The New 2024 Pennsylvania Sentencing Guidelines

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

A major update to the Pennsylvania Sentencing Guidelines went into effect on January 1, 2024. The new guidelines significantly revamp Pennsylvania’s system for sentencing defendants following a conviction at trial or guilty plea. The guidelines had largely been handled the same way since their creation, but now, the Pennsylvania Commission on Sentencing has significantly changed the way prior record scores are calculated and created a very different sentencing matrix. The old guidelines still apply to offenses committed before 2024. The new 8th edition of the guidelines apply for offenses committed on or after January 1, 2024.

What are the sentencing guidelines?

As an introductory reminder, prior to sentencing a defendant in Pennsylvania state court, a judge must calculate the guidelines for the offense. Every offense has an offense gravity score, and every defendant has a prior record score. The judge must correctly determine the offense gravity score (OGS) and the defendant’s prior record score (PRS). Where those two numbers meet on the sentencing guidelines matrix then provides the judge with a recommended range for the minimum sentence. With the exception of very short sentences (like 30 days in jail for possession of marijuana), every sentence in Pennsylvania must have a minimum and a maximum. The maximum must be at least double the minimum in order for the sentence to be legal.

Under Pennsylvania’s guidelines system, the judge must correctly calculate the sentencing guidelines and then consider sentencing the defendant within the range provided by the guidelines for the defendant’s minimum sentence. Ultimately, the judge does not have to sentence the defendant within the guidelines. The judge could decide there is something less serious about the case and go below the guidelines or something more serious about the case and go above the guidelines. Guideline sentences, however, are very difficult to appeal. It is generally easier to appeal a sentence when the judge departs from the guidelines.

The basic idea of the new guidelines is the same; every offense will have guidelines based on an offense gravity score and a prior record score. Calculating those numbers, however, has become a little bit more complicated.

The Offense Gravity Score

The offense gravity score is relatively easy to determine. The Pennsylvania Commission on Sentencing provides a list of offenses, and each offense has a numerical offense gravity score that goes with it. First, the defense attorney must determine the offense gravity score for each offense charged by reviewing the list of offenses in the complaint or bills of information. It is important to look at the specific subsection charged as different subsections may have different offense gravity scores.

Second, the attorney must determine whether any enhancements apply. The two most common enhancements are the deadly weapon possessed and the deadly weapon used enhancements. They apply when a deadly weapon like a gun or a knife was either used or possessed during the commission of the crime.

If a deadly weapon was possessed but not used, then the offense gravity score will be two points higher.

If the deadly weapon was used, then the offense gravity score will be three points higher.

The deadly weapon enhancements do not apply if the statute itself always involves the use of a deadly weapon because the use of a deadly weapon is an element of the offense. Possessing an instrument of crime, prohibited offensive weapons, possession of a weapon on school property, assault with a deadly weapon, and violations of the uniform firearms act do not require the application of the deadly weapon enhancements because the possession or use of a deadly weapon is part of the offense.

There are three other enhancements which are less likely to apply.

First, there is a school zone enhancement. If a controlled substance was delivered or possessed with the intent to deliver in a school zone, then there is a one point addition to the offense gravity score.

Second, there is a criminal gang enhancement of two points.

Third, there is a domestic violence enhancement of two points. If the defendant committed the offense against a family or household member, then the enhancement may apply.

It is important to accurately calculate the offense gravity score. Further, the calculation of the correct offense gravity score may be subject to litigation. If the Commonwealth alleges that a particular object was a deadly weapon but the object was not a gun or a knife, it may be possible to argue that the object was not actually a deadly weapon.

The defense should carefully review the pre-sentence investigation and calculation of the guidelines and object if the guidelines seem too high or are based on allegations the Commonwealth may not be able to prove. It is important to remember that the Commonwealth bears the burden of establishing that an enhancement applies by a preponderance of the evidence. It is not necessarily the defense attorney’s job to prove that it does not apply. The Commonwealth, however, may use circumstantial evidence in order to meet this burden.

