204 Pa. Code | Title 204 Pa. Code — Judicial System General Provisions

Part I PRELIMINARY PROVISIONS

Chapter 1 CERTIFYING ORGANIZATIONS

204 Pa. Code § 1.1 Certifying Organizations.

The following have been accredited as certifying organizations:

(Editor’s Note: See 204 Pa. Code § 81.4, Rule 7.2(d) (relating to communications concerning a lawyer’s services; specific rules), regarding certification of certifying organizations.)

The provisions of this § 1.1 adopted August 13, 1993, effective August 14, 1993, 23 Pa.B. 3778 and 3779; amended December 29, 1998, 29 Pa.B. 331; amended July 7, 1999, 29 Pa.B. 3838; amended September 10, 1999, 29 Pa.B. 4951; amended June 1, 2004, 34 Pa.B. 3009; amended November 30, 2004, 34 Pa.B. 6507; amended January 26, 2005, 35 Pa.B. 1566; amended June 1, 2009, 39 Pa.B. 3042; amended July 30, 2009, 39 Pa.B. 4890; amended January 20, 2010, 40 Pa.B. 702; amended January 12, 2012, 42 Pa.B. 551; amended April 11, 2014, 44 Pa.B. 2516; amended July 29, 2014, 44 Pa.B. 5834; amended December 2, 2014, 44 Pa.B. 7835; amended July 1, 2016, 46 Pa.B. 3814; amended March 27, 2019, 49 Pa.B. 1775; amended November 14, 2019, 49 Pa.B. 7083; amended June 24, 2021, 51 Pa.B. 3732; amended September 26, 2023, 53 Pa.B. 6169; amended January 4, 2024, 54 Pa.B. 232; amended February 7, 2025, 55 Pa.B. 1675; amended April 9, 2025, 55 Pa.B. 2854. Immediately preceding text appears at serial pages (401321) to (401322).

History

Source: The provisions of this § 1.

Part II GENERAL ADMINISTRATION

Chapter 27 RULES FOR CONTINUING JUDICIAL EDUCATION

204 Pa. Code Rule 101 Title and Citation. {#sec-rule-101 omnilex-key=us-pa-regs-official--title-204--Rule 101}

These Rules shall be known as the Pennsylvania Continuing Judicial Education Rules (‘‘Rules’’) and may be cited as ‘‘Pa.C.J.E. Rule __________.’’

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 102 General. {#sec-rule-102 omnilex-key=us-pa-regs-official--title-204--Rule 102}

(a) Purpose. The public properly expects that judges will maintain professional competence and ethical behavior. These rules are intended to meet the public’s expectations by promulgating mandatory continuing education requirements for Pennsylvania judges.

The continuing judicial education program is adopted to assure that judges continue their education to have and maintain the requisite knowledge and skill to fulfill their judicial responsibilities. To satisfy this requirement, judges must participate in continuing judicial education programs or activities that reinforce and enhance their judicial practice.

See Supreme Court Order of December 9, 2016, No. 719 Supreme Court Rules Docket.

(b) Scope. Justices of the Supreme Court of Pennsylvania, and judges of the Commonwealth Court of Pennsylvania, the Superior Court of Pennsylvania, the Courts of Common Pleas, and Philadelphia Municipal Court, and certified senior judges of these courts, must complete a program of continuing judicial education as of January 1, 2017 and thereafter. All exceptions and exemptions from this requirement must have the approval of the Continuing Judicial Education Board of Judges (‘‘Board’’).

(c) Definitions. Subject to any definitions contained in subsequent rules, the following words and phrases, when used in these rules, shall have, unless the context clearly indicates otherwise, the following meanings: ‘‘Accredited Provider.’’ A provider of continuing judicial education that has been approved to provide judicial education courses or activities for judicial education credit in accordance with these rules. ‘‘Alternative Education Activity.’’ A nontraditional continuing education program or activity. ‘‘Applicant.’’ A non-accredited provider or a provider who has lost accreditation. ‘‘Board.’’ The Continuing Judicial Education Board of Judges established by the Supreme Court’s Order of December 9, 2016. ‘‘CJE.’’ Continuing judicial education to be provided under these rules. ‘‘Department.’’ The Judicial Education Department of the Administrative Office of Pennsylvania Courts. ‘‘Distance Education.’’ Education that is delivered remotely. ‘‘Judge.’’ A commissioned jurist in the Commonwealth’s Unified Judicial System who is a justice of the Supreme Court of Pennsylvania, a judge of the Superior Court of Pennsylvania, a judge of the Commonwealth Court of Pennsylvania, a judge of a Court of Common Pleas, or a judge of the Philadelphia Municipal Court. The term also includes judges serving on the aforementioned courts in senior status pursuant to Pa.R.J.A. No. 701. ‘‘Judicial Education.’’ Includes topics of study that encompass substantive and procedural law and judicial ethics, as well as topics to enhance judicial skills, including, but not limited to, case management, legal writing, legal history, philosophy of law, and the physical and social sciences. ‘‘Judicial Practice.’’ Includes, but is not limited to, a judge’s knowledge, competence, and proficiency in the areas of substantive law, procedural law, judicial ethics, and judicial procedures. ‘‘Provider.’’ A person or entity that delivers continuing judicial education under these rules. ‘‘Supreme Court.’’ The Supreme Court of Pennsylvania.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 201 Continuing Judicial Education Board of Judges. {#sec-rule-201 omnilex-key=us-pa-regs-official--title-204--Rule 201}

(a) The Continuing Judicial Education Board of Judges (‘‘Board’’) is that body first established by the Supreme Court under its Order of December 9, 2016, No. 719 Supreme Court Rules Docket, and as hereinafter continuing under these rules.

(b) The primary purpose of the Board is to guide the development and delivery of continuing judicial education to judges serving the Commonwealth’s Unified Judicial System.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 202 Composition and Terms of the Board. {#sec-rule-202 omnilex-key=us-pa-regs-official--title-204--Rule 202}

(a) The Board shall consist of twelve (12) members appointed by the Supreme Court. Eight (8) shall be jurists serving one of the Commonwealth’s courts governed by these rules.

(b) The Supreme Court shall appoint from the members of the Board a chair and a vice chair. The Board may designate such other officers and form such other committees as it deems appropriate.

(c) The terms of the first Board shall be staggered so that four (4) members shall be appointed for three (3) year terms, four (4) members for two (2) year terms, and four (4) members for one (1) year terms.

(d) The regular term of members of the Board shall be for three (3) years, and no member may serve for more than two (2) consecutive three (3) year terms.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 203 Compensation, Expenses, and Immunity. {#sec-rule-203 omnilex-key=us-pa-regs-official--title-204--Rule 203}

(a) Board members shall receive no compensation for services provided under these rules, but they shall be reimbursed by the Board for their reasonable and necessary expenses in attendance at meetings and in otherwise fulfilling their responsibilities.

(b) The Board, and its members, employees and agents are immune from all civil liability for conduct and communications occurring in the performance of their official duties relating to the administration of the continuing judicial education requirements.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 204 Powers and Duties of the Board. {#sec-rule-204 omnilex-key=us-pa-regs-official--title-204--Rule 204}

The Board is authorized:

(a) To administer these rules, and to act as ordered, directed, or requested by the Supreme Court;

(b) to adopt and administer Regulations and procedures consistent with these rules;

(d) to approve CJE credits;

(e) to audit, examine, inspect, and review the operations of providers, including instructors, classes, curricula, teaching materials and facilities, to assure compliance with these rules;

(f) to determine if judges are in compliance with these rules and to hear appeals from determinations of noncompliance;

(g) to hear and decide requests from judges for waivers, extensions, or deferments from the requirements set forth in these rules;

(h) to extend any time period prescribed in these rules;

(i) to undertake all reasonable action to implement these rules;

(j) to delegate to the Department or Board staff ministerial functions as necessary and appropriate to administer these rules; and

(k) to vote upon all matters requiring action by the Board. The manner of making and debating motions and determining the votes necessary for Board action, shall be decided by the Chair, unless overridden by a majority of the members that constitute a quorum.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 205 Quorum and Votes. {#sec-rule-205 omnilex-key=us-pa-regs-official--title-204--Rule 205}

A minimum of seven (7) Board members participating in a meeting shall constitute a quorum. The Board shall act only with a majority of those participating, but no less than five (5). A quorum may be established with the participation of members by teleconference. The Board may adopt rules providing for the holding of teleconference meetings.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 206 Confidentiality. {#sec-rule-206 omnilex-key=us-pa-regs-official--title-204--Rule 206}

The files, records, and proceedings of the Board shall be deemed confidential and shall only be disclosed:

(a)(1) to the Supreme Court;

(2) in furtherance of the duties of the Board;

(3) upon request of the judge affected;

(4) as they may be introduced in evidence or otherwise produced in proceedings under these rules, or as may be requested by the Judicial Conduct Board; or

(5) as ordered by the Board.

(b) The Board shall submit an annual report to the Supreme Court, providing information on accredited providers, judicial compliance, and other information deemed relevant by the Board or as directed by the Supreme Court.

(c) All documents or information deemed confidential under the Case Records Public Access Policy of the United Judicial System of Pennsylvania shall not be disclosed, unless as permitted under that policy and these rules.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 301 Continuing Judicial Education Requirement. {#sec-rule-301 omnilex-key=us-pa-regs-official--title-204--Rule 301}

(a) Each judge shall annually complete a minimum of three (3) hours of continuing education in judicial ethics and a minimum of nine (9) hours of continuing education in judicial practice and related areas as defined by the Board.

(b) Every newly elected or appointed judge serving the Commonwealth’s Courts of Common Pleas and the Philadelphia Municipal Court shall attend New Judge School administered by the Department in its entirety at his or her first opportunity. This requirement shall be in addition to the annual requirements described herein.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 302 Course Attendance and Alternatives. {#sec-rule-302 omnilex-key=us-pa-regs-official--title-204--Rule 302}

The CJE requirement must be fulfilled by attending the required number of CJE courses delivered by the Supreme Court, accredited providers, approved non-accredited courses, and other teaching or alternative education activities approved by the Board as sufficient to meet the annual CJE requirements.

(a) Courses Offered by the Department. Four (4) of the annual credits shall be earned through courses developed by or under the supervision of the Department.

(b) Teaching or Alternative Education Activity. Four (4) of the annual credit requirements may be earned through Board-approved teaching or alternative education activities.

(c) Distance Education. Four of the annual credit requirements may be earned through approved distance education. Credits earned through courses presented by the Department are not subject to this annual credit limitation.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 303 Standards for Approved Courses or Activities. {#sec-rule-303 omnilex-key=us-pa-regs-official--title-204--Rule 303}

(a) It is presumed that all judges are competent with respect to judicial practice. Courses or activities should be designed to enhance a judge’s knowledge base.

(b) Continuing judicial education must, to the greatest extent possible, address the distinct educational needs of judges and should ordinarily be delivered to an audience consisting exclusively or primarily of judges.

(c) Applicants seeking approval for CJE credit must be able to demonstrate to the Board how the course or activity enhances a judge’s judicial practice through judicial education.

(d) Under limited circumstances, the Board may approve credit for attending a continuing education course or activity intended for both judges and others. However, a provider or judge who seeks approval to designate a continuing education course or activity for CJE credit must be able to satisfy the Board as to (1) how such a course or activity enhances a judge’s judicial practice through judicial education, and (2) why the course or activity is an appropriate exception to the general rule that CJE courses should be delivered exclusively or primarily to judges.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 304 Course Accreditation Standards. {#sec-rule-304 omnilex-key=us-pa-regs-official--title-204--Rule 304}

(a) Courses offered by an accredited provider shall be eligible for the amount and type of credits as designated by the provider, subject to review by the Board. All other courses will be awarded credit as determined by the Board.

(b) All courses for CJE credit should be designed to enhance a judge’s judicial practice through judicial education.

(1) The course must be an organized program of learning to deal with matters directly related to subjects which satisfy the objectives of these rules.

(2) Each course must be open to all judges thought to be interested in the subject matter. Attendance restrictions will only be permitted by the Board upon application, where:

(i) the purpose for the attendance restriction is non-discriminatory;

(ii) attendance is restricted on objective criteria for a bona fide educational objective to enhance the course, and

(iii) membership in the provider organization is open to all interested judges, on a reasonable non-discriminatory basis and cost.

(3) The course leaders or lecturers must be qualified with the necessary practical and/or academic experience necessary to conduct the course effectively.

(4) Whenever possible, each attendee shall be provided with thorough, high quality and carefully prepared written course materials prior to or at the time of the course.

(5) The course must be presented in a suitable setting, conducive to a good educational environment, which provides attendees with adequate writing space or surface.

(6) Upon request by the Board, the provider shall submit to the Board information concerning the course, including the brochure describing the course and the qualifications of anticipated speakers, the method or manner of presentation of materials, and, if requested, a set of the materials to be distributed.

(7) Providers must develop and implement methods to evaluate its course offerings to determine their effectiveness and the extent to which they meet the needs of judges and, upon a request from the Board, provide course evaluations by the attendees on such forms as the Board shall approve.

(8) Providers shall take into consideration the special needs of incapacitated persons and persons with disabilities in gaining access to and participation in CJE courses. The Board shall require providers to ensure courses are as reasonably accessible to persons with disabilities as those without disabilities.

(9) Self-study will not be approved for CJE credit.

(10) Subject to the limitation in Rule 302(c), judges participating in a course via distance education will receive credit if an instructor/moderator is present at the remote site and the audience participating remotely has the ability to interact with presenters at the host facility.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 305 Alternative Education Activity Accreditation Standards. {#sec-rule-305 omnilex-key=us-pa-regs-official--title-204--Rule 305}

(a) Alternative education activities may qualify for credit if they are consistent with the provisions of these rules, and subject to the following specific terms and conditions:

(1) Individual Approval Required. Each alternative education and teaching activity for which CJE credit is sought must be approved by the Board for credit.

(2) Requests for Approval. A judge should request Board approval for alternative education activities or teaching activities sixty (60) days prior to the activity, but in all events a judge must request such approval no more than thirty (30) days after completing the activity in order for the request to be considered.

(3) Evaluations. The provisions of Rule 402 regarding evaluations may apply to alternative education activities, if appropriate, as determined by the Board.

(b) In addition to the requirements above, when credit is sought for a law school or graduate level course:

(1) The course must otherwise qualify for academic credit by the school.

(2) One (1) hour of credit may be given for each approved credit hour awarded by the school.

(3) The school offering the course shall be a law school accredited by the American Bar Association or college or university accredited by the Middle States Commission on Higher Education or other regional equivalent.

(c) Additional Information. Upon request by the Board, information shall be submitted to the Board concerning the alternative education activity, including any information describing the alternative education activity and the qualifications of anticipated presenters, the method or manner of presentation of materials, and, if requested, a set of the materials.

(d) If an alternative education activity, law school, or graduate level course does not bear entirely on judicial ethics and/or judicial practice, or the method of presenting the course is below minimum standards, the Board may determine that such activity is entitled to no credit or may assign such partial credit as it deems appropriate.

While it is envisioned that these rules anticipate a formal education setting, it is recognized that education may be obtained in a number of manners and forms. The intent behind this rule is not to limit the form or manner of an education presentation, so long as the objectives to be achieved under this judicial education program are realized.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 306 Credit for Courses or Activities. {#sec-rule-306 omnilex-key=us-pa-regs-official--title-204--Rule 306}

(a) Credit will be given only for completion of courses or activities which are accredited or approved by the Board.

(b) Judges must be physically present at a course or activity to earn credit, unless participating by distance education. Distance education, including, but not limited to, simulcast, computer-based, and teleconference may be approved for credit provided they meet the interactive and technical requirements of the Board.

(d) No provider shall schedule a class for less than sixty (60) minutes, but one-half hour credit shall be awarded for attendance of at least thirty (30) minutes but less than sixty (60) minutes beyond the initial sixty (60) minutes. Increments of less than thirty (30) minutes will not be awarded credit. However, single course offerings that span over a number of hours may have credit time aggregated for the purpose of credit calculations, excluding time for breaks.

(e) Carry Forward Credits. A judge may carry forward for one (1) year a balance of credit hours in excess of the current annual requirements, and they shall retain their character as such for that succeeding reporting year.

(f) Excess Credits for Ethics. Credits for judicial ethics in excess of the annual requirement may be either carried forward to the following year, or applied toward remaining annual CJE requirements, except they may not be substituted for Department-required courses.

(g) If a course or activity is approved for both substantive and ethics credit, a judge must be present for the entire course to be eligible for the ethics credit.

(h) Credit will only be given for the first time a course or activity is attended or taught in any compliance year.

A judge who teaches or attends the same course or activity three (3) times in one compliance year cannot use the second or third time it was taught or attended for credit.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 307 Courses by the Judicial Education Department. {#sec-rule-307 omnilex-key=us-pa-regs-official--title-204--Rule 307}

(a) Courses offered by the Department shall be designed by or under the supervision of the Department with general oversight by the Board.

(b) Department courses shall be designed so as to enhance the basic program requirements established under these rules.

(c) The Department shall ensure that a sufficient number of courses and locations are reasonably available to enable judges to comply with Rule 302(a) (Courses Offered by the Department).

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 308 Teaching for CJE Credits. {#sec-rule-308 omnilex-key=us-pa-regs-official--title-204--Rule 308}

(a) Judges may receive credit for teaching, subject to the following provisions:

(1) Judges will only receive credit for teaching a course or activity otherwise approved for credit under these rules and that is designed primarily for other judges.

(2) Credit for teaching will be given on the basis of two (2) hours credit for each hour of presentation for the first time credit is sought in any compliance period. Repeat presentations during a compliance period will not be entitled to any further credit. See Rule 306(h).

Teaching credits are limited to situations where the judge is teaching primarily to other judges. When this occurs, the judge may be entitled to two credits for every hour of instruction, subject to the limitations herein and in Rule 302(b). Any other teaching, such as to lawyers, law students, etc., may be entitled to credit for attending the course, provided the course is otherwise approved for credit under these rules.

(b) Teaching completed before adoption of these rules.

Subject to other provisions of these rules, any teaching completed before the effective date of these rules shall be entitled to two hours credit for each hour of presentation where the judge has prepared quality written materials for use in the presentation.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 401 Accredited Providers. {#sec-rule-401 omnilex-key=us-pa-regs-official--title-204--Rule 401}

(a) The following entities are hereby designated as Accredited Providers:

(1) The AOPC Judicial Education Department.

(2) The Education Committee of the Pennsylvania Conference of State Trial Judges.

(3) The National Judicial College.

(b) Any entity that institutionally provides education primarily to judges may apply to be recognized as an accredited provider under these rules.

(1) Application may be made for certification as an accredited provider by submitting the appropriate form or documentation to the Department for action by the Board.

(2) Accredited provider status may be granted at the discretion of the Board if:

(i) within the past two (2) years, five (5) separate programs of CJE have been presented that meet the standards of quality set forth in these rules, or

(ii) the Applicant has demonstrated to the Board that the provider has consistently met the standards of quality set forth in these rules.

(3) The Board may require applicants or accredited providers to complete a course of training to obtain or continue the provider’s accredited status.

(c) The grant of certification under subdivision (b) of this rule shall be effective for a period of two (2) years from the date of the grant. The accreditation may be renewed every two (2) years as follows:

(1) The status as an accredited provider may be renewed by filing an application at least sixty (60) days prior to the end of the provider’s current accreditation period.

(2) The Board shall determine if there are pending or past breaches of these rules, and the Board, at its discretion, may condition renewal upon the provider meeting additional requirements specified by the Board.

(3) In determining if an accredited provider’s status should be renewed for an additional two-year period, the Board shall consider:

(i) the quality and substance of the programs the accredited provider has presented over the prior two years;

(ii) the accredited provider’s compliance with these rules; and

(iii) any other information relevant to assessing the accredited provider’s commitment to providing the highest quality of judicial education.

(4) If an application for renewal is timely filed, the accredited provider status shall continue until the Board acts on the application for renewal.

(5) If an application for renewal is not timely filed before the end of the provider’s accreditation period, the provider’s accredited status will terminate at the end of the period. Any application received thereafter shall be considered by the Board as an initial application for accredited provider status.

(d) Accredited providers shall file with the Board an announcement of each CJE activity on a form provided by the Board at least thirty (30) days prior to the presentation of the activity.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 402 Evaluations. {#sec-rule-402 omnilex-key=us-pa-regs-official--title-204--Rule 402}

Accredited providers must utilize participant evaluation methods to determine the effectiveness of offerings and the extent to which they meet the needs of judges and, upon a request from the Board, provide evaluations by the attendees on such forms as the Board shall approve.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 403 Revocation or Non-Renewal of Accredited Provider Status. {#sec-rule-403 omnilex-key=us-pa-regs-official--title-204--Rule 403}

(a) Accredited provider status may be revoked by the Board at any time if the provider is out of compliance with these rules or the Board determines that the content of course material or the quality of the CJE activities or provider’s performance does not meet the standards set forth in these rules.

(b) If an applicant or accredited provider is determined by the Board not to meet, or to be deficient in maintaining, accreditation status such that its application for accreditation approval or renewal is denied or its accreditation status is revoked, the applicant or provider shall be notified in writing by the Board of the nature of such failure or deficiency.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 404 Approval of Courses or Activities Conducted by Non-Accredited Providers. {#sec-rule-404 omnilex-key=us-pa-regs-official--title-204--Rule 404}

(a) A provider of CJE courses or activities which has not been certified as an accredited provider under these rules may apply for accreditation of a single CJE course or activity on a form provided by the Board. The Board may require submission of a detailed description of the provider, the course or activity, the materials, and the lectures. All courses or activities must be consistent with the provisions of these rules and subject to the following:

(1) Individual Approval Required. Each CJE course or activity conducted by a provider which has not been accredited by the Board must be approved by the Board for credit.

(2) Requests for Approval. A judge or provider should request Board approval for CJE courses or activities conducted by a non-accredited provider at least sixty (60) days prior to the course, but in all events a judge or provider must request such approval no more than thirty (30) days after completing the course or activity in order for the request to be considered.

(3) Additional Information. Upon request by the Board, additional information shall be provided concerning the provider, the course or activity, and any information describing the course or activity, the qualifications of anticipated presenters, the method or manner of presentation of materials, and, if requested, a set of the materials.

(4) If a course or activity does not bear entirely on judicial ethics and/or judicial practice, or the method of presenting the course or activity is below minimum standards, the Board may determine that such course or activity is entitled to no credit or may assign such partial credit as it deems appropriate.

(b) Representation that the course or activity has been accredited is prohibited unless prior written approval is granted by the Board.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 501 Deferrals, Waivers, and Special Status. {#sec-rule-501 omnilex-key=us-pa-regs-official--title-204--Rule 501}

(a) Deferral. A ‘‘deferral’’ is an extension of time granted by the Board in which to complete CJE requirements.

A deferral of any CJE requirements may be authorized by the Board for good cause shown. The length of any deferral shall be in the Board’s sole discretion. In no event, however, may a deferral extend beyond December 31 of the subsequent year to the year in which the deferral was granted. All deferred credits must be completed by expiration of the time granted for deferral. Deferred credits completed in any year subsequent to the year in which the deferral was granted shall be in addition to that subsequent year’s annual CJE requirements.

(b) Senior Judges. Judges who are certified for senior status must complete the CJE requirements for each year of certified senior status. Any judge who is not active, but eligible and not yet certified for senior status under Pa.R.J.A. No. 701, shall upon certification for senior status complete the CJE requirements for the year in which certification is granted as follows:

(1) if certification occurs between January 1 and March 31: 12 credits; 3 of which must be ethics and 4 of which must be developed by or under the supervision of the Department;

(2) if certification occurs between April 1 and June 30: 9 credits, 3 of which must be ethics and 3 of which must be developed by or under the supervision of the Department;

(3) if certification occurs between July 1 and August 31: 6 credits; 2 of which must be ethics and 2 of which must be developed by or under the supervision of the Department;

(4) if certification occurs after September 1: 3 credits; 1 of which must be ethics. The judge shall have until the end of the first quarter of the following calendar year to complete these three (3) credits.

(5) If in a final year of active service, a senior judge does not complete all required CJE requirements, the senior judge shall not be eligible for further judicial service until all credit hours in arrears, in addition to current year requirements for which the senior judge again is to serve, are satisfied. In no event shall a judge be required to complete more than two (2) times the annual requirement for CJE.

Example: Judge X has retired from active service and is eligible for senior status. In October of the following year, Judge X is certified as a senior judge but has completed no CJE requirements for that calendar year. Judge X will have until the end of the following year to complete 15 CJE credits (3 for the year certified and 12 for the current year).

(c) Waiver. A ‘‘waiver’’ is a grant by the Board that CJE requirements may be excused. The Board may waive any amount of CJE requirements for a period of not more than one (1) year upon a finding by the Board of:

(1) undue hardship, including extraordinary situations that could not reasonably have been anticipated;

(2) circumstances beyond the control of the judge that prevent the judge from complying in any reasonable manner with CJE requirements; or

(3) circumstances under which the Board determines a waiver request manifestly demonstrates good cause.

(d) Judges Leaving Active Service.

(1) General Rule. All judges must complete the CJE requirements for each year of active service.

(2) Pro Rata Credits. When a judge leaves active service before the end of a full calendar year, CJE requirements shall be pro-rated as follows:

(i) if separation occurs after September 1, 12 credits: 3 of which must be ethics and 4 of which must be developed by or under the supervision of the Department;

(ii) if separation occurs between July 1 and August 31: 9 credits, 3 of which must be ethics and 3 of which must be developed by or under the supervision of the Department;

(iii) if separation occurs between April 1 and June 30: 6 credits; 2 of which must be ethics and 2 of which must be developed by or under the supervision of the Department;

(iv) if separation occurs before March 31, all CJE requirements for that calendar year shall be waived.

(3) Effect on Senior Status: If a judge leaves active service before completing the CJE requirements as described above, the judge shall not be eligible for certification for senior status until the credits required for the retirement year have been fulfilled. These credits shall be in addition to the CJE requirements for the year the judge becomes certified for senior service.

Fulfillment of CJE requirements are required for all years of active judicial service. Should a retiring judge desire not to complete all CJE requirements in a retiring year, a waiver should be requested from the Board demonstrating good cause for the waiver request.

(e) Members of the Armed Forces. Compliance with these rules shall be waived for members of the Armed Forces on active duty during the period of their active duty. A judge completing active duty shall notify the Board within thirty (30) days of returning to judicial service. Thereafter, the judge must comply with CJE requirements for the forthcoming year.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 601 Continuing Judicial Education Reporting Responsibilities. {#sec-rule-601 omnilex-key=us-pa-regs-official--title-204--Rule 601}

Reporting of CJE courses and/or activities on forms acceptable to the Department shall be the responsibility of the individual judge.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 602 Reporting of Courses or Activities. {#sec-rule-602 omnilex-key=us-pa-regs-official--title-204--Rule 602}

(a) Accredited courses or activities. Credit for accredited courses or activities must be submitted on forms approved by the Board within thirty (30) days of the end of each calendar year in which the course or activity occurred.

(b) Non-accredited courses or activities. Credit for non-accredited courses or activities must be submitted on forms approved by the Board within thirty (30) days of completion of the course or activity.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 603 Annual Compliance Reporting. {#sec-rule-603 omnilex-key=us-pa-regs-official--title-204--Rule 603}

(a) The Board shall ensure that each judge is notified annually of his or her CJE credit status three (3) months prior to the final day of the calendar year, and will ensure a final annual compliance notification is sent to each judge sixty (60) days after the end of each calendar year. The final compliance notification shall include the credit hours earned and reported to the Board during the calendar year, and will note any carry forward credits.

(b) If a judge disagrees with an annual compliance report, the judge shall, within thirty (30) days of the date thereof, notify the Board in writing setting forth the matter in dispute.

(c) Each judge shall maintain records sufficient to establish compliance with the CJE requirement for no less than two (2) years preceding each compliant year, and in the event of a dispute with a final compliance report for two years after the compliance dispute is resolved.

(d) All Board notices which may require an action or response shall be provided in writing to the judge by the Department, and the date of mailing and address where the notice is sent shall be noted in the records of the Department.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 604 Noncompliance and Compliance Disputes: Judges. {#sec-rule-604 omnilex-key=us-pa-regs-official--title-204--Rule 604}

(a) If, after notification by the Department that a judge has failed to comply with these rules, or is determined to be deficient in his or her CJE requirement, such judge shall be notified in writing by the Board or Department of the nature of such noncompliance, and shall be given one hundred eighty (180) days from the date of the notice to remedy such noncompliance.

(b) Within one hundred eighty (180) days of a notice of noncompliance, a noncompliant judge must provide evidence of compliance or request a hearing before the Board.

(c) If, in response to a notice of noncompliance, a judge timely files a request for a hearing, the Board shall schedule a hearing pursuant to Rule 605.

(d) If the Board finds that the judge had reasonable cause for noncompliance, the judge shall have one hundred eighty (180) days from the date of notice of the Board’s decision to correct the noncompliance. If compliance is not achieved without good cause shown within such period, the Board shall report the judge and the fact of the judge’s noncompliance to the Supreme Court and to the Judicial Conduct Board.

(e) If a judge has been found by the Board to be in noncompliance with these rules, before a judge may be deemed compliant, the judge must have satisfied any prior years of noncompliance, unless any period thereof has been subject to waiver, not to exceed two (2) years worth of credits. Curing noncompliance is in addition to any current year requirements.

(f) Credit hours earned shall first be applied to satisfy the requirements of the compliance period which was the subject of the notice to the judge before any excess credits claimed may be applied to other requirements.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

204 Pa. Code Rule 605 Hearings. {#sec-rule-605 omnilex-key=us-pa-regs-official--title-204--Rule 605}

(a) Requests for hearings. All requests for hearings shall be addressed to the Board c/o The Administrative Office of Pennsylvania Courts, Department of Judicial Education, 601 Commonwealth Avenue, Harrisburg, Pennsylvania 17106. All matters shall be heard by the Board, unless in the discretion of the Board Chair, the matter should proceed as otherwise provided in this rule.

(b) In the discretion of the Board’s Chair, a matter initially may be assigned to a Board member or panel of Board members for decision. If the hearing is conducted by more than one (1) person, the Chair of the Board shall designate the person who will act as the presiding hearing officer. Within thirty (30) days after the hearing, the member or panel shall submit a recommendation to the Board.

(c) After receipt of the member or panel’s recommendation, the Board shall review the matter based upon the existing record, or in its discretion, conduct such further proceedings as it deems appropriate, or review the matter de novo.

(d) At all hearings, the petitioner shall have the burden of proof of establishing compliance with these rules by a preponderance of the evidence. Counsel for the Department shall represent the Department it if chooses to participate in any proceeding.

(e) At the hearing, any party shall have the opportunity to call witnesses, examine and cross-examine witnesses, and to introduce such evidence as is relevant to the proceeding. Evidence shall be admitted by the Board, and as long as discretion is not abused, the Board shall not be restrained by technical Rules of Evidence.

(f) All hearings shall be confidential, and shall not be open to the public, except at the request of the judge. Witnesses shall be sworn and a complete electronic record or a transcript shall be made. The presiding hearing officer shall have authority to rule on all motions, objections, and other matters presented.

(g) In investigations and proceedings under these rules, the Board shall have power to issue subpoenas and cause testimony to be taken under oath before the Board or Board members. All subpoenas shall be issued in the name and under the seal of the Supreme Court and served as provided by the Rules of Civil Procedure. Fees and costs of the subpoenas shall be paid from the funds of the Board or taxed as costs, as determined by the Board.

(h) The member, panel, or Board, as the case may be, may order the testimony of a witness to be taken by deposition within or without this Commonwealth in the manner prescribed for the taking of depositions in the Rules of Civil Procedure and the depositions may be used to the same extent as permitted under those rules. Costs for the taking of a deposition shall be paid from the funds of the Board or taxed as costs, as determined by the Board.

(i) Within a reasonable time after the conclusion of a proceeding, the Board shall issue its decision. A copy of the Board’s decision shall be promptly mailed to the judge by the Department.

