For the Defense - Vol. 6, Issue 1 - 26

transportation (42 Pa.C.S.§9713)
Sentences for second and subsequent offenses
(42 Pa.C.S. § 9714)
Life imprisonment for homicide
(42 Pa.C.S. § 9715)
These are commonly referred to as discretionary or
'notice' mandatories because the prosecutor is required
to give reasonable notice after conviction and before
sentencing of the Commonwealth's intention to proceed
with the mandatory provision. As provided in these
statutes, the presence of sentencing factors, which are
not elements of the crime, are determined by the court at
sentencing by a preponderance of the evidence. Due to
the notice provision and the consideration of sentencing
factors, the prosecutor may exercise discretion in applying
or waiving the mandatory. But upon notice and proof
at sentencing, the court is prohibited from imposing a
sentence less than the mandatory minimum requirement.
A second wave of mandatories, contained in Act 289 of
1982, established mandatory minimum sentences for DUI
(75 Pa.C.S. § 3731) and homicide by vehicle while DUI (75
Pa.C.S. § 3735). With the exception of those accepted into
an Accelerated Rehabilitative Disposition (ARD) diversion
program, the statute required imposition of minimum
periods of incarceration for all DUI convictions (1st = 48
hours; 2nd = 30 days; 3rd = 90 days; 4th & subsequent =
1 year), and a three-year mandatory minimum sentence
for homicide by vehicle while DUI. In contrast to the
discretionary or 'notice' mandatories, these mandatories
are based on proof beyond a reasonable doubt at trial
of elements of the crime, and upon conviction removed
discretion from the prosecutor and the court to impose
a sentence less than the mandatory minimum. For this
reason, these mandatories are referred to as statutory or
'no notice' mandatories.
The year ended with the enactment of two additional
mandatories, contained in Act 334 of 1982: Sentences for
offenses against elderly persons (42 Pa.C.S. § 9717) and
Sentences for offenses against infant persons (42 Pa.C.S.
§ 9718). While each provided mandatory minimum
sentences for certain violent offenses committed against
the elderly and against minors, neither included a notice
provision and the only sentencing factor identified was
the age of the victim and/or offender.
An early and important challenge to the
constitutionality of Pennsylvania's mandatory minimum
sentencing statutes occurred in 1986, when the United
States Supreme Court heard the case of McMillan v.
Pennsylvania.8 McMillan argued that visible possession
of a firearm during an aggravated assault, which under
section 9712 required the imposition of a mandatory
minimum term of five years, was an element of the crime
and thus must be proven beyond a reasonable doubt.
However, the General Assembly expressly provided that
visible possession of a firearm was not an element of the
crime, but instead was a sentencing factor. The Court
26

For The Defense l Vol. 6, Issue 1

noted that the Pennsylvania Legislature " ... simply took
one factor that has always been considered by sentencing
courts to bear on punishment-the instrumentality used
in committing a violent felony-and dictated the precise
weight to be given that factor if the instrumentality
is a firearm. " 9 The Court affirmed the judgment of
the Pennsylvania Supreme Court that held the Act
constitutional, finding that " States may treat 'visible
possession of a firearm' as a sentencing consideration
rather than an element of a particular offense, " 10 that
the " preponderance standard satisfies due process, " 11
and " that there is no right to a jury sentencing, even
where the sentence turns on specific findings of fact. " 12
Pennsylvania's sentencing guidelines were also
challenged in 1986, when Commonwealth v. Sessoms13
was argued before the Supreme Court of Pennsylvania.
Sessoms questioned the validity of the sentencing
guidelines, arguing that procedures by which the initial
guidelines were established violated the Constitutional
requirements
of
bicameral
consideration
and
presentment for gubernatorial approval. The Court held
that the procedure used to adopt the initial guidelines,
by which the guidelines were submitted to the General
Assembly but rejected by concurrent resolution, was
unconstitutional since the resolution was not presented
to the Governor. As a result, these guidelines and all
subsequent guidelines that were a product of this
violation were found to be invalid.14
The void created by the invalidation of the guidelines,
from October 7, 1987 through April 25, 1988, was filled
on March 25, 1988 by passage of Act 31 of 1988, which
established two drug-related mandatory sentencing
provisions: Sentences and penalties for trafficking
drugs to minors (18 Pa.C.S. § 6314) and Drug trafficking
sentences and penalties (18 Pa.C.S. § 7508). These
were 'notice' mandatories, with mandatory minimum
terms linked to the type and quantity of the controlled
substance, the age of the buyer, and the location of the
sale. Due to the high volume of drug felony convictions,
these provisions became the most utilized mandatories.
And while the imposition of a mandatory minimum term
may substantially increase the duration of a sentence, the
availability of a mandatory provision when negotiating a
plea also impacts the duration of a sentence.
While the pace of enacting mandatory minimum
sentencing legislation slowed during the next decade, the
Special Session on Crime (1995) ushered in Pennsylvania's
version of 'three strikes'. Amending the existing fiveyear mandatory minimum sentences for second and
subsequent offenses (42 Pa.C.S. § 9714), the mandatory
minimum term for a second 'crime of violence' was
increased to 10 years, and the mandatory minimum term
for a third or subsequent 'crime of violence' was increased
to 25 years with the possibility of a life sentence.
Although the coexistence of mandatory minimum
sentencing provisions and sentencing guidelines may

For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1