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PRIOR PRINTER'S NO. 934
PRINTER'S NO. 940
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
SENATOR BAKER, JUDICIARY, AS AMENDED, JUNE 22, 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.
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* * *
(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
read:
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§ 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.
(c) Limitation on sentence of total confinement.--[The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:
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(1) the defendant has been convicted of another crime;
or
(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.
(C) The technical violation involved possession
or control of a firearm or dangerous weapon.
(D) The technical violation involved the
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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
incarceration to be served on weekends or other nonwork
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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
for an initial probation review conference after completing
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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.
(4) A defendant sentenced to a period of probation
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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 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.
(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.
(c) Accelerated early review conference.--
(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
an accredited university, college or seminary college.
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(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.
(d) Probation status report.--No later than 30 days prior to
the date the defendant is otherwise entitled to a probation
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, 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
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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
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
(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) shall have 30 days
from the date of the status report to object or otherwise
respond to the probation status report. The following shall
apply:
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(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
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.
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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 and the court finds that the defendant is
financially able to pay restitution .
(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.
(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:
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(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.
(C) A technical violation that involved
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.
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(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
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
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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
defendant has ever been convicted of 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
(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:
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(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
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).
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"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.
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
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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.
(C) For a probation sentence based on a
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
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
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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
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
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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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