(j) If a judge is deemed to be noncompliant, a request for a hearing shall not operate as a stay or supersedeas of any action taken by the Board with respect to the judge’s noncompliance, unless upon application and good cause shown, the Board grants a stay or supersedeas of its action.

(k) A judge aggrieved by a Board decision may request reconsideration. There is no right to appeal provided under these rules.

History

Source: The provisions of this Chapter 27 adopted February 7, 2020, effective in 30 days, 50 Pa.

Chapter 31 CONTINUING JUDICIAL EDUCATION PROGRAM

204 Pa. Code § 31.1 Overview.

(a) General Requirement. As of January 1, 2017, commissioned judges serving the Philadelphia Municipal Court, the Courts of Common Pleas, the Commonwealth Court of Pennsylvania, the Superior Court of Pennsylvania, and the Supreme Court of Pennsylvania and certified senior judges must complete a program of continuing judicial education.

(b) Exceptions and Exemptions. There shall be no exceptions to or exemptions from this requirement, except in limited instances with approval of the Continuing Judicial Education Board of Judges established in this chapter.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.2 General.

(a) Purpose. The continuing judicial education program is adopted to assure that judicial officers continue their education to have and maintain the requisite knowledge and skill to fulfill their judicial responsibilities.

(b) Definitions. The following words and phrases, when used in these rules, shall have, unless the context clearly indicates otherwise, the following meanings: ‘‘Alternative Education Activity.’’ A learning opportunity which is not otherwise specifically addressed herein, but which harmonizes with the scope and purposes of this chapter. ‘‘Board.’’ The Continuing Judicial Education Board of Judges established by this chapter. ‘‘CJE.’’ Continuing judicial education to be provided under this chapter. ‘‘Judge.’’ A commissioned jurist in the Commonwealth Unified Judicial System who is a Justice of the Supreme Court of Pennsylvania, a judge of an intermediate appellate court, a judge of a court of common pleas, or a judge of the Philadelphia Municipal Court. The term also includes certified senior judges.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.3 Continuing Judicial Education Board of Judges.

(a) Establishment. The Supreme Court hereby establishes the Continuing Judicial Education Board of Judges.

(b) Purpose. The primary purpose of the Board is to guide development and delivery of continuing judicial education to Judges serving the Commonwealth’s Unified Judicial System.

(i) Membership. The Board shall consist of twelve (12) members appointed by the Supreme Court. Eight (8) shall be jurists serving one of the Commonwealth’s courts governed by this rule.

(ii) Chair and Vice Chair. The Supreme Court shall appoint from the members of the Board a chair and a vice chair.

(iii) Other Officers and Committees. The Board may designate such other officers and form such other committees as it deems appropriate.

(d) Term of Board Members.

(i) Regular Terms. The regular term of members of the Board shall be for three (3) years, and no member may serve for more than two (2) consecutive three (3) year terms.

(ii) Initial Terms. The terms of the first Board shall be staggered so that four (4) members shall be appointed for three (3) year terms, four (4) members for two (2) year terms, and four (4) members for one (1) year terms.

(e) Action by the Board. Seven (7) Board members shall constitute a quorum. The Board shall act only with the concurrence of not less than seven (7) Board members. The Board may adopt rules providing for the holding of teleconference meetings.

(f) Responsibilities of the Board.

(i) Accreditation Decisions. The Board shall make accreditation decisions consistent with the purpose and standards set forth.

(ii) Noncompliance Appeals. The Board shall hear and decide noncompliance appeals.

(iii) Waiver, Extension, Deferment. The Board shall hear and decide requests from Judges for waiver, extension, or deferment from the requirements set forth.

(iv) Incidental Responsibilities. The Board shall undertake all incidental tasks attendant to the above, including affording essential notices and recordkeeping activities.

(v) Pennsylvania Rules for Continuing Judicial Education. The Board shall prepare a set of rules governing continuing judicial education for review and approval by the Supreme Court, to replace this chapter.

(g) Compensation and Expenses. Board members shall receive no compensation for services provided under these rules, but they shall be reimbursed by the Board for their reasonable and necessary expenses in attendance at meetings and in otherwise fulfilling their responsibilities.

(h) Immunity. The Board, and its members, employees and agents are immune from all civil liability for conduct and communications occurring in the performance of their official duties relating to the administration of the continuing judicial education requirements.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.4 Minimum Continuing Judicial Education Requirements.

(a) General Requirement. Commencing January 1, 2017, every Judge, annually, shall complete a minimum of three (3) hours of continuing education in judicial ethics and a minimum of nine (9) hours of continuing education in judicial practice and related areas as defined by the Board.

(b) Fulfillment.

(i) Course Attendance and Alternatives. The CJE requirement shall be fulfilled by attending the required number of CJE courses delivered by the Administrative Office of Pennsylvania Courts’ Judicial Education Department or accredited providers, or by completing a CJE activity approved by the Board as sufficient to meet the CJE general requirement.

(ii) Courses Offered by the Judicial Education Department. Four (4) of the annual CJE requirement shall be earned through courses offered by the Administrative Office of Pennsylvania Courts’ Judicial Education Department. This requirement shall be waived for 2017.

(iii) Distance Learning Courses. Four (4) of the annual CJE requirement may be earned through approved computer-based or distance education courses.

(iv) Teaching or Alternative Educational Activity. Four (4) of the annual CJE requirement may be earned through Board approved teaching or alternative education activities.

(c) Newly Elected or Appointed Judges. Every newly elected or appointed Judge serving the Commonwealth’s Courts of Common Pleas and the Philadelphia Municipal Court shall attend New Judge School administered by the Administrative Office of Pennsylvania Courts’ Judicial Education Department in its entirety at his or her first opportunity. This requirement shall be in addition to the annual CJE requirements described herein.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.5 Waivers, Extensions and Deferrals.

(a) Waiver. The Board may waive the CJE requirements for a period of not more than one (1) year upon a finding by the Board of undue hardship or circumstances beyond the control of the Judge which prevent him or her from complying in any reasonable manner with the CJE requirement.

(b) Extensions of Waivers. A waiver may be extended upon application to the Board and Board approval. Upon termination of the waiver, the Board may make such additional CJE requirements as it deems appropriate.

(c) Deferrals. Deferment is available to any Judge eligible for senior status but not so certified. Upon senior judge certification, the Judge shall complete the CJE requirement by the deadline of the current year and will have until the following compliance deadline to complete the standard requirement plus the deferred CJE requirements, not to exceed two (2) times the current annual requirement.

(d) Members of the Armed Forces.

(i) Waiver. Upon written request, the CJE requirement will be waived in their entirety for any compliance period in which members of the Armed Forces serve on active duty.

(ii) Termination of Active Duty. Within thirty (30) days after termination of active duty, the Judge must notify the Board and will be required to comply with CJE requirements for the forthcoming year.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.6 Standards for Approved CJE Activities.

(a) General Standards. All CJE activities approved for credit shall meet the following standards:

The activity shall have significant intellectual or practical content, the primary objective of which is to improve a Judge’s professional competence and ethical behavior.
The activity shall be an organized program of learning to deal with matters directly related to subjects that satisfy the objectives of these rules.
Each CJE activity shall be open to all Judges interested in the subject matter and there shall be no attendance restrictions, except as may be permitted by the Board, upon application from a provider, where:

attendance is restricted based on objective criteria for a bona fide educational objective to enhance the CJE activity; or

membership in the provider organization is open to all interested Judges, on reasonable non-discriminatory basis and cost.

The program leaders or lecturers shall be qualified with the practical and/or academic experience necessary to conduct the program effectively.
Each attendee shall be provided with thorough, high quality and carefully prepared written course materials before or at the time of the activity. Although written materials may not be appropriate to all courses, they are expected to be utilized whenever possible.
The course or activity must be presented in a suitable setting to create a positive educational environment.
The Board will take into consideration the special needs of disabled and incapacitated Judges in gaining access to and participation in CJE activities. The Board shall require providers to make reasonable accommodations for disabled and incapacitated Judges.

(b) Distance Education. Distance learning courses-including computer-based and teleconference programs-may be approved for credit provided that they meet interactive, technical and accreditation standards set forth by the Board, as well as the following terms and conditions:

Seminars viewed at remote sites by electronic transmission, will receive credit if a moderator is present and interaction available.
Only distance learning courses pre-approved for credit or conducted by accredited providers may be taken for credit.
Courses must provide mechanisms to ensure interactivity.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.7 Credit for CJE Activities.

(a) Accreditation or Approval. Credit will be given only for completion of CJE activities which are accredited or approved by the Board.

(b) Course Length. No course of instruction less than sixty (60) minutes shall be considered eligible for CJE credit.

(d) Credit Increments. Credit will be recorded in thirty (30) minute increments beyond the first sixty (60) minutes. One-half hour credit shall be awarded for courses scheduled at least thirty (30) minutes but less than sixty (60) minutes beyond the initial sixty (60) minutes and for each half hour scheduled thereafter.

(e) Approval of CJE Activities Conducted by Non-accredited Providers, Alternative Education Activities, and Teaching Activities.

(i) General Statement. Courses offered by a provider which is not an accredited continuing judicial education provider, Alternative Education Activities, and teaching activities which harmonize with the scope and purposes of this chapter may qualify for CJE credit, subject to the following terms and conditions:

(ii) Individual Approval Required. All CJE activities conducted by a provider which has not been accredited by the Board, alternative education activities and teaching activities must be individually approved by the Board for credit.

(iii) Requests for Approval. A Judge should request Board approval for continuing judicial education activities conducted by a non-accredited provider, alternative education activities, or teaching activities sixty (60) days prior to the activity, but in all events a Judge must request such approval no more than thirty (30) days after completing the activity in order for the request to be considered.

(iv) Form of Application. The application shall be in the form and with such documentation required by the Board.

(v) Additional Information. Upon request by the Board, the applicant shall submit to the Board information concerning the course or activity, including the brochure describing the activity and the qualifications of anticipated speakers, the method or manner of presentation of materials, and, if requested, a set of the materials.

(vi) Courses Pertaining to Non-Judicial Subjects. If a course does not bear entirely on judicial ethics or judicial practice, or the method of presenting the course is below minimum standards, the Board may determine that such course is entitled to no credit or may assign such partial credit as it deems appropriate.

(vii) Teaching Activities. The following additional terms and conditions apply to credit for teaching activities:

Credit will be given on the basis of two hours credit for each hour of presentation where the applicant has prepared quality written materials for use in the presentation.
Credit for repeat presentations or presentations without such written materials will be given only for the actual time of presentation.

(f) Excess Credits for Judicial Ethics. CJE credits for judicial ethics in excess of the annual requirement may be applied toward remaining annual CJE requirements.

(g) Carry Forward Credits. A Judge may carry forward a balance of credit hours in excess of the current annual CJE requirement-including satellite, computer based and distance learning credits, which shall retain their character as such-for the succeeding reporting year, subject to the following terms and conditions.

(i) Credit Limitation. No more than one (1) times the current annual CJE requirement may be carried forward into the succeeding reporting year.

(ii) Time Limitation. No CJE credit may be carried forward more than one (1) succeeding reporting year.

(iii) Credit Attributes. Carry forward credits retain the same attributes (judicial ethics, distance learning, etc.) which they would have had if used in the year in which they were earned.

(h) Local Education Activities

(i) Approval. Local education activities will be subject to approval by the Board for credit upon submission of appropriate documentation.

(ii) Accreditation. Local education programs may be accredited by the Board according to the standards set forth and upon submission of appropriate documentation.

(i) Teleconferences, Electronic Presentations and Distance Learning Programs. Computer based and distance learning programs may be approved for CJE credit providing they meet interactive, technical and accreditation standards set forth by the Board. Seminars viewed at remote sites by electronic transmission will receive credit if a moderator is present or available for interaction.

(j) Law School and Graduate Level Courses. Law school and graduate school courses may qualify for CJE credit, computed in accordance with these standards, subject to the following terms and conditions:

Courses must otherwise qualify for credit, and the law school or graduate level courses in question cannot be required to qualify for the awarding of a basic degree.
Courses offered towards graduate or advance degrees may receive credit, upon submission of appropriate documentation to the Board.
One (1) hour of CJE credit may be given for each approved graduate credit hour awarded by the school (or the non-credit equivalent).
The school offering the course shall be a law school accredited by the American Bar Association or college or university accredited by the Middle States Commission on Higher Education or other regional equivalent.

(k) Self-Study. Self-study will not be approved for credit.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.8 Accreditation of Continuing Judicial Education Providers.

(a) Application. Application may be made for accreditation as an Accredited Continuing Judicial Education Provider by submitting the appropriate form to the Board.

(b) Evaluations. The provider shall develop and implement methods to evaluate its course offerings to determine their effectiveness and the extent to which they meet the needs of Judges and, upon a request from the Board, provide course evaluations by the attendees on such forms as the Board shall approve.

(i) General Rule. The grant of accreditation shall be effective for a period of two (2) years from date of the grant.

(ii) Continuation of Accreditation. The accreditation may be continued for an additional two (2) year period by application with the Board before the end of the provider’s accreditation period.

(iii) Status Pending Action on Application for Continuation. If an application for continuation is timely filed, the accredited status shall continue until the Board acts on the application for continuation.

(d) Conditional Accreditation. The Board shall determine if there are pending or past breaches of these rules, and the Board, at its discretion, may condition continuation upon the provider meeting additional requirements specified by the Board.

(e) Termination. If an application for continuation is not filed before the end of the provider’s accreditation period, the provider’s accredited status will terminate at the end of the period. Any application received thereafter shall be considered by the Board as an initial application for accredited provider status.

(f) Revocation. Accredited Continuing Judicial Education Provider status may be revoked by the Board if the requirements of the Board are not met or if, upon review of the provider’s performance, the Board determines that content of the course material or the quality of the CJE activities or provider’s performance does not meet the standards set forth in the rules and these regulations.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.9 Standards for Accredited Continuing Judicial Education Provider Status.

Accredited Continuing Judicial Education Provider status may be granted at the discretion of the Board to applicants satisfying one of the following requirements:

The provider has presented, within the past two (2) years, five (5) separate programs of CJE which meet the standards of quality set forth in these rules;
The provider has demonstrated to the Board that its CJE activities have consistently met the standards of quality set forth in the rules and these regulations; or
The provider is an American Bar Association accredited law school.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.10 Accreditation of a Single Course or CJE Activity by a Provider.

A provider of CJE activities which has not qualified as an Accredited Continuing Judicial Education Provider may apply for accreditation of a single CJE activity in a form provided by the Board, subject to the following terms and conditions:

The Board may require submission of a detailed description of the provider, the course, the course materials and the lectures.
Application by a provider for accreditation of a single CJE activity should be submitted prior to the date of presentation of the activity. Application for retroactive approval must be made within thirty (30) days of the event or activity.
The CJE activity must meet the standards set forth in the rules and these regulations.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.11 Reporting.

(a) Reporting Responsibility. Reporting shall be the responsibility of the individual Judge.

(b) Form of Reporting of CJE Activities. Judges shall report accredited CJE activities to the Board in fashion approved by the Board.

(c) Time for Reporting. Judges should report accredited continuing judicial activities within thirty (30) days of completing the activity.

(d) Annual Compliance Reporting. All commissioned Judges shall report CJE compliance in writing within thirty (30) days of the end of each calendar year.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.12 Compliance.

(a) Records.

(i) Recordkeeping by the Board. The Board shall maintain current records of CJE attendance for each Judge to whom the rules and these regulations apply. These records shall be made available as the Board shall determine.

(ii) Recordkeeping by Judges. Each active Judge shall maintain records sufficient to establish compliance with the CJE requirement in the event of a dispute.

(b) Annual Status Notifications. The Board will notify each Judge of his or her CJE status three (3) months prior to the final day of the calendar year and will provide a final compliance notice within sixty (60) days after the end of the calendar year. The final compliance notice shall include the hours earned during the calendar year which have been reported and carryover hours if present.

(i) Notification. If a Judge shall fail to comply with these rules, or if a Judge is determined by the Board to be deficient in his or her CJE requirement, such Judge shall be so notified in writing by the Board of the nature of such noncompliance and shall be given one hundred eighty (180) days from the date of the notice to remedy such noncompliance.

(ii) Evidence of Compliance or Hearing Request. Within thirty (30) days of the date of the notice, the Judge shall either file evidence of compliance or request a hearing.

(iii) Hearing. If, in response to the notice of noncompliance, the Judge timely files a request for a hearing, the Board shall schedule a hearing. The hearing shall be held at least ten (10) days after written notice to the Judge.

(iv) Reasonable Cause for Noncompliance. If the Board finds that the Judge had reasonable cause for noncompliance, the Judge shall have one hundred eighty (180) days from the date of notice of the Board’s decision to correct the noncompliance. If compliance is not achieved within the one hundred eighty (180) day period, the Board shall proceed as provided.

(v) Report to Judicial Conduct Board. If a Judge shall fail to remedy non-compliance within one hundred eighty days after the later of the date of the notice of noncompliance or the date of a decision from the Board finding reasonable cause for noncompliance, the Board shall so report to the Judicial Conduct Board for their consideration.

(d) Crediting Pertaining to Periods of Noncompliance. Credit hours earned shall be first applied to satisfy the requirements of the compliance period which was the subject of the notice to the Judge before any excess credits earned during the notice period may be applied to subsequent requirements.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

204 Pa. Code § 31.13 Confidentiality.

The files, records and proceedings of the Board as they relate to or arise out of any alleged failure of a Judge to satisfy the requirements of the rules or these regulations shall be deemed confidential and shall not be disclosed except in furtherance of the duties of the Board or upon the request of the Judge affected or as they may be introduced in evidence or otherwise produced in proceedings under these regulations.

History

Authority: The provisions of this Chapter 31 adopted December 9, 2016, 46 Pa.

Chapter 33 MINOR JUDICIARY EDUCATION

204 Pa. Code Rule 101 Purpose. {#sec-rule-101 omnilex-key=us-pa-regs-official--title-204--Rule 101}

The public properly expects that judges at all levels of the judiciary will maintain professional competence and ethical behavior. To meet the public’s expectations and to ensure that magisterial district judges and arraignment court magistrates have and maintain the requisite knowledge and skills to perform the duties of their office, these rules are promulgated in accordance with 42 Pa.C.S. § 3119 to prescribe standards for implementation of 42 Pa.C.S. § § 3111 et seq.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 102 Scope and Citation. {#sec-rule-102 omnilex-key=us-pa-regs-official--title-204--Rule 102}

(a) Scope. Magisterial district judges, arraignment court magistrates, and prospective candidates for each office must comply with certifying and continuing education requirements as set forth in 42 Pa.C.S. § 3111—§ 3119 and Pa.R.J.A. 601—603 as administered by the Minor Judiciary Education Board.

(b) Citation. These rules shall be known as the Pennsylvania Minor Judiciary Education Rules (‘‘rules’’) and may be cited as ‘‘Pa.M.J.E. Rule

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 103 Definitions. {#sec-rule-103 omnilex-key=us-pa-regs-official--title-204--Rule 103}

Subject to any definitions contained in subsequent rules, the following words and phrases, when used in these rules, shall have, unless the context clearly indicates otherwise, the following meanings: ‘‘Arraignment Court Magistrate.’’ A bail commissioner in the City of Philadelphia. ‘‘Board.’’ The Minor Judiciary Education Board appointed by the Supreme Court of Pennsylvania as set forth in 42 Pa.C.S. § 2132. ‘‘Certification Course.’’ A course of training and instruction in the respective duties of magisterial district judges and arraignment court magistrates, provided to interested persons who wish to seek or serve in these offices, and who are not members of the Bar of this Commonwealth. 42 Pa.C.S. § 3112—§ 3114; Pa.R.J.A. 601. ‘‘Certification Examination.’’ A written examination designed to demonstrate that prospective magisterial district judges and arraignment court magistrates possess the requisite knowledge to competently discharge the duties of the office. ‘‘Continuing Education.’’ An annual course of instruction designed to ensure that magisterial district judges and arraignment court magistrates maintain the requisite knowledge and skills to fulfill their judicial responsibilities. ‘‘Department.’’ The Judicial Education Department of the Administrative Office of Pennsylvania Courts. ‘‘Distance Education.’’ Education that is delivered from a host site to a remote site via electronic transmission. ‘‘Judge.’’ A commissioned jurist in the Commonwealth’s Unified Judicial System who serves as a magisterial district judge or an arraignment court magistrate. The term also includes judges serving on the aforementioned courts in senior status pursuant to Pa.R.J.A. 701. ‘‘Judicial Education.’’ Includes topics of study for certification and continuing education that encompass substantive and procedural law and judicial ethics, as well as topics to enhance judicial skills, including, but not limited to, case management, legal history, philosophy of law, and the physical and social sciences. ‘‘Judicial Education Course.’’ Includes, but is not limited to, certification courses, continuing education courses, and supplemental practicum courses. ‘‘Supplemental Practicum.’’ A continuing education course designed to address the unique educational needs of newly elected or appointed magisterial district judges and arraignment court magistrates. Pa.R.J.A. 602(b). ‘‘Supreme Court.’’ The Supreme Court of Pennsylvania.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 201 Minor Judiciary Education Board. {#sec-rule-201 omnilex-key=us-pa-regs-official--title-204--Rule 201}

The primary purpose of the Board is to develop and administer, subject to Supreme Court approval, certification courses and examinations, continuing education, and supplemental practicums, as provided in Chapter 31 of Title 42 and Pa.R.J.A. 601—603.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 202 Compensation and Expenses; Immunity. {#sec-rule-202 omnilex-key=us-pa-regs-official--title-204--Rule 202}

(a) Board members shall receive no compensation for services provided under these rules, including services as instructors, but they shall be reimbursed by the Board for their reasonable and necessary expenses in attendance at meetings and in otherwise fulfilling their responsibilities.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 203 Powers and Duties of the Board. {#sec-rule-203 omnilex-key=us-pa-regs-official--title-204--Rule 203}

The Board is authorized:

(a) To administer these rules and the requirements of 42 Pa.C.S. § 3112—§ 3118 and Pa.R.J.A. 601—603, and to act as ordered, directed, or requested by the Supreme Court.

(b) To develop all course curricula and manage all scheduling, faculty selection and other logistics for administration of certification, continuing education, and supplemental practicum courses.

(c) To determine if judges and certification candidates are in compliance with these rules and to hear appeals from determinations of noncompliance.

(d) To hear and decide requests from judges for waivers, extensions, or deferments from the requirements set forth in 42 Pa.C.S. § 3113 and § 3118 and these rules.

(e) To undertake all reasonable action to implement the requirements of 42 Pa.C.S. § 3112—§ 3118, Pa.R.J.A. 601—603, and these rules.

(f) To delegate to the Department or Board staff ministerial functions as necessary and appropriate to administer these rules.

(g) To vote upon all matters requiring action by the Board. The manner of making and debating motions and determining the votes necessary for Board action shall be decided by the Chair, unless overridden by a Board majority.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 204 Quorum and Votes. {#sec-rule-204 omnilex-key=us-pa-regs-official--title-204--Rule 204}

A minimum of five (5) Board members participating in a meeting shall constitute a quorum. A quorum may be established with the participation of members by advanced communication technology. The Board may adopt rules providing for teleconference meetings. In accordance with 42 Pa.C.S. § 2133, the Board shall act only with the concurrence of at least four (4) members.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 205 Confidentiality. {#sec-rule-205 omnilex-key=us-pa-regs-official--title-204--Rule 205}

(a) The files, records, and proceedings of the Board shall be deemed confidential and shall only be disclosed upon order by the Supreme Court or as required by law.

(b) The Board shall submit an annual report to the Supreme Court, providing information on judicial compliance and other information deemed relevant by the Board or as directed by the Supreme Court.

(c) All documents or information deemed confidential under the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall not be disclosed, unless as permitted under that policy and these rules.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 301 Continuing Education Requirements. {#sec-rule-301 omnilex-key=us-pa-regs-official--title-204--Rule 301}

(a) Magisterial district judges shall, on an annual basis as defined by the Board, complete thirty-two (32) hours of continuing education in accordance with the requirements of 42 Pa.C.S. § 3118(a)(1); Pa.R.J.A. 602(a).

(b) Arraignment court magistrates shall, on an annual basis as defined by the Board, complete twenty (20) hours of continuing education in accordance with the requirements of 42 Pa.C.S. § 3118(b).

(c) All newly elected or appointed magisterial district judges shall, within twelve (12) months of assuming office, complete a thirty-two (32) hour supplemental practicum in accordance with the requirements of Pa.R.J.A. 602(b). This requirement shall be in addition to the annual continuing education requirement.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 302 Judicial Education Standards. {#sec-rule-302 omnilex-key=us-pa-regs-official--title-204--Rule 302}

Judicial education courses developed under these rules shall meet the following standards:

(a) Judicial education must, to the greatest extent possible, address judges’ distinct educational needs.

(b) A course shall have significant intellectual or practical content, the primary objective of which is to improve the participants’ professional competence and ethical behavior.

(c) A course shall be an organized program of learning to deal with matters directly related to subjects which satisfy the objectives of 42 Pa.C.S. § 3113 and § 3118 and these rules.

(d) A course must be presented in a suitable setting, conducive to a good educational environment, which provides attendees with adequate writing space or surface.

(e) The Board may limit class sizes to create and maintain environments that are conducive to learning and that provide maximum engagement by the learner.

(f) The Board may, at its discretion or as budgetary and administrative circumstances require, allow for distance education to satisfy some or all judicial education required by 42 Pa.C.S. § 3113 and § 3118 and these rules. Courses delivered by distance education must:

provide mechanisms to ensure interactivity and/or monitor course participation;
be completed in such a manner that certification of attendance is controlled and proof thereof is determined by the Board; and
include a mechanism to allow for course evaluations in a format determined by the Board.

(g) Self-study will not be approved for certification, continuing education or supplemental practicum requirements.

(h) Program leaders or presenters shall be qualified with the practical and/or academic experience necessary to conduct the program effectively.

(i) Leaders or presenters may receive compensation at a rate determined by the Board, subject to the approval of the Court Administrator.

(j) Though written materials may not be appropriate to all courses, they are expected to be utilized whenever possible. When written materials are deemed appropriate, each attendee shall be provided with a thorough, high quality and carefully prepared copy before or at the time of the course.

(k) The Board shall make reasonable accommodations, in accordance with the Americans with Disabilities Act, for certification course, continuing education and supplemental practicum attendees as required.

(l) The Board shall develop and implement methods to evaluate its course offerings to determine their effectiveness and the extent to which they meet judges’ unique educational needs.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 303 Certification and Examination. {#sec-rule-303 omnilex-key=us-pa-regs-official--title-204--Rule 303}

(a) All persons elected or appointed as judges shall be members of the bar of this Commonwealth or shall attend a certification course, which shall be at least forty (40) hours in length, and earn a passing score of seventy percent (70%) on each section of the certification examination prior to assuming office, as set forth in 42 Pa.C.S. § 3112—§ 3114 and Pa.R.J.A. 601(a).

(b) The content of the certification course shall include, but shall not be limited to, the requirements set forth in 42 Pa.C.S. § 3113(b) and any other provision of rule or law as determined by the Board in accordance with these rules.

(c) The certification course shall be scheduled with sufficient frequency to ensure that, once elected or appointed, a judge may qualify to assume office at the earliest opportunity in accordance with 42 Pa.C.S. § 3113(a).

(d) The certification course shall be open to any interested person, in accordance with 42 Pa.C.S. § 3114.

(e) Certification course attendees shall not be charged a fee to attend the certification course and shall be provided instructional materials at no cost. 42 Pa.C.S. § 3117. The Board shall determine what constitutes appropriate instructional material.

(f) Certification course attendees are responsible for all costs and expenses related to their attendance beyond those enumerated in 42 Pa.C.S. § 3117.

(g) The Board shall offer a certification examination within thirty (30) days of each certification course.

(h) The Board shall offer any person who does not successfully pass the examination referenced in paragraph (a) an opportunity to sit for the examination again prior to the next certification course. Thereafter, if the person has not successfully passed the examination, he or she will have the opportunity to sit for the examination again following the conclusion of the next regularly scheduled certification course. The Board may limit the number of times unsuccessful candidates may retake the exam without first retaking the certification course.

The provisions of this Rule 303 amended October 21, 2024, effective immediately, 54 Pa.B. 7110. Immediately preceding text appears at serial pages (413895) to (413896).

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 304 Supplemental Practicum. {#sec-rule-304 omnilex-key=us-pa-regs-official--title-204--Rule 304}

(a) The Board shall determine the length and the content of the continuing education practicum course required by Pa.R.J.A. 602(b).

(b) Practicum exercises must be part of the course of instruction.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 401 Waivers and Special Status. {#sec-rule-401 omnilex-key=us-pa-regs-official--title-204--Rule 401}

(a) Waiver. A waiver is a grant by the Board that continuing education requirements may be excused. The Board may waive any amount of continuing education requirements for a period of not more than one (1) year upon a finding by the Board of:

undue hardship, including extraordinary situations that could not reasonably have been anticipated;
circumstances beyond the control of the judge that prevent the judge from complying in any reasonable manner with continuing education requirements; or
circumstances under which the Board determines a waiver request manifestly demonstrates good cause.

(b) Senior judges.

Newly certified senior judges must complete the supplemental practicum required by Pa.R.J.A. 602(b).
Senior judges must compete annual continuing education courses as required by these rules.

(c) Members of the Armed Forces. Compliance with these rules shall be waived for members of the Armed Forces on active duty during the period of their active duty. A judge completing active duty shall notify the Board within thirty (30) days of returning to judicial service. Thereafter, the judge must comply with continuing education requirements for the forthcoming year.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 501 Noncompliance. {#sec-rule-501 omnilex-key=us-pa-regs-official--title-204--Rule 501}

(a) The Board shall notify in writing any judge who does not comply with the continuing education requirements. There shall be no exceptions or exemptions from the continuing education requirements set forth in 42 Pa.C.S. § 3118 and Pa.R.J.A. 602, except those enumerated herein.

(b) Noncompliance shall constitute grounds for the Supreme Court to declare a vacancy in that district in accordance with 42 Pa.C.S. § 3118(a)(2) and Pa.R.J.A. 602(a).

(c) The Board shall report to the Supreme Court and to the Judicial Conduct Board any judge who fails to complete their annual continuing education requirement.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

204 Pa. Code Rule 601 Hearings. {#sec-rule-601 omnilex-key=us-pa-regs-official--title-204--Rule 601}

(a) Any judge or certification candidate aggrieved by a decision of the Board may petition for a hearing before the Board within ninety (90) days of the decision.

(b) Requests for hearings. All requests for hearings shall be addressed to the Minor Judiciary Education Board, 601 Commonwealth Avenue, Suite 2500, P.O. Box 62475, Harrisburg, Pennsylvania 17106-2475. All matters shall be heard by the Board, unless in the discretion of the Board Chair, the matter should proceed as otherwise provided in this rule.

(c) In the discretion of the Board’s Chair, a matter initially may be assigned to a Board member or panel of Board members for decision. If the hearing is conducted by more than one (1) person, the Chair of the Board shall designate one person who will act as the presiding hearing officer. Within thirty (30) days after the hearing, the member or panel shall submit a recommendation to the Board.

(d) After receipt of the member or panel’s recommendation, the Board shall review the matter based upon the existing record, or in its discretion, conduct such further proceedings as it deems appropriate, or review the matter de novo.

(e) At all hearings, the petitioner shall have the burden of proof of establishing compliance with these rules by a preponderance of the evidence. Counsel for the Board shall represent the Board if directed to do so by the Board.

(f) At the hearing, any party shall have the opportunity to call witnesses, examine and cross-examine witnesses, and to introduce such evidence as is relevant to the proceeding. Evidence shall be admitted at the discretion of the Board, and as long as that discretion is not abused, the Board shall not be restrained by technical Rules of Evidence.

(g) All hearings shall be confidential, and shall not be open to the public, except at the request of the petitioner. Witnesses shall be sworn and a complete electronic record or a transcript shall be made. The presiding hearing officer shall have authority to rule on all motions, objections, and other matters presented.

