How Does Sentencing Work in Pennsylvania?

Posted by Joseph D. Lento | Nov 17, 2017 | 0 Comments

It is critical to mount an aggressive defense and an aggressive offense when charged with criminal offenses in Pennsylvania.  Whether a person is a first-time offender or has a criminal record that is five pages long, no defendant wants to find themselves being found guilty or having to plead guilty and consequently face being sentenced.  It can of course be hard to face the music, but if a defendant finds him or herself having to be sentenced by the court, however, understanding how sentencing works in Pennsylvania will make a difficult time for a defendant and his or her family easier to bear. 

Sentencing takes various forms in Pennsylvania and there are many aspects to sentencing.  This will be the case whether a defendant is charged in Philadelphia or any of Pennsylvania's 67 counties.  Sentencing procedures, sentencing guidelines, permissible sentencing ranges, and sentencing alternatives are all part of the sentencing process in Pennsylvania.  The following article provides an overview of Pennsylvania sentencing concepts in general, and also specific sentencing considerations.

What does it mean to be "sentenced" in Pennsylvania?

A "judgment of sentence" is a final judgment in a criminal matter in which the court orders the punishment to be inflicted for the conviction of a criminal sentence.  At its heart, to be sentenced is to be punished. 

The only sentence recognized by Pennsylvania's appellate courts is a written judgment of sentence signed by the trial judge.  An inquiry into the legality of a sentence is a "non-waivable"matter, meaning that a defendant can waive his or her right to questioning whether his or her sentence was a legal sentence.  This is a separate matter than what the written judgment of sentence referenced above.

Will the judge or jury sentence me in Pennsylvania?

The judge will always sentence a defendant because there is no right to jury sentencing under the Pennsylvania Constitution.

What rights does a defendant have at sentencing?

Because sentencing is considered a "critical" stage of a criminal proceeding, a defendant has the right to counsel, meaning his or her attorney, and the right to be present, meaning that a court cannot waive the defendant's presence on its own initiative.

What happens if a defendant is re-sentenced?

In the infrequent instance when a sentence is vacated for whatever reason, generally, the case is remanded ("sent back" or "returned") for sentencing and the sentencing judge starts anew.  Reasons why a defendant's sentence may be vacated if if the original sentencing judge imposed an illegal sentence.  For example, if a defendant was convicted of a felony of the 3rd degree which exposes the defendant to a maximum of seven years in state prison, if the judge sentenced the defendant to ten years, that would be an illegal sentence, and if the illegal sentence is challenged, the sentence must be vacated.

No defense attorney worth his or her salt would allow such an egregious illegal sentence to take place, but there are instances where illegal sentences are imposed only to be later realized. Issues with illegal sentences tend to more frequently arise when a defendant is subject to parole or probation.  Even judges may not recognize that the sentences they hand down run afoul of the Pennsylvania law.

Ultimately, Pennsylvania law requires that when an illegal sentence has been imposed, the sentence must be corrected.

Why are defendants sentenced in Pennsylvania?

Historically, there are four general rationales justifying the imposition of a penal sentence:

  • Rehabilitation of the offender
  • Retribution or revenge
  • Isolation of the offender from society
  • Deterrence of others from violating the law

In 1930 in Pennsylvania, however, Pennsylvania courts found retribution and revenge to be an improper reason to sentence a defendant.  Nonetheless, the United States Supreme Court has held that retribution may be an appropriate basis for a defendant's sentence.  Under Pennsylvania's current sentencing guidelines, however, retribution is not a valid sentencing factor and therefore is not a legitimate ground for Pennsylvania courts to impose a sentence.

Can what the defendant says at sentencing affect the actual sentence?

Before being sentenced, a defendant has the right of "allocution," which is the right to express whatever he or she believes is appropriate to express regarding the crime.  A defendant will understandebly be nervous before being sentenced, and also may not be used to speaking publicly.  Defendants may also know what to say, or even if they do know what to say, may not be able to say as such effectively.  For these reasons, when the judge asks if the defendant would like to "allocute," or speak before sentencing, defense attorneys will often make it known to the defendant that the defendant does not have to say anything.  If the defendant decides to speak and if what the defendant says at sentencing relates to his or her truthfulness, however, then it is relevant to the defendant's sentence.  The reason being that a defendant's truthfulness while testifying on his or her own behalf, almost without exception, is regarded as "probative" (affording proof or evidence) of the defendant's attitude towards society and prospects for rehabilitation. 

