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A02861
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1851
Session of
2019
INTRODUCED BY STEPHENS, QUINN, BERNSTINE, ROTHMAN, MILLARD,
BURNS, READSHAW, MOUL, SCHWEYER AND DeLUCA,
SEPTEMBER 19, 2019
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 19, 2019
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in sentencing, further
providing for sentences for offenses committed with firearms
and for sentences for second and subsequent offenses.
providing for sentences for persons not to possess, use,
manufacture, control, sell or transfer firearms.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9712(a), (b) and (d) of Title 42 of the
Pennsylvania Consolidated Statutes are amended and the section
is amended by adding a subsection to read:
§ 9712. Sentences for offenses committed with firearms.
(a) Mandatory sentence.--Except as provided under section
9716 (relating to two or more mandatory minimum sentences
applicable), any person who is convicted in any court of this
Commonwealth of a crime of violence as defined in section
9714(g) (relating to sentences for second and subsequent
offenses), shall, if the person [visibly] possessed a firearm
[or] during the commission of the offense, regardless of whether
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the firearm was loaded or functional, or the person visibly
possessed a replica of a firearm[, whether or not the firearm or
replica was loaded or functional,] that placed the victim in
reasonable fear of death or serious bodily injury, during the
commission of the offense, be sentenced to a minimum sentence of
at least five years of total confinement notwithstanding any
other provision of this title or other statute to the contrary.
Such persons shall not be eligible for parole, probation, work
release or furlough.
[(b) Proof at sentencing.--Provisions of this section shall
not be an element of the crime and notice thereof to the
defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth's intention to proceed
under this section shall be provided after conviction and before
sentencing. The applicability of this section shall be
determined at sentencing. The court shall consider any evidence
presented at trial and shall afford the Commonwealth and the
defendant an opportunity to present any necessary additional
evidence and shall determine, by a preponderance of the
evidence, if this section is applicable.]
(b.1) Application of mandatory minimum penalty.--Any
provision of this section that requires imposition of a
mandatory minimum sentence shall constitute an element enhancing
the underlying offense. Any enhancing element must be proven
beyond a reasonable doubt at trial on the underlying offense and
must be submitted to the finder of fact for deliberation
together with the underlying offense. If the finder of fact
finds the defendant guilty of the underlying offense, the finder
of fact shall then also decide whether any enhancing element has
been proven.
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* * *
(d) Appeal by Commonwealth.--[If a sentencing court refuses
to apply this section where applicable, the Commonwealth shall
have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the sentence
and remand the case to the sentencing court for imposition of a
sentence in accordance with this section if it finds that the
sentence was imposed in violation of this section.] If the
finder of fact has found any enhancing element and a sentencing
court imposes a sentence below the mandatory minimum sentence,
the Commonwealth shall have the right to appellate review of the
sentence. If the appellate court finds that the mandatory
sentencing provision was applicable, the court shall vacate the
sentence and remand the case for resentencing in accordance with
that provision.
* * *
Section 2. Section 9714(g) of Title 42 is amended to read:
§ 9714. Sentences for second and subsequent offenses.
