PRINTER'S NO. 1176
No. 915 Session of 2003
INTRODUCED BY DENT, WENGER, ARMSTRONG, PICCOLA, RAFFERTY,
WONDERLING, TARTAGLIONE, MUSTO, COSTA, KITCHEN, C. WILLIAMS
AND WOZNIAK, SEPTEMBER 24, 2003
REFERRED TO JUDICIARY, SEPTEMBER 24, 2003
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for sentences
3 for certain drug offenses committed with firearms.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 42 of the Pennsylvania Consolidated
7 Statutes is amended by adding a section to read:
8 § 9712.1. Sentences for certain drug offenses committed with
9 firearms.
10 (a) Mandatory sentence.--Any person who is convicted of a
11 violation of section 13(a)(30) of the act of April 14, 1972
12 (P.L.233, No.64), known as The Controlled Substance, Drug,
13 Device and Cosmetic Act, when at the time of the offense, the
14 person or the person's accomplice is in physical possession or
15 control of a firearm, whether visible, concealed about the
16 person or the person's accomplice or within the actor's or
17 accomplice's reach or in close proximity to the controlled
18 substance, shall likewise be sentenced to a minimum sentence of
1 at least five years of total confinement.
2 (b) Limitation on aggregate sentences.--Where a defendant is
3 subject to a mandatory minimum sentence under 18 Pa.C.S. §
4 7508(a) (relating to drug trafficking sentencing and penalties)
5 and is also subject to an additional penalty under subsection
6 (a), and where the court elects to aggregate these penalties,
7 the combined minimum sentence may not exceed the statutory
8 maximum sentence of imprisonment allowable under The Controlled
9 Substance, Drug, Device and Cosmetic Act.
10 (c) Proof at sentencing.--Provisions of this section shall
11 not be an element of the crime and notice thereof to the
12 defendant shall not be required prior to conviction, but
13 reasonable notice of the Commonwealth's intention to proceed
14 under this section shall be provided after conviction and before
15 sentencing. The applicability of this section shall be
16 determined at sentencing. The court shall consider any evidence
17 presented at trial and shall afford the Commonwealth and the
18 defendant an opportunity to present any necessary additional
19 evidence and shall determine, by a preponderance of the
20 evidence, if this section is applicable.
21 (d) Authority of court in sentencing.--There shall be no
22 authority in any court to impose on an offender to which this
23 section is applicable any lesser sentence than provided for in
24 subsection (a) or to place such offender on probation or to
25 suspend sentence. Nothing in this section shall prevent the
26 sentencing court from imposing a sentence greater than that
27 provided in this section. Sentencing guidelines promulgated by
28 the Pennsylvania Commission on Sentencing shall not supersede
29 the mandatory sentences provided in this section.
30 (e) Appeal by Commonwealth.--If a sentencing court refuses
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1 to apply this section where applicable, the Commonwealth shall
2 have the right to appellate review of the action of the
3 sentencing court. The appellate court shall vacate the sentence
4 and remand the case to the sentencing court for imposition of a
5 sentence in accordance with this section if it finds that the
6 sentence was imposed in violation of this section.
7 (f) Drug and alcohol treatment for addicted offenders.--The
8 following shall apply to treatment:
9 (1) All offenders sentenced pursuant to this section
10 shall be assessed for substance abuse and addiction prior to
11 being released on parole. This assessment shall take into
12 consideration issues of public safety and shall be conducted
13 by the Department of Health Bureau of Drug and Alcohol
14 Programs or its designee and shall include recommendations
15 for:
16 (i) length of stay;
17 (ii) levels of care; and
18 (iii) follow-up care and monitoring.
19 (2) All offenders assessed to be in need of drug and
20 alcohol treatment must commence, participate in and cooperate
21 with a drug and alcohol treatment program in accordance with
22 the assessment, prior to release on parole.
23 (3) Upon release, all offenders shall be required as a
24 condition of parole to immediately commence and to
25 participate in, cooperate with and successfully complete
26 follow-up licensed substance abuse treatment in accordance
27 with the assessment.
28 (4) If a parolee has been ordered pursuant to this
29 subsection to participate in a drug and alcohol treatment
30 program, the designated treatment program shall report
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1 periodically to the assigned parole officer on the parolee's
2 progress in the treatment program. The designated treatment
3 program shall promptly notify the parole officer if the
4 parolee:
5 (i) fails to comply with program rules and treatment
6 expectations;
7 (ii) refuses to constructively engage in the
8 treatment process; or
9 (iii) terminates his participation in the treatment
10 program.
11 (5) Upon notification pursuant to paragraph (4), the
12 assigned parole officer shall promptly report the parolee's
13 actions to the Pennsylvania Board of Probation and Parole
14 which shall immediately schedule a revocation hearing at
15 which the board shall give due consideration to the
16 recommendation of the treatment program.
17 (6) After successful completion of drug and alcohol
18 treatment pursuant to this subsection, the parole officer
19 shall take reasonable steps to ensure that the offender does
20 not use illegal controlled substances or abuse alcohol,
21 prescription drugs, over-the-counter drugs or any other
22 similar substances. The steps shall include conducting
23 chemical testing and requiring periodic reassessment of the
24 offender by the treatment program or by the Bureau of Drug
25 and Alcohol Programs or its designee.
26 (7) Nothing in this subsection shall prevent a drug and
27 alcohol treatment program from refusing to accept an offender
28 if the program administrator deems the offender to be
29 inappropriate for admission to the program. A treatment
30 program shall retain the right to immediately discharge into
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1 the custody of the assigned parole officer an offender who
2 fails to comply with program rules and treatment expectations
3 or refuses to constructively engage in the treatment process.
4 (8) Where the offender's parole is revoked after a
5 hearing pursuant to paragraph (5), the offender shall be
6 ineligible for parole, prerelease, work release or any other
7 release from incarceration in a correctional facility unless
8 the offender is permitted to be readmitted to a treatment
9 program in accordance with the requirements of paragraph (3).
10 (9) Nothing in this subsection shall be construed to
11 grant a legal right to parole or reparole on the grounds that
12 the offender is currently prepared to participate in, comply
13 with and constructively engage in the treatment process.
14 Parole or reparole of the offender shall be at the discretion
15 of the board.
16 (g) Definition.--As used in this section, the term "firearm"
17 shall have the same meaning as that given to it in section 9712
18 (relating to sentences for offenses committed with firearms).
19 Section 2. The Pennsylvania Commission on Crime and
20 Delinquency is directed to establish a public information
21 campaign aimed at high drug trafficking areas informing the
22 public of the five-year mandatory sentence established by 42
23 Pa.C.S. § 9712.1. The commission shall seek all available
24 funding, including Federal funding or funding available from
25 nonprofit corporations and shall seek to engage pro bono
26 services from public relations and advertising firms and other
27 entities.
28 Section 3. This act shall take effect in 60 days.
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