This blog post will provide a very brief overview of the Pennsylvania and Federal sentencing systems.

Grading/ Classification of Offenses for Sentencing

Pennsylvania Crime Classifications:

In Pennsylvania, crimes are classified into four categories: murder, felony, misdemeanor, and summary. Felonies and misdemeanors are classified as either first, second, or third degree, but sometimes they are ungraded. The classifications are based on the statutory maximum sentence, which is the longest sentence that can be imposed for that type of crime.

• the maximum penalty for murder is life in prison or the death penalty

• 1st degree felonies are punishable by more than 10 years.

• 2nd degree felonies are punishable by up to 10 years.

• 3rd degree felonies are punishable by up to 7 years.

• 1st degree misdemeanors are punishable by up to 5 years.

• 2nd degree misdemeanors are punishable by up to 2 years.

• 3rd degree misdemeanors are punishable by up to one year. Misdemeanors that are ungraded are considered to be 3rd degree misdemeanors.

• Summary offenses are punishable by up to 90 days .

18 Pa C.S §106.

As will be discussed later, the statutory maximum penalty refers only to the maximum sentence that can be imposed. According to Pennsylvania law, the maximum must be at least twice the minimum sentence.

Federal Crime Classifications:

In the Federal system there are felonies, misdemeanors and infractions. The following list describes the statutory maximum sentence that can be imposed for each class of crime.

• Class A Felony- maximum penalty is life in prison or death.

• Class B Felony- maximum penalty is 25 years or more.

• Class C Felony- maximum penalty is less than 25 years, but 10 or more years.

• Class D Felony- maximum penalty is less than 10 years, but 5 or more years.

• Class E Felony- maximum penalty is less than 5 years, but more than one year.

• Class A Misdemeanor- One year or less, but more than 6 months.

• Class B Misdemeanor— 6 months or less but more than 30 days.

• Class C Misdemeanor— 30 days or less, but more than 5 days.

• Five days or less is an infraction.

18 U.S.C. §3559. The classification also determines the maximum amount of supervised release that can be imposed, and the maximum sentence that can be imposed for a violation of supervised release.

Calculating the Sentence

The Pennsylvania and Federal sentencing systems are similar in several important ways.

In both systems, the crime or crimes for which the defendant is convicted are assigned a number that theoretically reflects the seriousness of the crime relative to all other crimes. In Pennsylvania, this number is called the OFFENSE GRAVITY SCORE (OGS). In Federal court, this number is called the OFFENSE LEVEL (OL).

Both systems also assign a number to the defendant’s criminal history. In Pennsylvania, the criminal history number is called the PRIOR RECORD SCORE (PRS). In federal court the criminal history number is called the CRIMINAL HISTORY CATEGORY (CHC).

Once these two numbers have been calculated, the next step is to consult the sentencing chart, or matrix. Pennsylvania and the Federal system each have their own chart, but both charts display the same information: one axis displays the OGS or OL and the other axis displays the PRS or CHC. This is really where the similarities of the two systems end.

Who calculates the numbers?

In the Pennsylvania system, generally the OGS and PRS are calculated by the assistant district attorney (ADA) assigned to the case. There is really no formal process for the defense to challenge either number as calculated by the ADA, but defense counsel could file a motion and request a hearing if the calculation is in dispute. One area in particular where there is fertile ground for dispute is when the defendant has an out-of-state conviction for a crime that is not directly comparable to a Pennsylvania crime.

In the Federal system, the United States Probation Office (USPO) is charged with preparing a presentence investigation report (PSR or PSIR) that includes an accurate calculation of the defendant’s OL and CHC. There are formal procedures that the defense must follow in order to challenge the calculation.

In both the Pennsylvania and Federal systems, the trial judge is the final arbiter of the OGS and PRS, and the OL and CHC, respectively.

Through experience, I have discovered that clients who are familiar with the PA sentencing system are somewhat confused by the federal system when they are unfortunately charged with a federal crime. So, this blog post will present a short primer on Pennsylvania and Federal sentencing, with a section on the difference between Pennsylvania parole and Federal supervised release.

