Conformity
The guidelines include a three-part recommendation that the court must consider when imposing a minimum sentence. The standard range recommendation is provided for every sentence imposed and takes into account the seriousness of the conviction offense (Offense Gravity Score or OGS), as well as prior conviction offenses (Prior Record Score or PRS). The OGS is based on the legal offense for which the defendant has actually been convicted. The PRS measures both the number and the seriousness of prior convictions. When the court determines that there are aggravating or mitigating circumstances, the court may instead consider the aggravating or mitigating sentence recommendation.
In addition to the specific recommendations based on the combination of the OGS and PRS, the 4th (1994) and subsequent editions of the guidelines contain sentencing levels that address general purposes of sentencing and, in some cases, provide special procedures for sentencing. The current guidelines (6th Edition) include five sentencing levels are as follows:
Level 1 County supervision; non-confinement options
Level 2 County supervision; non-confinement, county intermediate punishment or county jail options
Level 3 County supervision; county intermediate punishment following D&A assessment or county jail options
Level 4 County or state supervision; county intermediate punishment following D&A assessment, county jail, state aaaaaaaintermediate punishment or state prison options
Level 5 State supervision; state intermediate punishment or state prison options
If the court determines that the guideline recommendations are inappropriate based on the facts of the case, the court may give a longer sentence (i.e., departure above) or a shorter sentence (i.e., departure below) as long as the court provides a reason on the record for such a sentence and reports that reason to the Commission. These reasons should not include aspects of the case that are incorporated in the guidelines.
Departures from the guidelines can be further divided into three types: dispositional departures, durational departures, and procedural departures. A dispositional departure occurs when the guidelines recommend a period of incarceration but a non-incarceration sentence is imposed. A durational departure occurs when an incarceration sentence is recommended and imposed, but the length of incarceration is either greater than or less than that recommended by the guidelines. A procedural departure occurs when a guideline procedure is ignored, such as ordering intermediate punishment for a Level 3 offender without a drug and alcohol evaluation.
The sentencing guidelines provide two enhancement provisions: deadly weapon enhancement and youth/school enhancement. The Legislature has required by statute that the guidelines "(S)pecify a range of sentences of increased severity for defendants who possessed a deadly weapon during the commission of the current conviction offense," (42 Pa. C.S. §2154(a)(3)). The enhancement provides increases in the guideline recommendations proportional to the severity of the conviction offense. The 5th (1997) and subsequent editions of the guidelines differentiate between a deadly weapon that was possessed and a deadly weapon that was used during the commission of an offense. Previous editions of the guidelines did not make such a distinction. The youth/school enhancement provides increases in the guideline recommendations whenever an offender either distributes a controlled substance to a minor or commits certain drug offenses within 1000 feet of a school.
The Commission has established a two-step process for the application of enhancements. The first step requires the court to make a determination as to whether the elements of the enhancement are present (i.e., possession or use of a deadly weapon during the commission of the current conviction offense; or distribution of a controlled substance within 1000 feet of a school or to a minor). See Pa. Code §§303.10 (a) and (b). If the court determines the elements to be present, the court must consider the enhanced guideline sentence recommendations. The second step in the process is the imposition of the sentence. As with any guideline sentence recommendation, the court is free to sentence in the mitigated, standard, or aggravated range of the enhanced recommendations or to depart above or below these enhanced guidelines. See 204 Pa. Code §303.9.
The Judicial Code (42 Pa,C.S.A. §9781) provides for appellate review of sentences. The defendant or the Commonwealth may appeal discretionary aspects of a sentence. The Superior Court is instructed to vacate a sentence when the lower court failed to consider the guidelines or applied the guidelines erroneously, departed from the guidelines and imposed an unreasonable sentence, or sentenced within the guidelines and imposed a clearly unreasonable sentence.