What will determine if I go to jail or get probation at my sentencing?

Under Pennsylvania's Sentencing Code, codified as 42 Pa.C.S.A. § 9721(b), the particular sentence imposed should call for confinement, jail or prison in other words, that is "consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant."  Pennsylvania law makes clear that two factors are critical in determining a defendant's sentence: 1) the particular circumstances of the offense; and 2) the character of the defendant.

Sentencing Fundamentals

Three general types of sentencing systems exist in the United States:

  • Determinate
  • Indeterminate
  • Presumptive

What is a "determinate" sentence?

Under a "determinate" sentencing system, conviction of a particular crime requires the court to impose a sentence already determined by the legislature or some other government body.  For example, a conviction for a burglary may require the court to impose a sentence of five years in prison, and the court would, under a determinate sentencing system, have no discretion to impose a lesser or great sentence.

What is an "indeterminate" sentence?

Pennsylvania originally adopted a system of indeterminate sentencing wherein the trial court was given a broad range of alternatives to incarceration as well as a broad range of permissible terms of imprisonment, with the statutes specifying only what the maximum term may be. 

For example, aggravated assault can be graded as a felony of the 1st degree in Pennsylvania.  If graded as a felony of the 1st degree, the maximum permissible sentence for a first-time conviction is 20 years' imprisonment and/or a $25,000 fine.  An "indeterminate" sentencing system would give the sentencing judge the power to impose a disposition ranging from no disposition to a maximum term of imprisonment up to 20 years.

Historically, Pennsylvania's judges were given broad, unrestricted discretion in sentencing under this system.  An issue that arose was that a wide disparity developed in Pennsylvania sentencing practices.  At times, the disparity between sentences for similarly-situated defendants was extreme.

As a result, lawmakers in Pennsylvania created the Pennsylvania Commission on Sentencing, created under Pennsylvania's Sentencing Code.  The Commission on Sentencing was created to formulate "guidelines" for sentencing in Pennsylvania.  The guidelines must provide for sentences within the time limits established law.  More specifically, the guidelines must:

  • Specify the range of sentences applicable to crimes of a given degree of gravity
  • Specify a range of sentences of increased severity for defendants previously convicted of or adjudicated delinquent for one or more misdemeanor or felony offenses committed prior to the current offense.  ("Previously convicted" or "adjudicated delinquent" must include any finding of guilt or adjudication of delinquency whether or not sentence has been imposed or disposition ordered prior to the commission of the current offense.)
  • Specify a range of sentences of increased severity for defendants who possessed a deadly weapon during the commission of the current conviction offense.
  • Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.

What is "presumptive" sentencing?

The first sentencing guidelines became effective July 22, 1982.  The guidelines fundamentally changed Pennsylvania's system of sentencing from indeterminate to presumptive.  More specifically, if a Pennsylvania court departs from the sentencing recommendations contained in Pennsylvania's sentencing guidelines, the court must provide a contemporaneous written statement of the reason or reasons for the deviation.

Can a sentence be appealed in Pennsylvania?

Under Pennsylvania's sentencing code, both the Commonwealth of Pennsylvania, generally represented by the District Attorney's Office located in the county where the criminal case is being prosecuted, or the Pennsylvania Attorney General's Office, and the defendant can appeal the legality of a sentence. 

What is a "mandatory" sentence in Pennsylvania?

A mandatory sentence, also known as a mandatory minimum, requires a binding term of incarceration of specified length for defendants convicted of certain state crimes.  Opponents of mandatory sentences argue that mandatory sentences undermine  undermine justice by preventing Pennsylvania judges from fitting the punishment to the individual defendant and the circumstances of their offenses.

