PRINTER'S NO. 1144
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
913
Session of
2021
INTRODUCED BY BAKER, BARTOLOTTA, A. WILLIAMS, SANTARSIERO,
MARTIN, HAYWOOD, KANE, STEFANO, FONTANA, MENSCH, BOSCOLA,
CAPPELLETTI, STREET, COLLETT, TARTAGLIONE AND COMITTA,
OCTOBER 18, 2021
REFERRED TO JUDICIARY, OCTOBER 18, 2021
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in sentencing, further
providing for conditions of probation and for modification or
revocation of order of probation.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9763(b) of Title 42 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 9763. Conditions of probation.
* * *
(b) Conditions generally.--The court may attach any of the
following conditions upon the defendant as it deems necessary:
(1) To meet family responsibilities[.], including
consideration of child care responsibilities and limitations,
other than the child care responsibilities and limitations
contained in 23 Pa.C.S. Ch. 43 (relating to support matters
generally) which shall be governed exclusively by the
provisions of that chapter.
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(2) To be devoted to a specific occupation, employment
or education, study or vocational training initiative.
(3) To participate in a public or nonprofit community
service program.
(4) To undergo individual or family counseling.
(5) To undergo available medical or psychiatric
treatment or to enter and remain in a specified institution,
when required for that purpose.
(6) To attend educational or vocational training
programs.
(7) To attend or reside in a rehabilitative facility or
other intermediate punishment program.
(8) (Deleted by amendment).
(9) To not possess a firearm or other dangerous weapon
unless granted written permission.
(10) To make restitution of the fruits of the crime or
to make reparations, in an affordable amount and on a
schedule that the defendant can afford to pay, for the loss
or damage caused by the crime.
(11) To be subject to intensive supervision while
remaining within the jurisdiction of the court and to notify
the court or designated person of any change in address or
employment. The court must permit the defendant to
temporarily leave the jurisdiction of the court unless the
court finds a specific, identifiable and forseeable reason
that leaving the court's jurisdiction would likely result in
the defendant absconding, causing harm to himself or others
or committing a crime. Any movement of a defendant outside of
the court's jurisdiction must comply with the applicable
requirements of the Interstate Compact for Adult Offender
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Supervision and the applicable provisions of the Adam Walsh
Child Protection and Safety Act of 2006 (Public Law 109-248,
120 Stat. 587) as adopted in this Commonwealth.
(12) To report as directed to the court or the
designated person and to permit the designated person to
visit the defendant's home.
(13) To pay a fine.
(14) To participate in drug or alcohol screening and
treatment programs, including outpatient programs.
(15) To do other things reasonably related to
rehabilitation.
* * *
Section 2. Section 9771(c) of Title 42 is amended and the
section is amended by adding subsections to read:
§ 9771. Modification or revocation of order of probation.
* * *
(b.1) Nonpayment of fines or costs.--Notwithstanding
subsection (b), the court may not extend the period of
probation, may not impose a brief sanction under section 9771.1
(relating to court-imposed sanctions for violating probation)
and may not revoke an order of probation solely due to
nonpayment of fines or costs unless the court finds, with
respect to the payment of fines, the defendant is financially
able to pay the fines and has willfully refused to do so.
(c) Limitation on sentence of total confinement.--[The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:
(1) the defendant has been convicted of another crime;
or
(2) the conduct of the defendant indicates that it is
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likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.] The following apply:
(1) Except as provided in paragraph (2), the court may
not impose a sentence of total confinement upon revocation
unless the court finds that the defendant has been convicted
of another crime.
(2) A court may impose a determinate sentence of total
confinement upon revocation if the court finds by a
preponderance of the evidence that the defendant committed a
technical violation and any of the following apply:
(i) The technical violation was sexual in nature.
(ii) The technical violation involved assaultive
behavior or included a credible threat to cause bodily
injury to another.
(iii) The technical violation involved possession or
control of a weapon.
(iv) The defendant absconded and cannot be safely
diverted from total confinement through less restrictive
means.
(v) There exists an identifiable threat to public
safety, and the defendant cannot be safely diverted from
total confinement through less restrictive means.
