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A04167
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. Amending Titles 42 (Judiciary and
Judicial Procedure) and 61 (Prisons and Parole) of the
Pennsylvania Consolidated States, in sentencing, further
providing for order of probation and for modification or
revocation of order of probation; in other criminal
provisions, further providing for definitions and for
supervisory relationship to offenders; and, in Pennsylvania
Board of Probation and Parole, further providing for
supervisory relationship to offenders.
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:
§ 9721. Sentencing generally.
* * *
(a.1) Exception.--
* * *
(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:
§ 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:
* * *
[(6) To refrain from frequenting unlawful or
disreputable places or consorting with disreputable persons.]
* * *
(9) To [remain within the jurisdiction of the court and
to] notify the court or the probation officer of any change
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in his address or his employment.
* * *
Section 3. Section 9771 of Title 42 is amended to read:
§ 9771. Modification or revocation of order of probation.
(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.
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(a.2) Failure to appear.--
(1) Failure to appear at a preliminary technical
violation hearing may result in the issuance of a bench
warrant.
(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
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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
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
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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:
(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
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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
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:
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(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
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
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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
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
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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
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
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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:
"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:
§ 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
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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.
Section 1. Section 9754(c) of Title 42 of the Pennsylvania
Consolidated Statutes is amended and the section is amended by
adding a subsection to read:
§ 9754. Order of probation.
* * *
(c) Specific conditions.--The court may as a condition of
its order require the defendant:
(1) To meet his family responsibilities, including
consideration of child care responsibilities and limitations.
(2) To devote himself to a specific occupation [or],
employment or education initiative.
(2.1) To participate in a public or nonprofit community
service program unless the defendant was convicted of murder,
rape, aggravated assault, arson, theft by extortion,
terroristic threats, robbery or kidnapping.
(3) To undergo available medical or psychiatric
treatment and to enter and remain in a specified institution,
when required for that purpose.
(4) To pursue a prescribed secular course of study or
vocational training.
(5) To attend or reside in a facility established for
the instruction, recreation, or residence of persons on
probation.
[(6) To refrain from frequenting unlawful or
disreputable places or consorting with disreputable persons.]
(7) To have in his possession no firearm or other
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dangerous weapon unless granted written permission.
(8) To make restitution of the fruits of his crime or to
make reparations, in an amount and on a schedule that he can
afford to pay, for the loss or damage caused thereby.
(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.
(10) To report as directed to the court or the probation
officer and to permit the probation officer to visit his
home.
(11) To pay such fine as has been imposed.
(12) To participate in drug or alcohol treatment
programs.
(13) To satisfy any other conditions reasonably related
to the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his freedom
of conscience.
(14) To remain within the premises of his residence
during the hours designated by the court.
* * *
(e) Prescribed medications.--A court may not, as a condition
of probation, prohibit the lawful possession or use of a
prescribed medication, including medical marijuana, unless:
(1) the defendant is being sentenced for an offense
under Chapter 13 of the act of April 17, 2016 (P.L.84,
No.16), known as the Medical Marijuana Act, or the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act; or
(2) t he court determines that a prohibition against the
possession or use of a lawfully prescribed medication is
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necessary and appropriate to meet the sentencing standards
articulated in section 9721 (relating to sentencing
generally).
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
solely due to nonpayment of fines or costs unless the court
finds that the defendant is financially able to pay 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
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 the defendant has been convicted of
another crime.
(2) A court may impose a sentence of total confinement
upon revocation if the defendant committed a technical
violation and any of the following apply:
(i) The technical violation was sexual in nature.
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(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 incarceration.
(v) There exists an identifiable threat to public
safety, and the defendant cannot be safely diverted from
incarceration.
(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
incarceration.
(3) If a court imposes a sentence of total confinement
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.
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(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.
* * *
(e) Possession or use of prescribed medications.--A court
may not consider a defendant's lawful possession or use of a
prescribed medication, including medical marijuana, as a basis
for the modification or revocation of an order of probation
unless a prohibition on the possession or use of the prescribed
medication is a condition of the defendant's probation.