(h) In investigations and proceedings under these rules, the Board shall have power to issue subpoenas and cause testimony to be taken under oath before the Board or Board members. All subpoenas shall be issued in the name and under the seal of the Supreme Court and served as provided by the Rules of Civil Procedure. Fees and costs of the subpoenas shall be paid from the funds of the Board or taxed as costs, as determined by the Board.

(i) The member, panel, or Board, as the case may be, may order the testimony of a witness to be taken by deposition within or without this Commonwealth in the manner prescribed for the taking of depositions in the Rules of Civil Procedure and the depositions may be used to the same extent as permitted under those rules. Costs for the taking of a deposition shall be paid from the funds of the Board or taxed as costs, as determined by the Board.

(j) Within ninety (90) after the conclusion of a proceeding, the Board shall issue its decision. A copy of the Board’s decision shall be promptly mailed to the petitioner by the Board.

(k) If a judge is deemed to be noncompliant, a request for a hearing shall not operate as a stay or supersedeas of any action taken by the Board with respect to the judge’s noncompliance, unless upon application and good cause shown, the Board grants a stay or supersedeas of its action.

(l) A petitioner aggrieved by a Board decision may request reconsideration. There is no right to appeal provided under these rules.

History

Source: The provisions of this Chapter 33 added February 23, 2023, effective immediately, 53 Pa.

Part IV ADMISSION TO PRACTICE LAW

Chapter 73 STANDARDS FOR PASSING BAR EXAMINATION

204 Pa. Code Rule 101 Standards for passing the bar examination. {#sec-rule-101 omnilex-key=us-pa-regs-official--title-204--Rule 101}

Commencing with the Pennsylvania Bar Examination to be administered in February of 1997, and until further Order of this Court, a successful candidate for admission to the Bar of the Commonwealth of Pennsylvania, in addition to the other examination requirements approved by prior Orders of the Court which are not superseded hereby, must:

attain a scaled score of 130 or higher on the Multistate Bar Examination;
attain a scaled score of 135 or higher on the essay portion of the bar examination; and
attain a scaled score of 270 on the combined scores of the Multistate Bar Examination and the essay portion of the bar examination.

The provisions of this Rule 101 adopted December 30, 1993, effective December 30, 1993, 24 Pa.B. 333; amended February 4, 1997, effective February 4, 1997, 27 Pa.B. 797. Immediately preceding text appears at serial page (186631).

History

Source: The provisions of this Rule 101 adopted December 30, 1993, effective December 30, 1993, 24 Pa.

204 Pa. Code Rule 102 Additional requirements. {#sec-rule-102 omnilex-key=us-pa-regs-official--title-204--Rule 102}

Commencing with the Pennsylvania Bar Examination to be administered in February of 1998, and until further Order of this Court, a successful candidate for admission to the Bar of the Commonwealth of Pennsylvania must, in addition to the other examination requirements approved by Order of this Court, attain a scaled score of 75 or higher on the Multistate Professional Responsibility Examination.

The provisions of this Rule 102 adopted January 31, 1997, effective January 31, 1997, 27 Pa.B. 797.

History

Source: The provisions of this Rule 101 adopted December 30, 1993, effective December 30, 1993, 24 Pa.

Part VII ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS

Chapter 201 UNIFIED JUDICIAL SYSTEM

204 Pa. Code § 201.1 Organization of the Unified Judicial System.

The following is an unofficial chart of the administrative organization of the Unified Judicial system of the Commonwealth of Pennsylvania:

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.2 Appellate jurisdiction within the Unified Judicial System.

The following is an unofficial chart of the appellate jurisdiction of the Unified Judicial system of the Commonwealth of Pennsylvania:

The provisions of this § 201.2 amended through December 26, 1980, effective December 27, 1980, 10 Pa.B. 4956. Immediately preceding text appears at serial pages (35721) and (39533).

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.3 Status of indicting grand juries; initiation of criminal proceedings by information.

(a) General rule. The Supreme Court of Pennsylvania pursuant to Section 10 of Article 1 of the Constitution of Pennsylvania has approved the initiation of criminal proceedings by information in the following courts of common pleas:

*By order of the Supreme Court, the statewide rules of criminal procedure governing indicting grand juries and indictments were rescinded effective September 1, 1993. See also, Pa.R.Crim.P. 103 (defining ‘‘information’’ as replacing the indictment in all counties ‘‘since the use of the indicting grand jury has been abolished.’’).

(b) Status of grand jury. 42 Pa.C.S. § 8931(f) provides that no grand jury shall be impaneled in any judicial district where the Supreme Court has approved the initiation of criminal proceedings by information, for the purpose of considering bills of indictment, and that such provision shall not prohibit the impaneling of grand juries under and with the powers provided in Subchapter 45D of the Judicial Code (42 Pa.C.S. § 4541 et seq.) or for any other purpose as provided or prescribed by law.

The provisions of this § 201.3 adopted June 30, 1978, 8 Pa.B. 1747, amended May 1, 1981, effective May 2, 1981, 11 Pa.B. 1435; amended December 2, 2011, effective December 3, 2011, 41 Pa.B. 6377. Immediately preceding text appears at serial pages (250502) and (236525) to (236526).

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.4 Office of the Clerk of the Court of Common Pleas generally.

(a) General rule. Except as provided in subsection (b) of this section the functions of the Office of the Clerk of the Court of Common Pleas are performed by the county officers and other personnel specified in 42 Pa.C.S. Ch. 27 (relating to Office of the Clerk of the Court of Common Pleas).

(b) Home rule counties. As provided by 42 Pa.C.S. § 2701(b) (relating to scope and purpose of chapter), a county home rule charter may supersede the provisions of 42 Pa.C.S. Ch. 27. The following unofficial summary of local law is provided for the general information of the public and system and related personnel, and shall not be construed as an authoritative interpretation of any provision of law:

(1) Delaware County. Section 801 of the charter provides that the elected Register of Wills shall be the Clerk of the Orphans’ Court Division, and section 802 provides for the appointment by the Register, subject to the budgetary approval of the County Council, of a deputy or deputies and such other assistants as may be required. All other functions of the Office of the Clerk of the Court of Common Pleas are vested in an Office of Judicial Support, which the County Council is required by section 425 of the charter to establish by combining the offices of the Clerk of the Courts and Prothonotary. Section 1213 of the charter provides that the separate office of Clerk of the Courts was abolished on the first Monday of January 1978 and that the separate office of Prothonotary shall be abolished effective the first Monday of January 1980. The Office of Judicial Support is headed by a Director, and its operations are governed by section 10.16 of the County Administrative Code. Section 422 of the charter provides in effect that the County Solicitor and Assistant Solicitors shall provide legal advice and assistance to the Office of Judicial Support.

(2) Erie County. Section 1 of Article IV of the charter provides for an elected Clerk of Records, who has and exercises all powers and duties conferred by law upon the Prothonotary, the Clerk of the Courts and the Clerk of the Orphans’ Court Division (and also the Recorder of Deeds) and any additional duties and powers conferred by the County Council. Article II, section 3B, of the County Administrative Code prescribes the organization of the Office of the Clerk of Records and establishes four divisions: Prothonotary (Civil), Clerk of Courts (Criminal), Recorder of Deeds and Register of Wills and Clerk of Orphans’ Court. Section 3 of Article V of the charter provides that the County Solicitor is the chief legal officer and attorney for the County government and that no other legal counsel may be employed without the approval of the County Council. Section 4 of Article VII of the charter provides that the Clerk of Records may hire the employes of the Department of Records, but only from lists of eligibles certified by the Director of Personnel.

(3) Lackawanna County. Article X of the charter provides that an elected Register of Wills shall exercise the powers granted by law to registers of wills in counties of its class. Section 1302(a) of The County Code (16 P. S. § 1302(a)) provides in effect that in counties of such class the offices of Register of Wills and Clerk of the Orphans’ Court Division are combined. Article VIII of the charter provides for an elected Clerk of Judicial Records, who has all powers, functions and duties previously assigned by law to the office of Prothonotary and office of Clerk of the Courts. Section 2.16 of the County Administrative Code sets forth the structure, organization, manner and operational procedures whereby the office of the Clerk of Judicial Records operates and functions.

(4) Lehigh County. Section 501(a) of the charter, as amended, provides that the judicial power in Lehigh County is vested in the Court of Common Pleas of the 31st Judicial District of the Commonwealth of Pennsylvania, presently composed of Lehigh County, and the district justices in such district, all of which, the charter provides, are part of the Unified Judicial System of the Commonwealth of Pennsylvania and not a part of the County government, and such courts and other judicial officers as may be established by law. Section 501(c) of the charter provides for the appointment by the Court of Common Pleas en banc of a Clerk of the Orphans’ Court Division who has and exercises the powers and duties conferred by law on the Clerks of the Orphans’ Court Division by applicable law. Section 508 of the charter provides for an elected Clerk of Courts who, on and after the first Monday of January 1980, shall have and exercise all powers and duties conferred by law upon the Prothonotary and the Clerk of the Courts.

(5) Northampton County. Article I of the charter provides for an elected County Executive. Section 1303 of the charter abolished the offices of Prothonotary (and Recorder of Deeds) and, effective the first Monday of January 1980, Clerk of the Courts and Clerk of the Orphans’ Court Division. Section 1304(b)(2) of the charter transfers the duties, functions and powers of such offices to the County Executive or to his subordinate as provided by law. Article V of the County Administrative Code provides for the establishment of a Department of Court Services, headed by a Director of Court Services who is responsible to the County Executive. The Department of Court Services is organized into the following divisions: Clerk of Courtsz, Criminal Division, Clerk of Courts, Civil Division (Prothonotary), Recorder of Deeds, Register of Wills and Clerk of Courts, Orphans’ Court Division.

The provision of this § 201.4 adopted September 19, 1979, effective September 29, 1979, 9 Pa.B. 3304, amended February 8, 1980, effective February 9, 1980, 10 Pa.B. 644. Immediately preceding text appears at serial page (45714).

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.5 Civil Functions transferred from the office of the clerk of the courts.

(a) General rule. Except as provided in subsections (b) and (c) of this section, under certain existing statutes papers with respect to certain road, liquor, municipal and other miscellaneous civil matters formerly within the jurisdiction of the Court of Oyer and Terminer and General Jail Delivery or the Court of Quarter Sessions of the Peace are required to be filed in the Office of the Clerk of the Courts.

(b) Allegheny County. 42 Pa.C.S. § 2756(b)(1) (relating to matters or documents filed in the office of the clerk of the courts) provides that only applications for relief or other documents relating to criminal matters shall be filed in the Office of the Clerk of the Courts of Allegheny County.

(c) Other counties. 42 Pa.C.S. § 2756(b)(2) provides that the Clerk of the Courts of any county may file in the Office of the Prothonotary of the county and in the Administrative Office a written waiver of all or any part of any noncriminal filing functions and duties, and 42 Pa.C.S. § 2703 (relating to notice of transfer of functions and duties) provides for official publication by the Administrative Office of the orders of court appointing another officer or other person to perform such functions and duties. No such written waivers have been filed as of July 1, 1979.

The provisions of this § 201.5 adopted September 19, 1979, effective September 29, 1979, 9 Pa.B. 3304.

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.6 Jury selection commissions.

(a) General rule. Except as provided in subsection (b) of this section, the jury selection commission in each county of this Commonwealth consists of three or more persons selected as provided by 42 Pa.C.S. § 2122 (relating to composition of jury selection commissions).

(b) Home rule counties. As provided by 42 Pa.C.S. § 2121(b) (relating to jury selection commissions) a county home rule charter may supersede 42 Pa.C.S. § 2122. The following unofficial summary of local law is provided for the general information of the public system and and related personnel and shall not be construed as an authoritative interpretation of any provision of law:

(1) Delaware County. Sections 408 and 416 of the charter provide that a majority and minority jury commissioner shall be appointed by the County Council. The jury commissioners have all the powers and duties granted by applicable law, the charter or ordinance of County Council.

(2) Erie County. Section 3 of Article VI of the charter provides that there shall be a Jury Board which shall consist of the President Judge of the Court of Common Pleas, one other judge of the court appointed by the President Judge and a clerk appointed by the President Judge from among the clerks employed by the Department of Records; that the Jury Board shall have and exercise all powers and duties imposed upon it by applicable law pertaining to the selection of jurors; and that certain procedures shall be followed in the selection of jurors.

(3) Lackawanna County. Section 1706 of the charter abolishes the office of elected jury commissioner. Section 702(a) of the charter provides that the elected Sheriff shall have power relating to administration of jury service in the county.

(4) Lehigh County. Section 1105 of the charter, as amended, abolishes the office of elected jury commissioner. Section 501(d) of the charter, as amended, provides that jury selection and management shall be the responsibility of the Judiciary and grants plenary power and authority to carry out that responsibility. The ‘Judiciary’ is defined by Section 1009(m) of the charter to include the Court of Common Pleas; the Judicial Magisterial System within the 31st Judicial District; the offices of the Court Administrator and Clerk of the Orphans’ Court Division of the Court of Common Pleas; the Domestic Relations Section; the Probation Department; and such other offices sections, departments and/or agencies which do now or shall hereafter constitute part of the Judicial System within the County of Lehigh.

(5) Northampton County. Section 1303(a) of the charter abolishes the office of elected jury commissioner. Section 1304(b)(3) of the charter transfers the duties, powers and functions of the jury commissioners to the Court of Common Pleas.

The provisions of this § 201.6 adopted September 19, 1979, effective September 29, 1979, 9 Pa.B. 3304, amended February 8, 1980, effective February 9, 1980, 10 Pa.B. 644. Immediately preceding text appears at serial page (45716).

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.7 Sheriffs.

(a) General rule. Except as provided in subsection (b) of this section, the functions of sheriff under 42 Pa.C.S. § 2921 (relating to powers and duties of the sheriff) are performed by the Sheriff of the county elected as provided by statute.

(b) Home rule counties. Under Article IX of the Constitution of Pennsylvania the elected office of sheriff may be abolished. The following unofficial summary of local law is provided for the general information of the public and system and related personnel and shall not be construed as an authoritative interpretation of any provision of law:

Northampton County. Article III of the charter provides for an elected County Executive. Section 1303 of the charter abolishes the elected office of Sheriff effective the first Monday of January 1980. Section 1304(b)(3) of the charter transfers the duties, functions and powers of such office to the County Executive or to his subordinate as provided by law. Article X of the County Administrative Code provides for an Office of the Sheriff headed by a Sheriff who is responsible to the County Executive and sets forth the duties of the Sheriff.

The provisions of this § 201.7 adopted September 19, 1979, effective September 29, 1979, 9 Pa.B. 3304.

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

204 Pa. Code § 201.8 Register of wills.

(a) General rule. Except as provided in subsection (b) of this section, the functions and duties of register of wills under the Probate, Estates and Fiduciaries Code (20 Pa.C.S.) are performed by the Register of Wills of the county elected as provided by statute.

(b) Home rule counties. Under Article IX of the Constitution of Pennsylvania the elected office of Register of Wills may be abolished. The following unofficial summary of local law is provided for the general information of the public and system and related personnel and shall not be construed as an authoritative interpretation of any provision of law:

(1) Erie County. Section 1 of Article IV of the charter provides for an elected Clerk of Records, who has and exercises all powers and duties conferred by law upon the Register of Wills.

(2) Northampton County. Article III of the charter provides for an elected County Executive. Section 1303 of the charter abolishes the elected office of Register of Wills effective the first Monday of January 1980. Section 1304(b)(3) of the charter transfers the duties, functions and powers of such office to the County Executive or to his subordinate as provided by law. Article X of the County Administrative Code provides that the Department of Court Services will perform all functions formerly performed by the Register of Wills.

The provisions of this § 201.8 adopted September 19, 1979, effective September 29, 1979, 9 Pa.B. 3304.

History

Source: The provisions of this Chapter 201 adopted June 3, 1971, 1 Pa.

Chapter 205 ELECTRODATA PROCESSING OPERATIONS

204 Pa. Code § 205.2 Planning Committee on Uniformity in EDP Operations.

(a) The Administrative Office of Pennsylvania Courts has appointed a ‘‘Planning Committee on Uniformity in EDP Operations.’’ The Committee will develop and maintain conformity and compatibility in the design, planning, function, and operation of computerized systems of record keeping in the Judicial Branch of the Commonwealth of Pennsylvania.

(b) Persons desiring further information concerning the activities of the Committee may communicate, in writing, with the Administrative Office of Pennsylvania Courts, 1414 Three Penn Center Plaza, Philadelphia, Pennsylvania 19102.

The provisions of this § 205.2 are an unofficial codification of Agenda No. 73-10, Order No. 12, July 30, 1973, 3 Pa.B. 2917.

History

Source: The provisions of this § 205.

Chapter 207 TRANSMITTING REMITTANCES

204 Pa. Code § 207.1 Authorization by Supreme Court.

The Supreme Court, pursuant to Art. 5 § 10 of the Pennsylvania Constitution, and 42 Pa.C.S. § 1721, hereby authorizes the Court Administrator of Pennsylvania to adjust the level of fines, costs, fees and other remittances as otherwise fixed by law so as to facilitate the transmission of remittances through or by a financial intermediary pursuant to such regulations without net cost to any government unit, pursuant to 42 Pa.C.S. § 3502(c)(3).

For purposes of 42 Pa.C.S. § 3502(c) and this regulation, the term financial intermediary shall include credit card issuers, ticket processing service organizations, and other institutions providing services relating to the collection of fines, costs and other remittances.

The provisions of this § 207.1 adopted October 14, 1988, effective October 14, 1988, 18 Pa.B. 4860.

History

Source: The provisions of this § 207.

204 Pa. Code § 207.2 Philadelphia Municipal Court Traffic Division—Adjustment of Fines, Costs, Fees and Other Remittances.

(a) Pursuant to 42 Pa.C.S. § 3502(c)(3), the Court Administrator of Pennsylvania hereby adjusts the level of fines, costs, fees and other remittances in all cases under the Motor Vehicle Code (Title 75, Pennsylvania Consolidated Statutes) and local ordinances prosecuted in the Philadelphia Municipal Court Traffic Division by increasing such costs, fees and other remittances to the amount of twenty-five dollars ($25.00) per citation or traffic violation report. Said amount shall be paid to a contracting financial intermediary and shall be added to the fines, costs, fees and other remittances at such time as the Philadelphia Municipal Court Traffic Division sends or causes to be served a written notice other than a summons to a defendant.

(b) This regulation shall become effective April 1, 2006, and shall apply to all citations and traffic violation reports filed prior to that date.

The provisions of this § 207.2 adopted January 30, 1989, effective March 1, 1989, 19 Pa.B. 521; amended March 10, 1989, effective March 1, 1989, 19 Pa.B. 957; amended March 4, 1991, effective March 18, 1991, 21 Pa.B. 1032; amended January 1, 2000, effective January 1, 2000, 30 Pa.B. 865; amended March 20, 2006, effective March 20, 2006, 36 Pa.B. 1491; amended November 5, 2018, 48 Pa.B. 7208. Immediately preceding text appears at serial pages (393955) to (393956).

History

Source: The provisions of this § 207.

204 Pa. Code § 207.3 Online Payment Convenience Fee—Adjustment of Fines, Costs, Fees, and Other Remittances.

(a) Pursuant to 42 Pa.C.S. § 3502(c)(3), the Court Administrator of Pennsylvania hereby adjusts the level of fines, costs, fees, and other remittances by assessing a non-refundable 2.75 percent (%) convenience fee for online credit/debit card payments of court costs, fines, fees, and restitution associated with pre-existing cases, cases initiated within the Magisterial District Judge, Common Pleas, and Appellate Court Case Management Systems of the Pennsylvania Courts, or filings submitted via the Guardianship Tracking System. The 2.75% convenience fee shall also be assessed on any other online credit/debit card payments initiated through the AOPC’s UJS Portal. Said amount shall be paid through a contracted financial intermediary and shall be added at the time of the payment.

(b) This regulation shall become effective April 1, 2024, and shall apply to all online credit/debit card payments initiated through the AOPC’s UJS Portal.

The provisions of this § 207.3 adopted December 14, 2009, effective January 1, 2010, 39 Pa.B. 7184; amended August 31, 2018, effective immediately, 48 Pa.B. 5714; amended March 6, 2024, effective April 1, 2024, 54 Pa.B. 1525. Immediately preceding text appears at serial page (394666).

History

Source: The provisions of this § 207.

Chapter 209 PENNSYLVANIA APPELLATE COURTS RECORDS RETENTION SCHEDULE

204 Pa. Code § 209.1 Establishment.

In order to establish procedures and guidance for the various records custodians of the appellate courts of Pennsylvania, the Appellate Court Records Retention Schedule in Appendix A has been approved by the Supreme Court of Pennsylvania and originally promulgated by the Administrative Office of Pennsylvania Courts (AOPC) on April 6, 1990.

The provisions of this § 209.1 amended May 19, 2023, effective immediately, 53 Pa.B. 2693. Immediately preceding text appears at serial page (276511).

History

Source: The provisions of this Chapter 209 adopted November 23, 1990, effective November 24, 1990, 20 Pa.

204 Pa. Code § 209.2 Procedure for the Destruction or Transfer of Appellate Court Records.

(a) Records may be disposed of in accordance with the retention periods listed on the Appellate Court Records Retention Schedule (Schedule) in Appendix A. The Schedule is ‘‘permissive’’ in that court personnel may continue to hold records beyond the stated retention requirements. Records need not be kept in their original form, particularly those requiring long term or permanent retention. Microfilm or PDF/A copies that meet the micrographics or PDF/A standards and the quality control guidelines and related policies approved by the Commonwealth’s County Records Committee set forth in the County Records Manual are acceptable substitutes and shall be followed to the extent practicable. When scanning documents there must be an individual responsible for quality control. Copying onto any other media must be approved in advance by the AOPC.

(b) Records not listed for permanent retention may be disposed of in accordance with the Schedule. A record of the destruction, containing the record series titles, date spans, approximate quantities of the records, and date destroyed must be submitted to AOPC. AOPC need not approve destruction of these records. A sample Records Disposal form can be found in Appendix B.

(c) Records listed for permanent retention may not be disposed of without approval by AOPC. Records listed for permanent retention and archival review may not be disposed of without approval by both AOPC and the Pennsylvania Historical and Museum Commission (PHMC).

(1) AOPC approval must be obtained before destroying original records scheduled for permanent retention that have been microfilmed or converted to PDF/A format.

(2) If the records are marked for archival review on the Schedule, approval must also be obtained from both AOPC and the PHMC prior to destruction. Records series marked with an asterisk in the Archival Review column on the Schedule have potential historical value and the PHMC State Archives may be interested in maintaining original, microfilm and/or PDF/A copies of these series. One form, the form attached in Appendix C, is to be used to obtain approvals.

(d) In some instances, inactive records that have not been microfilmed or converted to PDF/A, and are no longer needed for administrative or legal purposes by the Courts, may be transferred to the State Archives in lieu of permanent retention at the office of origin. Records transferred to the State Archives become the legal property and responsibility of the PHMC. Court officers should contact the PHMC to make arrangements for archival appraisal and the systematic or one-time transfer of individual series on the schedule.

(e) Definitions.

(1) Electronic records: ‘‘Electronic records’’ are information which satisfy the definition of a record as defined below, and have been recorded and stored in an electronic file which is readable by a computer. Electronic files may consist of database records, correspondence, spreadsheets, word processing documents, presentations, digital images, e-mail, reports, and other file types. These files may be stored on cloud-based computer storage such as OneDrive, Google Drive, and DropBox; on data center network attached computer storage such as network shared drives, storage area networks (SANs), network-attached storage (NASs), and electronic filing systems; on stand-alone computer storage such as PC internal hard drives, server hard drives, and solid-state drives; or on removable storage media such as backup tapes, disks, CD-ROMs, DVDs, diskettes, ZIP disks, and USB/Flash drives.

(2) PDF/A: ‘‘PDF/A’’ is an International Organization for Standardization (ISO) standardized version of Adobe PDF specialized for use in archiving. The PDF/A specification ensures that electronic documents can be retained permanently by providing long-term reliability and preservation. The purpose of PDF/A is to accurately display documents in the distant future even though computer standards and formats will evolve over time. The PDF/A format described in ISO 19005 should be utilized.

(3) Records: As used in this Schedule, the term ‘‘records’’ includes those papers, dockets, books, photographs, or other documentary materials in any form made or received in an appellate court pursuant to law, statute, or rules of court, in connection with transactions of its business and the discharge of its responsibilities. The term includes electronic records as defined above.

(4) Retain permanently: Records designated for permanent retention or acceptable facsimiles (i.e., microfilm or PDF/A), as defined by the County Records Committee and/or the AOPC, may not be destroyed under any circumstances. Permanent records may be transferred to a records center in which case the prothonotary of the appellate court would maintain custodial control of the records, or they may be transferred to the legal custody of the PHMC.

(5) Final disposition:

(i) The final adjudication by the Pennsylvania appellate courts for cases in which appeals are not taken to the United States Supreme Court; or

(ii) the final adjudication by the United States Supreme Court.

If the final adjudication of the United States Supreme Court or of the Pennsylvania Supreme Court remands the case to another appellate court, the case will be treated as an open case in the court to which the remand is directed.

The provisions of this § 209.2 amended May 19, 2023, effective immediately, 53 Pa.B. 2693. Immediately preceding text appears at serial pages (276511) to (276512).

NOTE: Foreign Registry files will be treated in the same manner as other original jurisdiction cases.

The provisions of this Appendix A amended February 19, 1993, effective immediately, 23 Pa.B. 817; amended June 7, 2002, effective immediately, 32 Pa.B. 2750; amended May 19, 2023, effective immediately, 53 Pa.B. 2693. Immediately preceding text appears at serial pages (289027) to (289030), (276515) to (276520) and (289031) to (289032).

SUBJECT: Records Disposal

TO: The Court Administrator of Pennsylvania.

FROM:

History

Source: The provisions of this Chapter 209 adopted November 23, 1990, effective November 24, 1990, 20 Pa.

Chapter 211 CONSUMER PRICE INDEX AND JUDICIAL SALARIES

204 Pa. Code § 211.1a Consumer Price Index—judicial salaries.

The Court Administrator of Pennsylvania reports that the percentage change in the Philadelphia-Wilmington-Atlantic City, PA-DE-NJ-MD, Consumer Price Index for All Urban Consumers (CPI-U) for the 12-month period ending August 2025, was 3.3 percent (3.3%). (See U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index, Thursday, November 13, 2025.)

The provisions of this § 211.1a restated from 204 Pa. Code § 211.2, April 9, 2011, 41 Pa.B. 1894; amended December 24, 2011, effective January 1, 2012, 41 Pa.B. 6875; amended December 7, 2012, effective January 1, 2013, 42 Pa.B. 7404; amended December 14, 2013, effective January 1, 2014, 43 Pa.B. 7224; amended December 6, 2014, effective January 1, 2015, 44 Pa.B. 7514; amended December 5, 2015, effective January 1, 2016, 45 Pa.B. 6880; amended December 10, 2016, effective January 1, 2017, 46 Pa.B. 7620; amended December 15, 2017, effective January 1, 2018, 47 Pa.B. 7557; amended December 14, 2018, effective January 1, 2019, 48 Pa.B. 7624; amended November 22, 2019, effective January 1, 2020, 49 Pa.B. 6942; amended December 4, 2020, effective January 1, 2021, 50 Pa.B. 6858; amended November 24, 2021, effective January 1, 2022, 51 Pa.B. 7341; amended November 25, 2022, effective January 1, 2023, 52 Pa.B. 7252; amended December 1, 2023, effective January 1, 2024, 53 Pa.B. 7359; amended November 29, 2024, effective January 1, 2025, 54 Pa.B. 7667; amended December 12, 2025, effective January 1, 2026, 55 Pa.B. 8352. Immediately preceding text appears at serial page (421459).

History

Source: The provisions of this § 211.

204 Pa. Code § 211.2 Judicial salaries effective January 1, 2026.

The annual judicial salaries for calendar year beginning January 1, 2026, will be adjusted by a cost-of-living factor.

(a) Supreme Court.

(1) The annual salary of a justice of the Supreme Court shall be $270,622.

(2) The annual salary of the Chief Justice of the Supreme Court shall be $278,496.

(b) Superior Court.

(1) The annual salary of a judge of the Superior Court shall be $255,346.

(2) The annual salary of the President Judge of the Superior Court shall be $263,216.

(1) The annual salary of a judge of the Commonwealth Court shall be $255,346.

(2) The annual salary of the President Judge of the Commonwealth Court shall be $263,216.

(d) Courts of common pleas.

(1) The annual salary of a judge of the court of common pleas shall be $234,916.

(2) The annual salaries of the president judges of the courts of common pleas shall be in accordance with the following schedule:

(i) Allegheny County, $238,853.

(ii) Philadelphia County, $239,641.

(iii) Judicial districts having six or more judges, $236,963.

(iv) Judicial districts having five or fewer judges, $235,941.

(v) Administrative judges of the divisions of the Court of Common Pleas of Philadelphia County with six or more judges, $236,963.

(vi) Administrative judges of the divisions of the Court of Common Pleas of Philadelphia County with five or fewer judges, $235,941.

(vii) Administrative judges of the divisions of the Court of Common Pleas of Allegheny County with six or more judges, $236,963.

(viii) Administrative judges of the divisions of the Court of Common Pleas of Allegheny County with five or fewer judges, $235,941.

(e) Philadelphia Municipal Court.

(1) The annual salary of a judge of the Philadelphia Municipal Court shall be $229,480.

(2) The annual salary of the President Judge of the Philadelphia Municipal Court shall be $233,026.

(g) Magisterial district judge. The annual salary of a magisterial district judge shall be $117,466.

(h) Senior judges. The compensation of the senior judges pursuant to 42 Pa.C.S. § 4121 (relating to assignment of judges) shall be $731 per day. In any calendar year the amount of compensation which a senior judge shall be permitted to earn as a senior judge shall not, when added to retirement income paid by the Commonwealth for such senior judge, exceed the compensation payable by the Commonwealth to a judge then in regular active service on the court from which said senior judge retired. A senior judge who so elects may serve without being paid all or any portion of the compensation provided by this section.

The provisions of this § 211.2 adopted November 20, 1996, effective January 1, 1997, 26 Pa.B. 5881; amended November 5, 1997, effective January 1, 1998, 27 Pa.B. 6074; amended November 19, 1998, 28 Pa.B. 5866; amended December 13, 1999, effective January 1, 2000, 29 Pa.B. 6453; amended November 29, 2000, effective January 1, 2001, 30 Pa.B. 6420; amended November 29, 2001, effective January 1, 2002, 31 Pa.B. 6783; amended November 27, 2002, effective January 1, 2003, 32 Pa.B. 6075; amended December 4, 2003, effective January 1, 2004, 33 Pa.B. 6208; amended December 8, 2004, effective January 1, 2005, 34 Pa.B. 6645; amended December 5, 2005, effective January 1, 2006, 35 Pa.B. 6746; amended December 29, 2006, effective January 1, 2007, 36 Pa.B. 7955; amended December 21, 2007, effective January 1, 2008, 37 Pa.B. 6742; amended December 26, 2009, effective January 1, 2010, 39 Pa.B. 7184; amended December 25, 2010, effective January 1, 2011, 40 Pa.B. 7334; text regarding Consumer Price Index restated at 204 Pa. Code § 211.1a, April 9, 2011, 41 Pa.B. 1894; amended December 24, 2011, effective January 1, 2012, 41 Pa.B. 6875; amended December 7, 2012, effective January 1, 2013, 42 Pa.B. 7404; amended December 14, 2013, effective January 1, 2014, 43 Pa.B. 7224; amended December 6, 2014, effective January 1, 2015, 44 Pa.B. 7514; amended December 5, 2015, effective January 1, 2016, 45 Pa.B. 6880; amended December 10, 2016, effective January 1, 2017, 46 Pa.B. 7620; amended December 15, 2017, effective January 1, 2018, 47 Pa.B. 7557; amended December 14, 2018, effective January 1, 2019, 48 Pa.B. 7624; amended November 22, 2019, effective January 1, 2020, 49 Pa.B. 6942; amended December 4, 2020, effective January 1, 2021, 50 Pa.B. 6858; amended November 24, 2021, effective January 1, 2022, 51 Pa.B. 7341; amended November 25, 2022, effective January 1, 2023, 52 Pa.B. 7252; amended December 1, 2023, effective January 1, 2024, 53 Pa.B. 7359; amended November 29, 2024, effective January 1, 2025, 54 Pa.B. 7667; amended December 12, 2025, effective January 1, 2026, 55 Pa.B. 8352. Immediately preceding text appears at serial pages (421460) to (421461).

