PRINTER'S NO. 1937
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1555
Session of
2019
INTRODUCED BY DELOZIER, HARRIS, JONES AND GAINEY, MAY 30, 2019
REFERRED TO COMMITTEE ON JUDICIARY, MAY 30, 2019
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in sentencing, further
providing for sentencing generally, for order of probation
and for modification or revocation of order of probation and
providing for resentencing of individuals incarcerated due to
revocation of probation.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9721(a.1) of Title 42 of the Pennsylvania
Consolidated Statutes is amended by adding a paragraph to read:
ยง 9721. Sentencing generally.
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(a.1) Exception.--
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(4) A court may not impose a sentence of probation
consecutive to another sentence of probation.
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Section 2. Section 9754(a) and (c)(6) and (9) of Title 42
are amended and the section is amended by adding subsections to
read:
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ยง 9754. Order of probation.
(a) General rule.--In imposing an order of probation the
court shall specify at the time of sentencing the length of any
term during which the defendant is to be supervised[, which term
may not exceed the maximum term for which the defendant could be
confined, and the authority that shall conduct the supervision.]
and that the term of probation may be continued, extended or
terminated.
(a.1) Misdemeanors and felonies.--The total probation period
may not exceed the following:
(1) For a felony, five years.
(2) For a misdemeanor, two years.
(a.2) Nonpayment of fines or costs.--The court may not
extend the period of supervision solely due to nonpayment of
fines or costs unless the court makes a finding on the record
that the defendant is financially able to pay and has willfully
refused to do so.
* * *
(c) Specific conditions.--The court may as a condition of
its order require the defendant:
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[(6) To refrain from frequenting unlawful or
disreputable places or consorting with disreputable persons.]
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(9) To [remain within the jurisdiction of the court and
to] notify the court or the probation officer of any change
in his address or his employment.
* * *
Section 3. Section 9771 of Title 42 is amended to read:
ยง 9771. Modification or revocation of order of probation.
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(a) General rule.--The court may at any time terminate
continued supervision or lessen or increase the conditions upon
which an order of probation has been imposed.
(a.1) Preliminary technical violation hearing.--
(1) Upon receipt of an allegation made by the
supervising probation officer of a technical violation, the
court will determine whether there is probable cause to
believe that the defendant has committed a technical
violation of the defendant's probation. If it is determined
that probable cause exists, then the court will hold a
preliminary technical hearing to determine if the defendant
should be detained pending the revocation hearing described
in subsection (e) .
(2) The defendant shall receive notice of the
preliminary hearing through service in the manner described
in this paragraph and be given the opportunity to appear on
his own recognizance. Original process may be served by
delivering notice to:
(i) an adult family member with whom the defendant
resides or, if no adult family member is present, an
adult person in charge of the residence;
(ii) the clerk or manager of a hotel, inn, apartment
house, boarding house or other place of lodging at which
the defendant resides; or
(iii) the agent or person in charge of a usual place
of business or employment of the defendant.
(a.2) Failure to appear.--
(1) Failure to appear at a preliminary technical
violation hearing may result in the issuance of a bench
warrant.
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(2) If a defendant is arrested for failing to appear at
the preliminary technical violation hearing under paragraph
(1), the defendant shall be taken to the local criminal court
where a bench warrant hearing shall be conducted after the
individual is lodged in the jail of the county of issuance on
the bench warrant.
(3) The defendant shall not be detained under paragraph
(2) without a bench warrant hearing longer than 72 hours or
the close of the next business day if the 72 hours expires on
a nonbusiness day. The court will determine whether the
defendant shall be detained pending the technical violation
revocation hearing under subsection (e) .
(a.3) Hearing procedure.--
(1) At the preliminary technical violation hearing, the
defendant shall:
(i) Receive notice of the alleged technical
violation of probation.
(ii) Have the right to present evidence on the
defendant's behalf.
(iii) Be provided counsel.
(iv) Be provided a written hearing disposition
report.