(vi) The technical violation involved an intentional
and unexcused failure to adhere to recommended
programming or conditions on more than three occasions,
and the defendant cannot be safely diverted from total
confinement through less restrictive means.
(3) If a court imposes a sentence of total confinement
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upon revocation for a condition under paragraph (2), the
defendant shall be sentenced as follows:
(i) For a first technical violation, a maximum
period of 14 days.
(ii) For a second technical violation, a maximum
period of 30 days.
(iii) For a third or subsequent technical violation,
the court may impose any sentencing alternatives
available at the time of initial sentencing.
(iv) For a sentence of total confinement upon
revocation for a condition under paragraph (2)(i), (ii),
(iii) or (v), the court may add up to an additional 30
days for a first technical violation or up to an
additional 45 days for a second technical violation.
(v) The court shall consider allowing the term of
incarceration to be served on weekends or other nonwork
days for employed probationers who have committed a first
or second technical violation.
(vi) The time limitations contained in this
paragraph shall not apply to the extent that an
additional term of total confinement is necessary to
allow a defendant to either be evaluated for or to
participate in:
(A) a court-ordered drug, alcohol or mental
health treatment program; or
(B) a problem-solving court provided for in
section 916 (relating to problem-solving courts).
* * *
(e) Probation review conference.--
(1) (i) Subject to subsections (2.1) and (2.2) and
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except as otherwise provided by this section, a defendant
shall be eligible for an initial probation review
conference after the defendant has completed three years
of probation following a misdemeanor conviction or five
years of probation following a felony conviction.
(ii) If the sentence or sentences imposed arise out
of the conviction for multiple offenses and:
(A) The sentence or sentences imposed are all
misdemeanors and are based on the same conduct or
arise from the same criminal episode, the defendant
shall be eligible for a probation review conference
at the initial completion of three years of probation
by the defendant.
(B) The sentence or sentences imposed include a
felony and are based on the same conduct or arise
from the same criminal episode, the defendant shall
be eligible for a probation review conference at the
initial completion of five years of probation by the
defendant.
(2) Subject to paragraphs (2.1) and (2.2) and unless
waived under subsection (d), the court shall hold a probation
review conference no later than 60 days from the date the
defendant is eligible. If a defendant's probation review
conference has not commenced within the time frames specified
in this subsection, the defendant's attorney, or the
defendant if unrepresented, may file a motion demanding a
probation review conference within five business days.
(2.1) Not later than 30 days prior to the date a
defendant is otherwise entitled to a probation review
conference pursuant to this section, the probation office
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responsible for the supervision of the defendant shall
complete and submit a probation status report to the
defendant, the court, the Commonwealth and any victim
registered with either the Pennsylvania Office of Victim
Advocate or a county victim witness program. The probation
status report shall contain the following:
(i) The date the probation office believes the
defendant is eligible for a probation review conference.
(ii) A statement as to whether:
(A) Any of the factors or violations specified
in paragraph (8)(i)(A), (B), (C), (D), (E) and (F)
have occurred.
(B) The defendant has committed any other
technical violation within the six months prior to
the probation status report.
(C) The defendant was convicted of a misdemeanor
or felony while either incarcerated or serving
probation.
(D) The defendant has completed all treatment of
any other program required as a condition of
probation.
(E) The defendant has paid all restitution owed
by the defendant.
(iii) A description of the defendant's progress on
probation and a recommendation that:
(A) the defendant's probation be terminated at
or before the date the probation office believes the
defendant is eligible for a probation review
conference;
(B) the defendant should continue on probation
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as previously ordered; or
(C) the defendant should continue on probation
under different, reduced or increased terms and
conditions.
(2.2) The parties entitled to the probation status
report pursuant to paragraph (2.1) shall have 30 days to
object or otherwise respond to the probation status report.
