§ 303.10. Guideline sentence recommendations: enhancements.

 (a)  Deadly Weapon Enhancement.

   (1)  When the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Possessed Matrix (§  303.17(a)). An offender has possessed a deadly weapon if any of the following were on the offender’s person or within his immediate physical control:

     (i)   Any firearm, (as defined in 42 Pa.C.S. §  9712) whether loaded or unloaded, or

     (ii)   Any dangerous weapon (as defined in 18 Pa.C.S. §  913), or

     (iii)   Any device, implement, or instrumentality designed as a weapon or capable of producing death or serious bodily injury where the court determines that the offender intended to use the weapon to threaten or injure another individual.

   (2)  When the court determines that the offender used a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Used Matrix (§  303.17(b)). An offender has used a deadly weapon if any of the following were employed by the offender in a way that threatened or injured another individual:

     (i)   Any firearm, (as defined in 42 Pa.C.S. §  9712) whether loaded or unloaded, or

     (ii)   Any dangerous weapon (as defined in 18 Pa.C.S. §  913), or

     (iii)   Any device, implement, or instrumentality capable of producing death or serious bodily injury.

   (3)  There shall be no Deadly Weapon Enhancement for the following offenses:

     (i)   Possessing Instruments of Crime

     (ii)   Prohibited Offensive Weapons

     (iii)   Possession of Weapon on School Property

     (iv)   Possession of Firearm or Other Dangerous Weapon in Court Facility

     (v)   Simple Assault (18 Pa.C.S. §  2701(a)(2))

     (vi)   Aggravated Assault (18 Pa.C.S. §  2702(a)(4))

     (vii)   Theft when property stolen is a firearm (18 Pa.C.S. Chapter 39)

     (viii)   Violations of the Pennsylvania Uniform Firearms Act

     (ix)   Any other offense for which possession of a deadly weapon is an element of the statutory definition,

     (x)   If the Arson Enhancement under §  303.10(f)(1)(iii) is applied.

   (4)  The Deadly Weapon Enhancement shall apply to each conviction offense for which a deadly weapon is possessed or used.

 (b)  Youth/School Enhancement.

   (1)  When the court determines that the offender distributed a controlled substance to a person or persons under the age of 18, the court shall consider the range of sentences described in §  303.9(c).

   (2)  When the court determines that the offender manufactured, delivered or possessed with intent to deliver a controlled substance within 250 feet of the real property on which is located a public or private elementary or secondary school, the court shall consider the sentence recommendations described in §  303.9(c).

   (3)  When the court determines both (b)(1) and (b)(2) apply, the court shall consider the sentence recommendations described in §  303.9(c).

   (4)  The Youth/School Enhancement only applies to violations of 35 P. S. §  780-113(a)(14) and (a)(30).

   (5)  The Youth/School Enhancement shall apply to each violation which meets the criteria above.

 (c)  Criminal Gang Enhancement.

   (1)  When the court determines that the offender committed a crime of violence as defined in 42 Pa.C.S. §  9714(g) in association with a criminal gang, the court shall instead consider the sentence recommendations described in §  303.9(j).

   (2)  When the court determines that the offender committed a violation of possession with intent to deliver as defined in 35 P. S. §  780-113(a)(30) in association with a criminal gang, the court shall instead consider the sentence recommendations described in §  303.9(j).

   (3)  The Criminal Gang Enhancement shall apply to each violation which meets the criteria above.

 (d)  Third Degree Murder of a Victim Younger than Age 13 Enhancement.

   (1)  When the court determines the victim of murder in the third degree as defined in 18 Pa.C.S. §  2502(c) was less than 13 years of age at the time of the offense, the court shall instead consider the sentence recommendations described in §  303.9(k).

   (2)  Third Degree Murder of a Victim Younger than Age 13 Enhancement shall apply to each violation which meets the criteria above.

   (3)  The sentence imposed will be served consecutive to any other sentence the person is serving and to any other sentence imposed by the court (42 Pa.C.S. §  9711.1).

 (e)  Sexual Abuse of Children Enhancement.

   (1)  When the court determines that the offender violated 18 Pa.C.S. §  6312 (relating to sexual abuse of children) and that the offender possessed more than 50 images, the court shall instead consider the sentence recommendations described in §  303.9(l)(1). For purposes of this enhancement, the number of images is defined as follows:

     (i)   Each photograph, picture, computer generated image, or any similar visual depiction shall be considered to be one image.

     (ii)   Each video, video-clip, movie, or similar visual depiction shall be considered to have 50 images.