History

Source: The provisions of this § 211.

Chapter 219 CLERK OF COURTS; WAIVER

204 Pa. Code § 219.1 Notice of transfer of clerk of courts functions and duties.

(a) When a clerk of courts files a waiver of any functions or duties ordinarily incident to the office under 42 Pa.C.S. § 2756(b)(2) (relating to exceptions), the order of court appointing another officer or person to perform its functions shall not be valid for any purpose until filed in the Administrative Office of Pennsylvania Courts (AOPC) under 42 Pa.C.S. § 2703 (relating to notice of transfer).

(b) The AOPC shall cause all such orders to be published in the Pennsylvania Code.

History

Source: The provisions of this Chapter 219 adopted May 16, 2001, effective July 1, 2001, 31 Pa.

204 Pa. Code § 219.2 Lancaster County—Road Matter Documents.

Pursuant to 42 Pa.C.S. § 2756(b)(2) and in consideration of the Waiver of the Clerk of Courts effective July 1, 2001, the filing of all applications for relief or other documents relating to road matters must be in the Office of the Prothonotary and all existing records, which relate to such matters and which are filed in the Office of the Clerk of Courts, must be transferred to the Office of the Prothonotary.

History

Source: The provisions of this Chapter 219 adopted May 16, 2001, effective July 1, 2001, 31 Pa.

Part VIII CRIMINAL SENTENCING

Chapter 303 SENTENCING GUIDELINES, 7TH EDITION

204 Pa. Code § 303.1 Sentencing guidelines standards.

(a) The court shall consider the sentencing guidelines in determining the appropriate sentence for offenders convicted of, or pleading guilty or nolo con-tendere to, felonies and misdemeanors. Where crimes merge for sentencing purposes, the court shall consider the sentencing guidelines only on the offense assigned the higher Offense Gravity Score.

(b) The sentencing guidelines do not apply to sentences imposed as a result of the following: accelerated rehabilitative disposition; disposition in lieu of trial; direct or indirect contempt of court; violations of protection from abuse orders; revocation of probation, except as provided in 204 Pa. Code Chapter 307; or revocation of parole.

(c) The sentencing guidelines shall apply to all offenses committed on or after the effective date of the guidelines. Amendments to the guidelines shall apply to all offenses committed on or after the date the amendment becomes part of the guidelines.

(1) When there are current multiple convictions for offenses that overlap two sets of guidelines, the former guidelines shall apply to offenses that occur prior to the effective date of the amendment and the later guidelines shall apply to offenses that occur on or after the effective date of the amendment. If the specific dates of the offenses cannot be determined, the later date determines the edition of the guidelines that shall apply to the offenses.

(2) The initial sentencing guidelines went into effect on July 22, 1982 and applied to all crimes committed on or after that date. Amendments to the guidelines went into effect in June 1983, January 1986 and June 1986. On October 7, 1987 the Pennsylvania Supreme Court invalidated the guidelines due to a procedural error that occurred in 1981 when the legislature rejected the first set of guidelines. New guidelines were drafted and became effective on April 25, 1988. Amendments to the guidelines went into effect August 9, 1991 and December 20, 1991. Revised sets of guidelines became effective August 12, 1994, June 13, 1997, June 3, 2005, December 5, 2008, and December 28, 2012. Amendments to the guidelines went into effect September 27, 2013, September 26, 2014, September 25, 2015, January 1, 2018, June 1, 2018, and January 1, 2020. This amendment, Amendment 6 of the 7th Edition Sentencing Guidelines, shall take effect January 1, 2021 and apply to all crimes committed on or after that date.

(d) In every case in which a court of record imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where a court of record imposes a sentence outside the sentencing guidelines, the reason or reasons for the deviation from the guidelines shall be recorded on the Guideline Sentence Form, a copy of which shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in § 303.1(e).

(e)(1) Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court’s direction to prepare all guideline-required sentencing information. The completed Guideline Sentence Form shall be made a part of the record and the information electronically submitted to the Commission via SGS Web no later than 30 days after the date of sentencing.

(2) Effective for sentences imposed on or after January 1, 2016, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court’s direction to report all subsequent revocations of probation, county intermediate punishment and state intermediate punishment and related resentences to the Commission. The information shall be electronically submitted to the Commission via SGS Web no later than 30 days after the date of resentencing.

(f) Effective January 1, 2014, the State Identification Number (SID) for an offender shall be included as part of the record in the completed Guideline Sentence Form.

The provisions of this § 303.1 amended July 5, 1985, and applies to sentences for crimes committed after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (401413) to (401414) and (399061). See Commonwealth v. Sessoms, 532 A.2d 775 (Pa. 1987).

Applicability to Guilty Plea

The defendant entered guilty pleas, and the sentencing court imposed sentences beyond those recommended in the guidelines without making the requisite statement of reasons for deviation. The sentencing court stated that since the defendant pled guilty, the guidelines do not apply, per § 303.1(b). However, in light of the express provisions of § 303.1(a), which includes those who plead guilty, the failure to provide a contemporaneous written statement of the reason or reasons for the deviation was reversible error. Commonwealth v. Styles, 812 A.2d 1277 (Pa. Super. 2002).

Date On Which Sentencing Guidelines Apply Is a Legal Question

For appellate purposes, the issue of which sentencing guidelines to apply is a legal question and not a discretionary matter; defendant was charged with the offense on date amendments became part of guidelines, therefore the new guidelines are controlling. Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005); denial of post-conviction relief affirmed in part, vacating in part A.2d (Pa. Super. 2007).

Deviation from Guidelines

Sentence imposed by sentencing judge pursuant to Pennsylvania’s indeterminate sentencing scheme that was within the statutory maximum but exceeded the aggravated range of the sentencing guidelines was not unconstitutional; the statutory maximum is the polestar for constitutional purposes and a judge may impose a sentence outside the guidelines without unconstitutionally increasing the punishment for a crime based on judicially-determined facts as long as the maximum sentence imposed does not exceed the statutory limit. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118—1119 (Pa. 2007)

Where the sentence substantially exceeded the aggravated range, but was within the statutory limits, and the trial court made the required contemporaneous findings to support the deviation, the Superior Court erred in not allowing an appeal of the sentence to determine if it was excessive. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. Cmwlth. 2002); on remand 828 A.2d 1126 (Pa. Super 2003).

Although deviation from the sentencing guidelines was permitted, the Sentencing Code required that the court place of record its reasons for such deviations. Where the court failed to indicate that it was in fact sentencing appellant outside of the guidelines and failed to provide a contemporaneous statement of its reasons for such deviation, the sentence should be vacated and remanded for resentencing. Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super. 1995).

Effective Dates

Although the sentencing code does not address the issue of which guidelines apply where there is a continuing course of criminal activity occurring both before and after amendments to the guidelines are enacted, the court acted within its discretion in sentencing appellant within the guidelines prior to amendment because appellant had engaged in a continuing course of criminal activity which occurred both before and after the enactment of the August 1994 sentencing guidelines. Commonwealth v. Gessa, 26 D. & C. 4th 216 (1995); affirmed 685 A.2d 1042 (Pa. Super 1996).

Effective Dates—Ineffective Counsel Assistance

Because the sentencing ranges on the Sentencing Guideline Worksheets were calculated according to the amended guidelines which were effective for all offenses committed after August 12, 1994, and appellant’s crimes were committed prior to that date, trial counsel was ineffective in failing to object to the imposition of sentence based upon erroneous computations under this regulation. Commonwealth v. Henry, 681 A.2d 791 (Pa. Super. 1996); appeal denied 689 A.2d 232 (Pa. 1997).

This section cited in 204 Pa. Code § 303.13 (relating to guideline sentence recommendations: aggravated and mitigated circumstances)

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.2 Procedure for determining the guideline sentence.

(a) For each conviction offense of a judicial proceeding, the procedure for determining the guideline sentence shall be as follows:

(1) Determine the Offense Gravity Score as described in § 303.3 and § 303.15.

(2) Determine the Prior Record Score as described in § 303.4—§ 303.8.

(3) Determine the guideline sentence recommendation as described in § 303.9—§ 303.14, including enhancements (§ 303.10), and aggravating or mitigating circumstances (§ 303.13).

(b) Judicial proceeding. A judicial proceeding is a proceeding in which all offenses for which the offender has been convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple offenses and transactions.

The provisions of this § 303.2 amended July 5, 1985, and applies to sentences for crimes committed after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (399062).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.3 Offense Gravity Score—general.

(a) An Offense Gravity Score is assigned to each offense based on the elements of the conviction offense and the classification of the crime. The Offense Gravity Scores are located in § 303.15.

(b) Subcategorized offenses. Certain conviction offenses are subcategorized according to the particular circumstances of the offense. A subcategorized offense is assigned multiple offense gravity scores based on additional sentencing factors, which the court determines at sentencing. The court determines which Offense Gravity Score, located in § 303.15, applies. These offenses are designated by an asterisk [*].

(1) Convictions for attempt, solicitation, or conspiracy to commit a Felony 1 offense receive an Offense Gravity Score of one point less than the offense attempted, solicited, or which was the object of the conspiracy.

(2) Convictions for attempt, solicitation, or conspiracy to commit any offense which is not a Felony 1 offense, receive the Offense Gravity Score of the offense attempted, solicited, or which was the object of the conspiracy.

(3) Convictions for attempt, solicitation, or conspiracy to commit any offense under The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-101—§ 780-144) receive the Offense Gravity Score of the offense attempted, solicited, or which was the object of the conspiracy.

(4) Exception for inchoate murder convictions. Convictions for attempt, solicitation, or conspiracy to commit murder receive the Offense Gravity Score of 14 if there is serious bodily injury and 13 if there is no serious bodily injury.

(d) Ethnic Intimidation. Convictions for Ethnic Intimidation (18 Pa.C.S. § 2710) receive an Offense Gravity Score that is one point higher than the offense which was the object of the Ethnic Intimidation. When the object offense is murder of the third degree, a conviction for Ethnic Intimidation receives the highest Offense Gravity Score applicable.

(e) Violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § § 780-101—780-144). If any mixture or compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be deemed to be composed of the controlled substance. If a mixture or compound contains a detectable amount of more than one controlled substance, the mixture or compound shall be deemed to be composed entirely of the controlled substance which has the highest Offense Gravity Score.

(1) Exception for prescription pills. For violations of 35 P.S. § 780-113(a)(12), (a)(14), and (a)(30) involving narcotic prescription pills of Schedule II, when both the weight and the number of pills are known, the higher Offense Gravity Score assignment applies. (See § 303.15.)

(f) Omnibus Offense Gravity Scores. The Omnibus Offense Gravity Scores are provided below and in the listing at § 303.15:

The Omnibus Offense Gravity Score shall apply to an offense not otherwise listed in § 303.15. For purposes of this section, an offense not otherwise listed includes a new section of statute added by the General Assembly.

(1) For an amendment to an existing section of statute.

(i) When the definition of an offense listed in § 303.15 is changed, the previously assigned offense gravity score shall apply.

(ii) When the grade or statutory maximum sentence of a subsection listed in § 303.15 has increased, the omnibus offense gravity score shall apply, unless the previously assigned offense gravity score is higher.

(iii) When the grade or statutory maximum sentence of a subsection listed in § 303.15 has decreased, the omnibus offense gravity score shall apply, unless the previously assigned gravity score is lower.

(2) For an addition of a new subsection of statute.

(i) The lowest offense gravity score assigned within the section to the grade or the statutory maximum sentence of the offense shall apply to the new subsection.

(ii) When the grade or statutory maximum sentence of the new subsection is higher than the highest grade or statutory maximum sentence in the section, the highest assigned OGS in the section shall apply to the new subsection, unless the omnibus offense gravity score is higher.

(iii) When the grade or statutory maximum sentence of the new subsection is lower than the lowest grade or statutory maximum sentence in the section, the lowest assigned OGS in the section shall apply to the new subsection, unless the omnibus offense gravity score is lower.

(g) The Offense Gravity Score of 15 is assigned only for first and second degree murder.

The provisions of this § 303.3 amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399062) to (399064).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.4 Prior Record Score—categories.

(a) Prior Record Score categories. Determination of the correct Prior Record Score category under this section is based on the type and number of prior convictions (§ 303.5) and prior juvenile adjudications (§ 303.6). There are eight Prior Record Score categories: Repeat Violent Offender (REVOC), Repeat Felony 1 and Felony 2 Offender (RFEL), and point-based categories of 0, 1, 2, 3, 4 and 5.

(1) Repeat Violent Offender Category (REVOC). Offenders who have two or more previous convictions or adjudications for four point offenses (§ 303.7(a)(1) and § 303.15) and whose current conviction carries an Offense Gravity Score of 9 or higher shall be classified in the Repeat Violent Offender Category.

(2) Repeat Felony 1 and Felony 2 Offender Category (RFEL). Offenders who have previous convictions or adjudications for Felony 1 and/or Felony 2 offenses which total 6 or more points in the prior record, and who do not fall within the Repeat Violent Offender Category, shall be classified in the repeat Felony 1 and Felony 2 Offender Category.

(3) Point-based Categories (0—5). Offenders who do not fall into the REVOC or RFEL categories shall be classified in a Point-based Category. The Prior Record Score shall be the sum of the points accrued based on previous convictions or adjudications, up to a maximum of five points.

The provisions of this § 303.4 amended July 5, 1985, and applies to sentences for crimes committed after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399064) to (399065).

Deadly Weapon Enhancement

Because the sentencing court failed to consider the guidelines with the deadly weapon enhancement, the sentence must be vacated and the case remanded for resentencing. If the sentencing court then wishes to impose a sentence outside the guidelines, it may do so provided it places adequate reasons for the deviation on the record. Commonwealth v. Magnum, 654 A.2d 1146 (Pa. Super. 1995).

Repeat Felony Offender Designation

Determination of Repeat Felony 1 and Felony 2 Offender Category designation is based on a calculation of points in a defendant’s prior record score rather than the number of convictions or adjudications in his criminal history. Commonwealth v. Johnson, 125 A.3d 822 (Pa. Super. 2015).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); and 204 Pa. Code § 307.1 (relating to preliminary provisions).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.5 Prior Record Score—prior convictions.

(a) If there is a single offense in the prior judicial proceeding, that offense shall be counted in the calculation of the Prior Record Score.

(b) If there are multiple offenses in the prior judicial proceeding:

(1) The most serious offense of the judicial proceeding shall be counted in the calculation of the Prior Record Score.

(2) Any offense for which a sentence of supervision or confinement is imposed consecutive to a sentence for another offense in the judicial proceeding shall be counted in the calculation of the Prior Record Score.

(c) Un-sentenced convictions. If no sentence has yet to be imposed on an offense, the offense shall not be counted in the calculation of the Prior Record Score.

(d) 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 Prior Record Score, in addition to other factors deemed appropriate by the court.

The provisions of this § 303.5 amended March 28, 1986, effective June 5, 1986, 16 Pa.B. 1034; amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399065) to (399066).

Factors

The same factors that triggered the enhancement guidelines in the first place can also be used to sentence in the aggravated range. Commonwealth v. Walker, 666 A.2d 301 (Pa. Super. 1995); appeal denied 680 A.2d 1161 (Pa. 1996).

Illustrative Cases

Sentencing guidelines and enhanced range of sentence were appropriately applied. Commonwealth v. Walker, 666 A.2d 301 (Pa. Super. 1995).

The guidelines in § 303.5 impose no restrictions on including convictions from separate judicial proceedings in separate counties toward a prior record score. Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super. 2011).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); and 204 Pa. Code § 303.4 (relating to Prior Record Score—categories).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.6 Prior Record Score—prior juvenile adjudications.

(a) Juvenile adjudication criteria. Prior juvenile adjudications are counted in the Prior Record Score when the following criteria are met:

(1) The juvenile offense occurred on or after the offender’s 14th birthday, and

(2) There was an express finding by the juvenile court that the adjudication was for a felony or one of the offenses listed in § 303.7(a)(4).

(b) Only the most serious juvenile adjudication of each prior disposition is counted in the Prior Record Score. No other prior juvenile adjudication shall be counted in the Prior Record Score.

(c) Lapsing of juvenile adjudications. Prior juvenile adjudications for four point offenses listed in § 303.7(a)(1) shall always be included in the Prior Record Score, provided the criteria in subsection (a) above are met:

(1) All other juvenile adjudications not identified above in subsection (a) lapse and shall not be counted in the Prior Record Score if:

(i) The offender was 28 years of age or older at the time the current offense was committed; and

(ii) The offender remained crime-free during the ten-year period immediately preceding the offender’s 28th birthday.

(iii) Crime-free. Included in the definition of crime-free is any summary offense and/or one misdemeanor offense with a statutory maximum of one year or less.

(2) Nothing in this section shall prevent the court from considering lapsed prior adjudications at the time of sentencing.

The provisions of this § 303.6 amended July 5, 1986, and applies to sentences for crimes committed after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399066) to (399067).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); and 204 Pa. Code § 303.4 (relating to Prior Record Score—categories).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.7 Prior Record Score—guideline points scoring.

(a) Scoring of prior convictions and adjudications is provided below and in the listing of offenses at § 303.15:

(1) Four Point Offenses. Four points are added for each prior conviction or adjudication for the following offenses:

Murder, and attempt, solicitation or conspiracy to commit Murder

All other completed crimes of violence, as defined in 42 Pa.C.S. § 9714(g), excluding inchoates.

Murder of Unborn Child, and attempt, solicitation or conspiracy to commit Murder of Unborn Child

Offenses with OGS 11 or greater, excluding inchoates and Violations of the Controlled Substance Act

Ethnic Intimidation to any Felony 1 offense

(2) Three Point Offenses. Three points are added for each prior conviction or adjudication for the following offenses:

All other Felony 1 offenses not listed in § 303.7(a)(1).

All other inchoates to offenses listed in § 303.7(a)(1).

Violation of 35 P.S. § § 780-113(a)(12)(14) or (30) involving 50 grams or more, including inchoates involving 50 grams or more.

(3) Two Point Offenses. Two points are added for each prior conviction or adjudication for the following offenses:

All other Felony 2 offenses not listed in § 303.7(a)(1) or (a)(2).

All felony drug violations not listed in § 303.7(a)(2), including inchoates.

(4) One Point Offenses. One point is added for each prior conviction or adjudication for the following offenses:

All other felony offenses not listed in § 303.7(a)(1), (a)(2) or (a)(3).

Any of the following Misdemeanor 1 offenses that involve weapons:

Possessing Instruments of Crime (possession of a weapon)

Prohibited Offensive Weapons

Use or Possession of Electric or Electronic Incapacitation Device

Possession of Weapon on School Property

Possession of Firearm or Other Dangerous Weapon in Court Facility

Violations of the Pennsylvania Uniform Firearms Act

Any of the following Misdemeanor 1 offenses that involve death or danger to children:

Involuntary Manslaughter

Simple Assault (against child under 12 years of age by adult 18 years of age or older)

Luring a Child into a Vehicle

Indecent Assault (complainant is less than 13 years of age)

Indecent Exposure (persons present are less than age 16)

Endangering Welfare of Children

Dealing in Infant Children

Recruiting Criminal Gang Members

Driving Under the Influence of Alcohol or Controlled Substance, except for a first lifetime conviction or adjudication.

Operating a Watercraft Under the Influence of Alcohol or a Controlled Substance, except for a first lifetime conviction or adjudication.

(5) Other Misdemeanor Offenses. All other misdemeanor offenses, including a first lifetime conviction for Driving Under the Influence of Alcohol or a Controlled Substance or Operating a Watercraft Under the Influence of Alcohol or a Controlled Substance, are designated by an ‘‘m’’ in the offense listing at § 303.15, and are scored as follows:

(i) One point is added if the offender was previously convicted of two or three misdemeanors.

(ii) Two points are added if the offender was previously convicted of four to six misdemeanors.

(iii) Three points are added if the offender was previously convicted of seven or more misdemeanors.

The provisions of this § 303.7 amended July 5, 1986, and applies to sentences for crimes committed after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399067) to (399068).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code § 303.4 (relating to Prior Record Score—categories); 204 Pa. Code § 303.6 (relating to Prior Record Score—prior juvenile adjudications); 204 Pa. Code § 303.8 (relating to Prior Record Score—miscellaneous); and 204 Pa. Code § 303.15 (relating to offense listing).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.8 Prior Record Score—miscellaneous.

(a) Prior convictions and adjudications of delinquency.

(1) A prior conviction means ‘‘previously convicted’’ as defined in 42 Pa.C.S. § 2154(f). A prior adjudication of delinquency means ‘‘previously adjudicated delinquent’’ as defined in 42 Pa.C.S. § 2154(f). In order for an offense to be considered in the Prior Record Score, both the commission of and conviction for the previous offense must occur before the commission of the current offense.

(2) When the prior conviction or adjudication of delinquency was committed over a range of dates, the later date shall be used to determine if the prior offense meets the criteria in 303.8(a)(1) and is counted in the prior record score.

(b) Inchoate offenses. Unless otherwise provided in § 303.7 or § 303.15, a prior conviction or adjudication of delinquency for criminal attempt, criminal solicitation or criminal conspiracy is scored under § 303.7 based upon the grade of the inchoate offense.

(c) Ethnic Intimidation. Unless otherwise provided in § 303.7 or § 303.15, a prior conviction or adjudication of delinquency for Ethnic Intimidation is scored under § 303.7 based upon the grade of the Ethnic Intimidation.

(d) Former Pennsylvania offenses.

(1) A prior conviction or adjudication of delinquency under former Pennsylvania law is scored as a conviction for the current equivalent Pennsylvania offense.

(2) When there is no current equivalent Pennsylvania offense, prior convictions or adjudications of delinquency are scored under § 303.7 based on the grade of the offense. When a prior conviction or adjudication of delinquency was for a felony, but the grade of the felony is unknown, it shall be treated as a Felony 3. When a prior conviction was for a misdemeanor, but the grade of the misdemeanor is unknown, it shall be treated as other misdemeanors. When it cannot be determined if the prior conviction was a felony, one point misdemeanors, or other misdemeanors, it shall be treated as other misdemeanors. When a prior conviction is for a crime which has a summary grade, and the grade of the conviction is unknown, the prior conviction shall not be counted in the Prior Record Score.

(e) A prior conviction or adjudication of delinquency for an offense which was misgraded is scored as a conviction for the current equivalent Pennsylvania offense.

(f) Out-of-state, federal or foreign offenses.

(1) An out-of-state, federal or foreign conviction or adjudication of delinquency is scored as a conviction for the current equivalent Pennsylvania offense.

(2) A court-martial for a criminal offense under the Uniform Code of Military Justice is considered a federal conviction and is scored as a conviction for the current equivalent Pennsylvania offense. Non-judicial punishments or administrative actions (e.g., Article 15, Article 134) which are not convictions shall not be counted in the Prior Record Score.

(3) When there is no current equivalent Pennsylvania offense, determine the current equivalent Pennsylvania grade of the offense based on the maximum sentence permitted, and then apply § 303.8(d)(2).

(g) Excluded offenses, charges and convictions. The following types of offenses, charges and convictions shall not be scored in the Prior Record Score:

(1) Summary offenses, violations of local ordinances, direct or indirect contempt of court, violation of protection from abuse orders, and dispositions under Pa.R.Crim.P. Rules 300—320 (relating to accelerated rehabilitative disposition), 35 P.S. § 780-117 (relating to probation without verdict) or 35 P.S. § 780-118 (relating to disposition in lieu of trial or criminal punishment).

(2) A charge which is nolle prossed, dismissed, or on which a demurrer is sustained.

(3) Any prior conviction which contributed to an increase in the grade of a subsequent conviction, except for prior Driving Under the Influence of Alcohol or Controlled Substance convictions.

The provisions of this § 303.8 amended through March 28, 1986, effective June 5, 1986, 16 Pa.B. 1034; amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended October 11, 1990, effective for all crimes committed on or after December 20, 1991, 21 Pa.B. 5933; amended February 16, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399068) to (399070).

Double Counting

Trial court’s use of prior conviction in calculating defendant’s prior record score did not constitute ‘‘double counting,’’ a violation of the Sentencing Guidelines; defendant’s prior conviction of burglary was not an element of charge of persons not to possess, use, control, sell or transfer firearms, but was memely a precondition to charging defendant with violation. Commonwealth v. Keiper, 887 A.2d 317, 321 (Pa. Super. 2005).

Guidelines Violated

The sentencing court abused its discretion by unreasonably deviating from these sentencing guidelines and imposing an unreasonably lenient sentence. Commonwealth v. Childs, 664 A.2d 994 (Pa. Super. 1995); appeal denied 674 A.2d 1066 (Pa. 1996).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); and 204 Pa. Code § 303.15 (relating to offense listing).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.9 Guideline sentence recommendation: general.

(a)(1) Basic sentence recommendations. Guideline sentence recommendations are based on the Offense Gravity Score and Prior Record Score. In most cases, the sentence recommendations are found in the Basic Sentencing Matrix (§ 303.16(a)). The Basic Sentencing Matrix specifies a range of sentences (i.e.—standard range) that shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS).

(2) Sentences for offenders under age 18 for murder, murder of unborn child, or murder of law enforcement officer. If an offender is under age 18 years at the time of the offense and the conviction occurred after June 24, 2012, the court has no authority to impose a sentence less than that required by the mandatory minimum provision established in statute and may impose a minimum sentence up to and including life (18 Pa.C.S. § 1102.1). If the court determines the convicted offender was under age 18 at the time of the offense and the conviction occurred after June 24, 2012, the court shall instead consider the Basic Sentencing Matrix for Offenders Under Age 18 Convicted of 1st or 2nd Degree Murder (§ 303.16(b)).

(3) Enhancement sentence recommendations. Guideline sentence recommendations may include sentence enhancements, which provide increases to the basic sentence recommendations when an enhancement factor identified by the Commission is present. Enhancement sentence recommendations are described in § 303.10. The application of an enhancement is determined by the court at sentencing, based on a preponderance of the evidence that the enhancement factor is present. Sentence enhancements can either be mandated by statute or directly adopted by the Commission.

(i) Several approaches are employed to establish enhancement sentence recommendations:

(A) assigning an offense gravity score to the offense that may be higher than comparable offenses without the enhancement, or assigning an offense gravity score equal to a comparable offense that includes the enhancement.

(B) increasing the assignment of an offense gravity score when the enhancement factor is present, which may include a subcategorization of the offense, in which a higher offense gravity score is assigned to the offense when the enhancement factor is present.

(C) adjusting the basic sentencing recommendation when the enhancement factor is present, by adding months to the top and bottom of the standard range.

(ii) If the court determines at sentencing that enhancement factors described in § 303.10 are present, the court shall instead consider the enhancement sentence recommendations described in § 303.10. The enhancement sentence recommendations shall not apply if the enhancement factor is:

(A) an element of the offense used to assign the Offense Gravity Score, pursuant to § 303.3(a); or

(B) a sentencing factor used to subcategorize the offense, pursuant to § 303.3(b).

(b) (Reserved).

(d) Aggravated and mitigated sentence recommendations. To determine the aggravated and mitigated sentence recommendations, apply § 303.13. These procedures apply to both basic sentence recommen-dations and enhancement sentence recommendations.

(e) Confinement sentence recommendations. All numbers used for the ranges of the sentence recommendations suggest months of minimum confinement pursuant to 42 Pa.C.S. § 9755(b) (partial confinement) and § 9756(b) (total confinement), or the duration of restrictive conditions imposed through an order of probation pursuant to 42 Pa.C.S. § 9754, as described below:

(1) Confinement in a state facility (Department of Corrections) pursuant to:

(i) 42 Pa.C.S. § 9762(b)(1)

(ii) 42 Pa.C.S. § 9762(b)(2)

(2) Confinement in a county facility pursuant to:

(i) 42 Pa.C.S. § 9762(b)(2)

(ii) 75 Pa.C.S. § 3804(d)

(3) Confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b)(3)

(4) Probation with restrictive conditions pursuant to:

(i) 42 Pa.C.S. § 9763(c) (relating to restrictive DUI probation conditions)

(ii) 42 Pa.C.S. § 9763(d) (relating to restrictive conditions of probation)

(5) Guidelines for restrictive conditions (42 Pa.C.S. § 2154.1)

(i) As required by statute:

(A) Probation guidelines shall address the use of county intermediate punishment programs as restrictive conditions of probation and the duration of terms of probation (42 Pa.C.S. § 2154(d));

(B) Guidelines for restrictive conditions shall give primary consideration to reducing recidivism for the protection of the public safety (42 Pa.C.S. § 2154.1).

(ii) The guidelines for restrictive conditions shall apply to an offender identified under the guidelines for probation (42 Pa.C.S. § 2154(d)) and the guidelines for restrictive conditions (42 Pa.C.S. § 2154.1) as eligible and appropriate for the use of county intermediate punishments programs as restrictive conditions of probation

(iii) Unless otherwise provided in § 303.12, the recommended duration of the aggregate term of probation imposed during a judicial proceeding may not exceed ten years and the duration of the restrictive conditions of probation (42 Pa.C.S. § 9763(d)) or a combination of confinement without parole (as provided in 42 Pa.C.S. § § 9755(h) and 9756(c.1)) and restrictive conditions of probation may not exceed the suggested months of minimum confinement

(f) Non-confinement sentence recommendations. Probation with non-restrictive conditions (P) and other restorative sanctions (RS) are non-confinement community-based sentencing alternatives. A sentencing guidelines recommendation of RS suggests use of the least restrictive, non-confinement sentencing alternatives, and the sentencing guidelines recommendation of P suggests use of probation with non-restrictive general conditions, as described below:

(1) Probation guidelines (42 Pa.C.S. § 2154(d))

(i) As required by statute, when serving as a restorative sanction with non-restrictive conditions, probation guidelines shall address the duration of terms of probation.

(ii) When probation is imposed as a restorative sanction, the recommended duration of the term of probation may not exceed the probation recommendation provided in the Basic Sentencing Matrix (§ 303.16(a)):

(A) P1 = 1 year

(B) P2 = 2 years

(iii) When imposed as a restorative sanction, the recommended aggregate term of probation imposed during a judicial proceeding may not exceed five years.

(iv) Conditions of probation imposed as restorative sanctions shall be limited to those non-restrictive conditions authorized under 42 Pa.C.S. § 9763(b) (related to conditions generally).

(2) Other restorative sanctions include:

(i) 42 Pa.C.S. § 9753 (determination of guilt without further penalty)

(ii) 42 Pa.C.S. § 9758 (fine)—as provided in § 303.14(a)(4) (relating to Fines/Community Service Guidelines)

(iii) 42 Pa.C.S. § 9721(c) (mandatory restitution)

(g) When the guideline sentence recommendation exceeds that permitted by 18 Pa.C.S. § 1103 and § 1104 (relating to sentence of imprisonment for felony and misdemeanor) and 42 Pa.C.S. § 9755(b) and § 9756(b) (relating to sentence of partial and total confinement) or other applicable statute setting the maximum term of confinement, then the statutory limit is the longest guideline sentence recommendation. For the purposes of the guidelines, the statutory limit is the longest legal minimum sentence, which is one-half the maximum allowed by law.

(h) Mandatory sentences. The court has no authority to impose a sentence less than that required by a mandatory minimum provision established in statute. When the guideline range is lower than that required by a mandatory sentencing statute, the mandatory minimum requirement supersedes the sentence recommendation. When the sentence recommendation is higher than that required by a mandatory sentencing statute, the court shall consider the guideline sentence recommendation.

