The following statutory provisions are current as of June 2014. Due to recent changes by the U.S. Supreme Court, the Pennsylvania legislature is likely to pass amendments to this law. See discussion below.
42 Pa.C.S. § 9712.1. Sentences for certain drug offenses committed with firearms.
(a) Mandatory sentence. –Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.
(b) Limitation on aggregate sentences. –Where a defendant is subject to a mandatory minimum sentence under 18 Pa.C.S. § 7508(a) (relating to drug trafficking sentencing and penalties) and is also subject to an additional penalty under subsection (a) and where the court elects to aggregate these penalties, the combined minimum sentence may not exceed the statutory maximum sentence of imprisonment allowable under The Controlled Substance, Drug, Device and Cosmetic Act.
(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 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. [**See discussion below]
(d) Authority of court in sentencing. –There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender 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.
(e) 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.
(f) Definition. –As used in this section, the term “firearm” shall have the same meaning as that given to it in section 9712 (relating to sentences for offenses committed with firearms).
Legislative history: Act 2004-225 (H.B. 447), P.L. 1747, § 1, approved Dec. 1, 2004, eff. in 60 days.
42 Pa.C.S. § 9712.1(c) Proof at Sentencing
Section (c) is likely to be changed due to a recent U.S. Supreme Court case, Alleyne v. U.S. (2013). In Alleyne, the U.S. Supreme Court dramatically changed how the DA must prove the sentencing enhancing factor, i.e., possession of a gun. The Court found that any fact which increases the mandatory minimum sentence must be proved beyond a reasonable doubt. Anything less violates U.S. constitutional law.
Previously, the DA’s office was only required to provide notice, at some time prior to sentencing, of its intent to seek increased sentencing under this law. More importantly, the DA was only required to prove the fact triggering the mandatory sentence, i.e., possession of a gun, to the sentencing judge, and only had to prove the fact by a preponderance of the evidence.
As a result of the Alleyne case, the DA must now plead and prove the fact triggering the mandatory sentence at trial, and the fact must be proved beyond a reasonable doubt. This is a significant departure and is favorable to those facing drug charges in Pennsylvania.
Section (c) was basically overturned by the Alleyne case because under that section, the burden of proof is the much lower, preponderance of the evidence standard, which requires that the DA prove the fact to such a degree that the fact is more likely true than not true. This is a far lower standard than the beyond a reasonable doubt standard, and accordingly makes the burden more difficult for the DA’s office. It is only a matter of time before the Pennsylvania legislature amends the law so that it passes muster under the U.S. constitution.
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