Pennsylvania Sentence— MINIMUM and MAXIMUM Sentence

When a defendant is sentenced to a period of incarceration in Pennsylvania, the sentence will be composed of two numbers. The lower number represents the MINIMUM amount of time that the defendant must serve before he is eligible for parole. The higher number is the MAXIMUM (or MAX) sentence that the defendant can serve. At the conclusion of the MAX sentence, the defendant must be released. Under Pennsylvania law, the MAX sentence must be at least twice that of the MINIMUM. For example, a common sentence in Allegheny County is 11 and half months to 23 months of incarceration(the reason for this common sentence will be explained a little later). However, the MAX sentence can be more than twice the MINIMUM. For example, if the defendant agrees to plead guilty to a MINIMUM sentence of 5 years, the MAX sentence must be at least 10 years. However, it can be longer, such as 12 or 15 years, etc.

There is often a third number that is tacked on to the end of Pennsylvania sentences— the amount of probation imposed in addition to any period of incarceration. So, a defendant might be sentenced to 11 1/2 to 23 months incarceration, followed by 2 years of probation.

PA Sentencing Range

Sometimes people get confused when discussing the sentencing range with their attorney. They might confuse the sentencing range with the MINIMUM and MAXIMUM sentence. The sentencing range refers ONLY to the MINIMUM SENTENCE as determined by the Sentencing Guidelines. A MINIMUM sentence within the standard range is considered a standard guideline- range sentence. For example, if a defendant commits a crime with a OGS of 6 and he has prior record score of zero, his sentencing range is 3-12 months. This means that the MINIMUM sentence can be anywhere from 3 months to 12 months and still be considered a standard guideline-range sentence. Remember that the MAX sentence must be at least twice as long as the MINIMUM. So if the defendant receives a MINIMUM sentence of 3 months then his MAX sentence must be at least 6 months, though it could be longer. However, if the defendant receives a MINIMUM Sentence of 12 months, then his MAX sentence must be at least 24 months. So, a defendant who commits a crime with an OGS of 6 and a PRS of 0 can potentially face a guideline range sentence of anywhere from 3-6 months up to 1-2 years, and anything in between.

Note— many times a defendant will ask his attorney what kind of time he is facing. In the Pennsylvania system, this question is more difficult for a defense attorney to answer than the client might realize. Aside from all of the variables that go into sentencing, the actual sentence is controlled by two different numbers that have already been discussed— the statutory maximum and the guideline range. Here’s an example:

Suppose the defendant is charged with Aggravated Assault causing fear of serious bodily injury, 18 Pa C.S. §2702(a)(6). This crime is graded as a 2nd degree felony and the OGS is 6. So, if the defendant has no criminal history, the standard guideline range is 3-12 months. However, the statutory maximum for a 2nd degree felony is 10 years. Technically, when the client asks his attorney what is the most time that he could get, the answer is 5-10 years. However, that sentence would be extremely unlikely considering the guideline range. If the statutory maximum sentence were imposed, the defendant would have a compelling appellate issue that the court abused its discretion when imposing a sentence so much higher than the guidelines.

When I find myself in this type of situation with my client, I will usually begin by discussing the guideline range, and not mention the statutory maximum at all. There is a big difference between telling a client that he is looking at 3 months rather than 10 years, which are both technically correct answers to the question of “what kind of time am I facing.” Remember that the guidelines only control the MINIMUM sentence. So, the judge could impose a sentence of 3 months to 10 years, and that would still technically be a guideline sentence. However, I have never seen a judge impose such a sentence unless it was part of a negotiated plea bargain. In fact, I have seen judges reject pleas that have very long MAX tails.

Of course, before the defendant enters a plea or proceeds to trial, he must be made aware of the statutory maximum sentence. But, this conversation usually occurs after the conversation about the guideline range.

In Pennsylvania, the standard guideline range can be modified into a mitigated range or an aggravated range sentence. Depending on the seriousness of the crime, the mitigated range and aggravated range are +/- 3, 6, or 12 months. So, in the previous example, the mitigated and aggravated range for a crime with an OGS of 6 is +/- 6 months.