If any party objects to all or any component of the probation
status report, the court shall hold a probation review
conference as otherwise provided by this subsection and shall
notify the defendant, the Commonwealth and any victim
registered with either the Pennsylvania Office of Victim
Advocate or a county victim witness program of the date of
the probation review conference. If none of the parties
entitled to the probation status report pursuant to paragraph
(2.1) object to the recommendation contained in the report
within 30 days, upon evidence satisfactory to the court that
the probation status report was sent to each party entitled
to receive it, the probation review conference shall be
deemed waived and the court shall so notify the defendant,
the Commonwealth and any victim registered with either the
Pennsylvania Office of Victim Advocate or a county victim
witness program and shall enter an order memorializing the
recommendation contained in the probation status report. The
court may enter the order even if the defendant's probation,
sentence or plea of guilty was the result of an agreement
between the Commonwealth and the defendant.
(3) A defendant serving probation following either a
felony conviction or misdemeanor conviction shall be eligible
for an initial probation review conference six months prior
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to the date that the defendant would otherwise be eligible
under paragraph (1) if the defendant successfully satisfies
any of the following conditions while serving the term of
probation:
(i) Earns a high school diploma or certificate of
high school equivalency.
(ii) Earns an associate degree from an accredited
university, college, seminary college, community college
or two-year college.
(iii) Earns a bachelor's degree from an accredited
university, college or seminary college.
(iv) Earns a master's or other graduate degree from
an accredited university, college or seminary college.
(v) Obtains a vocational or occupational license,
certificate, registration or permit.
(vi) Completes a certified vocational, certified
technical or certified career education or training
program.
(vii) Any other condition approved by the court at
the time of sentencing that substantially assists the
defendant in leading a law-abiding life or furthers the
rehabilitative needs of the defendant.
(4) A defendant serving probation following a felony
conviction shall be eligible for an initial probation review
conference up to a total of six months prior to the date that
the defendant would otherwise be eligible under paragraph (3)
if the defendant satisfies an additional condition specified
in paragraph (3) while serving the term of probation.
(5) A defendant sentenced to probation following either
a felony conviction or a misdemeanor conviction shall be
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eligible for an initial probation review conference prior to
the date otherwise eligible under paragraphs (1), (3) or (4)
as follows:
(i) Two months earlier for every six consecutive
calendar months served on probation without a violation.
Such six-calendar-month period shall be referred to as
the "non-violation period." No two non-violation periods
may contain the same calendar month in the same calendar
year.
(ii) Two months earlier for every six consecutive
calendar months in which the defendant maintains at least
80 hours per month of employment. Such six-calendar-month
period shall be referred to as the "employment period."
No two employment periods may contain the same calendar
month in the same calendar year.
(iii) Two months earlier for every six consecutive
calendar months in which the defendant performs at least
80 hours per month of community service on behalf of a
Pennsylvania registered 501(c)(3) nonprofit organization
or civic or governmental agency. Such six-calendar-month
period shall be referred to as the "community service
period." No two community service periods may contain the
same calendar month in the same calendar year.
(iv) In no event shall the total reduction in time
calculated pursuant to this paragraph exceed six months.
(6) To qualify a defendant for an accelerated initial
probation review conference under paragraph (3), (4) or (5),
any condition under paragraph (3)(v), (vi) or (vii) an
employer referenced under paragraph (5)(ii) or a nonprofit
organization or civic or governmental agency referenced under
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paragraph (5)(iii) must be approved by the Pennsylvania
Commission on Crime and Delinquency or any advisory committee
of that commission designated to provide approval.
(7) A defendant sentenced to a period of probation
consecutive to a period of incarceration in a State
correctional institution shall be eligible for an initial
probation review conference 12 months prior to the date that
a defendant would otherwise be eligible for a probation
review conference under paragraph (1) if the defendant
completed the final 12 months of State parole supervision
without violating the terms and conditions of the defendant's
parole. This paragraph shall not apply to a defendant who
serves fewer than 12 months on State parole supervision.
(8) Notwithstanding paragraphs (1) and (11), no
defendant shall be eligible for a probation review conference
if:
(i) A court determines by a preponderance of the
evidence that the defendant committed one of the
following technical violations within the nine months
immediately preceding the defendant's probation review
conference:
(A) A technical violation that was sexual in
nature.
