Regular Session 2023-2024 Senate Bill 0838 P.N. 1113

HOUSE AMENDED

PRIOR PRINTER'S NOS. 934, 940, 973, 993

PRINTER'S NO. 1113

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

838

Session of

2023

INTRODUCED BY BAKER, BARTOLOTTA, A. WILLIAMS, HAYWOOD, KANE,

DILLON, SANTARSIERO, STEFANO, ROTHMAN, COSTA, BREWSTER,

STREET AND CAPPELLETTI, JUNE 21, 2023

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,

SEPTEMBER 26, 2023

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, in sentencing, further

providing for order of probation, for conditions of probation

and for modification or revocation of order of probation and

providing for probation review conference.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 9754(b) of Title 42 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 9754. Order of probation.

* * *

(b) Conditions generally.--The court shall attach reasonable

conditions authorized by section 9763 (relating to conditions of

probation) [as it deems necessary to ensure or assist the

defendant in leading a law-abiding life].

* * *

Section 2. Section 9763(b)(1), (2) and (11) of Title 42 are

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:]

Conditions shall be assessed and ordered based on individualized

circumstances. Following an individualized assessment of the

defendant, including the defendant's history and the underlying

crime or crimes committed, the court shall attach only those

conditions that the court deems necessary and the least

restrictive means available to promote the defendant's

rehabilitation and protection of the public, including any of

the following:

(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.

(2) To be devoted to a specific occupation, employment

or education, study or vocational training initiative.

* * *

(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[.] within 72 hours, unless the defendant provides

sufficient proof of extenuating circumstances to explain the

delay.

* * *

Section 3. Section 9771(a), (b) and (c) of Title 42 are

amended and the section is amended by adding a subsection to

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read:

§ 9771. Modification or revocation of order of probation.

(a) General rule.--The court has inherent power to at any

time terminate continued supervision, lessen the conditions upon

which an order of probation has been imposed or increase the

conditions under which an order of probation has been imposed

upon a finding by clear and convincing evidence that a person

presents an identifiable threat to public safety.

(b) Revocation.--The court may increase the conditions,

impose a brief sanction under section 9771.1 (relating to court-

imposed sanctions for violating probation) or revoke an order of

probation upon proof of the violation of specified conditions of

the probation. [Upon] Subject to the limitations of subsections

(b.1) and (c), upon revocation the sentencing alternatives

available to the court shall be the same as were available at

the time of initial sentencing, due consideration being given to

the time spent serving the order of probation. The attorney for

the Commonwealth may file notice at any time prior to

resentencing of the Commonwealth's intention to proceed under an

applicable provision of law requiring a mandatory minimum

sentence.

(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

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.

shall not impose a sentence of total confinement upon revocation

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unless it finds that:

(1) the defendant has been convicted of another crime;

(2) the conduct of the defendant indicates that it is

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.] There is a presumption against total

confinement for technical violations of probation. The

following shall apply:

(1) The court may impose a sentence of total confinement

upon revocation only if:

(i) the defendant has been convicted of another

crime;

(ii) the court finds by clear and convincing

evidence that the defendant committed a technical

violation that involves an identifiable threat to public

safety and the defendant cannot be safely diverted from

total confinement through less restrictive means; or

(iii) the court finds by a preponderance of the

evidence that the defendant committed a technical

violation and any of the following apply:

(A) The technical violation was sexual in

nature.

(B) The technical violation involved assaultive

behavior or included a credible threat to cause

bodily injury to another, including acts committed

against a family or household member.

or control of a firearm or dangerous weapon.

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(D) The technical violation involved the

manufacture, sale, delivery or possession with the

intent to manufacture, sell or deliver, a controlled

substance or other drug regulated under the act of

April 14, 1972 (P.L.233, No.64), known as The

Controlled Substance, Drug, Device and Cosmetic Act.

(E) The defendant absconded and cannot be safely

diverted from total confinement through less

restrictive means.

(F) The technical violation involved an

intentional and unexcused failure to adhere to

recommended programming or conditions on three or

more separate occasions and the defendant cannot be

safely diverted from total confinement through less

restrictive means. For purposes of this clause,

multiple technical violations stemming from the same

episode of events shall not constitute separate

technical violations.