The Prior Record Score

Second, the defense attorney must properly calculate a defendant’s prior record score. The system for determining the offense gravity score did not change significantly with the enactment of the new guidelines, but dealing with the prior record score is very different. Instead of looking at each charge for which a defendant has been convicted and assigning points to that charge and then adding those points up, the prior record score will now be based on the most serious offense of conviction for each case where a defendant was convicted of a crime.

There are four categories of offenses.

First, there are misdemeanors which have not been designated as serious crimes (POG1 offenses).

Second, there are third degree felonies and unclassified felonies (like possession with the intent to deliver) which have not been designated as serious crimes (POG2 offenses).

Third, there are serious crimes, first-degree felonies, and second-degree felonies (POG3 offenses). VUFA offenses and SORNA offenses are generally considered serious crimes that fall within the third category.

Fourth, there are crimes of violence which would otherwise be considered strike offenses (POG4 offenses). These include offenses like first-degree felony aggravated assault, attempted murder, rape, IDSI, and certain robberies and burglaries. There are other offenses which fall within this list. They are defined in 42 Pa.C.S. § 9714(g).

In calculating the prior record score, the defense attorney must determine which prior offense on the defendant’s record is the most serious. The attorney should then determine how many offenses of the same seriousness fro which the defendant has been convicted. The number of offenses for which the defendant has been convicted of the same seriousness will then determine the defendant’s prior record score based on where that number falls on this chart.

The Prior Record Score Matrix

For example, using the above chart, a defendant with two misdemeanors (which go under the POG1 category) will fall under prior record score one.

A defendant with two F1 robberies (which are crimes of violence that fall under POG4) will have the highest prior record score of four.

A defendant with three prior possession with the intent to deliver cases, which fall under POG2, will fall under prior record score three.

A defendant with two VUFA convictions (POG3), would have a prior record score of three.

Lapsing of Convictions for the Prior Record Score

Under the old guidelines, convictions were permanent. Even if a defendant was convicted of an offense fifty years ago, the offense would still count towards the defendant’s prior record score unless the offense was a juvenile adjudication and a certain amount of time had passed in between the adjudication and new offense. Now, convictions will no longer count if a defendant goes a certain amount of time in between arrests.

Juvenile Adjudications

First, juvenile adjudications lapse relatively quickly.

Juvenile adjudications for POG1 offenses (mostly misdemeanors) do not count towards the prior record score.

Juvenile offenses in POG2 (mostly third-degree felonies and PWIDs) do not count once the defendant turns 25.

POG3 offenses (felony ones and felony twos that are not crimes of violence) do not count if the defendant is “crime-free” for ten years.

Finally, POG4 adjudications (crimes of violence) do not count after 10 years crime-free if they were committed when the defendant was between 14 and 16 or after 15 years crime-free if the defendant was 16 or older.

Adult Convictions

Under the old guidelines, adult convictions counted forever. Now they may lapse after a certain amount of time.

POG1 offenses lapse after ten years from the conviction date even if the defendant was not crime-free.

POG2 and POG3 offenses lapse after 15 years of being crime-free.

POG4 offenses lapse after 25 years of being crime-free.

The time period for being crime-free runs either from the date of release from incarceration or the date of the sentence if the defendant received probation.

Again, if there is a dispute, the Commonwealth bears the burden of proving that lapse should not occur.

The following is the definition of a crime-free period:

‘‘Crime-free period.’’ Following a conviction and sentence and subsequent release to the community, the completion of a prescribed period of time without commission of a new felony or misdemeanor, for which the person pleads guilty or nolo contendere or is found guilty. For non-confinement sentences, release to the community begins on the date of sentencing; for confinement sentences, release to the community begins on the date of initial release on parole, or release following completion of the confinement sentence, whichever is earlier.