Calculating a Pennsylvania guideline sentence is relatively simple (especially when compared to calculating a federal guideline sentence). Pennsylvania sentencing is largely controlled by Title 204, Chapter 303 of the Pennsylvania Code. Here is an overview of how it works: each crime is assigned an OGS. An experienced criminal defense attorney who is familiar with the PA sentencing guidelines can attempt to negotiate a plea agreement to a crime that appears to be similar to the one charged, but which has a lower OGS, and therefore, a lower guideline range. This is usually based on the grading of the offense, such as whether the offense is 1st, 2nd, 2nd or 3rd degree felony or misdemeanor. Here’s an example:

Aggravated Assault attempt serious bodily injury is graded as a 1st degree felony with an OGS of 10. 18 Pa C.S. §2702(a)(1). However, Aggravated Assault cause fear of serious bodily injury is graded as a 2nd degree felony, with an OGS of 6. 18 Pa C.S. §2702(a)(6). A crime with an OGS of 10 and a PRS of 0 has a standard guideline range of 22-36 months, and a statutory maximum of 20 years. A crime with an OGS of 6 and a PRS of 0 has a standard guideline range of 3-12 months., and a statutory maximum of 10 years. Obviously, that is a considerable difference even though the crimes seem very similar to each other.

Control of the Sentence

The reason why county judges often impose a period of incarceration of 11 1/2 to 23 months is because it is generally the longest incarceration sentence that can be imposed for which the judge retains control. C.f. 42 Pa C.S. §9762. For any sentence of incarceration that is two years or longer, the control shifts to the Pennsylvania Department of Corrections (DOC) and the Pennsylvania Parole Board unless certain conditions are met, in which case the judge can retain control up to five years. In my experience, judges in Allegheny County very rarely (if ever) retain control of a sentence over 2 years.

So, what does it mean to maintain control of a sentence? If the judge maintains control, the judge can parole the defendant any time before the expiration of the maximum sentence even if the defendant has not yet served his minimum sentence. Also, the judge maintains control of the parole portion of the sentence, and can resentence the defendant if he violates the terms of his parole. In other words, for a sentence of incarceration that is shorter than 2 years, parole is functionally the same as county probation.

If the DOC has control, then the defendant must serve his minimum sentence before he is eligible for parole (unless he qualifies for a program such as RRRI, which reduces the minimum sentence that must be served). Also, recommitment following a parole violation is handled by the PA Parole Board.

Federal Sentencing— No MIN and MAX

In Federal court, there is no MINIMUM and MAXIMUM sentence. The defendant will receive an incarceration sentence composed of only one number which is usually expressed in months. In addition to the incarceration sentence, the judge might also impose a period of supervised release, which has replaced federal parole.

Federal Sentencing Range

The Federal sentencing range is similar to the Pennsylvania sentencing range. It refers to the range of the sentence that the judge can impose without varying or departing from the guidelines. In federal court the lowest criminal history category is I (in Pennsylvania, the lowest PRS is 0). So, a defendant who is convicted of a crime with an offense level of 9, with a criminal history category of I, faces a guideline range sentence of 4-10 months.

Though the concept of the sentencing range is similar, calculating the federal sentencing guidelines is very complicated and time consuming. In fact, a very large part of federal criminal defense practice is challenging the sentencing guidelines as calculated by the Federal Probation Office. While Pennsylvania simply assigns an OGS based on the crime, the federal sentencing guidelines have a large array of sentencing enhancements that can apply almost independently of the crime itself. Pennsylvania has sentencing enhancements also, such as the deadly weapon enhancement, 204 Pa Code §303.10(a), but there are fewer of them and they are easier to calculate than the enhancements in the federal system.

Because of complexity of calculating the federal sentencing guideline range, it is often very difficult to discuss potential sentencing outcomes with clients at the early stage of the case. If there is an applicable mandatory minimum sentence, which will usually be revealed in the Indictment and the Indictment Memorandum, the attorney should make his client aware of that fact. However, it is quite common that the sentencing guidelines are higher than the applicable mandatory minimum sentence.

Federal Supervised Release

In the Federal system parole has been eliminated. However, Federal Supervised Release operates in a similar manner to parole. Just like the incarceration portion of the sentence, the length of supervised release is controlled by the sentencing guidelines. and various statutes.

Defendants who are serving federal time might be eligible for good time credit and early release to Residential Reentry Centers. Technically, federal prisoners who are serving a sentence greater than 1 year are eligible for 54 days of credit at the end of each year. See 18 U.S.C. §3624(b). However, based on the method that the Bureau of Prisons (BOP) uses to calculate good time credit, it really amounts to only 47 days per year. So, if a defendant is sentenced to 24 months of incarceration, he could potentially be eligible for up to 94 days of credit for a total sentence of 20 months and 28 days.