Other arguments against mandatory minimum sentencing is that it forces Pennsylvania judges to hand down long prison sentences based on the prosecution's choice of criminal charges against the defendant. Mandatory sentencing strips Pennsylvania judges of their power to account for the individual circumstances of the crime committed and the defendant when deciding on punishment. 

In addition, depending on the nature of the case, mandatory sentences arguably transfer sentencing power from judges to Pennsylvania prosecutors.  The reason being that prosecutors, whether at the applicable District Attorney's Office or the Pennsylvania Attorney General's Office, threaten long mandatory minimum sentences to scare a defendant into pleading guilty in exchange for a reduced sentence and give up every factual and legal basis for a defense.

Changes to Pennsylvania's Mandatory Sentencing Laws

Mandatory sentences were struck down in 2013 by the United Stated Supreme Court and Pennsylvania's Supreme Court did the same in 2015. The rulings held that mandatory minimum sentences were illegal if laws did not require a jury to find beyond a reasonable doubt that the amount of drugs was material to the crime and therefore warranted a longer minimum sentence.  Unfortunately for defendants and their families, legislation has passed in the Pennsylvania House of Representatives that would reinstate mandatory minimum prison sentences for some drug and violent crime offenses.  Time will tell if Pennsylvania reverts to utilizing mandatory minimum sentences in more criminal cases.  At present, DUI cases in Pennsylvania are the most common cases where defendants may potentially face a mandatory sentence.  It can be difficult  enough for a defendant to have to face a mandatory ten days, 30 days, or one year in jail depending on the nature of the driving under the influence case, but when defendants face mandatory minimum sentences for other criminal offenses that can put them behind bars for years and years if mandatory minimums again become a reality, the stakes will be that much higher.

Does Pennsylvania have "three strike" sentencing laws?

In 1995, Pennsylvania enacted what is known as "three strikes" legislation.  This law invokes special sentences for repeat violent offenders.  In addition, Pennsylvania has special registration requirements for sexual offenders under Pennsylvania's Megan's law.

Appealing a Sentence in Pennsylvania - Specific Requirements

When a defendant in Pennsylvania appeals a sentence to an appellate court, usually the Pennsylvania Superior Court, such appellate review will be governed by 42 Pa.C.S.A. § 9781.  Unfortunately for defendants, there is no absolute right to appellate review of the discretionary aspects of a sentence.  Instead, an appeal will only be allowed when the appellate court with initial jurisdiction, meaning the right to hear the case, again, usually the Pennsylvania Superior Court, determines that there is a substantial question that the sentence is not appropriate under Pennsylvania's Sentencing Code.

When a defendant seeks to appeal a sentence, Pennsylvania Rules of Criminal Procedure requires the defendant to file a brief, which is a written legal argument; specifically, Pa.R.A.P. § 2119(f) sets forth what is required in the "Rule 2119(f)" statement. The brief must include a "concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence."  This statement must "immediately precede the argument on the merits with respect to the discretionary aspects of sentence."

To demonstrate that a substantial question exists, the person appealing the sentence, known as the "appellant," must articulate the reasons that a particular sentence raises doubts that the trial court did not properly consider the general guidelines provided by the Pennsylvania Legislature.

If an appellant complies with all statutory and procedural requirements for a challenge to the discretionary aspects of sentencing, and articulates in the Rule 2119(f) statement a substantial question as to warrant appellate review, Pa.R.A.P. § 2119(f) requires the Pennsylvania Superior Court to review the manner in which the trial court exercised its discretion, even when a sentence is within the sentencing guidelines. 

Pennsylvania Attorney for Sentencing | Philadelphia Criminal Defense Attorney

It is obvious that no defendant wants to face the prospect of being sentenced, and that is why everything that can be done must be done to defend against criminal charges.  If the day comes, however, that a defendant will be sentenced by the court, understanding how sentencing in Pennsylvania works will make a difficult time for a defendant and their family easier to bear. 

If you or your loved one is charged with a crime in Pennsylvania, whether in Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, Northampton County, and whether you are early in the criminal process or face sentencing soon, contact attorney Joseph D. Lento for help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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