PRINTER'S NO. 2430
No. 1920 Session of 1987
INTRODUCED BY CIVERA, MICOZZIE, FREIND, GANNON, ARTY, FLICK,
DURHAM, RAYMOND, BURNS, CLYMER, DIETTERICK, HASAY AND
SERAFINI, OCTOBER 28, 1987
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 28, 1987
AN ACT
1 Amending the act of April 14, 1972 (P.L.233, No.64), entitled
2 "An act relating to the manufacture, sale and possession of
3 controlled substances, other drugs, devices and cosmetics;
4 conferring powers on the courts and the secretary and
5 Department of Health, and a newly created Pennsylvania Drug,
6 Device and Cosmetic Board; establishing schedules of
7 controlled substances; providing penalties; requiring
8 registration of persons engaged in the drug trade and for the
9 revocation or suspension of certain licenses and
10 registrations; and repealing an act," further providing for
11 penalties and sentencing.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Section 13(f) and (k) of the act of April 14,
15 1972 (P.L.233, No.64), known as The Controlled Substance, Drug,
16 Device and Cosmetic Act, amended December 14, 1984 (P.L.988,
17 No.200) and July 3, 1985 (P.L.138, No.39), are amended to read:
18 Section 13. Prohibited Acts; Penalties.--* * *
19 (f) [Any] Except as provided in subsection (f.1), any person
20 who violates clause (12), (14) or (30) of subsection (a) with
21 respect to:
22 (1) A controlled substance or counterfeit substance
1 classified in Schedule I or II which is a narcotic drug, is
2 guilty of a felony and upon conviction thereof shall be
3 sentenced to imprisonment not exceeding fifteen years, or to pay
4 a fine not exceeding two hundred fifty thousand dollars
5 ($250,000), or both, or such larger amount as is sufficient to
6 exhaust the assets utilized in and the profits obtained from the
7 illegal activity.
8 (1.1) [Phencyclidine;] Any materials, compound, mixture or
9 preparation unless specifically excepted which contains any
10 quantity of phencyclidine; methamphetamine, including its salts,
11 isomers and salts of isomers; coca leaves and any salt,
12 compound, derivative or preparation of coca leaves; any salt,
13 compound, derivative or preparation of the preceding which is
14 chemically equivalent or identical with any of these substances,
15 except [decocanized] decocainized coca leaves or extracts of
16 coca leaves, which extracts do not contain cocaine or ecgonine;
17 and marihuana in a quantity in excess of one thousand (1,000)
18 pounds, is guilty of a felony and upon conviction thereof shall
19 be sentenced to imprisonment not exceeding ten years, or to pay
20 a fine not exceeding one hundred thousand dollars ($100,000), or
21 both, or such larger amount as is sufficient to exhaust the
22 assets utilized in and the profits obtained from the illegal
23 manufacture or distribution of these substances.
24 (2) Any other controlled substance or counterfeit substance
25 classified in Schedule I, II, or III, is guilty of a felony and
26 upon conviction thereof shall be sentenced to imprisonment not
27 exceeding five years, or to pay a fine not exceeding fifteen
28 thousand dollars ($15,000), or both.
29 (3) A controlled substance or counterfeit substance
30 classified in Schedule IV, is guilty of a felony and upon
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1 conviction thereof shall be sentenced to imprisonment not
2 exceeding three years, or to pay a fine not exceeding ten
3 thousand dollars ($10,000), or both.
4 (4) A controlled substance or counterfeit substance
5 classified in Schedule V, is guilty of a misdemeanor and upon
6 conviction thereof shall be sentenced to imprisonment not
7 exceeding one year, or to pay a fine not exceeding five thousand
8 dollars ($5,000), or both.
9 (f.1) (1) Notwithstanding any other provision of this act
10 or any other statute to the contrary, any person who is
11 convicted of violating clause (14) or (30) of subsection (a)
12 with respect to controlled substances listed in clause (1) or
13 (1.1) of subsection (f) shall be sentenced to a minimum sentence
14 of at least three years of total confinement for the first
15 conviction and to a minimum sentence of at least five years of
16 total confinement for a second or subsequent conviction. For
17 purposes of subsection (f) and this subsection, an offender
18 shall be deemed to have a prior conviction if the offender was
19 previously convicted in this Commonwealth or any other state or
20 the District of Columbia or any Federal court of any crime which
21 is substantially similar to clause (14) or (30) of subsection
22 (a) of this section or an equivalent crime in another
23 jurisdiction with respect to controlled substances listed in
24 clause (1) or (1.1) of subsection (f). A previous conviction
25 shall include any conviction of such prior offense with respect
26 to said controlled substances, whether or not sentence of
27 judgment has been imposed, or whether or not litigation is
28 pending concerning that conviction.