* * *
(g) Definition.--As used in this section, the term "crime of
violence" means murder of the third degree, voluntary
manslaughter, manslaughter of a law enforcement officer as
defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal
homicide of law enforcement officer), murder of the third degree
involving an unborn child as defined in 18 Pa.C.S. § 2604(c)
(relating to murder of unborn child), aggravated assault of an
unborn child as defined in 18 Pa.C.S. § 2606 (relating to
aggravated assault of unborn child), aggravated assault as
defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to
aggravated assault), assault of law enforcement officer as
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defined in 18 Pa.C.S. § 2702.1 (relating to assault of law
enforcement officer), use of weapons of mass destruction as
defined in 18 Pa.C.S. § 2716(b) (relating to weapons of mass
destruction), terrorism as defined in 18 Pa.C.S. § 2717(b)(2)
(relating to terrorism), trafficking of persons when the offense
is graded as a felony of the first degree as provided in 18
Pa.C.S. § 3002 (relating to trafficking of persons), rape,
involuntary deviate sexual intercourse, aggravated indecent
assault, incest, sexual assault, arson endangering persons or
aggravated arson as defined in 18 Pa.C.S. § 3301(a) or (a.1)
(relating to arson and related offenses), ecoterrorism as
classified in 18 Pa.C.S. § 3311(b)(3) (relating to
ecoterrorism), kidnapping, burglary as defined in 18 Pa.C.S. §
3502(a)(1) (relating to burglary), robbery as defined in 18
Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or
robbery of a motor vehicle, drug delivery resulting in death as
defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery
resulting in death), possession, use, manufacture, control, sale
or transfer of firearms as defined in 18 Pa.C.S. § 6105(a)
(relating to persons not to possess, use, manufacture, control,
sell or transfer firearms) by a person convicted of a felony
enumerated under 18 Pa.C.S. § 6105(b) or a felony under the act
of April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act, or any equivalent
Federal statute or equivalent statute of any other state
punishable by a term of imprisonment exceeding two years, or
criminal attempt, criminal conspiracy or criminal solicitation
to commit murder or any of the offenses listed above, or an
equivalent crime under the laws of this Commonwealth in effect
at the time of the commission of that offense or an equivalent
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crime in another jurisdiction.
Section 2. Title 42 is amended by adding a section to read:
§ 9712.2. Sentences for persons not to possess, use,
manufacture, control, sell or transfer firearms.
(a) First conviction.--Any person who is convicted under 18
Pa.C.S. § 6105(a) (relating to persons not to possess, use,
manufacture, control, sell or transfer firearms) as a result of
a felony enumerated under 18 Pa.C.S. § 6105(b) or a felony under
the act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, or any
equivalent Federal statute or equivalent statute of any state
punishable by a term of imprisonment exceeding two years, shall
be sentenced to a minimum sentence of at least five years of
total confinement notwithstanding any other provision of this
title or other statute to the contrary.
(b) Second and subsequent convictions.--A second or
subsequent conviction under 18 Pa.C.S. § 6105(a) as a result of
a felony enumerated under 18 Pa.C.S. § 6105(b) or a felony under
The Controlled Substance, Drug, Device and Cosmetic Act, or any
equivalent Federal statute or equivalent statute of any state
punishable by a term of imprisonment exceeding two years, shall
constitute a "crime of violence" as that term is defined in
section 9714(g) (relating to sentences for second and subsequent
offenses) and the person shall be sentenced in accordance with
section 9714.
(c) Proof at sentencing.--Provisions of this section shall
not be an element of the crime and notice thereof to the
defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth's intention to proceed
under this section shall be provided after conviction and before
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sentencing. The applicability of this section shall be
determined at sentencing. The sentencing court, prior to
imposing sentence on an offender under subsection (a), shall
have a complete record of the previous convictions of the
offender, copies of which shall be furnished to the offender. If
the offender or the attorney for the Commonwealth contests the
accuracy of the record, the court shall schedule a hearing and
direct the offender and the attorney for the Commonwealth to
submit evidence regarding the previous convictions of the
offender. The court shall then determine, by a preponderance of
the evidence, the previous convictions of the offender and, if
this section is applicable, shall impose sentence in accordance
with this section. Should a previous conviction be vacated and
an acquittal or final discharge entered subsequent to imposition
of sentence under this section, the offender shall have the
right to petition the sentencing court for reconsideration of
sentence if this section would not have been applicable except
for the conviction which was vacated.
(d) Appeal by Commonwealth.--If a sentencing court refuses
to apply this section where applicable, the Commonwealth shall
have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the sentence
and remand the case to the sentencing court for imposition of a
sentence in accordance with this section if it finds that the
sentence was imposed in violation of this section.
Section 3. This act shall take effect in 60 days.
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