDIVIDUAL
WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 YEARS UNDER SECTION
9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A)(3).
(III) NOT LESS THAN THREE YEARS FOR AN INDIVIDUAL
WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A)(1) OR (2).
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(IV) NOT LESS THAN FIVE YEARS FOR AN INDIVIDUAL WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A)(3).
(2) SENTENCING UPON CONVICTION FOR A SECOND OR
SUBSEQUENT OFFENSE SHALL BE AS FOLLOWS:
(I) NOT LESS THAN FIVE YEARS FOR AN INDIVIDUAL WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 OR 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A)(1) OR (2).
(II) NOT LESS THAN SEVEN YEARS FOR AN INDIVIDUAL
WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 OR 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A)(3).
(A.1) TRANSIENTS AND MANDATORY SENTENCE.--MANDATORY
SENTENCING SHALL BE AS FOLLOWS:
(1) SENTENCING UPON CONVICTION FOR A FIRST OFFENSE SHALL
BE AS FOLLOWS:
(I) NOT LESS THAN TWO YEARS FOR AN INDIVIDUAL WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 YEARS UNDER SECTION
9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION [AND IS A TRANSIENT]; AND
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(B) VIOLATED 18 PA.C.S. § 4915.1(A.1)(1) OR (2).
(II) NOT LESS THAN THREE YEARS FOR AN INDIVIDUAL
WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 YEARS UNDER SECTION
9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION [AND IS TRANSIENT]; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A.1)(3).
(III) NOT LESS THAN THREE YEARS FOR AN INDIVIDUAL
WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION [AND IS TRANSIENT]; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A.1)(1) OR (2).
(IV) NOT LESS THAN FIVE YEARS FOR AN INDIVIDUAL WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION [AND IS A TRANSIENT]; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A.1)(3).
(2) SENTENCING UPON CONVICTION FOR A SECOND OR
SUBSEQUENT OFFENSE SHALL BE AS FOLLOWS:
(I) NOT LESS THAN FIVE YEARS FOR AN INDIVIDUAL WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 OR 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION [AND IS TRANSIENT]; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A.1)(1) OR (2).
(II) NOT LESS THAN SEVEN YEARS FOR AN INDIVIDUAL
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WHO:
(A) IS SUBJECT TO SECTION 9799.13 AND MUST
REGISTER FOR A PERIOD OF 15 OR 25 YEARS OR LIFE UNDER
SECTION 9799.15 OR A SIMILAR PROVISION FROM ANOTHER
JURISDICTION [AND IS A TRANSIENT]; AND
(B) VIOLATED 18 PA.C.S. § 4915.1(A.1)(3).
[(B) PROOF AT SENTENCING.--THE 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.]
(B.1) APPLICATION OF MANDATORY MINIMUM PENALTY.--ANY
PROVISION OF THIS SECTION THAT REQUIRES IMPOSITION OF A
MANDATORY MINIMUM SENTENCE SHALL CONSTITUTE AN ELEMENT ENHANCING
THE UNDERLYING OFFENSE. ANY ENHANCING ELEMENT MUST BE PROVEN
BEYOND A REASONABLE DOUBT AT TRIAL ON THE UNDERLYING OFFENSE AND
MUST BE SUBMITTED TO THE FACT-FINDER FOR DELIBERATION TOGETHER
WITH THE UNDERLYING OFFENSE. IF THE FACT-FINDER FINDS THE
DEFENDANT GUILTY OF THE UNDERLYING OFFENSE, THE FACT-FINDER
SHALL THEN ALSO DECIDE WHETHER ANY ENHANCING ELEMENT HAS BEEN
PROVEN.
(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
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SUBSECTION (A) OR (A.1) OR TO PLACE SUCH OFFENDER ON PROBATION
OR TO SUSPEND 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.] IF THE FACT-
FINDER HAS FOUND ANY ENHANCING ELEMENT AND A SENTENCING COURT
IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE, THE
COMMONWEALTH SHALL HAVE THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT SHALL VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
§ 9719. SENTENCES FOR OFFENSES COMMITTED WHILE IMPERSONATING A
LAW ENFORCEMENT OFFICER.
* * *
(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 SENTENCING COURT SHALL CONSIDER
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EVIDENCE PRESENTED AT TRIAL AND SHALL AFFORD THE COMMONWEALTH
AND THE DEFENDANT AN OPPORTUNITY TO PRESENT NECESSARY ADDITIONAL
EVIDENCE AND SHALL DETERMINE, BY A PREPONDERANCE OF THE
EVIDENCE, IF THIS SECTION IS APPLICABLE.] APPLICATION OF
MANDATORY MINIMUM PENALTY.--WITH THE EXCEPTION OF PRIOR
CONVICTIONS, ANY PROVISION OF THIS SECTION THAT REQUIRES
IMPOSITION OF A MANDATORY MINIMUM SENTENCE CONSTITUTES AN
ELEMENT ENHANCING THE UNDERLYING OFFENSE. AN ENHANCING ELEMENT
MUST BE PROVEN BEYOND A REASONABLE DOUBT AT TRIAL ON THE
UNDERLYING OFFENSE AND MUST BE SUBMITTED TO THE FINDER OF FACT
FOR DELIBERATION TOGETHER WITH THE UNDERLYING OFFENSE. IF THE
FINDER OF FACT DETERMINES THE DEFENDANT IS GUILTY OF THE
UNDERLYING OFFENSE, THE FINDER OF FACT WILL THEN DECIDE WHETHER
AN ENHANCING ELEMENT HAS BEEN PROVEN.
* * *
(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.] IF THE
FINDER OF FACT HAS FOUND AN ENHANCING ELEMENT AND A SENTENCING
COURT IMPOSES A SENTENCE BELOW THE MANDATORY MINIMUM SENTENCE,
THE COMMONWEALTH HAS THE RIGHT TO APPELLATE REVIEW OF THE
SENTENCE. IF THE APPELLATE COURT FINDS THAT THE MANDATORY
SENTENCING PROVISION WAS APPLICABLE, THE COURT MUST VACATE THE
SENTENCE AND REMAND FOR RESENTENCING IN ACCORDANCE WITH THAT
PROVISION.
* * *
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Section 2 6. Title 42 is amended by adding a section to
read:
§ 9720.7. Sentencing for burglary.
The Pennsylvania Commission on Sentencing, in accordance with
section 2154 (relating to adoption of guidelines for
sentencing), shall provide for a sentence enhancement within its
guidelines for an offense under 18 Pa.C.S. § 3502(a)(1)(i) AND
(II) (relating to burglary).
Section 3 7. This act shall take effect in 60 days.
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