(2) If a court imposes a sentence of total confinement

following a revocation, the basis of which is for one or more

technical violations under paragraph (1)(ii) or (iii), 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) The court shall consider allowing the term of

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incarceration to be served on weekends or other nonwork

days for employed probationers who have committed a first

or second technical violation.

(v) The time limitations contained in this paragraph

shall not apply to the extent that a reasonable term of

additional total confinement, not to exceed 30 days, 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).

(3) Nothing in this section shall prevent the adoption

of a program under section 9771.1.

* * *

Section 4. Title 42 is amended by adding a section to read:

§ 9774.1. Probation review conference.

(a) General rule.--Except as otherwise provided in this

section, 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.

(b) Eligibility for review conference.--Except as otherwise

provided in this section, a defendant shall be eligible for an

initial probation review conference as follows:

(1) If the offense for which a sentence of probation was

imposed was a misdemeanor, the defendant shall be eligible

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for an initial probation review conference after completing

two years of probation or 50% of the probation sentence,

whichever is sooner.

(2) If the offense for which a sentence of probation was

imposed was a felony, a defendant shall be eligible for an

initial probation review conference after completing four

years of probation or 50% of the probation sentence,

whichever is sooner.

(3) If the sentence or sentences imposed arose out of

convictions for multiple offenses which the court ordered to

be served consecutively and:

(i) The offenses for which the sentence or sentences

were imposed are misdemeanors based on the same conduct

or arising from the same criminal episode, the defendant

shall be eligible for a probation review conference after

completing two years of probation or 50% of the aggregate

probation sentence, whichever is sooner.

(ii) The offenses for which the sentence or

sentences were imposed included 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 after completing four years of probation or

50% of the aggregate probation sentence, whichever is

sooner.

(iii) The offenses for which the sentence or

sentences were imposed are based on separate conduct and

arose from separate criminal episodes, the defendant

shall be eligible for a probation review conference after

completing four years of probation or 50% of the

aggregate probation sentence, whichever is sooner.

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(4) 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

the defendant would otherwise be eligible for a probation

review conference under this subsection 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.

(5) Notwithstanding any other provisions of this

section, a defendant shall not be eligible to receive an

initial probation review conference less than 12 months from

the original date of sentencing.

(1) Subject to the limitations in subsection (b)(5), a

defendant serving probation that was imposed for a

misdemeanor or felony offense shall be eligible for an

initial probation review conference six months prior to the

date that the defendant would otherwise be eligible under

subsection (b) 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

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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.

(2) Subject to the limitations in subsection (b)(5), a

defendant serving probation that was imposed for a felony

offense 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 (1)

if the defendant satisfies an additional condition specified

in paragraph (1) while serving the term of probation.

(3) To qualify a defendant for an accelerated initial

probation review conference under paragraphs (1) and (2), any

condition under paragraph (1)(v), (vi) or (vii) must be

approved by the Pennsylvania Commission on Crime and

Delinquency or an advisory committee of that commission

designated to provide approval PROBATION OFFICER OFFICE

RESPONSIBLE FOR THE SUPERVISION OF THE DEFENDANT . , IN

ACCORDANCE WITH STANDARDS DEVELOPED BY THE PENNSYLVANIA

COMMISSION ON CRIME AND DELINQUENCY. THE PENNSYLVANIA

COMMISSION ON CRIME AND DELINQUENCY SHALL DEVELOP STANDARDS

PURSUANT TO THIS PARAGRAPH.

(d) Probation status report.--No later than 30 days prior to

the date the defendant is otherwise entitled to a probation

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review conference under subsection (b) or (c), the probation

office responsible for the supervision of the defendant shall

complete and submit a probation status report to the defendant,

the court , AND , the Commonwealth and any victim registered with

either the Pennsylvania Office of Victim Advocate or a county

victim witness program 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:

(1) The date the probation office believes the defendant

is eligible for a probation review conference.

(2) A statement as to whether:

(i) Any of the factors or violations specified in

subsection (g)(1)(ii) and (iii) have occurred.

(ii) The defendant has committed any other technical

violation within the six months prior to the probation

status report.

(iii) The defendant was convicted of a misdemeanor

or felony while either incarcerated or serving probation.

(iv) The defendant has completed all treatment of OR

any other program required as a condition of probation.

(v) The defendant has paid all restitution owed to

the victim.