(2) The court shall determine if the defendant shall be
detained pending the technical violation revocation hearing
under subsection (e) . The defendant may be detained only upon
a clear and convincing finding that the defendant presents a
substantial risk of willfully failing to appear at an
adjudicatory hearing or poses a significant and immediate
threat to the public, and that no condition or combination of
conditions will reasonably assure the defendant's appearance
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at the technical violation revocation hearing.
(b) Revocation.--The court may revoke an order of probation
upon proof of the violation of specified conditions of the
probation. 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.]:
(1) If the defendant has been convicted of a new felony,
the sentencing alternatives available to the court shall be
the same as were available at the time of the defendant's
initial sentencing, and due consideration shall be given to
the time spent serving the order of probation.
(2) If the defendant has been convicted of a new
misdemeanor, the sentencing alternatives available to the
court shall be the same as were available at the time of the
defendant's initial sentencing, but the defendant's sentence
may include a term of imprisonment of up to 90 days.
(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] a new
crime; or
(2) the conduct of the defendant indicates that it is
likely that [he] the defendant will commit another crime [if
he is not imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.] and no other condition of
supervision or treatment would decrease this likelihood, in
which case the court may sentence the defendant to the
following terms of imprisonment:
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(i) Up to seven days of imprisonment upon the third
technical violation of specific conditions.
(ii) Up to 15 days of imprisonment upon the fourth
technical violation of specific conditions.
(iii) Up to 30 days of imprisonment for every
technical violation of specific conditions thereafter.
(c.1) Further limitation on sentence of total confinement.--
Notwithstanding subsection (c), an individual on probation shall
not be sentenced to a term of imprisonment for a probation
violation if the violation is:
(1) By an individual who has been issued an
identification card under the act of April 17, 2016 (P.L.84,
No.16), known as the Medical Marijuana Act, who tests
positive for marijuana.
(2) For associating with another person with a criminal
record or for traveling out of the jurisdiction without
permission, unless it can be shown by clear and convincing
evidence that the travel was to permanently avoid
supervision.
(d) Hearing required.--There shall be no revocation or
increase of conditions of sentence under this section except
after a technical violation revocation hearing [at which the
court shall consider the record of the sentencing proceeding
together with evidence of the conduct of the defendant while on
probation.] and the following shall apply:
(1) The hearing shall be scheduled upon the
determination of probable cause at a preliminary technical
violation hearing under subsection (a.1).
(2) The court shall hold a technical violation
revocation hearing to determine whether the facts warrant
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revocation of the defendant's probation and whether probation
is still an effective vehicle to accomplish the
rehabilitation and a sufficient deterrent against future
criminal conduct.
(3) Probation may be eliminated or the term decreased
without a hearing.
(e) Technical violation revocation hearing procedure.--
(1) Upon a determination of probable cause at a
preliminary technical violation revocation hearing under
subsection (a.1), a written request for a technical violation
revocation hearing shall be filed with the clerk of courts.
The request may be filed by the appropriate probation
department.
(2) The technical violation revocation hearing shall be
held before the defendant's sentencing judge or a judge
generally assigned to hear violations of probation.
(3) The court shall schedule a technical violation
revocation hearing within a reasonable amount of time after
receiving the written request for a hearing required under
paragraph (1).
(4) The defendant shall be provided legal counsel and
the opportunity to be heard in person and present witnesses
and documentary evidence.
(5) The defendant shall be provided the right to
confront and cross-examine witnesses.
(f) Sentencing procedures.--The following apply:
(1) At the time of sentencing, the court shall afford
the defendant the opportunity to make a statement on the
defendant's behalf and shall afford counsel for the
Commonwealth and the defendant the opportunity to present
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information and argument relative to sentencing.
(2) The court shall state on the record the reasons for
the sentence imposed.
(3) The court shall advise the defendant on the record:
(i) of the right to file a motion to modify sentence
and to appeal, of the time within which the defendant
must exercise those rights and of the right to assistance
of counsel in the preparation of the motion and appeal;
and
(ii) of the rights, if the defendant is indigent, to
proceed in forma pauperis and to proceed with assigned
counsel.
(4) The court shall require that a record of the
sentencing proceeding be made and preserved so that the
record can be transcribed as needed. The record shall
include:
(i) The record of any stipulation made at a
presentence conference.