The New 2024 Pennsylvania Sentencing Guidelines Matrix

Once the criminal defense attorney has calculated the offense gravity score and prior record score, the next step is to see where those numbers meet on the below matrix. That number then provides a recommended minimum sentence for the judge to consider. The judge may go higher or may go lower, but the judge must properly calculate the guidelines and consider them. The judge must put the guidelines on the record, and if the judge decides to go above or below the guidelines in sentencing the defendant, the judge must announce the reasons for the departure on the record at the time of sentencing. The failure to properly calculate the guidelines or put the reasons for a departure on the record could be the basis for a successful appeal.

The New 2024 Pennsylvania Sentencing Guidelines Matrix (8th Edition)

A Judge May Depart From the Guidelines

Finally, a judge may depart from the guidelines. Judges may consider the following factors when deciding whether to depart:

(i) Nature and circumstances of the offense:

(A) Neither caused nor threatened serious harm.

(B) Conduct substantially influenced by another person.

(C) Acted under strong provocation.

(D) Substantial grounds to justify conduct.

(E) Role in offense.

(F) Purity of controlled substance.

(G) Abuse of position of trust.

(H) Vulnerability of victim.

(I) Temporal pattern.

(J) Offense pattern.

(K) Multiple offenses in a criminal incident.

(ii) History and character of the person:

(A) No history of criminal conduct.

(B) Substantial period of law-abiding behavior.

(C) Circumstances unlikely to recur.

(D) Likely to respond affirmatively to probation.

(E) Imprisonment would entail excessive hardship.

(F) Accepts responsibility.

(G) Provides substantial assistance.

(H) Compensated victim or community.

(I) Character and attitude.

(J) Treatment for substance abuse, behavioral health issues, or developmental disorders or disability.

(2) Unless otherwise prohibited by statute, the consideration of validated assessments of risk, needs and responsivity, or clinical evaluations may be considered to guide decisions related to the intensity of intervention, use of restrictive conditions, and duration of community supervision.

(3) Adequacy of the prior record score. The court may consider at sentencing prior convictions, juvenile adjudications, or dispositions not counted in the calculation of the PRS, in addition to other factors deemed appropriate by the court.

Obviously, this is a big list of reasons for a potential departure. At the end of the day, it is important to remember that the new guidelines, like the old ones, are not mandatory minimums. They provide the judge with a starting point for the potential sentence. In some counties, the guidelines are treated almost as mandatory minimums and it is rare to see judges go below or above the guidelines. In others, the guidelines are routinely calculated but then ignored. Additionally, the guidelines do not tell the judge whether to impose consecutive or concurrent sentences for different offenses. It is also not clear yet whether separate cases which were consolidated and disposed of at the same time will count as one case or two cases for calculating the prior record score, so some of these things will still be subject to litigation. Either way, it is important to correctly calculate the guidelines as they will give the defendant an idea of what they are facing if they are convicted and the improper calculation of the guidelines at sentencing could be the basis for an appeal or PCRA claim.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Issues New Sentencing Guidelines for Probation Violations

The Pennsylvania Sentencing Commission recently issued new guidelines concerning violation of probation hearings (“VOP hearings”). The Sentencing Commission’s decision could dramatically change the way in which probation violations in Philadelphia and throughout the state are handled because the court no longer has unlimited discretion in fashioning a sentence.

Further, the Sentencing Commission has created the guidelines in such a way that they recommend significant prison sentences for most probation violations no matter how minor. It will take some time to see how seriously judges take the guidelines, and there has also been a recent push in the legislature to limit the unlimited discretion of judges to impose extreme prison sentences for probation violations which could lead to future changes. For now, however, the creation of these guidelines, which typically recommend jail time, appear to be a step in the wrong direction. 

What is a Violation of Probation Hearing in Philadelphia?