(3) A description of the defendant's progress on

probation and a recommendation that:

(i) the defendant's probation be terminated at or

before the date the probation office believes the

defendant is eligible for a probation review conference;

(ii) the defendant should continue on probation as

previously ordered; or

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(iii) the defendant should continue on probation

under different, reduced or increased terms and

conditions.

(e) Objections to status report.-- A person entitled to the

probation status report under subsection (d) THE COMMONWEALTH

AND THE DEFENDANT shall have 30 days from the date of the status

report to object or otherwise respond to the probation status

report. A VICTIM SHALL HAVE 30 DAYS FROM THE DATE OF THE STATUS

REPORT TO PROVIDE INPUT OR OTHERWISE RESPOND TO THE PROBATION

STATUS REPORT. The following shall apply:

(1) If a 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.

(2) If none of the parties entitled to the probation

status report 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 the probation status report, the

probation review conference shall be deemed waived. The court

shall enter an order memorializing the recommendation

contained in the probation status report and so notify the

defendant, the Commonwealth and any victim registered with

either the Pennsylvania Office of Victim Advocate or a county

victim witness program. 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

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defendant.

(f) Termination of probation.--

(1) Except as provided in subsection (g), immediately

following the probation review conference, the court shall

terminate probation unless the court finds:

(i) by clear and convincing evidence that the

conduct of the defendant while on probation created an

identifiable threat to public safety, including

consideration of whether the defendant is the subject of

an active protection from abuse order under 23 Pa.C.S.

Ch. 61 (relating to protection from abuse) or an active

protection from intimidation order under 18 Pa.C.S. Ch.

49 Subch. B. (relating to victim and witness

intimidation);

(ii) by a preponderance of the evidence that 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; or

(iii) by a preponderance of the evidence that the

defendant has failed to pay the total restitution owed by

the defendant.

(2) The court may terminate probation under paragraph

(1) even if the defendant's probation, sentence or plea of

guilty was the result of an agreement between the

Commonwealth and the defendant.

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(3) If the court does not terminate probation at a

probation review conference, the defendant shall receive

written notice of the court's order detailing the court's

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.

(g) Prohibitions on early termination.--

(1) A defendant shall not have the defendant's probation

terminated under this section if:

(i) the defendant was convicted of a misdemeanor of

the first degree, misdemeanor of the second degree or

felony offense of any degree committed while either

incarcerated or serving probation;

(ii) the court finds by clear and convincing

evidence that the defendant committed a technical

violation within the six months immediately preceding the

defendant's probation review conference that involved an

identifiable threat to public safety; or

(iii) a court determines at the probation review

conference by a preponderance of the evidence that the

defendant committed one of the following technical

violations within the six 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, including acts

committed against a family or household member.

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possession or control of a firearm or dangerous

weapon.

(D) The technical violation involved the

manufacture, sale, delivery or possession with the

intent to manufacture, sell or deliver, a controlled

substance or other drug regulated under the act of

April 14, 1972 (P.L.233, No.64), known as The

Controlled Substance, Drug, Device and Cosmetic Act.

(E) The defendant absconded.

(F) A technical violation that involved an

intentional and unexcused failure to adhere to

recommended programming or conditions on three or

more separate occasions. For purposes of this clause,

multiple technical violations stemming from the same

episode of events shall not constitute separate

technical violations.

(2) If the defendant is ineligible for termination of

probation as a result of a technical violation enumerated in

paragraph (1)(ii) or (iii) occurring within the six months

immediately preceding the probation review conference and if

all other conditions are satisfied, a probation review

conference shall be held six months after the date that the

enumerated technical violation occurred.

(h) Failure to pay restitution.--

(1) 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 for

the remaining balance of the defendant's probation sentence A

PERIOD NOT TO EXCEED THE DEFENDANT'S REMAINING BALANCE AT THE

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TIME ADMINISTRATIVE PROBATION IS ASSIGNED if: THE REMAINING

BALANCE OF THE DEFENDANT'S PROBATION SENTENCE IF:

(i) the defendant has paid at least 50% of the

restitution owed; or

(ii) 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.

(2) The provisions of section 9771(c) (relating to

modification or revocation of order of probation) shall apply

to individuals placed on administrative probation pursuant to

this subsection.

(3) Nothing in this section shall be construed to

interfere with a victim's right to pursue private remedies in

accordance with 18 Pa.C.S. § 1106(g) (relating to restitution

for injuries to person or property).

