The Most Common Client Question About Sentencing
While our law firm strives to obtain acquittals and dismissals for all of its clients and their families, realize that pleas and convictions do occur. Sentencing is very important and while not the proceeding we ultimately want in our criminal cases, it is still an opportunity to obtain a good result despite that conviction.
The Most Common Questions About Sentencing
- Are all illegal crimes involving the illegal possession of drugs or guns graded as felonies? Is there a substantial difference between a felony conviction and a misdemeanor conviction?
Answer
Pennsylvania organizes crimes into three categories: felony, misdemeanor, and summary. Felonies and misdemeanors are further classified into three degrees based on their severity. The categorization of a specific crime is not always certain because it may be affected by the seriousness of the offense, the accused’s prior record, and the facts surrounding the incident.
Felonies are the most serious crimes and have the longest prison terms. A felony of the first degree carries with it a maximum twenty-year prison sentence (with the exception of murder in the first degree—life without parole or death if applicable; second degree murder—life, and third degree murder—forty years. A felony of the second degree carries a maximum term of ten years, and a felony of the third degree or an ungraded felony has a maximum sentence of seven years.
While some states classify misdemeanors as crimes with a maximum prison sentence of one year in a county jail, Pennsylvania law allows punishments for misdemeanors to exceed one year. Misdemeanors of the first degree carry a maximum sentence of five years in prison. Misdemeanors of the second degree have a maximum prison term of two years, and misdemeanors of the third degree have a maximum one-year sentence. Common misdemeanor offenses are simple assault, theft ($200 to $2,000), driving under the influence offenses, and drug possession charges.
The least-serious classification in Pennsylvania cover summary offenses; these include crimes such as disorderly conduct, underage drinking, and traffic offenses. While receiving a term of imprisonment in these matters is highly unlikely, there is a maximum term of ninety days in a county jail.
- How do judges determine sentences in Pennsylvania?
Answer
While all of these criminal charges are serious felony offenses in Pennsylvania, they vary with regards to the harshness of the criminal consequence following a conviction. While some people may believe that a judge randomly picks a sentence following a plea or a trial, Pennsylvania, like most states, maintains sentencing guidelines based on offenses and a person’s prior criminal history. The Pennsylvania sentencing matrix is a table which judges utilize prior to sentencing a criminal defendant. While a judge isn’t bound by sentencing guidelines, most will give sentences within those guidelines to avoid an improper sentence appellate issue.
The sentencing matrix is divided into a horizontal and vertical axis. The vertical axis is based on the offense gravity score (OGS) of a crime and the horizontal axis is based on a criminal defendant’s prior record score (PRS).
With regards to gun crimes, the OGS varies from as high as a 10 to as low as a 2 for certain misdemeanor firearm offenses. Violations of Section 6105 can range from as high as a 10 to as low as a 4. Violations of Section 6106 can range from as high as a 9 to as low as a 3. Violations of 6110.2 can vary from a 10 to a 9.
The range of the OGS depends on the circumstances surrounding a person’s arrest and whether or not the gun was loaded at the time of that arrest. The higher the OGS, the more of a severe sentence a criminal defendant faces following a conviction. For example, the guidelines for a first time offender convicted of a gun crime with an OGS of 10 are 22-36 months and 12-24 months for an OGS of 9.
A gun crime with an OGS of 3 however faces restorative sanctions to 1 month in jail which more than likely means probation.
The guidelines increase from that point and a person with a prior felony or multiple misdemeanor conviction faces a higher criminal penalty. For example, a person with a gun conviction with an OGS of 10 and a prior conviction for another gun crime or a prior possession with the intent to deliver could face 42 to 54 months instead of 22 to 36 months for that same offense.
- I’m thinking about taking a plea deal to the charge of PWID. The plea would require me to serve a county jail sentence of 11.5-23 months in county jail? I have a criminal history but no felony conviction. IS this a good deal? My lawyer told me the maximum punishment is 7 years of state prison so it sounds good.
Answer
Don’t make your decision based on the maximum sentences as there is little chance you will ever receive that maximum
Pennsylvania, like New Jersey, doesn’t treat all drugs the same and under 35 P.S. § 780-113(a) the law outlines not only the classification of these offenses but assigns them an offense gravity score (OGS) and a prior record score (PRS). I have written previous articles on offense gravity and prior record scores. These are important numbers to consider when evaluating a plea offer or the decision to move to either a judge or jury trial with your attorney.