(i) Mandatory sentences for which Restrictive DUI probation conditions (42 Pa.C.S. § 9763(c)) are authorized. The court shall consider the sentence recommendations pursuant to this section (§ 303.9) for an offender convicted under 75 Pa.C.S. § 1543(b) (relating to driving while operating privilege is suspended or revoked), former 75 Pa.C.S. § 3731 (related to driving under the influence of alcohol or controlled substance) or 75 Pa.C.S. § 3804 (relating to penalties) for a first, second or third offense under 75 Pa.C.S. Chapter 38 (related to driving after imbibing alcohol or utilizing drugs). The court may use Restrictive DUI probation conditions pursuant to § 303.12(a)(6) or a combination of confinement and restrictive DUI probation conditions to satisfy the mandatory minimum requirement as provided by law.

The provisions of this § 303.9 amended July 6, 1985, and applies to sentences for crimes committed on or after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; a correction to the defective text was published at 16 Pa.B. 2872 (August 2, 1986); amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended October 11, 1990, effective for all crimes committed on or after December 20, 1991, 21 Pa.B. 5933; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399070) to (399074).

Appropriate Sentence

The sentencing court sentenced appellant within the standard under these guidelines. Irrespective of whether the sentencing court misconstrued appellant’s role in the perjury of witnesses, there was no basis to disturb the sentence as appellant was engaged in a continuing series of drug deals and had been convicted of other felonies. Commonwealth v. Viera, 659 A.2d 1024 (Pa. Super. 1995).

Discretion

A sentencing court has no discretion to refuse to apply the deadly weapon enhancement. Commonwealth v. Peer, 684 A.2d 1077 (Pa. Super. 1996).

Guidelines Violated

Mandatory Sentences

In spite of a discrepancy between the grading of the offense in the Sentencing Guidelines and in the Motor Vehicle Code, the trial court properly followed the DUI statute in sentencing the defendant for DUI as a first-degree misdemeanor rather than a second-degree misdemeanor, where the Motor Vehicle Code provided that the Sentencing Guidelines should not supersede the mandatory penalties of the DUI statute and the Sentencing Guidelines likewise provide that the court has no authority to impose a sentence less than that required by a mandatory minimum provision established in a statute. Commonwealth v. Fogel, 741 A.2d 767 (Pa. Super. 1999).

Partial Confinement

It seems clear that the guideline ranges in effect at the time of defendant’s sentencing contemplated minimum sentences of either total or partial confinement; therefore, the trial court properly applied the guidelines sentencing the defendant to partial confinement for the rape conviction. Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super. 1995).

Range of Sentence

Where the trial court sustained the defendant’s objection and eliminated specific prior convictions from his prior record score, and prior record score is one of two determinants of the applicable sentencing range, it is clear that those prior convictions had no role in determining defendant’s range of sentence. Lackawana County District Attorney v. Coss, 531 U. S. 923 (2001).

School Enhancement

The court vacated the judgment that sentenced appellant after appellant was convicted on a controlled substance offense and a criminal conspiracy offense because the trial court erroneously applied the school enhancement provisions to the count of criminal conspiracy. Commonwealth v. Adams, 760 A.2d 33 (Pa. Super. 2000).

In prosecution arising out of a sale of cocaine near a parochial school, the trial court did not err in imposing a sentence applying the school enhancement provisions of the sentencing guidelines based on a measurement from the school playground area rather than from the school building, where a school encompasses not only the school building itself, but includes all of the school property located in a zone where children have access such as a school playground, and where the purpose of the school enhancement provisions is to create a drug-free zone around schools. Commonwealth v. Davis, 734 A.2d 879 (Pa. Super. 1999).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements); 204 Pa. Code § 303.11 (relating to guideline sentence recommendation: sentencing levels); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); 204 Pa. Code § 303.14 (relating to guideline sentence recommendations—economic sanctions); 204 Pa. Code § 303.15 (relating to offense listing); 204 Pa. Code § 303.16(a) (relating to basic sentencing matrix); 204 Pa. Code § 303.17(a) (relating to Deadly Weapon Enhancement/Possessed Matrix); 204 Pa. Code § 303.17(b) (relating to Deadly Weapon Enhancement/Used Matrix); 204 Pa. Code § 303.18(a) (relating to School Enhancement Matrix); 204 Pa. Code § 303.18(b) (relating to Youth Enhancement Matrix); and 204 Pa. Code § 303.18(c) (relating to School and Youth Enhancement Matrix).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.10 Guideline sentence recommendations: enhancements.

(a) Deadly Weapon Enhancement, as required by 42 Pa.C.S. § 2154.(b)(3).

(1) Except for those sentenced pursuant to 18 Pa.C.S. § 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), when the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Possessed Matrix (§ 303.17(a)). An offender has possessed a deadly weapon if any of the following were on the offender’s person or within his immediate physical control:

(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or

(iii) Any device, implement, or instrumentality designed as a weapon or capable of producing death or serious bodily injury where the court determines that the offender intended to use the weapon to threaten or injure another individual.

(2) Except for those sentenced pursuant to 18 Pa.C.S. § 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), when the court determines that the offender used a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Used Matrix (§ 303.17(b)). An offender has used a deadly weapon if any of the following were employed by the offender in a way that threatened or injured another individual:

(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or

(iii) Any device, implement, or instrumentality capable of producing death or serious bodily injury.

(3) There shall be no Deadly Weapon Enhancement for the following offenses:

(i) Possessing Instruments of Crime

(ii) Prohibited Offensive Weapons

(iii) Possession of Weapon on School Property

(iv) Possession of Firearm or Other Dangerous Weapon in Court Facility

(v) Simple Assault (18 Pa.C.S. § 2701(a)(2))

(vi) Aggravated Assault (18 Pa.C.S. § 2702(a)(4)) (vii) Theft when property stolen is a firearm (18 Pa.C.S. Chapter 39)

(viii) Violations of the Pennsylvania Uniform Firearms Act

(ix) Any other offense for which possession of a deadly weapon is an element of the statutory definition or a sentencing factor considered in the Offense Gravity Score assignment

(x) If the Arson Enhancement under § 303.10(f)(1)(iii) is applied.

(4) The Deadly Weapon Enhancement shall apply to each conviction offense for which a deadly weapon is possessed or used.

(5) The DWE/Possessed Matrix (§ 303.17(a)) is based on the following enhancement of the basic sentencing recommendations:

(i) For OGS 1—OGS 4, three months is added to the lower and upper limits of the standard range

(ii) For OGS 5—OGS 8, six months is added to the lower and upper limits of the standard range

(iii) For OGS 9—OGS 14, nine months is added to the lower and upper limits of the standard range

(6) The DWE/Used Matrix (§ 303.17(b)) is based on the following enhancement of the basic sentencing recommendations:

(i) For OGS 1—OGS 4, six months is added to the lower and upper limits of the standard range

(ii) For OGS 5—OGS 8, 12 months is added to the lower and upper limits of the standard range

(iii) For OGS 9—OGS 14, 18 months is added to the lower and upper limits of the standard range

(b) School/Youth Enhancement.

(1) When the court determines that the offender distributed a controlled substance to a person or persons under the age of 18, the court shall consider the Youth Enhancement Matrix (§ 303.18(b)).

(2) When the court determines that the offender manufactured, delivered or possessed with intent to deliver a controlled substance within 250 feet of the real property on which is located a public or private elementary or secondary school, the court shall consider the School Enhancement Matrix (§ 303.18(a)).

(3) When the court determines both (b)(1) and (b)(2) apply, the court shall consider the School and Youth Enhancement Matrix (§ 303.18(c)).

(4) The School/Youth Enhancement only applies to violations of 35 P.S. § 780-113(a)(14) and (a)(30).

(5) The School/Youth Enhancement shall apply to each violation which meets the criteria above.

(6) The School, Youth and School and Youth Enhancement Matrices are based on the following enhancements of the basic sentencing recommendations:

(i) For the School Enhancement Matrix (§ 303.18(a)), six months is added to the lower limits and 12 months is added to the upper limits of the standard range

(ii) For the Youth Enhancement Matrix (§ 303.18(b)), 12 months is added to the lower limits and 24 months is added to the upper limits of the standard range

(iii) For School and Youth Enhancement Matrix (§ 303.18(c)), 18 months is added to the lower limits and 36 months is added to the upper limits of the standard range

(1) When the court determines that the offender committed a crime of violence as defined in 42 Pa.C.S. § 9714(g) in association with a criminal gang, the court shall consider the sentence recommendations described in subsection (c)(4).

(2) When the court determines that the offender committed a violation of 35 P.S. § 780-113(a)(30) in association with a criminal gang, the court shall consider the sentence recommendations described in subsection (c)(4).

(3) The Criminal Gang Enhancement shall apply to each violation which meets the criteria above.

(4) The enhancement specifies a range of sentences (i.e., standard range) that shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS). The Criminal Gang Enhancement adds 12 months to the lower limit and adds 12 months to the upper limit of the standard range.

(d) Third Degree Murder of a Victim Younger than Age 13 Enhancement, as required by 42 Pa.C.S. § 9711.1.

(1) When the court determines the victim of murder in the third degree as defined in 18 Pa.C.S. § 2502(c) was less than 13 years of age at the time of the offense, the court shall consider the sentence recommendations described in subsection (d)(3).

(2) Third Degree Murder of a Victim Younger than Age 13 Enhancement shall apply to each violation which meets the criteria above.

(3) The enhancement adds 24 months to the lower limit of the standard range and assigns the statutory limit as the upper limit of the standard range. The sentence imposed will be served consecutive to any other sentence the person is serving and to any other sentence imposed by the court (42 Pa.C.S. § 9711.1).

(e) Sexual Abuse of Children Enhancement, as required by 42 Pa.C.S. § 9720.5.

(1) When the court determines that the offender violated 18 Pa.C.S. § 6312 (relating to sexual abuse of children) and that the offender possessed more than 50 images, the court shall consider the sentence recommendations described in subsection (e)(4). For purposes of this enhancement, the number of images is defined as follows:

(i) Each photograph, picture, computer generated image, or any similar visual depiction shall be considered to be one image.

(ii) Each video, video-clip, movie, or similar visual depiction shall be considered to have 50 images.

(2) When the court determines that the offender violated 18 Pa.C.S. § 6312 (relating to sexual abuse of children) and that the abuse depicted in the images possessed by the offender were of a sexual or violent nature or character, the court shall consider the sentence recommendations described in subsection (e)(4). This enhancement shall apply to any image possessed by the offender which portrays or contains any of the following:

(i) the bondage of a child;

(ii) a dangerous weapon as defined in 18 Pa.C.S. § 913 used in a sexual context;

(iii) penetration or attempted penetration of a child; or

(iv) an act which would constitute a crime under 18 Pa.C.S. Chapter 25 (relating to criminal homicide), 18 Pa.C.S. Chapter 27 (relating to assault) or 18 Pa.C.S. Chapter 31 (relating to sexual offenses).

(3) Sexual Abuse of Children Enhancement shall apply to each violation which meets the criteria above.

(4) The enhancement related to the number of images possessed by the offender or the nature and character of the abuse depicted provides the following:

(i) When applying enhancement based on the number of images possessed by the offender, if the offender possessed more than 50 images to 200 images, 6 months are added to the lower limit of the standard range and 6 months are added to the upper limit of the standard range; if the offender possessed more than 200 images to 500 images, 12 months are added to the lower limit of the standard range and 12 months are added to the upper limit of the standard range; if the offender possessed more than 500 images, 18 months are added to the lower limit of the standard range and 18 months are added to the upper limit of the standard range;

(ii) When applying enhancement based on the nature and character of the abuse depicted, the Offense Gravity Score is one point higher than the assignments for 18 Pa.C.S. § 6312 (relating to sexual abuse of children) listed in § 303.15;

(iii) When applying enhancement when both aggravating circumstances are present, the court shall consider the enhancement with the higher sentence recommendation.

(f) Arson Enhancement, as required by 42 Pa.C.S. § 9720.6.

(1) When the court determines that one or more of the following factors relating to arson as defined in 18 Pa.C.S. § 3301 are present, the court shall consider the sentence recommendations described in subsection (f)(3):

(i) more than three persons were present inside the property at the time of the offense;

(ii) the fire caused more than $1,000,000 in property damage; or

(iii) the actor used, attempted to use or possessed an explosive or incendiary device as defined in 18 Pa.C.S. § 5515(a) (relating to prohibiting paramilitary training).

(2) Arson Enhancement shall apply to each violation which meets the criteria above.

(3) When the Arson Enhancement is applied, the Offense Gravity Score is one point higher than the assignments listed for 18 Pa.C.S. § 3301 (relating to arson) in § 303.15.

(g) Human Trafficking Enhancement, as required by 18 Pa.C.S. § 3024.

(1) When the court determines that the offender committed a violation of human trafficking as defined in 18 Pa.C.S. § 3011 (trafficking in individuals) or § 3012 (involuntary servitude), and any of the following factors were present and not otherwise included as an element of the offense or a sentencing factor considered in the offense gravity score assignment in § 303.15, the court shall consider the sentence recommendations as described in subsection (g)(2):

(i) the offender committed a violation involving sexual servitude;

(ii) the victim was a minor less than 18 years of age;

(iii) an additional point is added if the victim was a minor less than 13 years of age;

(iv) in the course of committing a violation, the offender also violated one or more of the following offenses:

18 Pa.C.S. § 2901 (relating to kidnapping); or

18 Pa.C.S. § 3121 (relating to rape); or

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).

(2) When the Human Trafficking Enhancement is applied, the Offense Gravity Score assignments listed for 18 Pa.C.S. § 3011 (relating to trafficking in individuals) and § 3012 (relating to involuntary servitude) in § 303.15 are increased by one point for each additional factor listed. The points for each factor (subsections (i)—(iv)) shall be cumulative, for a maximum of four points.

(h) Domestic Violence Enhancement, as required by 42 Pa.C.S. § 9720.8.

(1) When the court determines that the offender committed an offense under 18 Pa.C.S. Chapters 25, 27, 29, 30, 31, or 49 against a family or household member as defined in 23 Pa.C.S. § 6102, the court shall consider the sentence recommendation in subsection (h)(2).

(2) When the Domestic Violence Enhancement is applied, the Offense Gravity Score assignments listed in § 303.15 are increased by one point. If the court further determines that an offender knew the crime was witnessed, either through sight or sound, by a minor who is also a family or household member of the offender or the victim, the court shall consider ordering the offender to pay the costs or fees associated with the assessment and treatment of the minor for exposure to domestic violence.

(3) The following words and phrases when used in this section shall have the following meanings as defined in 23 Pa.C.S. § 6102:

‘‘Family or household member.’’ Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.

‘‘Minor.’’ An individual who is less than 18 years of age.

(i) Other Enhancements.

(1) The following enhancements are provided in the sentencing guidelines through the assignment of an Offense Gravity Score or the subcategorization of the offense:

(i) 18 Pa.C.S. § 3133 (relating to sexual extortion, and the complainant is under 18 years of age or has an intellectual disability or the actor holds a position of trust or supervisory or disciplinary power over the complainant.)

(ii) 18 Pa.C.S. § 3301 (relating to arson, and bodily injury to firefighter, police officer, etc. or serious bodily injury to civilian) as provided in 42 Pa.C.S. § 4720.6.

(iii) 18 Pa.C.S. § 3502(a)(1)(i) (relating to home invasion burglary) as provided in 42 Pa.C.S. § 9720.7.

(iv) 18 Pa.C.S. § 3702 (relating to robbery of a motor vehicle).

(v) 18 Pa.C.S. § 6105(a.1)(1.1) (relating to person not to possess, use, manufacture, control, sell or transfer firearms, and the person was previously convicted or was in physical possession of a firearm).

(vi) 18 Pa.C.S. § 6312 (relating to sexual abuse of children based on aggravating circumstances such as the age of the child or a determination of prepubescence) as provided in 42 Pa.C.S. § 9720.5.

(vii) 75 Pa.C.S. § 3732 (relating to homicide by vehicle, and including DUI, active work zone, and/or violation of Sections 1501, 1543, 3316, 3325, and 3327).

(viii) 75 Pa.C.S. § 3732.1 (relating to aggravated assault by vehicle, and including DUI, active work zone, and/or violation of Sections 1501, 1543, 3316, 3325, and 3327).

(vix) 75 Pa.C.S. § 3742 (relating to accidents involving death or personal injury if the victim dies).

(2) As provided in § 303.9(a)(3)(ii), no further enhancement applies.

The provisions of this § 303.10 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110 and 50 Pa.B. 787; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399075) to (399076), (400733) to (400734) and (399079).

School Enhancement

Weapons Enhancement

While sentencing court erred in applying weapon enhancement ‘‘used’’ guidelines rather than ‘‘possessed’’ guidelines, court’s application of the deadly weapon enhancement for defendant convicted of robbery and criminal conspiracy was appropriate; defendant was in the immediate vicinity of co-conspirator when gun was used to threaten victim, he had knowledge of the existence of weapon, and he could easily have been given or taken the gun at any moment during the robbery. Com. v. Phillips, 946 A.2d 103, 114-115 (Pa. Super. 2008).

Where defendant was convicted of cruelty to animals for shooting a dog, under the plain meaning of § 303.10(a)(1) (relating to guideline sentence recommendations: enhancements), the defendant possessed a firearm, as defined in that section, in the commission of the offense. Therefore, the enhancement section applies to defendant. Commonwealth v. Hackenberger, 795 A.2d 1040 (Pa. Super. 2002).

Because a deadly weapon was used by the defendant in committing the crime of cruelty to animals, which is not an excluded offense, the deadly weapon enhancement applies even though the victim was not a person. Commonwealth v. Hackenberger, 795 A.2d 1040 (Pa. Super. 2002).

Defendant claimed ineffective assistance of counsel when his trial attorney failed to request jury determination of whether his sentence should be subject to weapons enhancement. In accord with U. S. v. Williams, 235 F.3d 858 (3rd Cir. 2000), since defendant’s actual sentence was less than the maximum allowed by statute, he was not entitled to a jury determination of the applicability of the weapons enhancement. Commonwealth v. Lowery, 784 A.2d 795 (Pa. Super. 2001).

Where the defendant fired a deadly weapon in connection with the offense to which he entered a guilty plea, and the court noted the standard range in light of the deadly weapon enhancement, the court’s imposition of a sentence beyond the standard range was an abuse of discretion where the record indicates the judge failed to consider all factors relevant to the determination of a proper sentence. Commonwealth v. Ritchey, 779 A.2d 1183 (Pa. Super. 2001).

Where defendant was in close proximity to accomplice’s weapon during the entire carjacking incident, the court properly applied the deadly weapon enhancement to defendant’s carjacking sentence. Commonwealth v. Burnside, 32 Phila. 276.

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code § 303.9 (relating to guideline sentence recommendation: general); 204 Pa. Code § 303.13 (relating to guideline sentence recommendations: aggravated and mitigated curcumstances); 204 Pa. Code § 303.17(a) (relating to Deadly Weapon Enhancement/Possessed Matrix); 204 Pa. Code § 303.17(b) (relating to Deadly Weapon Enhancement/Used Matrix); 204 Pa. Code § 303.18(a) (relating to School Enhancement Matrix); 204 Pa. Code § 303.18(b) (relating to Youth Enhancement Matrix); and 204 Pa. Code § 303.18(c) (relating to School and Youth Enhancement Matrix).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.11 Guideline sentence recommendation: sentencing levels.

(a) Purpose of sentence. In writing the sentencing guidelines, the Pennsylvania Commission on Sentencing strives to provide a benchmark for the judges of Pennsylvania, a common starting point with a range of recommendations for the typical offender. The sentencing guidelines provide sanctions proportionate to the severity of the crime and the severity of the offender’s prior conviction record. This establishes a sentencing system with a primary focus on retribution, but one in which the recommendations allow for the fulfillment of other sentencing purposes including rehabilitation, deterrence, and incapacitation.

The sentencing guidelines provide recommendations regarding the type of disposition, the duration of confinement and/or community supervision, the intensity of conditions, and the requirements associated with restitution and other economic sanctions. While the sentencing guidelines provide a retributive framework for sentencing, other factors may impact the sentencing decision and other information may assist the court in determining an appropriate and individualized sentence. These include: (1) mandatory minimum sentencing provisions, which when applicable supersede the sentencing guidelines recommendations; (2) diagnostic evaluations of dependency on alcohol and other drugs and clinically prescribed treatment; and (3) the use of validated assessments of risk, needs and responsivity and related evidence-based practices to guide decisions related to the intensity and duration of community supervision.

While courts are required to consider the guidelines at sentencing, Pennsylvania’s sentencing guidelines are advisory: ‘‘Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgement by the Court in imposing a sentence. . .they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, than require a particular sentence.’’ Com. v. Walls (926 A.2d 957) (Pa., 2007).

The imposition of a sentence involves decisions beyond disposition and duration, such as place of confinement, paroling authority and intensity of community supervision. In many cases the court is required to determine the eligibility and appropriateness of individuals for program participation, including as provided in § 303.12: county intermediate punishment programs as restrictive conditions of probation, numerous state correctional programs operated by the Pennsylvania Department of Corrections, and reentry programs authorized at the time of sentencing. Additionally, the specialized jurisdiction of problem-solving courts, as authorized by 42 Pa.C.S. § 916, provide an avenue for the use of court-supervised individualized treatment programs and services.

(b) Sentencing levels. The sentencing level is based on the standard range of the sentencing recommendation. Refer to § 303.9 to determine which sentence recommendation (i.e.—Basic, Enhancement) applies. When the individual or aggregate minimum sentence recommendation includes confinement in a county facility, the court should consider the guidelines to determine the appropriateness and eligibility for probation with restrictive conditions as described in § 303.12(a) and county reentry as described in § 303.12(f)(1). When the individual or aggregate minimum sentence recommendation includes confinement in a state facility, the court should consider the guidelines to determine the appropriateness and eligibility for certain correctional programs, including State Motivational Boot Camp, State Drug Treatment Program, Recidivism Risk Reduction Incentive Program and Short Sentence Parole as described in § 303.12(b)—(e). The descriptions of the five sentencing levels are as follows:

(1) Level 1—Level 1 provides sentence recommendations for the least serious offenders with no more than one prior misdemeanor conviction, such that the standard range is limited to non-confinement sentencing recommendations as provided in § 303.9(f). The primary purpose of this level is to provide the minimal control necessary to fulfill court-ordered obligations.

(2) Level 2—Level 2 provides sentence recommendations for generally non-violent offenders and those with numerous less serious prior convictions, such that the standard range requires a county sentence but permits both non-confinement sentencing recommendations as provided in § 303.9(f) and confinement sentencing recommendations served in a county facility as provided in § 303.9(e)(2), (3) and (4). The standard range is defined as having an upper limit of less than 12 months and a lower limit of Restorative Sanctions (RS). The primary purposes of this level are control over the offender and restitution to victims. Treatment is recommended for drug dependent offenders.

(3) Level 3—Level 3 provides sentence recommendations for serious offenders and those with numerous prior convictions, such that the standard range requires confinement sentencing recommendations as provided in § 303.9(e), but in all cases permits a county sentence. The standard range is defined as having a lower limit of incarceration of less than 12 months. Included in Level 3 are those offenses for which a mandatory minimum sentence of 12 months or less applies and for which the use of restrictive DUI probation conditions as provided in § 303.9(e)(4)(i) is authorized by statute. The primary purposes of this level are retribution and control over the offender. If eligible, treatment is recommended for drug dependent offenders in lieu of incarceration.

(4) Level 4—Level 4 provides sentence recommendations for very serious offenders and those with numerous prior convictions, such that the standard range requires confinement sentencing recommendations as provided in § 303.9(e) but permits it to be served in a county facility as provided in § 303.9(e)(2)(i). The standard range is defined as having a lower limit of incarceration of 12 months or greater but less than 30 months, but limited to offenses with an Offense Gravity Score of less than 9. Included in Level 4 are those offenses for which a mandatory minimum sentence of less than 30 months applies and for which the use of restrictive DUI probation conditions as provided in § 303.9(e)(4)(i) and certain correctional programs as provided in § 303.12 are authorized by statute. The primary purposes of the sentencing options at this level are punishment and incapacitation. However, it is recognized that certain offenders at this level may benefit from drug and alcohol treatment. If eligible, sentencing and correctional programs provided in § 303.12 are recommended for drug dependent offenders.

(5) Level 5—Level 5 provides sentence recommendations for the most violent offenders and those with major drug convictions, such that the conviction has an Offense Gravity Score of 9 or greater and requires a confinement sentence recommendations as provided in § 303.9(e), or the standard range requires a confinement sentence recommendations in a state facility as provided in § 303.9(e)(1). The standard range in such a case is defined as having a lower limit of 12 months or greater. Included in Level 5 are those offenses for which a mandatory minimum sentence of 30 months or greater applies and for which the use of restrictive DUI probation conditions as provided in § 303.9(e)(4)(i) and certain correctional programs as provided in § 303.12 are authorized by statute. The primary purposes of the sentencing options at this level are punishment commensurate with the seriousness of the criminal behavior and incapacitation to protect the public. If eligible, sentencing and correctional programs provided in § 303.12 are recommended for drug dependent offenders.

The provisions of this § 303.11 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399079) to (399082).

Standard Range Designation

Defendant’s conviction for driving under the influence (DUI) was a level 2 offense which Sentencing Guidelines recommended confinement in county facility; Trial Court’s sentencing of defendant to serve prison time in state correctional facility and not enumerating its reasons was contrary to Sentencing Guidelines and as such, case would be remanded for resentencing. Commonwealth v. Hartle, 894 A.2d 800 (Pa. Super. 2006).

The standard range designated in the sentencing guidelines is the standard range for the minimum sentence. Dunn v. Colleran, 247 F.3d 450 (3rd Cir. 2001).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); and 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.12 Guideline sentence recommendations: sentencing and correctional programs.

(a) County intermediate punishment (CIP) programs as restrictive conditions of probation. County intermediate punishment programs are developed, implemented and operated for the following purposes: to protect society and promote efficiency and economy in the delivery of correctional services; to promote accountability of offenders to their local community; to fill gaps in local correctional systems and address local needs through expansion of punishment and services available to the court; and to provide opportunities for offenders who demonstrate special needs to receive services which enhance their ability to become contributing members of the community.

(1) Eligibility.

(i) The following regulations and statutes govern operation of and eligibility for county intermediate punishment programs as restrictive conditions of probation:

37 Pa. Code § 451.111 et seq.

42 Pa.C.S. § § 2154, 2154.1, 9754, 9763, § 9773 and Chapter 98

204 Pa. Code § 303.9 and § 303.11

(ii) Sentence recommendations which include an option of county intermediate punishment programs as restrictive conditions of probation for certain offenders are described in § 303.9(e)(4) and (5).

(2) The county intermediate punishment plan, as described in 42 Pa.C.S. Chapter 98, provides a mechanism to advise the court of the extent and availability of services and programs authorized in the county. This plan includes information on the appropriate classification and use of county programs based on program-specific requirements.

(3) (Reserved).

(4) Restrictive conditions of probation. Restrictive conditions of probation, as provided in 42 Pa.C.S. § 9763(d), are defined as programs that provide for strict supervision of the offender. The county intermediate punishment board is required to develop assessment and evaluation procedures to assure the appropriate targeting of offenders. All programs must meet the statutory requirements for restrictive DUI probation conditions (relating to 42 Pa.C.S. § 9763(c)) and restrictive conditions of probation (relating to 42 Pa.C.S. § 9763(d)) and the minimum standards provided in the Pennsylvania Commission on Crime and Delinquency regulations (37 Pa. Code Chapter 451) for county intermediate punishments, and comply with the guidelines adopted pursuant to 42 Pa.C.S. § 2151.1 relating to adoption of guidelines for restrictive conditions).

(i) Restrictive conditions of probation:

(A) house the person full time or part time; or

(B) significantly restrict the person’s movement and monitor the offender’s compliance with the program, including electronic monitoring or home confinement.

(ii) An offender under consideration for restrictive conditions of probation at Level 4 or Level 3 shall have a diagnostic assessment of dependency on alcohol or other drugs conducted by one of the following: the Pennsylvania Department of Drug and Alcohol Programs or a designee; the county authority on drugs and alcohol or a designee; or clinical personnel of a facility licensed by the Department of Drug and Alcohol Programs.

(iii) An offender assessed to be dependent shall be evaluated for purposes of a treatment recommendation by one of the above listed assessors. The evaluation shall take into account the level of motivation of the offender. If sentenced to a restrictive conditions of probation, the sentence shall be consistent with the level of care and length of stay prescribed in the treatment recommendation, regardless of the standard range sentencing recommendation.

(iv) An offender assessed as not in need of drug or alcohol treatment may be placed in any approved restrictive condition of probation. Each day of participation in a restrictive condition of probation shall be considered the equivalent of one day of total confinement for guideline sentence recommendations.

(v) The court may impose restrictive DUI probation conditions in lieu of incarceration for certain convictions under 75 Pa.C.S. § 3802 (relating to Driving Under the Influence of Alcohol or Controlled Substance).

(5) (Reserved).

(6) Restrictive DUI probation conditions. In accordance with 42 Pa.C.S. § 9763(c) and § 303.9, restrictive DUI probation conditions may be used to satisfy the mandatory minimum sentencing requirements of certain convictions under 75 Pa.C.S. § 1543(b), former 75 Pa.C.S. § 3731 or 75 Pa.C.S. § 3804 for a first, second or third offense under 75 Pa.C.S. Chapter 38.

(i) Unless otherwise provided in statute, Restrictive DUI probation condition include:

(A) if the defendant is determined to be in need of drug and alcohol treatment, and receives a penalty imposed under 75 Pa.C.S. § 1543(b), former 75 Pa.C.S. § 3731, 75 Pa.C.S. § 3804 or a first, second or third offense under 75 Pa.C.S. Chapter 38, a sentence with restrictive DUI probation conditions shall include participation in drug and alcohol treatment under 75 Pa.C.S. § 3815(c), and shall have restrictive DUI probation conditions of:

(I) a residential inpatient program or residential rehabilitative center;

(II) house arrest with electronic surveillance;

(III) a partial confinement program such as work release, a work camp or a halfway facility; or

(IV) any combination of these programs.

(B) if the defendant is determined not to be in need of drug and alcohol treatment, the defendant shall have restrictive DUI probation conditions of:

(I) house arrest with electronic surveillance; or

(II) partial confinement programs such as work release, a work camp or a halfway facility; or

(III) any combination of these programs.

(b) State Motivational Boot Camp (BC). A program for eligible persons committed to the Department of Corrections in which inmates participate for a period of six months in a humane program which provides rigorous physical activity, intensive regimentation and discipline, work on public projects, substance abuse treatment services licensed by the Department of Health, continuing education, vocational training, prerelease counseling and community corrections aftercare.

(1) Eligibility.

(i) The following statute governs operation of and eligibility for the State Motivational Boot Camp: 61 Pa.C.S. Chapter 39.

(ii) Boot Camp is recommended for eligible persons less than 40 years of age committed to the Department of Corrections with a minimum term not more than two years and a maximum term of five years or less; or a minimum term not more than three years and within two years of completing the minimum term. The court may exercise discretion to exclude the person from eligibility. If eligible, the person must give consent to enter the program.

(2) The court shall indicate on the offender’s commitment order and the Guideline Sentence Form if the person is excluded from eligibility for the boot camp program. The Department of Corrections makes the final determination as to whether the offender will be accepted into the boot camp program.

(3) Upon successful completion of the program, the person shall be immediately released on parole, subject to intensive supervision. Expulsion from the program results in the person’s continued service of the original sentence imposed, with consideration of parole upon completion of the minimum term.

(c) State Drug Treatment Program (SDP). A 24-month program for drug-related persons committed to the Department of Corrections designed to address the individually assessed drug and alcohol abuse and addition needs of a participant and to address other issues essential to the participant’s successful reintegration into the community, including, but not limited to, educational and employment issues.

(1) Eligibility.

(i) The following statute governs operation of and eligibility for State Drug Treatment Program: 61 Pa.C.S. Chapter 41.

