RRR Eligibility and Mandatory Minimum Sentences

Recent budgetary constraints have compelled state legislatures to rethink prison as a rehabilitative resource rather than warehouse project to simply store persons convicted of non-violent offenses. To that end, the General Assembly in our Commonwealth passed legislation titled the Recidivism Risk Reduction Incentive Program, 61 Pa.C.S. § 4501 et seq., for eligible persons. This specific legislation, however, came in directly conflict with Pennsylvania’s mandatory minimum sentencing scheme for first time offenders as set forth in 18 Pa.C.S. §§ 6317 and 7508.

The confluence of these two provisions was recently addressed in the case of Commonwealth vs. Hansley, 47 A.3d 1180, 2012 Pa. LEXIS 1585 (July 17, 2012). In this case, as in many cases in Philadelphia, a defendant plead guilty to two separate drug delivery cases on the same day, for multiple sentences, below the guidelines, even below the mandatory minimum sentences, with the trial court utilizing its discretion, over the Commonwealth’s objection, to also conclude the defendant was “Triple RI eligible”.

On Appeal, the Commonwealth argued arguing that “the trial court erred in applying the RRRI Act to the mandatory minimum penalties of Sections 6317 and 7508(a)(3)(ii).” The trial court’s opinion concluded that:
General Assembly intended the RRRI Act to supplement existing sentencing law. While acknowledging that the RRRI Act reduced the time that some inmates would otherwise be incarcerated, the court reasoned that the RRRI Act reflected a legislative scheme that “emphasized rehabilitative programming instead of sentence modification.” The court noted that the RRRI Act did not require offenders to be released prior to the expiration of the mandatory minimum sentence; it merely provided them with the opportunity for an earlier release upon completion of an RRRI program. Because certain drug offenders, even those subject to mandatory penalties like appellee, were not excluded from the definition of “eligible offender,” the trial court determined that it did not err in evaluating appellee’s RRRI eligibility as part of its sentencing determination.
The court further observed that the General Assembly required judges to comply with the existing Sentencing Code, as well as to apply the provisions of the RRRI Act. In this case, the court complied with these directives by imposing mandatory minimum sentences under the Sentencing Code, while also fashioning RRRI Act minimum sentences. Finally, to the extent that there was a conflict between the drug trafficking sentencing provisions and the RRRI Act, the trial court opined that the RRRI Act must prevail, since it was adopted more recently.

The Supreme Court affirmed the trial court’s application of the RRR eligibility. The court explained that the Recidivism Risk Reduction Incentive Act (RRRI Act), 61 Pa.C.S. §§ 4501 – 4512, prescribes separate duties for a sentencing judge and the Pennsylvania Board of Probation and Parole. Section 4503 defines “eligible offender” as follows:”Eligible offender.” A defendant or inmate convicted of a criminal offense who will be committed to the custody of the department and who meets all of the following eligibility requirements:
(1) Does not demonstrate a history of present or past violent behavior.
(2) Has not been subject to a sentence the calculation of which includes an enhancement for the use of a deadly weapon as defined under law or the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing or the attorney for the Commonwealth has not demonstrated that the defendant has been found guilty of or was convicted of an offense involving a deadly weapon or offense under 18 Pa.C.S. Ch. 61 (relating to firearms and other dangerous articles) or the equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(3) Has not been found guilty of or previously convicted of or adjudicated delinquent for or an attempt or conspiracy to commit a personal injury crime as defined under section 103 of the act of November 24, 1998 (P.L. 882, No. 111), known as the Crime Victims Act, or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(4) Has not been found guilty or previously convicted or adjudicated delinquent for violating any of the following provisions or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation:18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 5901 (relating to open lewdness).
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child pornography).Received a criminal sentence pursuant to 42 Pa.C.S. § 9712.1 (relating to sentences for certain drug offenses committed with firearms).

Any offense listed under 42 Pa.C.S. § 9795.1 (relating to registration).

(5) Is not awaiting trial or sentencing for additional criminal charges, if a conviction or sentence on the additional charges would cause the defendant to become ineligible under this definition.

(6) Has not been found guilty or previously convicted of violating section 13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, where the sentence was imposed pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking sentencing and penalties).61 Pa.C.S. § 4503. Effective December 20, 2012, the General Assembly amended paragraph (4) by substituting “Any sexually violent offense as defined in 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders)” for “Any offense listed under 42 Pa.C.S. § 9795.1 (relating to registration).” See P.L. 446, No. 111, § 14 (December 20, 2011). The amendment does not affect the disposition of the instant matter. Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012)

When a court imposes a sentence of imprisonment in a state correctional facility, the court must also determine if the defendant is eligible for an RRRI Act minimum sentence, 61 Pa.C.S. § 4505(a). The prosecutor may waive the eligibility requirements, but the court may refuse to accept that waiver after hearing from the victim. 61 Pa.C.S. § 4505(b). If the sentencing court concludes that a defendant is eligible for an RRRI Act minimum sentence, or the prosecutor has waived the eligibility requirements, then the court must impose the minimum and maximum sentences, as well as an RRRI Act minimum sentence. 61 Pa.C.S. § 4505(c)(1), (2); 42 Pa.C.S. § 9756. A court may decline to impose an RRRI Act minimum sentence if the offender has already been afforded two or more RRRI Act minimum sentences. 61 Pa.C.S. § 4505(c)(3). The court must also comply with all other applicable sentencing provisions, including provisions relating to victim notification and the opportunity to be heard. 61 Pa.C.S. § 4505(c)(4).

