Regardless if it is a person's first time getting into trouble or if the person has made mistakes in the past, being charged with a crime in Pennsylvania and facing the potential consequences can be incredibly burdensome. Having made mistakes in the past can complicate a person's circumstances, however, because a person who has been in trouble before, for that reason alone, will often face the prospect of a longer jail or prison sentence. Of particular concern is when a person who has been in trouble before is faced with criminal offenses that carry the prospect of a significant jail or prison sentence in and of itself (regardless of the defendant's prior record in other words), or in DUI cases that carry the the potential of a mandatory minimum sentence.
Although punishment for a crime is definitely a factor in sentencing, Pennsylvania allows for leniency if a person is deserving of such under Pennsylvania sentencing law. One such provision of the law that allows for leniency is "county intermediate punishment". More specifically, section 9763 of Pennsylvania's Judicial Code allows a court to sentence an eligible offender to a county intermediate punishment program, also known as "IP". Being sentenced to IP, although not a walk in the park, can make a bad situation better for both the defendant and his or her family.
Eligibility Requirements for Intermediate Punishment in Pennsylvania
To be eligible for a county intermediate punishment program, an offender must be a person convicted of an offense who would not otherwise be sentenced to a county correctional facility, who does not demonstrate present or past violent behavior and who would otherwise be sentenced to partial or total confinement. A person convicted of one of the enumerated offenses under 42 Pa.C.S.A. 9802 is not eligible for sentencing under the intermediate punishment program.
Specifically, a defendant convicted of any of the following offenses either presently or within the past ten years will preclude admission to an intermediate punishment program:
- 18 Pa.C.S. § 2502 (relating to murder).
- 18 Pa.C.S. § 2503 (relating to voluntary manslaughter)
- 18 Pa.C.S. § 2702 (relating to aggravated assault)
- 18 Pa.C.S. § 2703 (relating to assault by prisoner)
- 18 Pa.C.S. § 2704 (relating to assault by life prisoner)
- 18 Pa.C.S. § 2901(a) (relating to kidnapping)
- 18 Pa.C.S. § 3122.1(a)(1) (relating to statutory sexual assault)
- 18 Pa.C.S. § 3301 (relating to arson and related offenses)
- 18 Pa.C.S. § 3502 (relating to burglary) when graded as a felony of the first degree
- 18 Pa.C.S. § 3701 (relating to robbery)
- 18 Pa.C.S. § 3923 (relating to theft by extortion)
- 18 Pa.C.S. § 4302(a) (relating to incest)
- 18 Pa.C.S. § 5121 (relating to escape)
Can a defendant receive intermediate punishment if facing a mandatory minimum sentence in Pennsylvania?
It depends. Pennsylvania law, 42 Pa.C.S.A. § 9721 specifically, prohibits a sentence of intermediate punishment for any offense to which a mandatory minimum sentence is applicable unless specifically authorized under 42 Pa.C.S.A. § 9763.
(As explained below, DUI offenders will often benefit from a county intermediate program because they are facing a significant mandatory minimum sentence - For example, 90 days for second offense Tier III DUI cases or 1 year for third offense Tier III DUI cases. Mandatory minimum DUI cases are some of the more common cases that may be able to be resolved through IP.)
Can a person charged with DUI (or DUI-related offense) receive intermediate punishment in Pennsylvania?
DUI offenders in Pennsylvania may find some relief to what could otherwise be a severe mandatory minimum sentence. DUI offenders often benefit from county intermediate punishment programs because despite facing the prospect of a mandatory minimum sentence, if otherwise eligible, a defendant may be sentenced to intermediate punishment as an alternative form of sentencing.
Under the DUI law enacted in 2003, any defendant receiving a penalty under Pennsylvania's Vehicle Code for a violation of 75 Pa.C.S.A. § 1543(b) (driving while operating privilege is suspended or revoked) or former 75 Pa.C.S.A. § 3731 (driving under influence of alcohol or controlled substance), or pursuant to 75 Pa.C.S.A. § 3804 penalties) for a first, second, or third DUI offense under 75 Pa.C.S.A. Ch. 38 (driving after imbibing alcohol or utilizing drugs), may only be sentenced to county intermediate punishment after undergoing a drug and alcohol assessment under 75 Pa.C.S.A. § 3814.
Will DUI IP include drug and alcohol treatment? Will DUI IP include house arrest?
If the defendant (whether a DUI offender or otherwise) needs drug and alcohol treatment, the sentence to intermediate punishment must include treatment, and the treatment may be combined with electronic monitoring or a partial confinement program, such as work release, a work camp, or a halfway facility.
If the assessment concludes that the defendant (whether a DUI offender or otherwise) does not need drug and alcohol treatment, the defendant may only be sentenced to intermediate punishment by: 1) house arrest with electronic monitoring; 2) partial confinement programs, such as work release, work camps, or halfway facilities; or 3) any combination of these programs.