(f) Mandatory probation review conference.--
(1) A defendant shall be eligible for an initial
probation review conference as follows:
(i) Subject to subparagraph (ii), after the
defendant has completed three years of probation
following a misdemeanor conviction or five years of
probation following a felony conviction.
(ii) Any of the following:
(A) If the sentence imposed arises out of
convictions for multiple offenses but does not
include a conviction of a felony offense, after the
defendant has completed three years of probation.
(B) If the sentence imposed arises out of
convictions for multiple offenses and includes at
least one felony conviction, after the defendant has
completed five years of probation.
(2) 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.
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(3) A defendant shall be eligible for an initial
probation review conference six months prior 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 12 months prior to the date that
the defendant would otherwise be eligible under paragraphs
(1) if the defendant satisfies two or more of the conditions
under paragraph (3).
(5) To qualify a defendant for an accelerated initial
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probation review conference under paragraph (3) or (4), any
condition under paragraph (3)(v), (vi) or (vii) must be
approved by the Pennsylvania Commission on Crime and
Delinquency or any advisory committee of that commission
designated to provide approval.
(6) 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.
(7) Notwithstanding paragraphs (1) and (10), no
defendant shall be eligible for a probation review conference
if the defendant:
(i) committed a technical violation within the 18
months immediately preceding the defendant's probation
review conference; or
(ii) was convicted of a misdemeanor or felony
offense committed while either incarcerated or serving
probation.
(8) Following the probation review conference, the court
shall terminate probation unless the court finds any of the
following:
(i) The conduct of the defendant on probation is
such that there exists an identifiable threat to public
safety, including consideration of whether the defendant
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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) The defendant has not successfully completed
all treatment or other programs required as a condition
of probation, or the court otherwise finds that
termination would substantially jeopardize the
rehabilitative needs of the defendant.
(iii) The defendant has failed to pay the total
restitution owed by the defendant.
(9) 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
the defendant has paid at least 50% of the restitution owed.
An eligible defendant placed on administrative probation
shall do all of the following and not be subject to any other
conditions of probation:
(i) Make supervision contact at least one time per
year.
(ii) Provide updated contact information upon a
change in residence or employment.
(iii) Pay the remaining restitution owed, as ordered
by the court.
(10) If the court does not terminate probation at a
probation review conference, 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
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conference.
(11) This subsection shall not apply if any of the
following has occurred:
(i) The defendant was convicted of an offense listed
under Subchapter H (relating to registration of sexual
offenders) or I (relating to continued registration of
sexual offenders) of Chapter 97.
(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 a family or
household member.
(12) Nothing in this subsection shall prohibit the
court, in its discretion, from eliminating or decreasing the
term of probation under subsection (d).
(g) 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 member." 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. Section 9911 of Title 42 is amended by adding a
definition to read:
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§ 9911. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given in this section unless the context
clearly indicates otherwise:
* * *
"Drug trafficking offense." A violation of section 13(a)
(14), (30) or (37) of the act of April 14, 1972 (P.L.233,
No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, if the controlled substance or a mixture
containing the controlled substance is:
(1) Marijuana, if the amount of marijuana involved is at
least 50 pounds or at least 51 live plants.
(2) A narcotic drug classified in Schedule I or Schedule
II under section 3 or 4 of The Controlled Substance, Drug,
Device and Cosmetic Act, if the aggregate weight of the
compound or mixture containing the substance involved is at
least 100 grams.
(3) Any of the following, if the aggregate weight of the
compound or mixture of the substance involved is at least 100
grams:
(i) Coca leaves.
(ii) A salt, compound, derivative or preparation of
coca leaves.
(iii) A salt, compound, derivative or preparation
that is chemically equivalent or identical with any of
the substances under subparagraph (i) or (ii).
(iv) A mixture containing any of the substances
under subparagraph (i) or (ii), except decocainized coca
leaves or extracts of coca leaves which do not contain
cocaine or ecgonine.
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