(i) Applicability.--This section shall not apply and the

defendant shall not be entitled to a probation review conference

or to early termination of probation under this section if the

offense for which the defendant was sentenced to probation was

one of the following :

(1) an offense under 18 Pa.C.S. Ch. 25 (relating to

criminal homicide);

(2) a crime of violence;

(3) an offense listed under Subchapter H (relating to

registration of sexual offenders) or I (relating to continued

registration of sexual offenders) of Chapter 97;

(4) an offense under 18 Pa.C.S. § 2701 (relating to

simple assault) when committed against a family or household

member; or

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(5) an offense under 18 Pa.C.S. § 2709.1 (relating to

stalking).

(j) Other remedies preserved.--Nothing in this section shall

be construed to:

(1) 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;

(2) prohibit the court, in its discretion, from

eliminating or decreasing the term of probation under section

9771(d); or

(3) diminish the court's power to:

(i) otherwise, at any time, terminate continued

supervision or lessen the conditions upon which an order

of probation has been imposed;

(ii) 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

(iii) seek information from the Commonwealth,

defendant, victim, county probation officer or any other

individual or entity to assist in these processes or

programs.

(k) 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:

"Administrative probation." A term of imposed probation

that:

(1) Requires a defendant to make supervision contact at

least one time and no more than four times per year.

(2) Requires a defendant to notify the court or the

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designated person of any change in address or employment

within a reasonable period of time.

(3) Requires a defendant to pay the remaining

restitution, as ordered by the court on a schedule or payment

plan that the defendant can afford to pay.

(4) Does not require the defendant to pay monthly

probation administration fees or any additional costs for the

continuation of supervision on administrative probation.

(5) Does not impose any other condition of probation.

"Crime of violence." As defined in section 9714(g) (relating

to sentences for second and subsequent offenses).

"Dangerous weapon." Any of the following:

(1) A "weapon" as defined in 18 Pa.C.S. § 907 (relating

to possessing instruments of crime); or

(2) An "offensive weapon" as defined in 18 Pa.C.S. § 908

(relating to prohibited offensive weapons).

"Family or household members." As defined in 23 Pa.C.S. §

6102(a) (relating to definitions).

"Firearm." As defined in 18 Pa.C.S. § 908.

"Technical violation." A violation of the specific terms and

conditions of a defendant's probation, 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 5. This act shall apply as follows:

(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. § 9774.1, this

act shall apply to individuals sentenced or resentenced prior

to the effective date of this section.

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Section 6. 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 7. The following apply:

(1) The following apply to post-sentencing reviews:

(i) Subject to paragraph (2), the 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 one year after the

effective date of this section or:

(A) For a probation sentence on a misdemeanor

conviction, the date the defendant has completed two

years of probation.

(B) For a felony conviction, the date the

defendant has completed four years of probation.

conviction involving multiple offenses arising out of

the same criminal episode:

(I) the date the defendant has completed two

years of probation if all the offenses resulting

in the sentence were misdemeanors; or

(II) the date the defendant has completed

four years of probation if one of the offenses

resulting in the sentence included a felony.

(ii) For each case under review, the defendant and

the Commonwealth shall have the opportunity, in advance

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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.

(2) (i) This section shall not apply if:

(A) The defendant committed one of the following

technical violations within the six 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, including

incidents involving domestic violence.

(iii) A technical violation that involved

possession or control of a firearm or dangerous

weapon.

(iv) The technical violation involved the

manufacture, sale, delivery or possession with

the intent to manufacture, sell or deliver, a

controlled substance or other drug regulated

under the act of April 14, 1972 (P.L.233, No.64),

known as The Controlled Substance, Drug, Device

and Cosmetic Act.

(v) The defendant absconded.

(vi) A technical violation which involved an

intentional and unexcused failure to adhere to

recommended programming or conditions on three or

more separate occasions. For the purposes of this

clause, multiple technical violations stemming

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from the same episode of events shall not

constitute separate technical violations.

(vii) A technical violation that involved an

identifiable threat to public safety.

(ii) The defendant was convicted of a misdemeanor of

the first degree, misdemeanor of the second degree or

felony offense committed while either incarcerated or

serving probation.

(iii) 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).

(iv) The defendant was convicted of a crime of

violence.

(v) 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. When a court, either as a result of a petition or

as a result of its review under section 7 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. §

9774.1(c)(1) or (2).

Section 9. This act shall take effect in 180 days.

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