Pennsylvania criminal defense attorneys who handle Montgomery County probation violation cases, have long awaited the statewide standards and guidelines for the re-sentencing of those who violate their Montgomery County probation or Intermediate Punishment Program. Recently, the Pennsylvania legislature enacted “Resentencing Guidelines” for offenders who violate their county probation, or State Intermediate punishment on or after January 1, 2020. These guidelines are found in Title 204, Part VIII, Chapter 307.
The new guidelines require Pennsylvania courts to consider the sentencing guidelines of the original offense, the seriousness of the violation, and the rehabilitative needs of the defendant.
Reduce Arbitrary Sentences
In Montgomery County probation violation cases, probation violation attorneys were previously unable to advise clients as to any standardized criteria used by a judge in determining the appropriate sentence for a probation violation. With the new guidelines, offenders and their criminal defense attorneys will know, before appearing before the judge, the applicable guidelines for the given probation violation. Previously, judges were required to consider any State issued sentencing guidelines for these types of violations, which often led to a gross disparity in sentences imposed upon probation/parole violators.
As probation violation attorneys in Montgomery County, we believe that the enactment of these guidelines is a big step in the right direction because it places some limit on unfettered, judicial discretion. While some counties, such as Chester County, already had local re-sentencing guidelines for probation violations, Montgomery County had no criteria. This often resulted in judges deferring to the recommendation of the probation officers whose criteria (if any) for recommending a particular sentence was a mystery.
Resentencing Guidelines
In Pennsylvania, there are two (2) types of probation violations: a “technical violation” which occurs when a person fails to comply with a requirement of their probation such as nonpayment of fines and costs, or a “direct violation” which is when a person is convicted of a new criminal offense while on probation or parole. For technical probation or parole violators, or those who violate County or State Intermediate punishment requirements, the Re-Sentencing Guidelines direct the court to consider the initial sentencing guidelines applicable at the original sentencing hearing. However, for those convicted of a new criminal offense, who at the time of their original sentencing hearing had a prior record score of zero to four (4), the court will add one prior record score point to determine the guidelines applicable at re-sentencing. This will result in a higher prior record score for purposes of resentencing individuals who have violated the terms and conditions of their sentence. There is no change to the prior record score for offenders who originally had a prior record score of five (5) or are classified as a RFEL or REVOC.
Risk Assessment Instrument
In order to aid courts in understanding the rehabilitative needs of an offender, prior to a resentencing hearing, courts are recommended to obtain a “risk-needs assessment” and/or a “risk-needs-responsivity” assessment. It is not required by law, but the Pennsylvania Commission on Sentencing recommends that courts obtain this additional information before imposing a sentence on probation/parole violators. These assessments involve the use of a worksheet, developed through research, that predicts the likelihood of a defendant reoffending. These instruments are based on professional judgment, statistics of criminal justice and demographic factors. For “risk-needs assessment” (RNA), the relevant information considered includes an offender’s relationships, employment history, as well as any substance abuse history. Additionally, the “risk-needs-responsivity assessment” (RNR), attempts to match the appropriate type of sentence based upon the learning style, motivation, abilities, and strengths of the offender in comparison to their likelihood of reoffending.
As Pennsylvania criminal defense attorneys, we are painfully aware of the reality that the overwhelming majority of offenders who violate the terms and conditions of their sentences, suffer from substance use disorders. These offenders require appropriate treatment, which the statistics demonstrate reduce the likelihood of offender recidivism and reduce the costs of institutional confinement. The risk assessment instrument provisions of the Pennsylvania’s new Guidelines will hopefully provide an opportunity for courts to be better informed and educated, regarding the offender’s substance abuse treatment needs.
