The following statutory provisions are current as of August 2014. Due to recent changes by the U.S. Supreme Court, the law is no longer constitutional. See discussion below.
18 Pa.C.S. § 6317. Drug-free school zones.
(a) General rule.– A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:
(1) subject to this section; and
(2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.
If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).
(b) Proof at sentencing.– The provisions of this section shall not be an element of the crime. Notice of the applicability of this section 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 evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.
(c) Authority of court in sentencing.– There shall be no authority for a court to impose on a defendant to which this section is applicable a lesser sentence than provided for in subsection (a), to place the defendant on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.
(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.
Legislative history: June 25, 1997, P.L.284, No.26, effective 60 days
PA’s Drug-Free School Zone Law, Proof at Sentencing
This law is unconstitutional due to a recent, landmark case decided by the U.S. Supreme Court last year, Alleyne v. U.S. The Alleyne case basically turned Pennsylvania’s Drug-Free School Zone and other mandatory sentencing laws upside down.
The Alleyne Court mandated that any fact which increases the mandatory minimum sentence (i.e., selling drugs in a school zone) must be proved beyond a reasonable doubt. Anything less violates U.S. constitutional law.
Prior to Alleyne, during sentencing, prosecutors only had to prove that the drugs were sold within 1000 feet of a school by a preponderance of the evidence. Now, as a result of Alleyne, the fact that the drugs were sold within 1000 feet of a school must be proved beyond a reasonable doubt and must be submitted to the jury.
In light of the Alleyne case, DA offices are merely adding the sentencing factor to jury verdict sheets. In doing so, prosecutors are basically turning these sentencing factors into elements of the crime, which is specifically prohibited by the drug-free school zone law, section (b).
No Pennsylvania appellate court has ruled yet on whether simply adding the sentencing factor to a jury verdict sheet is constitutional. However, some trial courts have refused to apply the sentencing factor, and rightfully so.
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