(ii) State Drug Treatment Program is recommended for eligible persons convicted of drug-related offenses committed to the Department of Corrections with a minimum term not more than two years and a maximum term of five years or less; or a minimum term not more than five years and within two years of completing the minimum term. The court and the prosecutor may exercise discretion to exclude the person from eligibility. If eligible, the person must give consent to enter the program, and the DOC assessment must conclude that the person is in need of drug and alcohol addiction treatment.

(2) The court shall indicate on the offender’s commitment order and the Guideline Sentence Form if the person is excluded from eligibility for the State Drug Treatment Program. The Department of Corrections makes the final determination as to whether the offender will be accepted into the State Drug Treatment Program.

(3) Upon successful completion of the program, the entire term of confinement that rendered the person eligible to participate in the State Drug Treatment Program shall be deemed to have been served. Expulsion from the program results in the person’s continued service of the original sentence imposed, with consideration of parole upon completion of the minimum term.

(4) The court may impose a consecutive period of probation. The total duration of a sentence of state confinement and consecutive probation may not exceed the maximum term for which the eligible offender could otherwise be sentenced.

(d) Recidivism Risk Reduction Incentive (RRRI). A program to encourage eligible non-violent offenders committed to the Department of Corrections to participate in and successfully complete evidence-based programs that reduce the likelihood of recidivism and improve public safety.

(1) Eligibility.

(i) The following statute governs operation of and eligibility for the Recidivism Risk Reduction Incentive Program: 61 Pa.C.S. Chapter 45.

(ii) Recidivism Risk Reduction Incentive Program is an individualized plan that contains approved treatment and other approved programs designed to reduce recidivism risk of a specific inmate. If the court determines the person committed to the Department is statutorily eligible, the court shall provide notice of eligibility to the person, and the court shall direct the Department to calculate the RRRI minimum sentence.

(2) The court shall indicate on the offender’s commitment order and the Guideline Sentence Form if the person is eligible and direct the Department to calculate the RRRI minimum sentence. The RRRI minimum sentence is three-fourths of the minimum sentence when the minimum sentence is three years or less. The RRRI minimum sentence is offender is five-sixths of the minimum sentence when the minimum sentence is greater than three years.

(3) Upon certification by the Department that the person has completed all requirements of the program and remains an eligible offender, the Parole Board may grant parole upon the expiration of the RRRI minimum sentence.

(e) Short Sentence Parole (SSP). A program for eligible non-violent offenders committed to the Department of Corrections with an aggregate minimum sentence of confinement of two years or less for which parole at minimum without an interview is authorized

(1) Eligibility.

(i) The following statute governs operation of and eligibility for Short Sentence Parole: 61 Pa.C.S. § 6137.1.

(ii) Short Sentence Parole requires the Parole Board to approve for parole an eligible person at the expiration of the minimum date or RRRI minimum date, whichever is shorter, without requiring an interview.

(2) A person shall not be eligible for Short Sentence Parole if found guilty of a major disciplinary infraction while confined in a county or state correctional institution, or has pending felony charges.

(f) Reentry Programs

(1) County Reentry Program (as provided in 42 Pa.C.S. § 9756(b)(3))

(i) A release plan that may include drug and alcohol treatment, behavioral health treatment, job training, skills training, education, life skills or any other condition deemed relevant by the court.

(ii) At the time of sentencing, the court shall state whether or not the defendant is eligible to participate in a reentry plan at any time prior to the expiration of the minimum sentence or at the expiration of a specified portion of the minimum sentence.

(iii) The reentry plan eligibility shall be considered a party of the sentence and subject to the requirements related to the entry, recording and reporting of sentences.

(2) State Reentry Supervision (as provided in 61 Pa.C.S. § 6137.2)

(i) Requirement that applies to persons committed to the Department of Corrections with an aggregate minimum sentence of total confinement of four years or more.

(ii) At the time of sentencing, a period of reentry supervision of 12 months shall be imposed consecutive to and in addition to any other lawful sentence issued by the court.

(iii) The Court may impose the period of reentry supervision required in addition to the maximum sentence permitted for the offense for which the person was convicted.

(iv) Persons who have been granted any period of parole during the same period of incarceration shall be deemed to have served the reentry supervision requirement.

(3) Mandatory period of probation for certain sexual offenders (as provided in 42 Pa.C.S. § 9718.5)

(i) Requirement that applies to persons convicted of an offense under 42 Pa.C.S. § 9799.14(d) (relating to sexual offenses and tier system)

(ii) At the time of sentencing, a mandatory period of probation of three years shall be imposed consecutive to and in addition to any other lawful sentence issued by the court.

(iii) The court may impose the term of probation required in addition to the maximum sentence permitted for the offense for which the person was convicted.

The provisions of this § 303.12 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399082) to (399085).

Alternative Housing

When the county had designated alternative housing as intermediate punishment, the trial court could not sentence appellant to alternative housing for a crime which carries a mandatory minimum sentence. Commonwealth v. Koskey, 812 A.2d 509 (Pa. Cmwlth. 2002).

Home Confinement with Electronic Monitoring

Individual released on bail pending appeal not considered in custody for purposes of awarding credit toward prison sentence for time spent subject to home confinement with electronic monitoring. Commonwealth v. Kyle, 874 A.2d 12, 13 (Pa. 2005).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.13 Guideline sentence recommendations: aggravated and mitigated circumstances.

(a) Unless otherwise prohibited by statute, when the court determines that an aggravating circumstance is present, including consideration of validated assessments of risk, needs and responsivity to guide decisions related to the intensity of intervention, use of restrictive conditions and duration of community supervision, the court may impose an aggravated sentence as follows:

(1) For the Offense Gravity Scores of 9, 10, 11, 12 and 13 the court may impose a sentence that is up to 12 months longer than the upper limit of the standard range.

(2) For the Offense Gravity Score of 8, the court may impose a sentence that is up to 9 months longer than the upper limit of the standard range.

(3) For the Offense Gravity Scores of 6 and 7, the court may impose a sentence that is up to 6 months longer than the upper limit of the standard range.

(4) For the Offense Gravity Scores of 1, 2, 3, 4, and 5, the court may impose a sentence that is up to 3 months longer than the upper limit of the standard range. When imposing a fine or community service pursuant to § 303.14(a)(4), the court may impose a sentence that is up to 25 hours longer than the upper limit of the standard range.

(5) When the standard range is Restorative Sanctions (RS), the aggravated sentence recommendation is 1—3.

(b) Unless otherwise prohibited by statute, when the court determines that a mitigating circumstance is present, including consideration of validated assessments of risk, needs and responsivity to guide decisions related to the intensity of intervention, use of restrictive conditions and duration of community supervision, the court may impose a mitigated sentence as follows:

(1) For the Offense Gravity Scores of 9, 10, 11, 12, 13, and 14 the court may impose a sentence that is up to 12 months shorter than the lower limit of the standard range.

(2) For the Offense Gravity Score of 8, the court may impose a sentence that is up to 9 months shorter than the lower limit of the standard range.

(3) For the Offense Gravity Scores of 6 and 7, the court may impose a sentence that is up to 6 months shorter than the lower limit of the standard range.

(4) For the Offense Gravity Scores of 1, 2, 3, 4, and 5, the court may impose a sentence that is up to 3 months shorter than the lower limit of the standard range. When imposing a fine or community service pursuant to § 303.14(a)(4), the court may impose a sentence that is up to 25 hours shorter than the lower limit of the standard range.

(5) When the bottom of the standard range is less than or equal to 3 months of incarceration, the lower limit of the mitigated sentence recommendation is Restorative Sanctions (RS).

(6) In no case where an enhancement is applied may the mitigated sentence recommendation be lower than the duration of the enhancement of the standard range described in § 303.10.

(c) When the court imposes an aggravated or mitigated sentence, it shall state the reasons on the record and on the Guideline Sentence Form, a copy of which is electronically transmitted to the Commission on Sentencing in the manner described in § 303.1(e).

The provisions of this § 303.13 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399085) to (399087).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code § 303.9 (relating to guideline sentence recommendation: general); 204 Pa. Code § 303.17(a) (relating to Deadly Weapon Enhancement/Possessed Matrix); and 204 Pa. Code § 303.17(b) (relating to Deadly Weapon Enhancement/Used Matrix).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.14 Guideline sentence recommendations—economic sanctions.

(a) Fines.

(1) Fines may be added to any guideline sentence, as authorized by law. Relevant statutes include but are not limited to:

(i) 18 Pa.C.S. § 1101 (relating to fines)

(ii) 35 P.S. § 780-113(b)—(o) (relating to controlled substances)

(iii) 42 Pa.C.S. § 9726 (relating to fine as a sentence)

(iv) 42 Pa.C.S. § 9758 (relating to imposition of a fine)

(v) 75 Pa.C.S. § 3804 (relating to fines for DUI)

(2) A fine, within the limits established by law, shall be considered by the court when the offender is convicted of 35 P.S. § 780-113(a)(12), (14) or (30), and the drug involved is any of the following: a controlled substance or counterfeit substance classified in Schedule I or II and which is a narcotic; phencyclidine, methamphetamine, or cocaine, including the isomers, salts, compounds, salts of isomers, or derivatives of phencyclidine, methamphetamine, or cocaine; or is in excess of one thousand pounds of marijuana. Such fine shall be of an amount that is at least sufficient to exhaust the assets utilized in, and the proceeds obtained by the offender from, the illegal possession, manufacture, or distribution of controlled substances. Such fine shall not include assets concerning which the attorney for the Commonwealth has filed a forfeiture petition or concerning which he has given notice to the court of his intent to file a forfeiture petition.

(3) Fines may be utilized as a condition of probation (see non-confinement sentence recommendations § 303.9(f)).

(4) Fines/Community Service Guidelines. The following guidelines shall be considered by the court when ordering fines or community service as a Restorative Sanction without confinement. Community service, when ordered, is imposed as a condition of probation. A fine, when ordered, is imposed as a non-confinement sentencing alternative or as a condition of probation. The fines guidelines are determined by multiplying the number of hours recommended by the offender’s hourly wage or the current minimum wage, whichever is higher, but may not exceed the statutory maximum fine authorized by law

(i) OGS 1

(A) PRS 0 25 hours-50 hours

(B) PRS 1 50 hours-75 hours

(D) PRS 3 100 hours-125 hours

(E) PRS 4 125 hours-150 hours

(F) PRS 5 150 hours-175 hours

(ii) OGS 2

(A) PRS 0 25 hours-50 hours

(B) PRS 1 75 hours-100 hours

(D) PRS 3 125 hours-150 hours

(E) PRS 4 150 hours-175 hours

(iii) OGS 3

(A) PRS 0 50 hours-75 hours

(B) PRS 1 150 hours-175 hours

(D) PRS 3 300 hours-325 hours

(iv) OGS 4

(A) PRS 0 100 hours-125 hours

(B) PRS 1 225 hours-250 hours

(v) OGS 5

(A) PRS 0 225 hours-250 hours

(b) Costs and fees.

(1) Costs and fees shall be added to any guideline sentence, as required by law. Relevant statutes include but are not limited to:

(i) 18 P.S. § 11.1101 (relating to Crime Victim’s Compensation Fund costs)

(ii) 18 P.S. § 11.1102 (relating to costs of offender supervision programs)

(iii) 42 Pa.C.S. § 1725.3 (relating to criminal laboratory user fees)

(iv) 42 Pa.C.S. § 9721(c.1) (relating to mandatory payment of costs)

(v) 42 Pa.C.S. § 9728(b.2) (relating to mandatory payment of costs)

(2) Costs and fees, in addition to those required by law, may be added to any guideline sentence, as authorized by law. Relevant statutes include but are not limited to:

(i) 18 Pa.C.S. § 1109 (relating to costs of any reward)

(ii) 42 Pa.C.S. § 1725 (relating to establishment of fees and charges)

(iii) 42 Pa.C.S. § 1725.1 (relating to costs)

(iv) 42 Pa.C.S. § 1725.2 (relating to assumption of summary conviction costs by county)

(v) 42 Pa.C.S. § 1726.1 (relating to forensic exam costs for sexual offenses)

(vi) 42 Pa.C.S. § 1726.2 (relating to criminal prosecution involving domestic violence)

(vii) 42 Pa.C.S. § 9728(g) (relating to costs, etc.)

(3) Costs and fees, in addition to those required by law, shall be considered by the court pursuant to the Domestic Violence Enhancement (§ 303.9(o)), as authorized by law.

(1) Restitution shall be added to any guideline sentence, as authorized by law. Relevant statutes include but are not limited to:

(i) 18 Pa.C.S. § 1106 (relating to injuries to person or property)

(ii) 18 Pa.C.S. § 1107 (relating to theft of timber)

(iii) 18 Pa.C.S. § 1107.1 (relating to restitution for identity theft)

(iv) 18 Pa.C.S. § 1110 (relating to restitution for cleanup of clandestine laboratories)

(iii) 18 P.S. § 11.1302 (relating to restitution to the Office of Victim Services)

(v) 42 Pa.C.S. § 9721(c) (relating to mandatory restitution)

(2) Restitution may be imposed as a direct sentence and/or as a condition of probation, and is considered a non-confinement sentence recommendation (see § 303.9(f)).

The provisions of this § 303.14 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252 amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399087) to (399089).

Imposition of Fine

A defendant’s contention that the court imposed a $5,000 fine because the cash was related to crime and that he, therefore, can only be deprived of it through forfeiture proceedings, was without merit, where it is entirely appropriate for a court to impose a fine designed to exhaust assets used in the commission of an offense and, in fact, the Sentencing Guidelines require the court to consider imposing such a fine in certain instances. Commonwealth v. Lebo, 713 A.2d 1158 (Pa. Super. 1998); appeal denied 737 A.2d 741 (Pa. 1999).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.15 Offense Listing.

*=subcategorized offenses. See § 303.3(b) m=other misdemeanor offense. See § 303.7(a)(5) Inchoates=Inchoate to 4 point PRS offenses. See § 303.7(a)(5) See § § 303.7(c) and 303.8(b) for all other inchoates

m=other misdemeanor offense. See § 303.7(a)(5).

*=subcategorized offenses. See § 303.3(b) m=other misdemeanor offense. See § 303.7(a)(5)

m=other misdemeanor offense. See § 303.7(a)(5)

m=other misdemeanor offense. See § 303.7(a)(5).

*=subcategorized offenses. See § 303.3(b). m=other misdemeanor offense. See § 303.7(a)(5).

1 statutory maximum increased by 5 years if offense occurred in active work zone or if also convicted of 75 § 1501, 75 § 1543, 75 § 3316, 75 § 3325 or 75 § 3327 (maximum=12 years) 2 statutory maximum increased by 2 years if offense occurred in active work zone or if also convicted of 75 § 1501, 75 § 1543, 75 § 3316, 75 § 3325 or 75 § 3327 (maximum=9 years)

The provisions of this § 303.15 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; corrected March 28, 1997, 27 Pa.B. 1548; corrected May 16, 1997, 27 Pa.B. 2413; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; corrected April 29, 2005, effective June 3, 2005, 35 Pa.B. 2599; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended December 14, 2017, effective June 1, 2018, 48 Pa.B. 716; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399090) to (399179).

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code § 303.3 (relating to Offense Gravity Score—general); 204 Pa. Code § 303.4 (relating to Prior Record Score—categories); 204 Pa. Code § 303.7 (relating to Prior Record Score—guideline points scoring); 204 Pa. Code § 303.8 (relating to Prior Record Score—miscellaneous); 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements); and 204 Pa. Code § 303.16(a) (relating to Basic Sentencing Matrix).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.16a Basic Sentencing Matrix.

The provisions of this § 303.16(a) adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; renumbered as § 303.16(a) and amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; corrected April 4, 2014, effective September 27, 2013, 44 Pa.B. 1967; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399180) to (399181).

Consecutive Sentence

In imposing a sentence, the trial judge may determine whether, given the facts of a particular case, a sentence should run consecutive to or concurrent with another sentence being imposed; trial judge clearly disclosed his reasons for sentencing appellant to consecutive sentences, i.e., appellant sold an unregistered security to 69 elderly victims, defrauding them of over $2.5 million and causing them great hardship and financial distress. Commonwealth v. Perry, 883 A.2d 599, 603—604 (Pa. Super. 2005).

Ineffective Assistance of Counsel

Trial counsel rendered ineffective assistance by not filing a post-sentence motion challenging excessiveness of defendant’s sentence for drug offenses; defendant was sentenced to a minimum of 120 months which was over five times the aggravated sentence of 22 months. Commonwealth v. Green, 957 A.2d 1238, 1242 (Pa. Super. 2008).

Range of Sentence

The standard range designated in the sentencing guidelines is the standard range for the minimum sentence. Dunn v. Colleran, 247 F.3d 450 (3rd Cir. 2001).

Sentencing Outside Guideline Recommendations

Sentencing court abused its discretion in imposing the statutory maximum sentences on each respective criminal court where the court failed to make a legally sufficient contemporaneous statement on the record and where the court advanced reasons for imposing a sentence in the aggravated range and then imposed sentence outside of the guidelines. Commonwealth v. Wagner, 702 A.2d 1084 (Pa. Super. 1997).

This section cited in 204 Pa. Code § 303.9 (relating to guideline sentence recommendation: general).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.16b Basic Sentencing Matrix for Offenders Convicted of 1st or 2nd Degree Murder.

The provisions of this § 303.16(b) adopted June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (399182).

This section cited in 204 Pa. Code § 303.9 (relating to guideline sentence recommendation: gen2eral).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.17a Deadly Weapon Enhancement/Possessed Matrix.

The provisions of this § 303.17(a) adopted March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; corrected March 28, 1997, 27 Pa.B. 1548; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; renumbered as § 303.17(a) and amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (399183).

This section cited in 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.17b Deadly Weapon Enhancement/Used Matrix.

The provisions of this § 303.17(b) adopted March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; corrected March 28, 1997, 27 Pa.B. 1548; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; renumbered as § 303.17(b) and amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (399184).

Sentence Outside Guidelenes’ Recommendations

This section cited in 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.18a School Enhancement Matrix.

The provisions of this § 303.18(a) adopted September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; renumbered as § 303.18(a) and amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (399185).

This section cited in 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.18b Youth Enhancement Matrix.

The provisions of this § 303.18(b) adopted June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (399186).

This section cited in 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.18c School and Youth Enhancement Matrix.

The provisions of this § 303.18(c) adopted June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4701; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial page (401415).

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

204 Pa. Code § 303.19 Applicability.

The provisions of this chapter apply to offenses committed before January 1, 2024.

The provisions of this § 303.19 added August 25, 2023, effective August 26, 2023, 53 Pa.B. 5361.

History

Source: The provisions of this Chapter 303 adopted May 14, 1982, effective July 22, 1982, 12 Pa.

Chapter 305 SENTENCE RISK ASSESSENT INSTRUMENT

204 Pa. Code § 305.1 Preliminary provisions.

(a) Authorization.

(1) As authorized by 42 Pa.C.S. § 2154.7 (relating to adoption of risk assessment instrument), the Commission shall adopt a Sentence Risk Assessment Instrument for the sentencing court to use to help determine the appropriate sentence within the limits established by law for defendants who plead guilty or nolo contendere to, or who were found guilty of, felonies and misdemeanors.

(2) The Sentence Risk Assessment Instrument may be incorporated into the sentencing guidelines under 42 Pa.C.S. § 2154 (relating to adoption of sentencing guidelines).

(3) The Sentence Risk Assessment Instrument may be used to determine whether a more thorough assessment is necessary and to order a presentence investigation report.

(4) The Sentence Risk Assessment Instrument may be an aid to help determine appropriate candidates for alternative sentencing.

(b) Definitions. For the purposes of this chapter:

(1) ‘‘Actuarial risk assessment.’’ A statistical method of estimating the risk of recidivism; the probability of recidivating is related to the proportion of offenders in a risk category who recidivate.

(2) ‘‘Common Pleas Case Management System (CPCMS).’’ A web-based application operated by the Administrative Office of Pennsylvania Courts which serves as the source of data for determining number of prior convictions and associated offense type.

(3) ‘‘Conviction.’’ An offense for which a defendant pleads guilty or nolo contendere, is found guilty following a bench or jury trial, or is accepted for participation in an authorized diversion program, including Probation without Verdict (relating to 35 P.S. § 780-117) or Disposition in Lieu of Trial or Criminal Punishment (relating to 35 P.S. § 780-118).

(4) ‘‘DUI offender.’’ An offender for whom the most serious offense of the judicial proceeding is DUI. The Sentence Risk Assessment Instrument does not apply if DUI is the most serious offense of the judicial proceeding. The Sentence Risk Assessment Instrument does apply if DUI is an offense other than the most serious offense in the judicial proceeding.

(5) ‘‘Judicial proceeding.’’ A sentencing hearing in which all offenses for which the offender is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.

(6) ‘‘Magisterial District Judge System (MDJS).’’ A web-based application operated by the Administrative Office of Pennsylvania Courts which serves as the source of data for determining the number of prior convictions and associated offense type following a final disposition by a minor court.

(7) ‘‘Minor courts.’’ A court of limited jurisdiction with authority to preside at preliminary arraignments and preliminary hearings, dismiss complaints, conduct trials and/or accept guilty pleas for misdemeanors, and hold cases for trial in the courts of common pleas. This includes Philadelphia Municipal Court and Magisterial District Judges.

(8) ‘‘Offense gravity score (OGS).’’ An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense. The OGS assigned to the most serious offense in the judicial proceeding (and if more than one offense, then the offense with the highest OGS, longest statutory maximum, and then the offense entered first in SGS Web) is used to determine the risk factors and associated values to be included in the risk scales.

(9) ‘‘Offense tracking number (OTN).’’ A unique identifying number assigned to an entire set of charges related to a conviction. An OTN is generally assigned by the court at the time of arraignment.

(10) ‘‘Offense types.’’ The classification of prior convictions and current convictions, including inchoates, as provided follows:

(i) Murder;

(ii) Danger to person:

(A) felonies;

(B) misdemeanors;

(iii) Sexual:

(A) felonies;

(B) misdemeanors;

(iv) Burglary;

(v) Property:

(A) felonies;

(B) misdemeanors;

(vi) Public administration;

(vii) Public order;

(viii) Firearms;

(ix) Other weapons;

(x) Drug:

(A) felonies;

(B) misdemeanors;

(xi) DUI;

(xii) Other.

A detailed description of the offense types is located at § 305.6. Any unlisted offense, or any new or amended offense, will be assigned an offense type by the Commission based on the current equivalent offense type.

(11) ‘‘Pre-sentence investigation (PSI) report.’’ A report, authorized by the Rules of Criminal Procedure (Pa.R.Crim.P. Rules 702-703), that includes information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence.

(12) ‘‘Recidivism.’’ A re-offense for any crime, defined as a re-arrest for a felony or misdemeanor in Pennsylvania within three years of the imposition of a sentence to the community or within three years of release from confinement resulting in a conviction. Re-offense does not include out-of-state, federal or foreign charges or technical violations.

(13) ‘‘Risk assessment instrument.’’ An empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific ‘generation’ of development:

(i) 1st generation. ‘‘Professional judgment,’’ with assessments based on training and experience;

(ii) 2nd generation. ‘‘Risk assessment,’’ an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;

(iii) 3rd generation. ‘‘Risk-needs assessment (RNA),’’ an actuarial assessment of static and dynamic factors and changing circumstances, such as relationships, employment, and substance abuse, used to estimate risk of re-offense and to assess criminogenic needs to be addressed through treatment and supervision;

(iv) 4th generation. ‘‘Risk-needs-responsivity (RNR) assessment,’’ an actuarial assessment of static and dynamic factors used to match the level of service to the offender’s risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities and strengths of the offender.

(14) ‘‘Risk category.’’ The relative risk of recidivism as compared to other offenders, based on the Sentence Risk Assessment Instrument:

(i) ‘‘Typical risk offender.’’ An offender with a risk score of 5 points or greater but less than 12 points who shares characteristics with offenders at typical risk of recidivism. This middle category contains approximately 78% of offenders.

(ii) ‘‘Low risk offender.’’ An offender with a risk score less than 5 points who shares characteristics with offenders at lower risk of recidivism. This low category contains approximately 18% of offenders.

(iii) ‘‘High risk offender.’’ An offender with a risk score of 12 points or greater who shares characteristics with offenders at higher risk of recidivism. This high category contains approximately 4% of offenders.

(15) ‘‘Risk factors.’’ The variables obtained from AOPC or Commission data and determined to be statistically significant in relation to the risk of recidivism. Risk factors selected by the Commission and included in the Sentence Risk Assessment Instrument include:

(i) ‘‘Age.’’ Based on Commission data, the age of the offender calculated using date of birth as reported on guideline sentence form and the date the Sentence Risk Assessment Summary is generated.

(ii) ‘‘Gender.’’ Based on Commission data, the sex of the offender reported on the guideline sentence form.

(iii) ‘‘Number of prior convictions.’’ Based on prior conviction data provided by AOPC, the number of unique OTNs associated with Pennsylvania convictions occurring before the date the Sentence Risk Assessment Summary is generated.

(iv) ‘‘Prior conviction offense type.’’ Based on prior conviction data provided by AOPC, all offense types identified for any felony or misdemeanor convictions.

(v) ‘‘Current conviction offense type.’’ Based on Commission data, the offense type of the most serious offense of the judicial proceeding.

(vi) ‘‘Multiple current convictions.’’ Based on Commission data, more than one current conviction offense in the current judicial proceeding.

(viii) ‘‘Prior juvenile adjudication.’’ Based on Commission data, any juvenile adjudication included in the prior record score for the judicial proceeding is used in the risk scales. This may include prior juvenile adjudications that lapse for purposes of the calculation of the Prior Record Score.

(16) ‘‘Risk scale.’’ Measures of the outcomes derived from statistical models used to determine the relative risk to recidivate based on identified factors.

(17) ‘‘Sentencing Guidelines Software Web Application (SGS Web).’’ A JNET-based application operated by the Commission which includes the modules for Sentencing Guidelines and for the Sentence Risk Assessment Instrument. SGS Web serves as the source of data for determining an offender’s age, gender, current conviction offense type, multiple current convictions and prior juvenile adjudications, as well as determining the most serious offense of a judicial proceeding.

(18) ‘‘Sentence Risk Assessment Instrument.’’ The actuarial tool, adopted by the Commission and deployed through SGS Web, used to identify cases for which the guideline sentence form includes the notation ‘‘Additional Information Recommended.’’ The Instrument uses factors that are relevant in predicting recidivism to estimate risk.

(1) Findings.

(i) As defined in statute, 42 Pa.C.S. § 2154.7(e), the term ‘‘risk assessment instrument’’ means an empirically based worksheet which uses factors that are relevant in predicting recidivism.

(ii) The following concerns regarding proposed instruments were consistently raised during public hearings:

(A) Distrust of a risk assessment instrument for use at sentencing due to concerns about data quality, including the impact of differential treatment throughout the criminal justice system resulting in racial bias, and the construction and validity of any instrument;

(B) Concerns related to the impact of actuarial data on individualized sentencing, including the labeling of offenders based on risk category, the prospect of increased punishment for high risk offenders, and the impropriety of providing information on prognostic risk without including information on criminogenic needs and responsivity.

(iii) The Commission analyzed issues related to data quality, construction and validity, including the impact of race and gender, during the development of the instrument.

(A) Race is excluded from the instrument, as is county, which many commentators viewed as a proxy for race. The Commission undertook other steps to reduce racial impact, including using convictions rather than arrests. In the final analysis, the accuracy of the instrument is similar across race. To the degree there is a difference in accuracy, Black offenders are favored. This moderate bias in the form of under-estimation of risk for a minority group appears to be accepted in the risk assessment field; these findings are not inconsistent with other demographic impact assessments of risk instruments.

(B) Gender is included in the instrument as a risk factor. The ratio of males to females in the sample is 80%/20%. Removing gender has the greatest impact on females, reducing the accuracy of the instrument in predicting female recidivism and incorrectly resulting in fewer females classified as low risk and more females classified as high risk. Removing gender or retaining gender has no impact on the accuracy of predicting male recidivism, because males account for the overwhelming majority of offenders in the sample.

(iv) As part of the Evidence-Based Practices Strategic Plan, the County Chief Adult Probation and Parole Officers Association of Pennsylvania has been working with counties to adopt and validate risk and needs assessment tools and to provide training for use in guiding effective supervision and treatment strategies for community corrections.

(v) Research supports the finding that judges tend to over-estimate risk of offenders at sentencing, and that professional judgement informed by actuarial data is more accurate than either alone. Research on the use of information on prognostic risks and criminogenic needs to inform supervision strategies for drug offenders supports the use of intensive treatment and supervision, consistent with the alternative sentencing programs identified in the statute, for high risk/high needs offenders, and consideration of reduced duration and intensity of supervision for low risk/low needs offenders.

(vi) Under Pennsylvania’s Rules of Criminal Procedure, Rule 702, the sentencing judge may order a pre-sentence investigation (PSI) report at any time, but shall place on the record the reason for dispensing with a PSI in the following instances: when incarceration of one year or more is possible; when the defendant is less than 21 years of age; or when the defendant is a first-time offender. The Commission found that PSI Reports were ordered in less than one third of all cases, and at varying rates and of varying quality across counties, but rarely included information on criminogenic needs or responsivity. Other assessments and evaluations, including those for drug and alcohol dependency, mental illness, and for sexual offenders, were also ordered.

(2) Purposes of sentence risk assessment instrument.

(i) To identify individuals, determined to be low risk or high risk using the Commission’s sentence risk assessment instrument, for whom additional information may assist the court in determining candidates for alternative sentencing, such as state intermediate punishment, state motivational boot camp, county intermediate punishment, recidivism risk reduction incentive; appropriateness for problem-solving courts; and the duration and intensity of community supervision or other programs or services.

(ii) To assist courts in determining whether a more thorough assessment is necessary and to order a PSI Report as provided in Pa.R.Crim.P. Rule 702(a) or a psychiatric or psychological evaluation as provided for in Pa.R.Crim.P. Rule 702(b), or to request any other assessment or information on criminogenic needs and responsivity to consider prior to sentencing; and in determining whether to dispense with a PSI Report.

(iii) Similar to the sentencing guidelines adopted by the Commission, a recommendation to obtain additional information based on the sentence risk assessment instrument is advisory.

(iv) The Commission supports the values of transparency and responsiveness in the development and use of empirically-based risk assessment instruments. Information on the development and validation of the sentence risk assessment instrument, including the risk factors, scales and recidivism rates, and all internal and external reports related to construction of the instrument and predictive validity, are published.

(v) The Commission expressly disavows the use of the sentence risk assessment instrument to increase punishment, and expressly disavows the use of county risk assessments tools at sentencing that are not designed for use at sentencing, are not transparent or employ static factors rejected by the Commission.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.2 Sentence Risk Assessment Instrument methodology.

(a) Development and validation.

(1) The Commission conducted a study using offenders sentenced during 2004—2006 (n=131,055) to allow for a three-year follow-up period for all offenders, while taking advantage of improvements in data quality and a more recent time period. Additional information on the development and validation of the Sentence Risk Assessment Instrument is available from the Commission.

(2) The Commission developed risk scales for all offenders, except those with DUI as the most serious offense of the judicial proceeding.

(3) In developing the risk scales, the following analyses were conducted:

(i) bivariate analyses to determine which factors were related to recidivism;

(ii) multivariate logistic regression to determine which factors best predicted recidivism while holding other factors constant;

(iii) rotation of all categories for factors that were multi-categorical to ensure that reported differences were real and not due to a particular comparison category;

(iv) Receiver Operating Characteristic (ROC) analysis, which plots the true positive rate (i.e., how many people were predicted to recidivate and did recidivate) against the false positive rate (i.e., how many people were predicted to recidivate but did not recidivate); and

(v) validation of the final scales with both samples.

(b) Risk factors and scales—general.

(1) Based upon the analyses conducted by the Commission, the following factors were found to be predictive of recidivism, and thus, used in the risk assessment scales:

(i) age;

(ii) gender;

(iii) number of prior convictions;

(iv) prior conviction offense type;

(v) current conviction offense type;

(vi) multiple current convictions;

(vii) prior juvenile adjudication.