The County Intermediate Punishment Act, codified as 42 Pa.C.S.A. § § 9801 – 9812, an assessment under 75 Pa.C.S.A. § 3814 is also required for defendants who have received a penalty pursuant to § 1543(b) (driving with a DUI-related suspended license), § 3804 (penalties), or § 3808(a) (illegal operation of a vehicle without an ignition interlock). The outcome of the assessment determines the available nature and conditions of intermediate punishment.
Intermediate Punishment Sentencing Considerations
In imposing a sentence of intermediate punishment, the court must specify at the time of sentencing the length of the term for which the defendant is to be in an intermediate punishment program or a combination of programs. The term may not exceed the maximum term for which the defendant could be confined, and may not exceed the maximum term of the program to which the defendant is sentenced. Unlike the provisions governing partial confinement, the imposition of a minimum and maximum term is not required for intermediate punishment. The defendant may be sentenced to a combination of partial and/or total confinement and/or intermediate punishment.
The decision to sentence a defendant to IP will not be made by the county adult probation department because there is no statutory provision that empowers a county adult probation department with the authority to determine the eligibility for, or grant or deny alternative sentencing to a defendant. This determination is within the discretion of the trial court.
Ultimately, Pennsylvania law regarding county intermediate punishment contains an extensive list of conditions which the court may impose as it deems necessary.
Will intermediate punishment include jail time in Pennsylvania?
Pennsylvania courts may impose a sentence of partial confinement without parole, or total confinement without parole, when the sentence to partial confinement or total confinement is combined with a sentence of county intermediate punishment. The maximum sentence of partial or total confinement on one or more indictments to run consecutively or concurrently may not exceed a total of 90 days, and the sentence must be immediately followed by the sentence of county intermediate punishment.
Pennsylvania courts may at any time terminate a sentence of intermediate punishment or increase or decrease the conditions imposed. The procedures which must be followed upon a violation of intermediate punishment are governed by Pennsylvania Rule of Criminal Procedure 708.
What kind of sentence will a defendant face if intermediate punishment is violated and/or revoked?
A hearing must be held before a Pennsylvania court may revoke or increase the conditions of an intermediate punishment sentence. The defendant has to be present for such a proceeding because Pennsylvania law disallows a court from using two-way audio-visual communication at a revocation hearing unless the defendant consents or otherwise waives the right to be present. (Unlike a violation or revocation proceeding, a hearing is not required to decrease the conditions of a IP sentence).
Upon revocation, the sentencing alternatives that were available to the court are the same as the alternatives that were available at the time of the initial sentencing. However, the prosecution, known as the “Commonwealth” in Pennsylvania criminal court proceedings (short for the “Commonwealth of Pennsylvania”) may file notice at any time prior to re-sentencing that it will proceed under the applicable provision of law requiring imposition of a mandatory minimum sentence.
When a sentence of intermediate punishment is revoked, the sentencing guidelines do not apply to the sentence imposed. Due to the defendant's failure to successfully complete IP, the defendant loses the "benefit" of the sentencing guidelines in other words.
When a defendant is re-sentenced (or for any other reason), for purposes of determining credit for time served on a sentence of county intermediate punishment, electronic home monitoring constitutes custody.
Will a defendant receive credit for time served if sentenced to IP?
A defendant does not automatically receive credit for time served under an intermediate punishment sentence because Pennsylvania law only requires that consideration be given to such time served (it does not require credit for time served itself).
Is intermediate punishment considered a restorative sanction (RS)?
The Pennsylvania Sentencing Commission has classified county intermediate punishments into restrictive intermediate punishment and as restorative sanctions to allow for great consideration of sentencing options. Ultimately, the purpose of intermediate punishment is reflected by this classification. For example, if a defendant's sentencing guidelines call for "RS - 9 months in jail" and the judge is considering a standard custodial sentence (strict jail time in other words), a defendant's attorney may be able to petition the court, assuming all eligibility requirements are met and IP would be an appropriate sentencing alternative otherwise, to allow the defendant to resolve his or her case through intermediate punishment; doing so could allow a more agreeable resolution to what can be difficult circumstances.
Pennsylvania Attorney to Help with Intermediate Punishment | Philadelphia Criminal Defense Attorney
The stakes are always high when charged with crime in Pennsylvania. The stakes are that much higher when facing the prospect of a significant jail or prison sentence, or in DUI cases for example, when facing the prospect of a mandatory minimum sentence. Pennsylvania's intermediate punishment program, also known as "IP", can make a bad situation better. Understanding IP eligibility requirements, what specific conditions an IP sentence may include, and what steps need to be taken to be considered for intermediate punishment will allow for making the best decisions moving forward.
Attorney Joseph D. Lento has experience with intermediate punishment programs throughout Pennsylvania, including, but not limited to, Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, and Northampton County. Contact him today to learn how he can help.