(B) A technical violation that involved
assaultive behavior or included a credible threat to
cause bodily injury to another.
(C) A technical violation that involved
possession or control of a weapon.
(D) The defendant absconded.
(E) A technical violation that involved an
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identifiable threat to public safety.
(F) A technical violation that involved an
intentional and unexcused failure to adhere to
recommended programming or conditions on more than
three occasions.
(ii) A court determines by a preponderance of the
evidence that the defendant committed any other technical
violation not enumerated in subparagraph (i) within the
six months immediately preceding the defendant's
probation review conference.
(iii) The defendant was convicted of a misdemeanor
or felony offense committed while either incarcerated or
serving probation.
(8.1) If the defendant is ineligible for a scheduled
review conference as a result of a technical violation
enumerated in paragraph (8)(i), then, if all other conditions
are satisfied, a probation review conference will be held
nine months after the date that the enumerated technical
violation occurred. If the defendant is ineligible for a
scheduled review conference as a result of a technical
violation which is the subject of paragraph (8)(ii), then, if
all other conditions are satisfied, a probation review
conference will be held six months after the date that the
technical violation occurred.
(9) Following the probation review conference, the court
shall terminate probation unless the court finds by a
preponderance of the evidence any of the following:
(i) The conduct of the defendant on probation
creates an identifiable threat to public safety,
including consideration of whether the defendant is the
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subject of an active protection from abuse order under 23
Pa.C.S. Ch. 61 or an active protection from intimidation
order under 18 Pa.C.S. Ch. 49 Subch. B.
(ii) The defendant has not successfully completed
all treatment or other programs required as a condition
of probation, and termination of probation would either
prevent the defendant from continuing in the court-
mandated treatment or programming that the court
determines is still necessary to aid in the defendant's
rehabilitation or would create a substantial likelihood
that the defendant would discontinue the treatment or
programs.
(iii) The defendant has failed to pay the total
restitution owed by the defendant.
(9.1) The court may terminate probation pursuant to
paragraph (9) even if the defendant's probation, sentence or
plea of guilty was the result of an agreement between the
Commonwealth and the defendant.
(10) If the court does not terminate probation at a
probation review conference solely because of the defendant's
failure to pay restitution in full, the court shall order
that the defendant be placed on administrative probation if
either the defendant has paid at least 50% of the restitution
owed or the court determines, considering the defendant's
resources, income and family, legal or other obligations,
that the defendant has made a good faith effort to pay. For
purposes of this paragraph, "administrative probation" shall
be defined as probation imposed under this paragraph that:
(i) Requires a defendant to make supervision contact
at least one time per year.
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(ii) Requires a defendant to provide updated contact
information upon a change in residence or employment.
(iii) Requires a defendant to pay the remaining
restitution owed, as ordered by the court on a schedule
that the defendant can afford to pay.
(iv) Does not impose any other condition of
probation.
(11) If the court does not terminate probation at a
probation review conference, the defendant shall receive
written notice of the court's order detailing its findings.
The defendant shall be eligible for a subsequent probation
review conference no later than 12 months after the date of
the most recent probation review conference.
(12) This subsection shall not apply and the defendant
shall not be entitled to a probation review conference or to
termination of probation pursuant to paragraphs (2.1) and
(2.2) if any of the following has occurred:
(i) The defendant was convicted of an offense listed
under Chapter 97 Subchapter H (relating to registration
of sexual offenders) or I (relating to continued
registration of sexual offenders).
(ii) The defendant was convicted of a crime of
violence.
(iii) The defendant was convicted of an offense
under 18 Pa.C.S. § 2701 (relating to simple assault) or
2709.1 (relating to stalking) against any of the
defendant's family or household members .
(13) Nothing in this subsection shall be construed to:
(i) Prevent a defendant from petitioning a court for
early termination of probation or modification of the
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terms and conditions of probation as otherwise permitted
by law.
(ii) Prohibit the court, in its discretion, from
eliminating or decreasing the term of probation under
subsection (d).
