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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY DeLUCA, BOYD, FRANKEL, KORTZ, KOTIK, MELIO, MICOZZIE, MURT, PERZEL, SIPTROTH, VULAKOVICH AND WALKO, FEBRUARY 27, 2009 |
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| REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 27, 2009 |
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| AN ACT |
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1 | Amending Title 42 (Judiciary and Judicial Procedure) of the |
2 | Pennsylvania Consolidated Statutes, further providing for |
3 | sentences for offenses committed with firearms. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Section 9712 of Title 42 of the Pennsylvania |
7 | Consolidated Statutes is amended to read: |
8 | § 9712. Sentences for offenses committed with firearms. |
9 | (a) Mandatory sentence.--Except as provided under section |
10 | 9716 (relating to two or more mandatory minimum sentences |
11 | applicable), any person who is convicted in any court of this |
12 | Commonwealth of a crime of violence as defined in section |
13 | 9714(g) (relating to sentences for second and subsequent |
14 | offenses), shall, if the person visibly possessed a firearm or a |
15 | replica of a firearm, whether or not the firearm or replica was |
16 | loaded or functional, that placed the victim in reasonable fear |
17 | of death or serious bodily injury, during the commission of the |
18 | offense, be sentenced to a minimum sentence of at least five |
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1 | years of total confinement notwithstanding any other provision |
2 | of this title or other statute to the contrary. Such persons |
3 | shall not be eligible for parole, probation, work release or |
4 | furlough. The mandatory sentence imposed under this subsection |
5 | shall be imposed consecutive to any other sentence imposed by |
6 | the court. |
7 | (b) Proof at sentencing.--Provisions of this section shall |
8 | not be an element of the crime and notice thereof to the |
9 | defendant shall not be required prior to conviction, but |
10 | reasonable notice of the Commonwealth's intention to proceed |
11 | under this section shall be provided after conviction and before |
12 | sentencing. The applicability of this section shall be |
13 | determined at sentencing. The court shall consider any evidence |
14 | presented at trial and shall afford the Commonwealth and the |
15 | defendant an opportunity to present any necessary additional |
16 | evidence and shall determine, by a preponderance of the |
17 | evidence, if this section is applicable. |
18 | (c) Authority of court in sentencing.--There shall be no |
19 | authority in any court to impose on an offender to which this |
20 | section is applicable any lesser sentence than provided for in |
21 | subsection (a) [or], to place such offender on probation [or], |
22 | to suspend sentence or to impose the mandatory sentence |
23 | concurrent to any other sentence. Nothing in this section shall |
24 | prevent the sentencing court from imposing a sentence greater |
25 | than that provided in this section. Sentencing guidelines |
26 | promulgated by the Pennsylvania Commission on Sentencing shall |
27 | not supersede the mandatory sentences provided in this section. |
28 | (d) Appeal by Commonwealth.--If a sentencing court refuses |
29 | to apply this section where applicable, the Commonwealth shall |
30 | have the right to appellate review of the action of the |
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1 | sentencing court. The appellate court shall vacate the sentence |
2 | and remand the case to the sentencing court for imposition of a |
3 | sentence in accordance with this section if it finds that the |
4 | sentence was imposed in violation of this section. |
5 | (e) Definitions.--As used in this section, the following |
6 | words and phrases shall have the meanings given to them in this |
7 | subsection: |
8 | "Firearm." Any weapon, including a starter gun, which will |
9 | or is designed to or may readily be converted to expel a |
10 | projectile by the action of an explosive or the expansion of gas |
11 | therein. |
12 | "Replica of a firearm." An item that can reasonably be |
13 | perceived to be a firearm. |
14 | Section 2. This act shall take effect in 60 days. |
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