(ii) A verbatim account of the entire sentencing
proceeding.
(g) Motion to modify sentence.--A motion to modify a
sentence imposed after a revocation shall be filed within 10
days of the date of imposition. The filing of a motion to modify
sentence will not toll the 30-day appeal period.
(h) Earned credit time.--
(1) For each calendar month in which the defendant has
complied with the terms of probation and has not violated any
conditions of probation, the defendant's term of probation
shall be reduced by 14 days.
(2) No earned discharge credit may be awarded for a
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calendar month in which a violation occurred, the defendant
has absconded or the defendant is incarcerated.
(3) No earned discharge credit may be awarded for a
partial month or the last full month of supervised probation.
(4) This section shall not apply to a defendant whose
probation is for a crime requiring registration under section
9799.15 (relating to period of registration).
(5) The reduction of the terms of a defendant's
probation shall be applied to the termination date within 30
days of the end of the month in which the credits were
earned. Earned time credits shall be applied to each
defendant under county probation supervision on or after the
effective date of this subsection.
(6) This subsection shall apply retroactively to the
start date of a defendant's sentence of probation for a
defendant who is on probation on the effective date of this
subsection.
(i) Educational earned credit time.--
(1) A defendant on county probation shall have the
defendant's total community supervision sentence reduced by
90 days if during the period under community supervision, the
defendant:
(i) earns a high school diploma or high school
equivalency certificate; or
(ii) successfully completes a certified vocational,
certified technical or certified career education or
training program.
(2) A defendant's supervision officer shall notify the
court if the defendant earns one or more time credits under
this subsection. On receipt of the notice from the
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supervision officer, the court shall conduct the review of
the defendant's community supervision to determine if the
defendant is eligible for a reduction or termination of
community supervision, taking into account any time credits
to which the defendant is entitled under this section. A
defendant can use any combination of the educational earned
credit time toward the completion of the period of community
supervision in accordance with this subsection.
(j) Early termination of county probation.--
(1) Notwithstanding earned credit time under subsection
(h) or (i), upon completion of one-half of the original
probation or two years of probation, whichever is later, the
court shall review the defendant's record and consider
whether to reduce the period or probation, terminate the
period of probation or reduce the conditions of probation,
unless the defendant is delinquent in paying required
restitution, is delinquent in paying the required fines and
costs that the defendant has the ability to pay or has not
completed court-ordered counseling or treatment.
(2) If the court does not terminate the defendant's
probation, the court shall review the defendant's record no
less than once every two years after a review under paragraph
(1), unless the defendant is subsequently convicted of a
crime graded as a felony or misdemeanor.
(3) The court shall give reasonable notice to the
defendant and the Commonwealth of the review and the
defendant shall have the right to appear.
(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:
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"Technical violation." A violation of the terms and
conditions of probation, other than by the commission of a new
crime for which the defendant is convicted or found guilty by a
judge or jury or to which the individual pleads guilty or nolo
contendere.
Section 4. Title 42 is amended by adding a section to read:
ยง 9771.2. Resentencing of individuals incarcerated due to
revocation of probation.
(a) General rule.--The sentencing court shall resentence a
defendant as provided under section 9771(d) (relating to
modification or revocation of order of probation) upon petition
of the defendant and proof that the defendant's probation
sentence was revoked and the petitioner was sentenced to
imprisonment in excess of the guidelines provided for under
section 9771(d) as a result of a violation of the specific
conditions of the defendant's probation.
(b) Petition procedure.--A petition under subsection (a)
shall be recognized as an authorized motion and shall be
assigned an identification code by the Administrative Office of
Pennsylvania Courts. The filing of a petition under this section
shall not require a fee.
(c) Subsequent petitions.--A subsequent petition may not be
considered by the sentencing court unless the petition alleges
and the petitioner proves that the facts upon which the claim is
predicated were unknown to the petitioner at the time of the
original filing and could not have been ascertained by the
exercise of due diligence. A subsequent petition that is not
scheduled for a hearing by the court within 30 days after filing
shall be deemed denied by the court.
Section 5. This act shall take effect immediately.
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