(iii) Diminish the court's power to:
(A) otherwise, at any time, terminate continued
supervision or lessen the conditions upon which an
order of probation has been imposed;
(B) create or administer a process or program
which seeks to terminate continued supervision or
lessen the conditions upon which an order of
probation has been imposed; or
(C) seek information from the Commonwealth,
defendant, victim, county probation officer or any
other individual or entity to assist in these
processes or programs.
(f) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Crime of violence." As defined in section 9714(g) (relating
to sentences for second and subsequent offenses).
"Family or household members." As defined in 23 Pa.C.S. §
6102(a) (relating to definitions).
"Technical violation." A violation of the terms and
conditions of a defendant's sentence, other than by the
commission of a new crime of which the defendant is convicted or
found guilty by a judge or jury or to which the defendant pleads
guilty or nolo contendere in a court of record.
Section 3. This act shall apply as follows:
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(1) This act shall apply to individuals sentenced or
resentenced on or after the effective date of this section.
(2) Except for the addition of 42 Pa.C.S. § 9771(e),
this act shall apply to individuals sentenced or resentenced
prior to the effective date of this section.
Section 4. Nothing in this act shall be construed to prevent
a defendant from petitioning a court for early termination of
probation or modification of the terms and conditions of
probation as otherwise permitted by law.
Section 5. Courts shall ensure that the probation of all
individuals sentenced or resentenced prior to the effective date
of this section are reviewed to determine whether the
individuals should be considered for early termination of
probation or modification of the terms and conditions of
probation. The review shall occur at the later of two years
after the effective date of this section or:
(1) the date that the individual has completed three
years of probation following a misdemeanor conviction or five
years of probation following a felony conviction; or
(2) if the sentence or sentences imposed arise out of
the conviction of multiple offenses and:
(i) The sentence or sentences imposed are all
misdemeanors and are based on the same conduct or arise
from the same criminal episode, the defendant shall be
eligible for a probation review conference at the initial
completion of three years of probation by the defendant.
(ii) The sentence or sentences imposed include a
felony and are based on the same conduct or arise from
the same criminal episode, the defendant shall be
eligible for a probation review conference at the initial
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completion of five years of probation by the defendant.
For each case under review, the defendant and the Commonwealth
shall have the opportunity, in advance of a decision, to provide
written comments to the court. Courts may by local rule adopt
such procedures as they deem appropriate to accomplish the
reviews.
Section 6. When a court, either as a result of a petition or
as a result of its review under section 5 of this act, seeks to
determine whether an individual sentenced or resentenced prior
to the effective date of this section should be considered for
early termination of probation or modification of the terms and
conditions of probation, the court shall ensure that due
consideration is given to whether the individual has
successfully satisfied the conditions contained in 42 Pa.C.S. §
9771(e)(3) or (e)(4) or has engaged in behavior that would have
otherwise made the individual eligible for the reductions in
time specified in 42 Pa.C.S. § 9771(e)(5).
Section 7. Section 5 of this act shall not apply and the
defendant shall not be entitled to a probation review if:
(1) The defendant committed one of the following
technical violations within the nine months immediately
preceding the defendant's probation review conference:
(i) A technical violation that was sexual in nature.
(ii) A technical violation that involved assaultive
behavior or included a credible threat to cause bodily
injury to another.
(iii) A technical violation that involved possession
or control of a weapon.
(iv) The defendant absconded.
(v) A technical violation that involved an
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identifiable threat to public safety.
(vi) A technical violation which involved an
intentional and unexcused failure to adhere to
recommended programming or conditions on more than three
occasions.
(2) The defendant committed any other technical
violation not enumerated in paragraph (1) within the six
months immediately preceding the defendant's probation review
conference.
(3) The defendant was convicted of a misdemeanor or
felony offense committed while either incarcerated or serving
probation.
(4) The defendant was convicted of an offense listed
under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of
sexual offenders) or I (relating to continued registration of
sexual offenders).
(5) The defendant was convicted of a crime of violence.
(6) The defendant was convicted of an offense under 18
Pa.C.S. § 2701 (relating to simple assault) or 2709.1
(relating to stalking) against any of the defendant's family
or household members.
Section 8. This act shall take effect January 1, 2022.
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