Assault’s Against Police with a Gun and Mandatory Sentences

On October 17, 2008 the legislature enacted two related sentencing modifications. Under provision 42 Pa.C.S. § 9719.1 (2012), the Legislature enacted a mandatory minimum sentence of twenty years in jail for those persons convicted of the first degree felony against a police officer, under the specific statutory charge in 18 Pa.C.S. § 2702.1(a) (relating to assault of law enforcement officer) — not less than 20 years.

In conjunction therewith, the legislature amended § 2702.1(1) to read § 2702.1. Assault of law enforcement officer: (a) Assault of a law enforcement officer in the first degree. –A person commits a felony of the first degree who attempts to cause or intentionally or knowingly causes bodily injury to a law enforcement officer, while in the performance of duty and with knowledge that the victim is a law enforcement officer, by discharging a firearm.

Further, the law now provides at § 2702.1(b) 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.

As well, the statute provides at § 2702.1(c) 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. 18 Pa.C.S. § 2702.1 (2012), Act 2008-131 (H.B. 1845), P.L. 1628, § 1.1, approved Oct. 17, 2008, eff. in 60 days.

Significantly, this new mandatory minimum sentence is a second mandatory minimum sentence that seals with any offense committed with a fire arm. If a person is convicted of the general firearms offense but not convicted of Aggravated Assault charge against the police office, there is still a mandatory sentence. 42 Pa.C.S. § 9712 (2012) (a) states: 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 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.

There is not a trial on these issues. Rather, the law provides, (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.

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