29 (2) There shall be no authority in any court to impose on an
30 offender to whom this subsection is applicable any lesser
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1 sentence than the mandatory minimum sentence provided for in
2 paragraph (1) of this subsection or to place such offender on
3 probation or to suspend sentence. Nothing in this subsection
4 shall prevent the sentencing court from imposing a sentence
5 greater than the mandatory minimum sentence provided for in
6 paragraph (1) of this subsection. Sentencing guidelines
7 promulgated by the Pennsylvania Commission on Sentencing shall
8 not supersede the mandatory minimum sentences provided in this
9 subsection.
10 (3) Provisions of this subsection shall not be an element of
11 the crime and notice thereof to the defendant shall not be
12 required prior to conviction, but reasonable notice of the
13 Commonwealth's intention to proceed under this subsection shall
14 be provided after conviction and before sentencing. The
15 applicability of this subsection shall be determined at
16 sentencing. Where the applicability of this subsection depends
17 on a prior conviction, the sentencing court, prior to imposing
18 sentence on an offender under subsection (f) and this
19 subsection, shall have a complete record of the previous
20 convictions of the offender, copies of which shall be furnished
21 to the offender. If the offender or the attorney for the
22 Commonwealth contests the accuracy of the record, the court
23 shall schedule a hearing and direct the offender and the
24 attorney for the Commonwealth to submit evidence regarding the
25 previous convictions of the offender. The court shall then
26 determine, by a preponderance of the evidence, the previous
27 convictions of the offender and, if this subsection is
28 applicable, shall impose sentence in accordance with this
29 subsection. Should a previous conviction be vacated and an
30 acquittal or final discharge entered subsequent to imposition of
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1 sentence under subsection (f) and this subsection, the offender
2 shall have the right to petition the sentencing court for
3 reconsideration of sentence if this section would not have been
4 applicable except for the conviction which was vacated. Where
5 the applicability of this subsection depends on the amount of
6 marihuana or any other material fact not resolved by the guilty
7 verdict or by virtue of any guilty plea or plea of nolo
8 contendere, the court shall consider any evidence presented at
9 trial and shall afford the Commonwealth and the defendant an
10 opportunity to present any necessary additional evidence and
11 shall determine, by a preponderance of the evidence, if this
12 subsection is applicable.
13 (4) If a sentencing court refuses to apply this subsection
14 where applicable, the Commonwealth shall have the right to
15 appellate review of the action of the sentencing court. The
16 appellate court shall vacate the sentence and remand the case to
17 the sentencing court for imposition of a sentence in accordance
18 with this subsection if it finds that the sentence was imposed
19 in violation of this subsection.
20 * * *
21 (k) Any person convicted of manufacture of amphetamine, its
22 salts, optical isomers and salts of its optical isomers;
23 [methamphetamine, its salts, isomers and salts of isomers;] or
24 phenylacetone and phenyl-2-proponone shall be sentenced to at
25 least two years of total confinement without probation, parole
26 or work release, notwithstanding any other provision of this act
27 or other statute to the contrary.
28 * * *
29 Section 2. Section 15 of the act, amended October 26, 1972
30 (P.L.1048, No.263), is amended to read:
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1 Section 15. Second or Subsequent Offense.--(a) Any person
2 convicted of a second or subsequent offense under clause (14) or
3 (30) of subsection (a) of section 13 of this act or of a similar
4 offense under any statute of the United States or of any state
5 may be imprisoned for a term up to twice the term otherwise
6 authorized, fined an amount up to twice that otherwise
7 authorized, or both.
8 (b) For purposes of this section, an offense is considered a
9 second or subsequent offense, if, prior to the commission of the
10 second offense, the offender has at any time been convicted
11 [under clause (30) of subsection (a) of section 13 of this act
12 or of a similar offense under any statute of the United States
13 or of any state relating to controlled substances] in this
14 Commonwealth or any other state or the District of Columbia or
15 any Federal court of any crime which is substantially similar to
16 clause (30) of subsection (a) of this act. A previous conviction
17 shall include any conviction of such prior offense, whether or
18 not sentence of judgment has been imposed, or whether or not
19 litigation is pending concerning that conviction.
20 Section 3. Sections 17 and 18 of the act are repealed.
21 Section 4. This act shall take effect in 60 days.
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