Parole vs. Supervised Release Violations

While Pennsylvania sentencing is relatively simple, Pennsylvania Parole is very complicated. This is the opposite of the Federal system, where sentencing is enormously complicated, but supervised release violations are relatively simple. This discrepancy probably stems from the fact that federal sentences tend to be longer than Pennsylvania sentences on the front end, while Pennsylvania parole tails tend to be longer than Federal Supervised Release tails on the back end.

Pa Parole

Pennsylvania parole is codified at Title 61 of the Pennsylvania Consolidated Statutes.

If the offender's parole is revoked, the offender shall be recommitted to serve the remainder of the term which the offender would have been compelled to serve had the parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.

61 Pa C.S.§6138(a)(2). The presumptive ranges for convicted parole violators is codified at 37 Pa. Code §75.2.

The BOP offers a number of programs for defendants who are sentenced to state prison. These programs include,

• 61 Pa C.S. §4503- Recidivism Risk Reduction Incentive (RRRI). If an offender is accepted into this program, he will only have to serve 3/4ths of his minimum sentence, if the sentence is 3 years or less; If the sentence is greater than three years, he will only have to serve 5/6ths of his minimum sentence.

• 61 Pa C.S. §6137.1— Short Sentence Parole, which automatically paroles a defendant at his minimum sentence or his RRRI minimum if certain conditions are met

• 61 Pa C.S §4103— State Drug Treatment Program (SDTP). This program allows eligible defendants to serve a substantial portion of their sentence in community based treatment programs rather than the incarcerated in state prison.

• 61 Pa C.S. §3903— Motivational Boot Camp— this is a program for youthful offenders that includes “rigorous physical activity, intensive regimentation and discipline, work on public projects, substance abuse treatment services, continuing education, vocational training, prerelease counseling and community corrections aftercare.”

Federal Supervised Release

In the Federal System, supervised release violations are controlled by the United States Sentencing Guidelines §7B1. There are three grades of violations:

(1)  Grade A Violations -- conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that

(i) is a crime of violence,

(ii) is a controlled substance offense, or

(iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;

(2)  Grade B Violations -- conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year;

(3) Grade C Violations -- conduct constituting

(A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or

(B) a violation of any other condition of supervision.

The guideline range for a violation is determined based on the grade of the violation and the defendant’s Criminal History Category. However, if the defendant was on supervised release for a Class A felony, and he’s convicted of a Grade A violation, the guideline range increases.

The authorized terms of supervised release are as follows:

• Class A or B Felony- not more than 5 years;

• Class C or D Felony— not more than 3 years;

• Class E Felony— not more than 1 year.

18 U.S.C § 3583(b). Upon revocation of supervised release, the court can resentence the defendant as follows:

• Class A- not more than 5 years.

• Class B- not more than 3 years;

• Class C or D- not more than 2 years; and

• not more than one year in any other case.

18 U.S.C. §3583(e)(3).

Collateral Consequences of Convictions

Of course, a criminal conviction carries more than just a prison and/or a probation sentence. For many crimes there are a host of collateral consequences that might be just as onerous as the sentence. Collateral consequences might include Megans Law or SORNA registration for sexual offenses or offenses committed against children, deportation for non-citizens, driver’s license suspension, forfeiture of property, loss of federal benefits, inability to get certain job clearances suchvas Act 33 clearance, and the loss of certain constitutional rights, such as the right to vote or the right to bear arms . Before a defendant enters a guilty plea, he must be fully aware of all the potential collateral consequences. Otherwise, the plea will be rejected.

Conclusion

This very short blog post does not intend to provide a comprehensive analysis of Federal and Pennsylvania sentencing, parole and supervised release. To accomplish that would require an encyclopedia with many volumes. Pennsylvania and Federal sentencing are enormously complicated areas of criminal law. Furthermore, the law often changes as does the collateral consequences and sentencing alternatives. In the federal system, over 98% of defendants ultimately enter a guilty plea. This means that if you are charged with a federal crime, the probability is that you will enter a plea and face a sentence. The statistics in Pennsylvania are not as one-sided as the federal system, but there is still a very high probability that if you are charged with a Pennsylvania crime, you will likely enter a plea. Accordingly, a criminal defense attorney must be very familiar with federal and Pennsylvania sentencing procedure and caselaw in order to effectively represent you.