In Pennsylvania, Possession with the Intent to Deliver (PWID) of either a Schedule I or Schedule II substance which would include cocaine, PCP, and methamphetamine, carries with it an offense gravity score (OGS) of 13 if the amount involved is greater than 1000 grams (1 kilo).
If, however, these same substances are between 100 to 1000 grams then the offense gravity score drops to an 11. The OGS drops even further when the amount is 50 to less than 100 grams (OGS 10) and for 10 grams to less than 50 grams the OGS is 8.
For a narcotic prescription pills such as oxycodone, Oxycotin, and percocets where the amount involved is 1000 pills or greater the OGS is 10 but this drops to a 7 where the amount is less than 1000 pills but more than 100. The OGS falls even further, to a 5, where the amount is between 50 but less than 100 pills, and it is a 3 where the amount is between 1 but less than 50 pills.
The Commonwealth treats similar to ecstasy and the OGS for these offenses are very similar. The drug marijuana carries with it the least criminal consequences and the OGS for this drug where the amount is over 1000 pounds is 10 (5000 live plants), where the amount is between 50 to 1000 pounds the OGS is an 8 (51-1000 live plants), and for possession with the intent to deliver (PWID) marijuana, 1 pound to less than 10 pounds the OGS is a 5.
While all of these above charges are felony offenses, an individual with an OGS of 13 would face sentencing guidelines of 60-78 months (state prison) even if their PRS (prior record score) was a 0, meaning no prior criminal history. An OGS of 5 however, would only carry with it restorative sanctions (probation) to 9 months of county incarceration.
If you are charged with a drug crime in Pennsylvania or New Jersey, it is very important that your attorney focus his or her attention on the weight involved even if you’re charged with a conspiracy. As I have written in my articles on conspiracy, the penalties for these offenses follow the principle act.
While most of our criminal defense client’s cases involve the prosecution of Schedule I or Schedule II substances, it’s important to keep in mind that Pennsylvania doesn’t prosecute Schedule III or Schedule IV drugs as harshly. While a person obviously still faces felony charges, the OGS for these classifications is a 5.
- My Lawyer tells me that the ADA will ask the court to impose the deadly weapon enhancement if I am convicted at trial? What does that mean?
Answer
Unlike a trial the DA is not required to prove that a deadly weapon was used beyond a reasonable doubt but rather by a “preponderance of the evidence”. In addition, the ADA may meet this burden through circumstantial evidence as opposed to direct evidence. As you recall, circumstantial evidence doesn’t require an eye witness but simply that the ADA be able to piece enough facts together to meet the burden of proof. In addition, the ADA isn’t required to prove that the defendant used the weapon for the entire duration of the crime only that he/she possessed it at the beginning of the crime.
With regards to possession, the prosecution can prove it either through actual or constructive possession. Actual possession is when the weapon is found on the defendant’s person and constructive possession means that it is only in his/her “immediate control.” The law doesn’t limit the definition of a deadly weapon to firearms. In addition to guns, courts have found items such as a tire iron or other blunt objects (bat, knife, etc) to satisfy this requirement. A deadly weapon can be pretty much anything!
With regards to the standard guidelines and the enhanced guidelines it is important to remember that courts are only required to consider the guidelines. Courts are permitted to deviate from them and are only then required to provide reasoning for the deviation. It is very important that your attorney have a firm understanding of sentencing guidelines as well as the enhancements. There are many situations where your attorney will have to negotiate a plea for you because it makes more sense than proceeding to trial. In this situation an attorney who doesn’t have a firm command of the guidelines and the enhancements severely hinders your ability to obtain a good result from a plea.
It is almost better to proceed to trial rather than pleading your case if your attorney does not understand sentencing guidelines. If you are going to plead guilty you should go into it with an understanding that the plea will provide you with a substantially better sentence then one received following conviction at trial. If your attorney can’t guarantee you a much better result following a plea you may want to consider your trial options.
Even if the court, however, determines that the person didn’t intend on using the weapon there is still a weapons enhancement for the mere possession of it. This, however, is not nearly as serious as use.
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