(2) The risk scale for recidivism is located at § 305.7.

(1) The Sentence Risk Assessment Instrument provides the probability of recidivism based on the proportion of offenders in the development and validation samples who recidivate. Offenders identified as low risk or high risk were found to be significantly different in risk of recidivism than the typical offender.

(2) Recidivism rates by risk score for recidivism are located at § 305.8.

(d) Review and Re-validation.

(1) Following the first year of utilization, the Commission shall analyze the impact of the Instrument and the source of the information provided to the court, and shall publish information on sentencing patterns and racial impact.

(2) The Commission shall re-validate the Instrument every three years.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.3 Sentence Risk Assessment Instrument standards.

(a) Effective January 1, 2020, the Commission shall conduct a six-month training and orientation for judges and practitioners related to the use of the Sentence Risk Assessment Instrument, the purpose of the recommendation, and the type of information recommended.

(b) Effective July 1, 2020, the court shall use the SGS Web-based Sentence Risk Assessment Instrument to identify cases for which additional information is recommended to help determine the appropriate sentence for non-DUI offenders who plead guilty or nolo contendere to or who were found guilty of felonies or misdemeanors.

(c) The Sentence Risk Assessment Instrument does not apply to sentences imposed as a result of the following: accelerated rehabilitative disposition; disposition in lieu of trial; direct or indirect contempt of court; violations of protection from abuse orders; or revocation of probation, county intermediate punishment, state intermediate punishment or parole.

(d) In every case in which additional information is recommended and provided to the court, the additional information shall be considered by the court prior to sentencing. The court is encouraged to determine procedures for the preparation of additional information.

(e) In every case in which a court of record imposes a sentence for a felony or misdemeanor, and additional information is recommended, the court shall make as a part of the record, and shall record on the guideline sentence form, whether the court received and considered additional information prior to sentencing. The guideline sentence form shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in § 303.1(e).

(f) Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court’s direction to prepare all guideline-required sentencing information prior to sentencing.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.4 Sentence Risk Assessment Instrument procedures.

(a) For each judicial proceeding, the procedure using the SGS Web-based Sentence Risk Assessment Instrument shall be as follows:

(1) Prepare all guideline sentence forms prior to sentencing using SGS Web as required by § 303.1(e):

(i) create a Judicial Proceeding;

(ii) complete the Prior Record Score module;

(iii) complete the Offense module, including all offenses for which the offender has been convicted and are pending before the court for sentencing at the same time;

(iv) upon completion of the Offense module, guideline sentence forms are available;

(v) for cases identified by the Sentence Risk Assessment Instrument, ‘‘Additional Information Recommended’’ is included on the guideline sentence form;

(vi) additional information, if prepared, shall be provided to the court for consideration prior to sentencing.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.5 Sentence Risk Assessment Instrument recommendation—general.

(a) The risk score for the offender and the associated risk category is calculated based on the most serious conviction offense in the judicial proceeding.

(b) Typical risk offenders. For offenders who are identified as typical risk, the Commission makes no additional recommendation.

(c) Low risk or high risk offenders. For offenders who are identified as low risk or high risk, the guideline sentence form will include a notation ‘‘Additional Information Recommended.’’ No information on risk category will be provided. Courts are encouraged to adopt procedures to permit the preparation of additional information based on the guideline sentence form recommendation.

(d) The additional information recommended may assist the court in determining an appropriate and individualized sentence, including the suitability of various sentencing alternatives and programs as well as the duration and intensity of supervision.

(e) An example of sentence guideline form with the ‘‘Additional Information Recommended’’ notation is found at § 305.9.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.6 Offense Types. Classification of Prior Convictions and Current Convictions, including Inchoates.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.7 Recidivism Risk Scales.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.8 Recidivism Rates by Risk Score.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

204 Pa. Code § 305.9 Guideline Sentence Form.

History

Source: The provisions of this Chapter 305 adopted September 5, 2019, effective July 1, 2020, 49 Pa.

Chapter 307 RESENTENCING GUIDELINE FOR 7TH EDITION SENTENCING GUIDELINES

204 Pa. Code § 307.1 Preliminary provisions.

(a) Authorization.

(1) As authorized by 42 Pa.C.S. § 2154.4 (relating to adoption of guidelines for resentencing), the Commission shall adopt guidelines that shall be considered by the court when resentencing a person following the revocation of probation.

(2) The Resentencing Guidelines shall take into account:

(i) factors considered in adopting the sentencing guidelines;

(ii) the seriousness of the violation; and

(iii) the rehabilitative needs of the defendant.

(b) Definitions. For the purposes of this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:

‘‘Commission.’’ Pennsylvania Commission on Sentencing. A criminal justice agency of the General Assembly authorized to adopt and implement a sentence risk assessment instrument and guidelines for sentencing and resentencing to be considered by the court, and guidelines for parole and recommitment ranges following revocation to be considered by the Pennsylvania Parole Board.

‘‘Conviction.’’ A finding of guilty or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony in a court, whether or not judgement of sentence has been imposed.

‘‘Conviction violation.’’ Commission of a new offense during the period of probation, resulting in a conviction for a misdemeanor or felony, whether or not judgement of sentence has been imposed.

‘‘Court.’’ Unless otherwise provided, a court of common pleas or any judge thereof, the Philadelphia Municipal Court or any judge thereof, the Pittsburgh Magistrates Court or any judge thereof, or any magisterial district judge.

‘‘Judicial proceeding.’’ A sentencing hearing in which all offenses for which the person is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.

‘‘OGS—offense gravity score.’’ An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense (see: 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition)).

‘‘OTN—offense tracking number.’’ A unique identifying number assigned to an entire set of charges related to a conviction. An OTN is generally assigned by the court at the time of arraignment.

‘‘PRS—prior record score.’’ A category in the sentencing guidelines reflecting the seriousness of the criminal history of a person (see: 204 Pa. Code Chapter 303).

‘‘Probation.’’ A sentencing alternative as provided in 42 Pa.C.S. § 9722 (relating to order of probation) and imposed pursuant to 42 Pa.C.S. § 9754 (relating to order of probation); conditions of probation, pursuant to 42 Pa.C.S. § 9763 (relating to conditions of probation), include conditions generally subsection (b), restrictive DUI probation conditions subsection (c), and restrictive conditions of probation subsection (d).

‘‘Resentence.’’ A new sentence imposed following the revocation of probation. Upon revocation, the sentencing alternatives available to the court shall be the same as were available at the time of the initial sentence, due consideration given to time spent serving the order of probation.

‘‘Revocation.’’ The termination of an order of probation, upon proof of a violation of specific conditions of the order or sentence, as provided in 42 Pa.C.S. § § 9771 and 9771.1 (relating to modification or revocation of order of probation; and court-imposed sanctions for violating probation).

‘‘Risk assessment instrument.’’ An empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific ‘generation’ of development:

1st generation. ‘‘Professional judgment,’’ with assessments based on training and experience;

2nd generation. ‘‘Risk assessment,’’ an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;

3rd generation. ‘‘Risk-needs assessment (RNA),’’ an actuarial assessment of static and dynamic factors and changing circumstances, such as relationships, employment, and substance abuse, used to estimate risk of re-offense and to assess criminogenic needs to be addressed through treatment and supervision;

4th generation. ‘‘Risk-needs-responsivity (RNR) assessment,’’ an actuarial assessment of static and dynamic factors used to match the level of service to the person’s risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities, and strengths of the person.

‘‘SID—State identification number.’’ A unique number associated with each person based on fingerprints. The Commission requires the inclusion of the SID as part of the record in the completed Guideline Sentence Form (see: 204 Pa. Code Chapter 303).

‘‘Sentencing Guidelines Software Web Application (SGS Web).’’ A JNET-based application operated by the Commission which includes the modules for Sentencing Guidelines and for Resentencing Guidelines. SGS Web serves as the source of data for the original reported sentence and associated information and the reporting source for revocations and resentences.

‘‘Technical violation.’’ Failure to comply with terms of an order of probation, other than by the commission of a new offense of which the person is convicted.

‘‘Violation.’’ A finding by a court, following a hearing, that the convicted person failed to comply with terms and conditions of an order of probation.

The provisions of this § 307.1 amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5441; amended August 25, 2023, effective January 1, 2024, 53 Pa.B. 5470. Immediately preceding text appears at serial pages (402903) to (402904) and (411393).

History

Source: The provisions of this Chapter 307 adopted September 6, 2019, effective January 1, 2020, 49 Pa.

204 Pa. Code § 307.2 Resentencing guidelines standards.

(a) The court shall consider the Resentencing Guidelines in determining the appropriate resentence upon a revocation of probation.

(b) The Resentencing Guidelines shall apply to revocations of probation for all offenses committed on or after January 1, 2020. Amendments to the Resentencing Guidelines shall apply to revocations of probation for all offenses committed on or after the effective date of the amendment.

(1) The initial Resentencing Guidelines, effective January 1, 2020, apply to all offenses committed on or after January 1, 2020, but prior to January 1, 2021, for which the 7th Edition, Amendment 5 Sentencing Guidelines applied.

(2) Resentencing Guidelines, Amendment 1, effective January 1, 2021, apply to all offenses committed on or after January 1, 2021, but prior to January 1, 2024, for which the 7th Edition, Amendment 6 Sentencing Guidelines applied.

(3) Resentencing Guidelines for the 8th Edition Sentencing Guidelines, effective January 1, 2024, as provided in Chapter 307a (relating to resentencing guidelines for 8th Edition Sentencing Guidelines), apply to all offenses committed on or after January 1, 2024, for which the 8th Edition Sentencing Guidelines applied.

(c) Upon revocation of probation, all sentencing alternatives available to the court at the time of the initial sentence shall be available to the court for resentencing.

(d) In every case in which a court of record imposes a resentence for a felony or misdemeanor, the court shall make as a part of the record and disclose in open court at the time of resentencing, a statement of the reason or reasons for the revocation and for the resentence imposed. In every case where a court of record imposes a resentence outside the Resentencing Guidelines, the reason or reasons for the deviation from the guidelines shall be recorded on the Guideline Sentence Form, a copy of which shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition).

(e) Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software Web Application (SGS Web) shall be used at the court’s direction to report all revocations of probation and related resentences to the Commission. The information shall be electronically submitted to the Commission via SGS Web no later than 30 days after the date of resentencing.

The provisions of this § 307.2 amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5441; amended August 25, 2023, effective January 1, 2024, 53 Pa.B. 5470. Immediately preceding text appears at serial page (411393).

History

Source: The provisions of this Chapter 307 adopted September 6, 2019, effective January 1, 2020, 49 Pa.

204 Pa. Code § 307.3 Procedure for determining the resentencing guidelines.

(a) For a technical violation resulting in the revocation of an order of probation, the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition), with consideration given to any service of the original sentence.

(b) For a conviction violation resulting in revocation of an order of probation, the resentencing guidelines shall begin with the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303, and include consideration of the following:

(1) If the PRS category of the initial sentencing guidelines is PRS 0 through PRS 4, the PRS is increased by one category;

(2) If the PRS category of the initial sentencing guidelines is PRS 5, RFEL, or REVOC, there is no change to the PRS category. Consideration shall be given to any service of the original sentence.

(c) If the revocation of an order of probation is related to both a technical violation and a conviction violation, the resentencing guidelines for the conviction violation apply.

The provisions of this § 307.3 amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5441; amended August 25, 2023, effective January 1, 2024, 53 Pa.B. 5470. Immediately preceding text appears at serial pages (411393) to (411394).

History

Source: The provisions of this Chapter 307 adopted September 6, 2019, effective January 1, 2020, 49 Pa.

204 Pa. Code § 307.4 Resentencing guidelines recommendations.

(a) Prior to resentencing, the Commission recommends the court obtain additional information via a risk-needs assessment or a risk-needs-responsivity assessment to identify any rehabilitative needs that may be addressed in a resentence.

(b) Guidelines resentencing recommendations relating to sentencing level, sentencing programs, aggravated and mitigated circumstances, and economic sanctions shall be the same as those provided for guideline sentence recommendations pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines, 7th edition).

The provisions of this § 307.4 amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5441; amended August 25, 2023, effective January 1, 2024, 53 Pa.B. 5470. Immediately preceding text appears at serial page (411394).

History

Source: The provisions of this Chapter 307 adopted September 6, 2019, effective January 1, 2020, 49 Pa.

Chapter 311 STATE PAROLE RECOMMITMENT RANGES

204 Pa. Code § 311.1 Preliminary provisions.

(a) Authorization.

(1) As authorized by 42 Pa.C.S. § 2154.6 (relating to adoption of recommitment ranges following revocation of parole by board), the Commission shall adopt recommitment ranges that shall be considered by the Board when exercising its power to reparole, commit and recommit for violations of parole any person sentenced by a court in this Commonwealth to imprisonment in any correctional institution.

(i) The recommitment ranges shall take into account:

(A) the seriousness of the initial conviction offense;

(B) the level of seriousness of the violation; and

(ii) At the end of the recommittal period, the parole violator shall be reviewed for parole or, without further review, shall be reparoled.

(b) Definitions. For purposes of this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:

‘‘Aggregated sentence.’’ Two or more consecutive sentences that have been combined whereby the aggregate minimum term is the sum of the consecutive minimum terms and the maximum term is the sum of the consecutive maximum terms.

‘‘At liberty on parole.’’ The period of conditional liberty and freedom from confinement on a particular sentence that a paroled person enjoys during which time the person is in compliance with the terms and conditions of parole.

‘‘Automatic reparole.’’ An immediate release from a State correctional institution, contracted county jail, community corrections center, or community corrections facility based on the date stated on the Board action. Disciplinary infractions result in removal of automatic parole.

‘‘Board.’’ Pennsylvania Parole Board. An independent executive branch agency comprised of nine members appointed by the Governor and confirmed by the Senate for six-year terms. The Board has the responsibility to parole, recommit for violations of parole, and to discharge from parole persons sentenced to confinement in a State facility.

‘‘CCC—community corrections center.’’ A residential facility operated and staffed by the Department of Corrections, Bureau of Community Corrections, to provide supportive, transitional, and accountable reentry by positively influencing individual behavior through professional interactions.

‘‘CCF—community corrections facility or community contracted facility.’’ A residential facility contracted by the Department and operated by a private or public entity to provide supportive, transitional, and accountable reentry by positively influencing individual behavior through professional interactions.

‘‘CCJ—contracted county jail.’’ Secure county facilities contracted by the Department for confinement of convicted persons.

‘‘Commission.’’ Pennsylvania Commission on Sentencing. A criminal justice agency of the General Assembly authorized to adopt guidelines for parole and recommitment ranges following revocation of parole to be considered by the Board.

‘‘Concurrent sentence.’’ Sentences imposed to be served simultaneously or at the same time.

‘‘Consecutive sentence.’’ Sentences imposed to be served one after another. As provided in 42 Pa.C.S. § 9757 (relating to consecutive sentences of total confinement for multiple offenses) and 42 Pa.C.S. § 9762(f) (relating to sentencing proceeding; place of confinement), consecutive confinement sentences shall be aggregated into a single sentence with one minimum term and one maximum term.

‘‘Constructive parole.’’ A grant of parole when an inmate is released from one sentence but remains confined while serving another sentence, rather than being released from confinement.

‘‘Convicted parole violator.’’ A paroled person under the jurisdiction of the Board who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the person is convicted or found guilty by a judge or jury or to which the person pleads guilty or nolo contendere, as provided in 61 Pa.C.S. § 6138(a)(1) and (1.1) (relating to violation of terms of parole).

‘‘Conviction.’’ A finding of guilt or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony offense, whether or not judgement of sentence has been imposed.

‘‘Conviction violation,’’ Commission of a new offense during the period of parole resulting in a conviction, as provided in 61 Pa.C.S. § 6138(a)(1) and (1.1), whether or not judgement of sentence has been imposed. Violations including both technical and conviction violation are considered conviction violations. Also see direct violation.

‘‘Correctional facilities.’’ Secure facilities operated or contracted by the Department including SCI and CCJ.

‘‘Cox hearing.’’ An evidentiary hearing to determine if a paroled person’s stay at a CCC/CCF is the equivalence of incarceration.

‘‘Department.’’ Pennsylvania Department of Corrections. An executive branch agency responsible for operating the state prison system and providing parole supervision of reentrants. Facilities included in statute for recommitment are CCC, CCF, PVC, and SCI.

‘‘Detainer.’’ A written order of the Department to hold a person in custody in a correctional institution pending further legal action.

‘‘Detention hearing.’’ A first-level, probable cause hearing to determine whether there is probable cause that a paroled person should be detained or returned pending disposition of a new criminal charge.

‘‘Direct violation.’’ Commission of a new offense during the period of parole resulting in a conviction, as provided in 61 Pa.C.S. § 6138(a)(1) and (1.1), whether or not judgement of sentence has been imposed. Also see conviction violation.

‘‘Group facilities.’’ Residential facilities operated or contracted by the Department, including CCC and CCF.

‘‘Hearing examiner.’’ An agent of the Board who is empowered to sit on parole revocation panels, conduct parole hearings in lieu of panels, and conduct parole interviews on behalf of the Board.

‘‘Hearing.’’ Includes Cox hearing, detention hearing, preliminary hearing, rescission hearing, revocation hearing and violation hearing.

‘‘Indirect violation.’’ A violation of parole by a breach of the terms and conditions of parole other than the commission of a new criminal offense of which the paroled person is found guilty or pleads guilty or nolo contendere. Also see technical violation.

‘‘Judicial proceeding.’’ A sentencing hearing in which all offenses for which a person is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple dockets and OTNs.

‘‘NV—non-violent offender.’’ A paroled person who is not currently nor was previously convicted of a violent offense, used to determine the parole guidelines and the seriousness of the initial conviction offense for a conviction violation. Also see 204 Pa. Code Chapter 309 (relating to parole guidelines).

‘‘OGS—offense gravity score.’’ An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense, which is used to determine the sentencing level of a new conviction violation offense. Also see 204 Pa. Code Chapter 303a (relating to sentencing guidelines, 8th edition).

‘‘Order of service of sentence.’’ As provided in 61 Pa.C.S. § 6138(a)(5) and (5.1), if a new sentence of confinement is imposed on a convicted parole violator, the service of the balance of the original sentence shall precede the commencement of the service of the new sentence imposed, if the person was paroled from an SCI and is sentenced to an SCI or by a foreign jurisdiction, or the person was paroled from a county jail and is sentenced to the same county jail or by a foreign jurisdiction. Otherwise, the service of the new confinement sentence shall precede the service of the recommitment on the original sentence.

‘‘Original sentence.’’ The sentence resulting from the original conviction. It is from this sentence the Board paroles the inmate and the paroled person serves the remaining time on the street unless recommitted by the Board.

‘‘Panel.’’ A two-member unit of the Board comprised of either two Board Members or one Board Member and one Hearing Examiner, empowered to make parole release decisions and recommitment decisions.

‘‘Parole.’’ The conditional release from confinement of an inmate from a correctional facility, to serve the remainder of the unserved balance of the maximum term in the community under supervision, as long as the paroled person satisfactorily complies with all terms and conditions provided in the parole order. There is no right to parole in this Commonwealth.

‘‘Parole decision.’’ A decision by the Board to grant parole or refuse to grant parole.

‘‘Parole violation.’’ A finding following a hearing that the paroled person failed to comply with terms and conditions of parole.

‘‘Parole violator.’’ A person under parole supervision in the community who commits a technical violation or conviction violation. Also see convicted parole violator and technical parole violator.

‘‘PVC—parole violator centers.’’ Secure facilities operated or contracted by the Department to address violation behavior, which may be located at correctional facilities or group facilities. A CCC or CCF may be used for technical parole violators to provide immediate treatment and programming to address violation behavior using a Community Based Life Skills program. Participation is for a maximum period of six months with automatic reparole. An SCI or CCJ may be used for technical parole violators who are not eligible to be placed in a CCC or CCF to receive the treatment and programming otherwise provided in a CCC or CCF.

‘‘Preliminary hearing.’’ A first-level, probable cause hearing to determine whether there is probable cause to believe that a paroled person has committed a violation of a condition of parole.

‘‘Recommitment range.’’ A recommended range of time for which a parole violator may be recommitted, to serve all or part of the unserved balance of the sentence for which the person was paroled, based on the seriousness of the initial conviction, the seriousness of the violation, and the rehabilitative needs of the person.

‘‘Rescission.’’ The revocation of a grant of parole based upon an inmate’s conduct occurring prior to release on parole which conduct is unknown to the Board at the time parole was granted.

‘‘Rescission hearing.’’ A hearing to decide whether there is good cause for rescinding parole.

‘‘Revocation.’’ A decision to revoke parole and to recommit a paroled person after a revocation or violation hearing.

‘‘Revocation hearing.’’ A second-level, fact-finding hearing held by the Board to determine whether a paroled person violated the terms and conditions of parole and, if so, should be recommitted as a convicted parole violator.

‘‘SCI—State correctional institution.’’ Secure facilities maintained by the Department for confinement of convicted persons, classified into four security levels: minimum, medium, close, and maximum; and including special facilities for diagnostics and classification, substance abuse treatment, psychiatric care and treatment, capital case inmates, and a motivational boot camp.

‘‘Sentencing guidelines application.’’ A JNET web-based application developed and operated by the Commission and required to be used for the preparation of sentencing guidelines, sentence risk assessment instruments, and resentencing guidelines, and for the electronic reporting of all required information to the Commission.

‘‘Sentencing level.’’ A category of offense gravity scores, provided in the 8th Edition Sentencing Guidelines, which is used to determine the recommitment ranges of a new conviction violation offense. Also see 204 Pa. Code Chapter 303a (relating to sentencing guidelines, 8th edition).

‘‘Technical parole violator.’’ A paroled person under the jurisdiction of the Board who violates the terms and conditions of parole, other than by the commission of a new crime of which the person is convicted or found guilty by a judge or jury or to which the person pleads guilty or nolo contendere, as provided in 61 Pa.C.S. § 6138(c).

‘‘Technical violation.’’ Failure to comply with the terms and conditions of parole, other than by the commission of a new offense of which the paroled person is convicted. Also see technical parole violation. Also see indirect violation.

‘‘Unexpired term.’’ The period of time the person has remaining on the unserved portion of the person’s original sentence.

‘‘V—violent offender.’’ A designation used in the parole guidelines, based on a current or previous conviction for an offense identified in 42 Pa.C.S. § § 9714(g), 9718.1 and 9799.14 (relating to sentences for second and subsequent offenses; sexual offender treatment; and sexual offenses and tier system), or for an offense otherwise designated by the Board as a violent offense. Also see 204 Pa. Code Chapter 309 (relating to parole guidelines).

‘‘Violation hearing.’’ A second-level, fact-finding hearing held by the Board to determine whether a paroled person violated the terms and conditions of parole and, if so should be recommitted as a technical parole violator.

History

Source: The provisions of this Chapter 311 added August 25, 2023, effective January 1, 2024, 53 Pa.

204 Pa. Code § 311.2 Parole violator recommitment range standards.

(a) The Board shall consider recommitment ranges in determining the recommitment time recommended for technical and convicted parole violators.

(b) In every case in which the Board deviates from the recommitment ranges, the Board shall provide a contemporaneous written statement of the reasons for the deviation from the recommitment ranges to the Commission as established under 42 Pa.C.S. § 2153(a)(14) (relating to powers and duties of commission).

(d) The recommitment ranges shall apply to all State parole violation hearings initiated on or after January 1, 2024. Amendments to the recommitment ranges shall apply to all State parole violation hearings initiated on or after the effective date of the amendment to the recommitment ranges.

(e) Unless otherwise provided by the Commission, the sentencing guidelines application shall be used by the Board to do the following:

(1) Provide required information on the violation used to determine the recommended recommitment range.

(2) Provide details on the recommitment order, including the type of facility (i.e., correctional facility, group facility and/or parole violator center) and the duration of the recommitment.

(3) Report the date of recommitment and date of eligibility for re-parole or automatic reparole.

(4) Attach a copy of the completed State Parole Guidelines Form, as provided in § 309.5 (relating to State Parole Guidelines Form), used to report the grant of parole.

This section cited in 204 Pa. Code § 311.3 (relating to procedure for determining parole violator recommitment range).

History

Source: The provisions of this Chapter 311 added August 25, 2023, effective January 1, 2024, 53 Pa.

204 Pa. Code § 311.3 Procedure for determining parole violator recommitment range.

(a) For each parole recommitment of a paroled person under the jurisdiction of the Board, the procedure for determining the recommended recommitment range is as follows:

(1) Determine if the paroled person is a technical parole violator or a convicted parole violator:

(i) A technical parole violator is a paroled person under the jurisdiction of the Board who violates the terms and conditions of parole, other than by the commission of a new crime of which the person is convicted or found guilty by a judge or jury or to which the person pleads guilty or nolo contendere, as provided in 61 Pa.C.S. § 6138(c) (relating violation of terms of parole).

(ii) A convicted parole violator is a paroled person under the jurisdiction of the Board who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the person is convicted or found guilty by a judge or jury or to which the person pleads guilty or nolo contendere, as provided in 61 Pa.C.S. § 6138(a).

(2) Consider the recommitment ranges as follows:

(i) For a technical parole violator, consider the recommendations provided in § 311.6(a) (relating to table 1—technical parole violator recommitment ranges) in Table 1, based on the following:

(A) Determine if the paroled person is a violent offender, as provided in the parole guidelines, based on a current or previous conviction for an offense identified in 42 Pa.C.S. § § 9714(g), 9718.1 and 9799.14 (relating to sentences for second and subsequent offenses; sexual offender treatment; and sexual offenses and tier system), or for an offense otherwise designated by the Board as a violent offense.

(B) Determine if the paroled person is being recommitted to a correctional facility, as provided in 61 Pa.C.S. § 6138(d), or to a group facility or parole violator center, as provided in 61 Pa.C.S. § 6138(e), and the number of recommitments to a correctional facility.

(D) Identify the recommended recommitment range.

(ii) For a convicted parole violator, consider the recommendations provided in § 311.6(b) (relating to table 2—convicted parole violator recommitment ranges) in Table 2, based on the following:

(A) Determine if the paroled person is a violent offender, as provided in the parole guidelines based on a current or previous conviction for an offense identified in 42 Pa.C.S. § § 9714(g), 9718.1 and 9799.14, or for an offense otherwise designated by the Board as a violent offense.

(B) Determine the offense gravity score and the corresponding sentencing level of the most serious new conviction offense.

(b) Consider any aggravating and mitigating circumstances, including progress on parole prior to revocation and the rehabilitative needs of the paroled person, when determining the duration of recommitment and prescribed treatment and programming.

(c) Determine the recommitment period, and report the decision, reasons for deviation, and other required information to the Commission, as provided in § 311.2 (relating to parole violator recommitment range standards).

History

Source: The provisions of this Chapter 311 added August 25, 2023, effective January 1, 2024, 53 Pa.

204 Pa. Code § 311.4 Technical parole violator recommitment ranges.

(a) General provisions.

(1) Recommitment ranges shall be considered by the Board when a paroled person violates a general or specific condition of parole and the Board orders recommitment as a technical parole violator after the necessary violation hearing(s).

(2) The Board shall determine if any of the following specified violation conditions, as provided in 61 Pa.C.S. § 6138(c)(1.3) (relating to violation of terms of parole), are present:

(i) Violation was sexual in nature.

(ii) Violation involved assaultive behavior or included a credible threat to cause bodily injury to another.

(iii) Violation involved possession or control of a weapon.

(iv) The paroled person absconded and cannot be safely diverted to a community corrections center, community corrections facility, or any secured facility operated or contracted by the Department.

(v) An identifiable threat exists to public safety and the paroled person cannot be safely diverted to a community corrections center, community corrections facility, or any secured facility operated or contracted by the Department.

(vi) The violation involved an intentional and unexcused failure to adhere to recommended programming or conditions on more than three occasions, and the paroled person cannot be safely diverted.

(3) As provided in 61 Pa.C.S. § 6138(c)(1), unless the Board determines a specified violation condition is present, a technical parole violator shall be committed to a group facility or parole violator center, and the following shall apply:

(i) The Board shall consider the applicable recommitment ranges described in subsection (b).

(ii) Except as provided in subparagraph (iii), a technical parole violator shall be recommitted, as provided in 61 Pa.C.S. § 6138(e), for a maximum period of six months, after which the person shall automatically be reparoled without further action by the Board.

(iii) The maximum period of recommitment and automatic reparole shall not be applicable to a paroled person if any of the following apply:

(A) Commits a disciplinary infraction involving assaultive behavior, sexual assault, a weapon, or a controlled substance.

(B) Spends more than 61 days in segregated housing due to one or more disciplinary infractions.

(D) Is not in compliance with all legal requirements applicable to the paroled person, including but not limited to, maintaining registration in any applicable sex offender registry.

(4) As provided in 61 Pa.C.S. § 6138(c)(1.3), when the Board determines that one or more specified violation conditions are present, a technical parole violator shall be committed to a correctional facility, and the following shall apply:

(i) The Board shall consider the applicable recommitment ranges described in subsection (b).

(ii) Except as provided in subparagraph (iii), a technical parole violator shall be recommitted, as provided in 61 Pa.C.S. § 6138(d), for a maximum period as described below, after which the person shall automatically be reparoled without further action by the Board:

(A) For the first recommitment, a technical parole violator shall serve not more than six months.

(B) For the second recommitment for the same sentence, a technical parole violator shall serve not more than nine months.

(C) For the third and subsequent recommitment for the same sentence, a technical parole violator shall serve not more than one year.

(iii) The maximum period of recommitment and automatic reparole shall not be applicable to a paroled person if any of the following apply:

(A) Committed a disciplinary infraction involving assaultive behavior, sexual assault, a weapon, or a controlled substance.

(B) Spent more than 90 days in segregated housing due to one or more disciplinary infractions.

(b) Specific provisions.

(1) Technical violator recommitment ranges are to be considered by the Board in the exercise of its discretion, while accounting for the following factors:

(i) The seriousness of the initial conviction offense. Seriousness is based on the determination under the State parole guidelines whether the paroled person is designated as a violent offender or non-violent offender.

(ii) The type of facility to which the paroled person is being recommitted. Type of facility includes a correctional facility, as provided in 61 Pa.C.S. § 6138(d), and a group facility or parole violator center, as provided in 61 Pa.C.S. § 6138(e).

(iii) The number of recommitments for the same sentence. When recommitted to a correctional facility, the maximum period of a recommitment is determined by the number of recommitments, as provided in 61 Pa.C.S. § 6138(d)(3). For recommitment to a group facility or parole violator center, the maximum period is six months, notwithstanding the number of recommitments for the same sentence, as provided in 61 Pa.C.S. § 6138(e)(2).

(iv) Any disciplinary infractions committed by the paroled person. The time limits and automatic reparole provided in statute are not applicable in the case of a person who commits certain disciplinary infractions, and separate recommitment recommendations are provided. The types of disciplinary infractions in a correctional facility are provided in 61 Pa.C.S. § 6138(d)(5); the types of disciplinary infractions in a group facility or parole violator center are provided in 61 Pa.C.S. § 6138(e)(3).

(v) The time required to receive treatment and programming to meet the rehabilitative needs of the paroled person. The corrective programming required to address the needs of the paroled person associated with the recommitment, which begins after a hearing or waiver of a hearing, may require a recommitment period shorter or longer than the recommended recommitment range.

(2) The technical parole violator recommitment ranges, as described below, are provided in § 311.6(a) (relating to table 1—technical parole violator recommitment ranges) in Table 1.

(i) When applied to persons recommitted to group facilities or parole violator centers:

(A) The recommended recommitment range for a non-violent offender placed in a group facility or parole violator center, except for those with disciplinary infractions, is a range of time served to six months. Reparole is automatic without further action by the Board.

(B) The recommended recommitment range for a violent offender placed in a group facility or parole violator center, except for those with disciplinary infractions, is a range of three months to six months. Reparole is automatic without further action by the Board.