   (2)  When the court determines that the offender violated 18 Pa.C.S. §  6312 (relating to sexual abuse of children) and that the abuse depicted in the images possessed by the offender were of a sexual or violent nature or character, the court shall instead consider the sentence recommendations described in §  303.9(l)(2). This enhancement shall apply to any image possessed by the offender which portrays or contains any of the following:

     (i)   the bondage of a child;

     (ii)   a weapon used in a sexual context;

     (iii)   penetration or attempted penetration of a child; or

     (iv)   an act which would constitute a crime under 18 Pa.C.S. Chapter 25 (relating to criminal homicide), 18 Pa.C.S. Chapter 27 (relating to assault) or 18 Pa.C.S. Chapter 31 (relating to sexual offenses).

   (3)  Sexual Abuse of Children Enhancement shall apply to each violation which meets the criteria above.

 (f)  Arson Enhancement.

   (1)  When the court determines that one or more of the following factors relating to arson as defined in 18 Pa.C.S. §  3301 are present, the court shall instead consider the sentence recommendations described in §  303.9(m):

     (i)   more than three persons were present inside the property at the time of the offense;

     (ii)   the fire caused more than $1,000,000 in property damage; or

     (iii)   the actor used, attempted to use or possessed an explosive or incendiary device as defined in 18 Pa.C.S. §  5515(a) (relating to prohibiting paramilitary training).

   (2)  Arson Enhancement shall apply to each violation which meets the criteria above.

Source

   The provisions of this §  303.10 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071. Immediately preceding text appears at serial pages (367930) to (367932).

Notes of Decisions

   School Enhancement

   The court vacated the judgment that sentenced appellant after appellant was convicted on a controlled substance offense and a criminal conspiracy offense because the trial court erroneously applied the school enhancement provisions to the count of criminal conspiracy. Commonwealth v. Adams, 760 A.2d 33 (Pa. Super. 2000).

   In prosecution arising out of a sale of cocaine near a parochial school, the trial court did not err in imposing a sentence applying the school enhancement provisions of the sentencing guidelines based on a measurement from the school playground area rather than from the school building, where a school encompasses not only the school building itself, but includes all of the school property located in a zone where children have access such as a school playground, and where the purpose of the school enhancement provisions is to create a drug-free zone around schools. Commonwealth v. Davis, 734 A.2d 879 (Pa. Super. 1999).

   Weapons Enhancement

   While sentencing court erred in applying weapon enhancement ‘‘used’’ guidelines rather than ‘‘possessed’’ guidelines, court’s application of the deadly weapon enhancement for defendant convicted of robbery and criminal conspiracy was appropriate; defendant was in the immediate vicinity of co-conspirator when gun was used to threaten victim, he had knowledge of the existence of weapon, and he could easily have been given or taken the gun at any moment during the robbery. Com. v. Phillips, 946 A.2d 103, 114-115 (Pa. Super. 2008).

   Where defendant was convicted of cruelty to animals for shooting a dog, under the plain meaning of §  303.10(a)(1) (relating to guideline sentence recommendations: enhancements), the defendant possessed a firearm, as defined in that section, in the commission of the offense. Therefore, the enhancement section applies to defendant. Commonwealth v. Hackenberger, 795 A.2d 1040 (Pa. Super. 2002).

   Because a deadly weapon was used by the defendant in committing the crime of cruelty to animals, which is not an excluded offense, the deadly weapon enhancement applies even though the victim was not a person. Commonwealth v. Hackenberger, 795 A.2d 1040 (Pa. Super. 2002).

   Defendant claimed ineffective assistance of counsel when his trial attorney failed to request jury determination of whether his sentence should be subject to weapons enhancement. In accord with U. S. v. Williams, 235 F.3d 858 (3rd Cir. 2000), since defendant’s actual sentence was less than the maximum allowed by statute, he was not entitled to a jury determination of the applicability of the weapons enhancement. Commonwealth v. Lowery, 784 A.2d 795 (Pa. Super. 2001).

   Where the defendant fired a deadly weapon in connection with the offense to which he entered a guilty plea, and the court noted the standard range in light of the deadly weapon enhancement, the court’s imposition of a sentence beyond the standard range was an abuse of discretion where the record indicates the judge failed to consider all factors relevant to the determination of a proper sentence. Commonwealth v. Ritchey, 779 A.2d 1183 (Pa. Super. 2001).

   Where defendant was in close proximity to accomplice’s weapon during the entire carjacking incident, the court properly applied the deadly weapon enhancement to defendant’s carjacking sentence. Commonwealth v. Burnside, 32 Phila. 276.

Cross References

   This section cited in 204 Pa. Code §  303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code §  303.9 (relating to guideline sentence recommendation: general); 204 Pa. Code §  303.17(a) (relating to Deadly Weapon Enhancement/Possessed Matrix); 204 Pa. Code §  303.17(b) (relating to Deadly Weapon Enhancement/Used Matrix); 204 Pa. Code §  303.18(a) (relating to Youth Enhancement Matrix); 204 Pa. Code §  303.18(b) (relating to School Enhancement Matrix); and 204 Pa. Code §  303.18(c) (relating to Youth and School Enhancement Matrix).



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