PENNSYLVANIA Drug Sentencing Enhancements
PENNSYLVANIA DRUG SENTENCING ENHANCEMENTS
35 P.S. § 780-115. Second or Subsequent Offenses
Any person convicted of a second or subsequent PWID or similar offense may be imprisoned for a term up to twice the term otherwise authorized and be fined double the typical maximum amount.
A prior PWID offense includes any PWID conviction from Pennsylvania or any other jurisdiction within the United States.
18 Pa.C.S. § 6319. Solicitation of Minors to Traffic Drugs
It is a felony of the second degree for any person 18 years old or older to solicit a person under 18 years old to engage in PWID (drug trafficking) or to deliver a controlled substance to a minor with the knowledge or intent that the minor intents do deliver (sell) the controlled substance.
It is a felony of the first degree if the adult knows or intends for the minor to deliver (sell) the controlled substance within a drug-free school zone (1,000 feet of any school, college, or university; a school bus; or 500 feet from a school bus stop).
Unconstitutional Mandatory Minimum Drug Sentences
The following statutes suggests that the provisions of the rule should not be considered elements of the crime and that the court (not the jury) should decide if the enhancements apply.
However, mandatory minimum sentencing statutes like these have been held unconstitutional. In Alleyne v. United States, the United States Supreme Court held that any facts leading to an increase in a mandatory minimum sentence are elements of the crime and must be presented to a jury and proven beyond a reasonable doubt. 570 U.S. 99 (2013). See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712.1, mandatory minimum for drug offenses committed with a firearm are illegal); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (holding 42 Pa.C.S. §§ 9712, mandatory minimum sentence for offenses committed with firearms, and 9713, mandatory minimums for offenses committed on public transportation unconstitutional); see also Commonwealth v. Hanson, 82 A.3d 1023, 1039-40 (Pa. 2013).
Thus, for these enhancements to be legally applied, the Commonwealth must prove the elements beyond a reasonable doubt at trial and a jury must find that they occurred. Before that can occur, these statutes must be amended to cure the constitutional defect.
42 Pa.C.S. § 9712.1. Sentences for PWID Committed with Firearms – Unconstitutional
Any person convicted of PWID, when at the time of the offense the offender, or their accomplice, is in physical possession or control of a firearm (it is within their reach or within a close proximity to the controlled substance) they shall be sentenced to a five (5) year mandatory minimum sentence.
As noted above, this rule was held unconstitutional by Newman.
18 Pa.C.S. § 6314. Trafficking Drugs to a Minor – Unconstitutional
Anyone over 18 years old that is convicted of PWID a controlled substance to a minor must be sentenced to at least one (1) year incarceration (total confinement).
Moreover, in addition to this one (1) year sentence, the offender can be sentenced to an additional minimum sentence of at least two (2) years (for an aggregate minimum of at least three (3) years) if they did any of the following:
Committed the offense with the intent to promote the habitual offense of the controlled substance.
Intended to engage the minor in drug trafficking.
Committed the offense within 1,000 feet of any school, college, or university.
Committed the offense on a school bus or within 500 feet of a school bus stop.
Further, should this statute be amended, numbers (1.) and (2.) in the list above will be very difficult “elements” for a prosecutor to prove to a jury.
18 Pa.C.S. § 6317. Drug Free School Zones – Unconstitutional
Any person 18 or older who is convicted of PWID a controlled substance (drug delivery to an adult) within 1,000 feet of any school, college, or university or within 250 feet of any recreational facility, playground, or on a school bus the minimum sentence should be two (2) years total confinement with a four (4) year maximum sentence.
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If you or someone you love has been charged with Possession of Drug Paraphernalia in Pennsylvania call Lampman Law today at 570-371-3737 for free consultation.