(C) The recommended recommitment range for a person placed in a group facility or parole violator center with disciplinary infractions is a maximum of 12 months. Reparole requires action by the Board.

(ii) When applied to persons recommitted to correctional facilities:

(A) The recommended recommitment range for a non-violent offender placed in a correctional facility, except for those with disciplinary infractions, for a first violation is a range of time served to six months; for a second violation a range of time served to nine months; and for a third or subsequent violation is a range of time served to 12 months. Reparole is automatic without further action by the Board.

(B) The recommended recommitment range for a violent offender placed in a correctional facility, except for those with disciplinary infractions, for a first violation is a range of three to six months; for a second violation a range of six to nine months; and for a third or subsequent violation is a range of nine to 12 months. Reparole is automatic without further action by the Board.

(C) The recommended recommitment range for a person with disciplinary infractions placed in a correctional facility is a maximum of 12 months for a first violation; a maximum of 18 months for a second violation; and a maximum of 24 months for a third or subsequent violation. Reparole requires action by the Board.

(3) Determine the recommitment period and provide reasons if a deviation from the recommitment ranges.

History

Source: The provisions of this Chapter 311 added August 25, 2023, effective January 1, 2024, 53 Pa.

204 Pa. Code § 311.5 Convicted parole violator recommitment ranges.

(a) General provisions.

(1) Recommitment ranges shall be considered by the Board when a paroled person is convicted of a new offense committed while on parole and the Board orders recommitment as a convicted parole violator after the necessary violation hearing(s).

(2) As provided in 61 Pa.C.S. § 6138(a) (relating to violation of terms of parole), the Board may, at its discretion, revoke the parole of a paroled person convicted of a crime committed while on parole, and including certain enumerated summary offenses.

(i) If the paroled person’s parole is revoked, the person shall be recommitted to a correctional facility to serve the remainder of the term which the person would have been compelled to serve had the parole not been granted, and the Board shall determine whether any credit shall be granted for time at liberty on parole.

(ii) The Board may, in its discretion, reparole a convicted parole violator whenever the best interests of the person justify or require the person’s release on parole and it does not appear that the interests of the Commonwealth will be injured.

(iii) The period of time for which the paroled person is required to serve shall be computed by the Board.

(3) The Board shall consider the applicable recommitment ranges described in subsection (b).

(b) Specific provisions.

(1) Convicted violator recommitment ranges are to be considered by the Board in the exercise of its discretion, while accounting for the following factors:

(i) The seriousness of the initial conviction offense. Seriousness is based on the determination under the State parole guidelines whether the person is designated as a violent offender or non-violent offender.

(ii) The level of seriousness of the new conviction offense. The seriousness of the new conviction offense is determined by identifying the highest OGS assignment under the 8th Edition Sentencing Guidelines of all new conviction offenses, and then determining the corresponding sentencing level for that offense. For out-of-State convictions, the current equivalent offense under the 8th Edition Sentencing Guidelines applies. Summary offenses are assigned the lowest offense gravity score (OGS 1) and the corresponding sentencing level (Level A). Murder of the first degree and murder of the second degree are assigned the highest offense gravity scores (OGS H-1 through OGS H-6) and the corresponding sentencing level (Level H).

(iii) The time required to receive treatment and programming to meet the rehabilitative needs of the paroled person. The corrective programming required to address the needs of the paroled person associated with the recommitment, which begins after a hearing or waiver of a hearing, may require a recommitment period shorter or longer than the recommended recommitment range.

(2) The convicted parole violator recommitment ranges, as described below, are provided in § 311.6(b) (relating to table 2—convicted parole violator recommitment ranges) in Table 2.

(i) The recommended recommitment range for a non-violent offender placed in a correctional facility shall be:

(A) When the most serious new conviction offense is Level A (OGS 1—OGS 3), a range of one to six months.

(B) When the most serious new conviction offense is Level B (OGS 4—OGS 7), a range of six to 12 months.

(D) When the most serious new conviction offense is Level D (OGS 13—OGS 16), a range of 18 to 30 months.

(E) When the most serious new conviction offense is Level E (OGS 17—OGS 26), a range of 24 to 36 months.

(F) When the most serious new conviction offense is Level F (OGS 27—OGS 30), a range of 48 months to the unserved balance of the sentence from which the person was paroled.

(G) When the most serious new conviction offense is Level G (OGS G-1 and OGS G-2), a range of 48 months to the unserved balance of the sentence from which the person was paroled.

(H) When the most serious new conviction offense is Level H (OGS H-1—OGS H-6), the range is limited to the unserved balance of the sentence from which the person was paroled.

(ii) The recommended recommitment range for a violent offender placed in a correctional facility shall be:

(A) When the most serious new conviction offense is Level A (OGS 1—OGS 3), a range of one to six months.

(B) When the most serious new conviction offense is Level B (OGS 4—OGS 7), a range of six to 12 months.

(D) When the most serious new conviction offense is Level D (OGS 13—OGS 16), a range of 24 to 36 months.

(E) When the most serious new conviction offense is Level E (OGS 17—OGS 26), a range of 36 to 48 months.

(F) When the most serious new conviction offense is Level F (OGS 27—OGS 30), a range of 60 months to the unserved balance of the sentence from which the person was paroled.

(G) When the most serious new conviction offense is Level G (OGS G-1 and OGS G-2), a range of 60 months to the unserved balance of the sentence from which the person was paroled.

(H) When the most serious new conviction offense is Level H (OGS H-1—OGS H-6), the range is limited to the unserved balance of the sentence from which the person was paroled.

(iii) When the Board determines that one or more aggravating circumstances are present, the Board may consider a recommitment period:

(A) For Level A (OGS 1—OGS 3), up to three months longer than the upper limit of the recommitment range.

(B) For Level B (OGS 4—OGS 7), up to six months longer than the upper limit of the recommitment range.

(D) For Level D (OGS 13—OGS 16), up to 12 months longer than the upper limit of the recommitment range.

(E) For Level E (OGS 17—OGS 26), up to 12 months longer than the upper limit of the recommitment range.

(iv) When the Board determines that one or more mitigating circumstances are present, the Board may consider a recommitment period:

(A) For Level B (OGS 4—OGS 7), up to six months shorter than the lower limit of the recommitment range.

(B) For Level C (OGS 8—OGS 12), up to six months shorter than the lower limit of the recommitment range.

(D) For Level E (OGS 17—OGS 26), up to 12 months shorter than the lower limit of the recommitment range.

(E) For Level F (OGS 27—OGS 30), up to 24 months shorter than the lower limit of the recommitment range.

(F) For Level G (OGS G-1 and OGS G-2), up to 24 months shorter than the lower limit of the recommitment range.

(3) Determine the recommitment period and provide reasons if an aggravated or mitigated duration or deviation from the recommitment ranges.

History

Source: The provisions of this Chapter 311 added August 25, 2023, effective January 1, 2024, 53 Pa.

204 Pa. Code § 311.6 Parole violator tables.

TS = time served

N/A = not applicable

This section cited in 204 Pa. Code § 311.3 (relating to procedure for determining parole violator recommitment range); 204 Pa. Code § 311.4 (relating to technical parole violator recommitment ranges); and 204 Pa. Code § 311.5 (relating to convicted parole violator recommitment ranges).

History

Source: The provisions of this Chapter 311 added August 25, 2023, effective January 1, 2024, 53 Pa.

Part IX ACCESS TO JUSTICE ACT REGULATIONS

Chapter 401 ELIGIBILITY REGULATIONS APPLICABLE TO ACCESS TO JUSTICE ACT FUNDING

204 Pa. Code § 401.1 Definitions of Terms.

‘‘Act’’ means the Access to Justice Act, Title 42, Chapter 49 of the Pennsylvania Consolidated Statutes, and as it may be amended.

‘‘Applicant’’ is the person who voluntarily requests legal assistance, or on whose behalf service is requested. The Applicant is the determining factor in defining ‘‘individual or family status’’ for eligibility determination purposes.

‘‘Fee-generating case’’ means any case or matter which, if undertaken on behalf of a client by an attorney in private practice, reasonably may be expected to result in a fee for legal services from an award to a client, from public funds, or from the opposing party.

‘‘Eligible Legal Services Provider’’ is a not-for-profit entity incorporated in this Commonwealth, tax exempt under section 501(c)(3) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 501(c)(3)), or any successor provision, which operates within this Commonwealth for the primary purpose of providing civil legal services without charge, and which operates to provide such civil legal services to eligible clients and victims of abuse under contract or subcontract with the Department of Public Welfare for the expenditure of funds appropriated by the General Assembly for the provision of legal services.

‘‘Emancipated Minor’’

(a) An emancipated minor is a person under 21 years of age (irrespective of whether he/she is receiving services designed for adults or children) who either:

(1) is married, whether he/she lives within, or away from, his/her parent’s household; or

(2) has left the parental household or has established himself/herself as a separate entity within the parental household; and

(i) is acting for himself/herself independent of control by his/her parents, or persons acting as loco parentis; and

(ii) is financially independent of his/her parents, although he/she may be receiving financial assistance or benefits to which he/she is entitled in his/her own right.

(b) An unmarried minor who, after living outside the parental household, returns to live with his/her parents or someone acting in loco parentis, is no longer considered emancipated unless he/she remains independent of control by his/her parents or someone acting in loco parentis, and is financially independent of them although he/she may be receiving financial assistance or benefits in his/her own right.

‘‘Family’’

(a) A family is one or more adults and unemancipated minor children, if any, who are related by blood or law, and who reside in the same household.

A Family includes:

(1) one person and his/her unemancipated minor children (natural and adoptive) who reside in the same household;

(2) two persons in a marriage or common law relationship who reside in the same household;

(3) two persons in a marriage or common law relationship and their joint unemancipated minor children (natural and adoptive) who reside in the same household;

(4) two persons in a marriage or common law relationship and their joint unemancipated minor children (natural and adoptive) and the unemancipated minor children (natural and adoptive) of either/both persons who reside in the same household.

(5) two persons who are residing together with a child(ren) in common.

(b) A pregnant woman shall be counted as one person in the determination of family size.

(c) A man and woman who are legally free to marry, who agree to live together as husband and wife without benefit of a marriage license, and both publicly and privately consider themselves married are regarded as living in a common law relationship.

(d) A person defined as ‘‘Individual’’ is not included in a family grouping.

(e) A person may choose to count as a family member any other person(s) residing in the same household who is claimed by that person as a tax dependent.

‘‘Criminal proceeding’’ means the adversary judicial process initiated by a formal complaint, information, or indictment charging a person with an offense denominated ‘‘criminal’’ by applicable law and punishable by death, imprisonment, a jail sentence, or a fine.

‘‘Individual’’ is any of the following:

(a) an emancipated minor;

(b) an unemancipated minor living with persons other than his/her natural or adoptive parents;

(d) an adult who resides alone;

(e) an adult who resides with another related or unrelated adult, other than persons who are married including those living in a common law relationship.

‘‘Legal Assistance’’ means the provisions of any legal services consistent with the Rules of Professional Conduct of the Supreme Court of Pennsylvania and with the purposes and provisions of the Act.

‘‘Lobbying Activities’’ are any efforts to influence Federal, State or local legislative or administrative action, including, but not limited to, activities intended to influence the issuance, amendment or revocation of any executive or administrative order or regulation of a Federal, State or local agency, or to influence the introduction, amendment, passage or defeat of any legislation by the Congress of the United States or by any State or local legislative body.

‘‘Recipient’’ means an eligible Legal Services Provider that receives a grant of funds derived from the Act.

‘‘Telephone Advice and Brief Service’’ means civil legal assistance provided to eligible Applicants by Recipients through a telephone service system which provides legal advice, information and brief services at or near the time an eligible Applicant contacts the Recipient. Such telephone service systems are often referred to as ‘‘helplines’’ or ‘‘hotlines.’’ Legal assistance provided through these systems is limited to advice and counsel, brief services, and referral after legal assessments when such activities are likely to address the problem without the need for in-person initial contact and within a short time from the contact by the eligible Applicant.

204 Pa. Code § 401.2 Application for Legal Assistance.

(a) An individual eligibility determination requires completion of a dated application form containing information which enables the Recipient to determine an Applicant’s eligibility to receive the requested service.

(b) A written application is not required for general non-legal information and referral service.

(c) Application forms for extended services and in-person advice and brief services must be signed by the Applicant. The application form need not be signed by the Applicant for telephone advice and brief services.

(d) The application form must be completed by the Recipient from the information given by the Applicant, his/her authorized representative, or, by someone, including Recipient’s staff, acting responsibly for the Applicant if he/she is physically incapable of completing an application form, or in an emergency situation.

(e) The Recipient shall ensure that the Applicant, or the person responsible for giving the information, receives all the help necessary to provide accurate and complete information. Arrangements must be made for an interpreter to assist non-English speaking, deaf, and visually handicapped Applicants, on an as-needed basis in those individual cases for whom no alternative methods for communication can be substituted effectively.

(f) Individual eligibility determinations are made using the declaration method. The declaration method is the acceptance of an Applicant’s statements that he/she meets the applicable eligibility criteria. This does not preclude the requirement to obtain documentation when needed to comply with requirements of funding sources of the grant Recipient organization. Documentation also can be required and obtained if there is substantial reason to doubt the accuracy or completeness of the information provided by the Applicant, but such documentation must be obtained in a manner that promotes the development of trust between the attorney and client.

204 Pa. Code § 401.3 Eligibility Criteria.

Those financially eligible for civil legal assistance are:

(a) applicants whose family monthly gross income does not exceed 125% of the Federal Poverty Guidelines, as published annually in the Federal Register by the Department of Health and Human Services, adjusted according to family size.

(b) The Commonwealth of Pennsylvania authorizes the issuance of medical assistance based upon the combination of income and certain public policy circumstances. When an Applicant has a current medical access card for a category for which eligibility is based upon 125% of poverty income, no additional eligibility determination is needed for legal assistance.

(c) The Applicant must be a resident of Pennsylvania. No requirements as to citizenship or length of residence in the State may be imposed as a condition of eligibility. Temporary absences from Pennsylvania, with subsequent returns, or with a plan to return when the purpose of the absence, such as a trip or a visit, has been accomplished, do not interrupt residence. Out-of-State students and foreign students who are living in Pennsylvania while attending an education or job-training institution in Pennsylvania are considered residents of Pennsylvania. Migrant workers who are seasonally employed or seeking seasonal employment in Pennsylvania are considered residents of Pennsylvania.

(d) Legal assistance may be provided without regard to income when the Applicant is in need of protective services under the Protection from Abuse Act.

(e) Authorized Exceptions to Income Eligibility. The governing body of the recipient may adopt policies for the provision of legal assistance under the Act to an applicant whose family, monthly gross income, does not exceed 150 percent of the 125% of poverty eligibility income level (i.e. 187.5% of poverty income level). The determination of family, monthly gross income shall be made pursuant to the income inclusions and exclusions defined within Sections 401.4 and 401.5 except that the definition of medical expenses is modified as included below in (f)(2). When a recipient’s policies provide for authorized exceptions to income eligibility, legal assistance can be provided when:

(1) The Applicant’s circumstances require that eligibility should be allowed on the basis of one or more of the factors set forth in Section 401.3(f); or

(2) The person is seeking legal assistance to secure benefits provided by a governmental program for the poor.

In the event that a recipient determines to serve a person whose family, monthly gross income exceeds 125% of poverty, the factual basis for the decision shall be documented and retained by the recipient.

(f) Factors which shall be used in the determination of the eligibility of clients over the 125% of poverty income level shall include:

(1) Current income prospects, taking into account seasonal variations in income;

(2) Medical expenses, and in exceptional instances, with the prior, written approval of the Recipient’s project director based on written documentation received by the recipient and available for review, if an Applicant’s family, monthly gross income is primarily committed to medical or nursing home expenses, a person may be served even if that person’s gross income exceeds 187.5 percent of the poverty income eligibility level;

(3) Fixed debts and obligations, including unpaid Federal, state and local taxes from prior years;

(4) Child care, transportation, and other expenses necessary for employment;

(5) Expenses associated with age or physical infirmity of resident family members; and

(6) Other significant factors related to financial inability to afford legal assistance.

(g) A Recipient may provide legal assistance to a group, non-profit corporation, association or other entity if the Recipient has determined that the group, non-profit corporation or association or other entity lacks and has no practical means of obtaining private counsel in the matter for which representation is sought and:

(1) at least a majority of the group’s members are financially eligible for legal assistance; or

(2) for a non-membership group, at least a majority of the individuals who are forming or operating the group are financially eligible for legal assistance; or

(3) the group has as its principal function or activity the delivery of services to those persons in the community who would be financially eligible for legal assistance; or

(4) the group has as its principal function or activity the furtherance of the interests of those persons in the community who would be financially eligible for legal assistance and the representation sought relates to such function or activity.

In order to make a determination that a group, non-profit corporation, association or other entity is eligible for legal services as required by paragraph (a) of this section, a recipient shall collect information that reasonably demonstrates that the group, corporation, association or other entity meets the eligibility requirements set forth herein.

204 Pa. Code § 401.4 Income Inclusions.

The sources of income to be included in determining the total monthly gross income are:

(a) money wages or salary earned by individuals 14 years of age or older before deductions for taxes, social security, bonds, pensions, union dues, health insurance, and similar purposes for work performed as an employee including commissions, tips, piece-rate payments, and cash bonuses;

(b) Armed Forces pay which includes base pay plus cash housing and/or subsistence allowances, but does not include the value of rent-free quarters;

(d) voluntary or court-ordered child support;

(e) net income from non-farm self employment, defined as gross receipts minus expenses from one’s own business, professional enterprise, or partnership. Gross receipts include the value of all goods sold and service rendered. Business expenses include costs of goods purchased, rent, heat, light, power, depreciation charges, wages and salaries paid, business taxes (no personal income taxes), and similar expenses. Inventory changes may be considered in determining net income only when they are documented by income tax returns or other official records which reflect inventory changes. The value of marketable merchandise consumed by the proprietors of retail stores is not included as part of net income;

(f) net income from farm self-employment, defined as gross receipts minus operating expenses from the operation of a farm by a person on his/her own account, as an owner, renter, or share-cropper. Gross receipts include the value of all products sold, government subsidies—crop loans, money received from the rental of farm equipment to others, and incidental receipts from the sale of wood, sand gravel and similar items. Operating expenses include the cost of feed, fertilizer, seed, and other farming supplies, cash wages paid to farm hands, depreciation charges, cash rent, interest on farm mortgages, farm building repairs, farm taxes (not State and Federal income taxes), and similar expenses. The value of fuel, food, or other farm products used for family living is not included as part of net income. Inventory changes may be considered in determining net income only when they are documented by income tax returns or other official records which reflect inventory changes;

(g) net income from non-resident real property income, defined as gross receipts minus the expenses for continuing the income such as depreciation charges, business taxes (not personal income taxes), interest on mortgage, repairs, and similar expenses;

(h) Social Security pensions, survivors’ benefits, permanent disability insurance payments, and special benefit payments made by the Social Security Administration before deductions of health insurance premiums;

(i) Railroad retirement, disability, and survivors’ benefit payments made by the U.S. Government under the Railroad Retirement Act before deductions of health insurance premiums;

(j) State Blind Pension payments made by the Department of Public Welfare;

(k) Public assistance or welfare payments such as General Assistance, SSI and State Supplemental payments, only when the person is not the Applicant;

(l) private pension and annuities, including retirement benefits paid to a retired person or his/her survivors by a former employer or by a union, either directly or though an insurance company;

(m) government employee pensions received from retirement pensions paid by Federal, State, County, or other governmental agencies to former employees including members of the Armed Forces or their survivors;

(n) unemployment compensation received from government unemployment agencies or private companies during periods of unemployment and any strike benefits received from union funds;

(o) worker’s compensation received from private or public insurance companies for injuries incurred at work. The cost of this insurance must have been paid by the employer and not by the worker;

(p) Veterans payments, defined as money paid periodically by the Veterans Administration to disabled members of the Armed Forces or to the survivors of deceased veterans, and subsistence allowances, paid to veterans for education and on-the-job training, as well as the so-called ‘‘refunds’’ paid to ex-service persons as GI insurance premiums. The two basic educational programs sponsored by the Veterans Administration are the G.I. Bill Educational Training Program and the VA Vocational Rehabilitation Program. There is a different method for providing funds to veterans in these programs. The veteran in G.I. Bill Education Training Program receives a monthly sum which may be used totally for education or subsistence, or partially for education and partially for subsistence. The VA calls this monthly sum a ‘‘rate.’’ Therefore, all the money received by the G.I. Bill veteran is counted as income. The Veteran in a VA Vocational Rehabilitation Program receives what the VA calls a ‘‘subsistence allowance’’ and the VA itself handles the educational costs directly. Therefore, for the disabled veteran in the Vocational Rehabilitation Program, the subsistence allowance and the veteran’s disability allowance are counted as income;

(q) dividends including dividends from stockholdings or memberships in associations;

(r) interest on savings, checking accounts and bonds;

(s) income from estates and trust funds;

(t) net income from royalties;

(u) net income from room and board payments, paid singly or in combination, and for rent from apartments, determined by deducting the sum of (1) and (2) from the total gross receipts.

(1) Deductions for minimal costs:

(i) $10 per month for each tenant (lone person) or tenant group (two or more persons living together as a family normally would) whose rent arrangements with the landlord/landlady are independent of other persons, or

(ii) $20 per month for each boarder, or

(iii) $30 per month for each separate tenant-boarder (person not included in (a) or (b) above) whose rent and board arrangements with the landlord/landlady are independent or other persons.

(iv) $30 per month for the first person and $20 per month for each additional person in a tenant-boarder group (persons not included in (a), (b), or (c) above) whose joint rent and board arrangements with the landlord/ landlady are independent of other persons, and;

(2) The following amount is deducted to recognize costs above the minimum: 50% of the remainder after the deduction in (1).

204 Pa. Code § 401.5 Income Exclusions.

Sources of income not counted in determining monthly gross income and income exclusions are:

(a) earnings of a child under 14 years of age;

(b) any medical expense not reimbursed through medical insurance which exceeds 10% of the total family monthly gross income. The medical expense must have been incurred within 90 days from the date of the application and be expected to continue or be incurred for a period of six months after the application. Medical expenses include bills for doctors, hospital costs, dental services, and health care premiums;

(c) voluntary or court-ordered child support paid out by the Primary Recipient or a member of his/her family to a present or former spouse not residing in the same household;

(d) voluntary or court-ordered child support paid out by the Primary Recipient or a member of his/her family for his/her child who is not residing in the same household;

(e) payments made pursuant to the Alaska Native Claims Settlement Act, to the extent that such payments are exempt from taxation under Section 21(a) of the Act;

(f) per capital payment to, or funds held in trust for, any individual in satisfaction or judgment of the Indian Claims Commission or the court of claims;

(g) money received from the sale of property, such as stocks, bonds, a house, or a car unless the person was engaged in the business of selling such property, in which case the net proceeds would be counted as income from self-employment;

(h) withdrawals of bank deposits;

(i) money borrowed;

(j) tax refunds including tax rebate from any source;

(k) gifts;

(l) lump sum inheritances or insurance payments;

(m) lump sum lottery winnings;

(n) capital gains;

(o) the value of the coupon allotment under the Food Stamp Act of 1964, as amended, in excess of the amount paid for the coupons;

(p) the value of USDA donated foods;

(q) the value of supplemental foods assistance under the child Nutrition Act of 1966 and the special food service programs of children under the National School Lunch Act, as amended;

(r) loans and grants, such as scholarships, obtained and used under conditions that preclude their use of current living costs;

(s) any grant or loan, to an under-graduate student for education purposes, made or insured under any program administered by the Commissioner of Education under the Higher Education Act;

(t) any payment received under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;

(u) any home produce used for household consumption;

(v) the value of rent-free quarters;

(w) any payment made on behalf of any individual for household expenses such as rent, food, utilities;

(x) payments to VISTA volunteers pursuant to Section 404(g) of the Domestic Assistance Act of 1973;

(y) any payments to vendors by a State agency including foster care payments;

(z) payments made to an institution by an Applicant’s relative or other person for the costs of institutional care for the Applicant; and

(aa) stipends derived from the Foster Grandparents Programs under P. L. 93-113, Section 404(9).

204 Pa. Code § 401.6 Change in Circumstances.

If an eligible client becomes financially ineligible through a change in circumstances, a Recipient shall discontinue representation if the change in circumstances is sufficiently likely to continue such that the client could afford private legal assistance, and discontinuation is not inconsistent with the attorney’s professional responsibilities.

204 Pa. Code § 401.7 Grievance Procedure.

(a) Complaints about legal assistance.

(1) A Recipient shall establish procedures for determining the validity of a complaint about the manner or quality of legal assistance that has been rendered.

(2) The procedures shall provide at least:

(i) Information to a client at the time of the initial visit about how to make a complaint, and

(ii) Prompt consideration of each complaint by the director of the Recipient, or the director’s designee, and, if the director of the Recipient is unable to resolve the matter,

(iii) An opportunity for complainant to submit an oral and written statement to a member(s) of the Recipient’s grievance committee established by the governing body, preferably a board member who is himself/herself client eligible.

(3) A file containing every complaint and a statement of its disposition shall be preserved for examination. The file shall include any written statement submitted by the complainant.

(b) Complaints about denial of assistance. A Recipient shall establish a simple procedure for review of a decision that a person is financially ineligible, or that assistance is prohibited by the Act or Regulations, or by priorities established by the Recipient pursuant to section 401.9. The procedure shall include information about how to make a complaint, adequate notice, an opportunity to confer with the director of the Recipient or the director’s designee, and, to the extent practicable, with a representative of the governing body, preferably a board member who is himself/herself client eligible.

204 Pa. Code § 401.8 Prohibited Use.

Recipients of funds under this Act are prohibited from using them for the following purposes:

(a) Political and Lobbying Activities. Funds shall not be used to contribute to or be made available to any political party or association, or the campaign of any candidate for public or party office or similar political activities or to support or oppose candidates from public or party office or to support or oppose candidates for public or party office or to support or oppose any ballot questions or to engage in lobbing activities, except that:

(1) A Recipient of funds may engage in lobbying activities in response to a request from a governmental agency, legislative body, committee, member or staff thereof made to the recipient, consistent with the Rules of Professional Conduct.

(2) A Recipient may engage in lobbying activities in the provision of legal services to an eligible client on a particular application, claim or case, which directly involves that client’s legal rights and responsibilities, however this shall not be construed to a permit a Recipient to solicit a client, in violation of the Rules of Professional Conduct, for the purpose of making such representation possible.

(b) Fee generating case. Funds shall not be used to provide legal assistance in a fee-generating case unless other adequate representation is unavailable. All Recipients shall establish procedures for the referral of fee-generating cases.

(1) Other adequate representative is deemed to be unavailable when the Recipient has determined that free referral is not possible because:

(i) The case has been rejected by the local lawyer referral service, or by two private attorneys, or the Recipient’s experience within the previous six months with similar cases is that the current case will not be accepted by a private attorney; or

(ii) Neither the referral service nor any lawyer will consider the case without payment of a consultation fee; or

(iii) Emergency circumstances compel immediate action before referral can be made, but the client is advised that if appropriate, and consistent with professional responsibility, referral will be attempted at a later time; or

(2) Recovery of damages is not the principal object of the case and a request for damages is merely ancillary to an action for equitable or other non-pecuniary relief, or inclusion of a counterclaim requesting damages is necessary for effective defense or because of applicable rules governing joinder of counterclaims; or

(3) A court appoints a Recipient or an employee of a Recipient pursuant to a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction; or

(4) An eligible client is seeking benefits under Subchapter II of the Social Security Act, 42 U.S.C. 401, et seq., as amended, Federal Old Age, Survivors, and Disability Insurance Benefits; or Subchapter XVI of the Social Security Act, 42 U.S.C. 1381, et seq., as amended, Supplemental Security Income for Aged, Blind, and Disabled.

(5) A Recipient may seek and accept a fee awarded or approved by a court or administrative body, or included in a settlement, if the requirements of sub-section 401.8 (b)(1) are met.

(6) When a case or matter subject to this sub-section results in a recovery of damages, other than statutory benefits, a Recipient may accept reimbursement from the client for out-of-pocket costs and expenses incurred in connection with the case or matter, if

(i) The requirements of sub-section 401.8(b)(1) are met, and

(ii) The client has agreed in writing to reimburse the Recipient for such costs and expenses.

(7) Nothing in this part shall prevent a Recipient from:

(i) Requiring a client to pay court fees when the client does not qualify to proceed informa pauperis under the rules of the jurisdiction; or

(ii) Acting as a co-counsel with a private attorney when the case meets the standards set forth in sub-section 401.8(b)(1) and accepting part of any fees that may result from a shared case.

(1) Funds shall not be used to provide legal assistance with respect to a criminal proceeding, unless authorized by sub-section 401.8(c)(2).

(2) Legal assistance may be provided with respect to a criminal proceeding;

(i) Pursuant to a court appointment made under a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction, if authorized by the Recipient after a determination that it is consistent with the Recipient’s primary responsibility to provide legal assistance to clients in civil matters; or

(ii) When professional responsibility requires representation in a criminal proceeding arising out of a transaction with respect to which the client is being, or has been, represented by a Recipient.

(3) Actions Attacking Criminal Convictions. Funds shall not be used to provide legal assistance in civil actions to persons who have been convicted of a criminal charge where the civil action arises out of alleged acts or failures to act and the action is brought against an official of the court or against a law enforcement official for the purpose of challenging the validity of the criminal conviction.

However, this sub-section does not prohibit legal assistance pursuant to a court appointment made under a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction, if authorized by the Recipient after a determination that it is consistent with the primary responsibility of the Recipient to provide legal assistance to eligible clients in civil matters.

(d) Statutory Right to Counsel. Funds shall not be used to provide legal assistance in cases in which the Commonwealth of Pennsylvania has an obligation to provide counsel to the indigent through another source identified by statute.

204 Pa. Code § 401.9 Priorities in Allocation of Resources.

Recipients daily must make decisions concerning what cases to handle, what area of client need to pursue, what models of delivery of services to choose, what communities to serve, and related issues. A high quality Recipient program responds effectively to changing client needs and integrates its priority setting process into its daily operations. This section is intended to assure that Recipients plan and perform services provided under the Act in a way that responds to existing and changing client and community needs, promptly and strategically.

(a) The governing body of a Recipient shall adapt procedures for establishing priorities in the allocation of its resources. The procedures adopted shall:

(1) Include an effective appraisal of the needs of eligible clients in the geographic areas served by the Recipient;

(2) Insure an opportunity for participation by representatives of all significant segments of the client community and the Recipient’s employees in the setting of priorities.

(b) The following factors could be among those considered by the Recipient in establishing priorities:

(1) the appraisal described in paragraph (a)(1) of this section;

(2) the population of eligible clients in the geographic areas served by the Recipient, including all significant segments of that population with special legal problems or special difficulties of access to legal services;

(3) the resources of the Recipient;

(4) the availability of another source of free or low-cost legal assistance in a particular category of cases or matters;

(5) the availability of other sources of training, support, and outreach services;

(6) the relative importance of particular legal problems of the individual clients of the recipient;

(7) the susceptibility of particular problems to solution through legal processes;

(8) whether legal efforts by the recipient will complement other efforts to solve particular problems in the area served; and

(9) whether legal efforts will result in efficient and economic delivery of legal services.

(c) A Recipient shall allocate resources consistent with the purposes and requirements of the Act and regulations, and in a manner that assures such resources are put to their highest and best use in meeting client needs. To the extent possible efforts should be made to provide that all potentially eligible clients in the Recipients’ service area have reasonably equal access to similar types of services. If the governing body of the Recipient so desires, the types of services may vary so as to take into account different priorities in different parts of the Recipient’s service area, a higher incidence of a particular kind of problem, the considerably higher costs of providing services, or differences in individual client financial resources.

(d) The governing body of a Recipient shall establish policies and procedures that assure clients that cases which are accepted for representation of eligible clients substantially comply with the priorities adopted by the Recipient.

(e) Annual Review. Priorities shall be set periodically and shall be reviewed by the Recipient at least annually.