A VOP hearing occurs when a defendant violates a judge’s probation. There are two types of potential violations: technical violations and direct violations. Technical violations occur when the defendant does not comply with some condition of his or her probation. For example, let’s assume that a condition of a defendant’s probation is that the defendant attend anger management classes. If the defendant does not go to the anger management classes, then the probation officer could recommend that the judge find the defendant in violation of his or her sentence. The judge, after holding a hearing, could then decide to revoke the defendant’s probation, impose a new period of probation, or even impose a period of incarceration on the defendant. This is just one example. Judges are given broad discretion in fashioning their sentences and thus can impose a variety of conditions on a defendant. This means that a defendant can be found in violation of probation and sentenced to prison without committing any new crimes.

Direct violations are usually more serious than technical violations. A direct violation occurs when a defendant is convicted of a new crime while on probation for another crime. Judges will often impose harsher sentences on defendants who have committed direct violations than on defendants who have committed technical violations, and potential direct violations often lead to probation detainers which prevent the defendant from being released until the new case has been resolved. Additionally, a defendant’s back judge can impose a sentence that is consecutive to the sentence the defendant received on his new case. Therefore, direct violations can cause great harm to a defendant.

What are the New Sentencing Guidelines?

The new sentencing guidelines affect both technical and direct violation hearings. If a defendant is found to be in technical violation, then the court is to consider the defendant’s original guidelines from the time of sentencing on the offense when deciding on a new sentence. For example, let’s assume that a defendant was serving a sentence on an Aggravated Assault that is graded as a felony of the first degree. Let’s also assume that when he was sentenced, he had a prior record score (“PRS”) of 1. As such, his guidelines were 42-60 months of incarceration, with the judge given the discretion to add or subtract 12 months to or from the sentence. Now let’s assume that this defendant was ordered to attend anger management classes, but he did not do so. At his VOP hearing, per the new sentencing guidelines, the court could sentence him to anywhere from 30-72 months for this technical violation. As such, a defendant can receive a worse sentence than what he originally received based on these new guidelines.

Things get worse if you are in direct violation on your probation based on the new sentencing guidelines. If you receive a direct violation, your new guidelines are most likely higher than they would be if you only had a technical violation. Instead of being sentenced to the original guidelines, if a defendant is found to be in direct violation, then the defendant will be resentenced on an increased PRS (the courts add one point for defendants with a prior PRS of 0-4, if a defendant is a 5, REVOC, or RFEL then no points are added).

To help explain this, let’s use our defendant from the previous example. Instead of not attending his anger management classes, he picks up a simple assault case which results in a conviction. At his Gagnon II hearing at which he is re-sentenced, the judge must now add a point to his PRS. So instead of being a 1, he is now a 2. Now his guidelines for resentencing are 48-66 months of incarceration plus or minus twelve months for aggravating or mitigating circumstances. Therefore, because of his new direct violation, his guidelines on his VOP range from 36-78 months. As one can see, these new guidelines are significant and can result in defendants spending more time incarcerated than they previously would have been. In many ways, this is actually worse than simply leaving it to the discretion of the judge as the rules require that the judge consider these guidelines when imposing a sentence and place any reasons for departing from them on the record.

The problem with these guidelines is that the sentencing guidelines call for jail in almost all cases. It can be almost draconian to impose a significant jail sentence on someone for not complying with a condition of their probation or even being convicted of a minor crime such as a misdemeanor. If fully implemented, these guidelines have the potential to worsen the mass incarceration problem instead of alleviating it.  

Are The New Sentencing Guidelines Mandatory at a Probation Violation Hearing?

No. Just like the sentencing guidelines for the original conviction, courts are not required to impose guideline sentences. If a court imposes a sentence outside of the guidelines, then the judge must state in open court the reasons for the revocation and the sentence imposed. If a court imposes a sentence outside the guidelines, then the court must document the reasons why on the “Guideline Sentence Form” which then will be electronically submitted to the Pennsylvania Commission on Sentencing. This means that the guidelines are not binding on the court. But judges do tend to consider the guidelines and take them seriously when imposing sentence.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.