“Applying principles of statutory construction, the court had no hesitation in concluding that the RRRI Act is applicable to the mandatory minimum penalties imposed pursuant to Sections 6317 and 7508, there by reducing the mandatory minimum sentence an eligible parole may serve. The RRRI Act’s definition of “eligible offenders” includes a list of “eligibility requirements,” all of which must be met. The eligibility requirements operate to exclude many crimes, and many circumstances, from the Act’s scope. Rather, subsection (6) captures drug offenders who, inter alia, were subject to mandatory sentencing provisions other than Section 6317(a) and Section 7508(a)(3)(ii), the mandatory sentencing provisions applicable to appellee’s crimes. See 61 Pa.C.S. § 4503(6) (listing eligible offender requirement that defendant “[h]as not been found guilty or previously convicted of violating section 13(a)(14), (30) or (37) of [35 P.S. § 780-113], where the sentence was imposed pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking sentencing and penalties)”).

“The RRRI Act eligibility provision is detailed, intricate, and plain; by its terms, appellee is an eligible offender. Moreover, the intricate construct reveals that the General Assembly made very specific judgments about which offenders and offenses [*1189] were eligible. It did not exclude all drug offenders, or even all drug offenders subject to mandatory sentences.

“Furthermore, when the General Assembly drafted the RRRI Act, it simultaneously amended the Sentencing Code by adding 42 Pa.C.S. § 9756(b)(2) to permit a modification of a minimum sentence, and 42 Pa.C.S. § 9756(b.1), to require that the trial court impose an RRRI Act minimum sentence “in addition to the minimum sentence.” This fact corroborates that the Legislature was aware of the effect of the RRRI Act on the Sentencing Code, and crafted a group of amendments that allowed the RRRI Act to work in conformity [**30] with other sentencing statutes, including those involving mandatory minimum sentences.

“We recognize that the effect of the RRRI Act may be to reduce the total time in prison that an offender subject to a mandatory minimum sentence must serve. But, it is eminently clear from the plain language of the legislation that the General Assembly intended that result – for a limited class of statutorily defined defendants, upon the completion of several conditions, and subject to the controlling discretion of the Parole Board. Our plain language interpretation accords with the legislative intent as we understand it, and gives effect to all provisions of the relevant sentencing statutes. Accordingly, the decision of the Trial court and Superior court were affirmed. Commonwealth v. Hansley, 47 A.3d 1180, 1188-1190 (Pa. 2012)

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Probation Officer Special Rule–extra judicial conditions

In the recent case of Commonwealth v. Elliott, 2012 Pa. LEXIS 2088, 12-13 (Pa. 2012), the Pennsylvania Supreme Court was confronted with the issues of whether a county board of probation offices, or the agents and officers thereof, can impose conditions upon probationers that are not explicitly delineated in a trial court’s sentencing and probation order. The Court concluded that this inquiry revolves around an interpretation of the Sentencing Code, 42 Pa.C.S. §§ 9701, et seq., as well as the Prisons and Parole Code, 61 P.S. § 1, et seq. and 61 Pa.C.S. § 101, et seq. The court also examined the relationship between “terms and conditions of probation,” as used in Sections 9754 and 9771 of the Sentencing Code, which a trial court imposes, and “conditions of supervision” as contemplated by the Prisons and Parole Code, which the Board and its agents execute.

The court reviewed the fourteen conditions that a court may place upon a probationer, stating:

These conditions, found in 42 Pa.C.S. § 9754(c), “shall” be imposed by a sentencing court “to insure or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). Moreover, these conditions are inherently non-inclusive, because clause (13) of Section 9754(c) permits a court to impose any condition necessary to ensure the “rehabilitation of the defendant.” Id. § 9754(c). Consistent, then, with a court’s constitutional and statutory authority to impose a sentence, see e.g. id. §§ 9751, 9754, & 9771, these fourteen conditions must be the starting point in any analysis of a probation violation.

Initially, the court preliminarily agreed with Appellee that the Board and its agents cannot impose any condition of supervision it wishes, carte blanche. This would, of course, interfere with a court’s well-established sentencing authority. The Court rejected the primary argument of the Commonwealth that Section 9798.3 of Megan’s Law gives the Board independent authority to impose any condition of supervision it wishes upon a probationer subject to the sex offender provisions merely because of his status as a sex offender. Furthermore, the court noted that the legislature’s intent in promulgating Section 9897.3 was simply to permit the Board to use GPS tracking on sex offenders in furtherance of the desire to scrutinize the physical location of offenders. See Senate Journal, Jun. 19, 2006 at 1730-31 (remarks of Sens. Orie and Rafferty).

Nonetheless, the court rejected the probationer’s position that the Board has no power to impose conditions of supervision would ignore that 61 Pa.C.S. §§ 6131(a)(5)(ii) and 6151 direct the Board and its agents to establish and impose “conditions of supervision,” distinct from “conditions of probation.” The court concluded that the Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court. This interpretation gives meaning to all of the statutory provisions relevant to this case and thus: (1) maintains the sentencing authority solely with a trial court; (2) permits the Board and its agents to evaluate probationers on a one-on-one basis to effectuate supervision; (3) sustains the ability of the Board to impose conditions of supervision; and (4) authorizes that a probationer may be detained, arrested, and “violated” for failing to comply with either a condition of probation or a condition of supervision.

“A trial court may impose conditions of probation in a generalized manner, and the Board or its agents may impose more specific conditions of supervision pertaining to that probation, so long as those supervision conditions are in furtherance of the trial court’s conditions of probation.” Commonwealth v. Elliott, 2012 Pa. LEXIS 2088, 19-21 (Pa. 2012)

This case focused around a condition of probation that a sex offender under Megan’s Law Supervision, could not be within 1000 feet of any location that would cause him to come in contact with minor children unsupervised, which in turn would constitute a violation of his probation. The court determined that there was no evidence in the record to reach this issue and therefore sent the case back to superior court to determine such.

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