2010 Pennsylvania Code
Chapter 97 - Sentencing
9712.1 - Sentences for certain drug offenses committed with firearms.

     § 9712.1.  Sentences for certain drug offenses committed with
        (a)  Mandatory sentence.--Any person who is convicted of a
     violation of section 13(a)(30) of the act of April 14, 1972
     (P.L.233, No.64), known as The Controlled Substance, Drug,
     Device and Cosmetic Act, when at the time of the offense the
     person or the person's accomplice is in physical possession or
     control of a firearm, whether visible, concealed about the
     person or the person's accomplice or within the actor's or
     accomplice's reach or in close proximity to the controlled
     substance, shall likewise be sentenced to a minimum sentence of
     at least five years of total confinement.
        (b)  Limitation on aggregate sentences.--Where a defendant is
     subject to a mandatory minimum sentence under 18 Pa.C.S. §
     7508(a) (relating to drug trafficking sentencing and penalties)
     and is also subject to an additional penalty under subsection
     (a) and where the court elects to aggregate these penalties, the
     combined minimum sentence may not exceed the statutory maximum
     sentence of imprisonment allowable under The Controlled
     Substance, Drug, Device and Cosmetic Act.
        (c)  Proof at sentencing.--Provisions of this section shall
     not be an element of the crime, and notice thereof to the
     defendant shall not be required prior to conviction, but
     reasonable notice of the Commonwealth's intention to proceed
     under this section shall be provided after conviction and before
     sentencing. The applicability of this section shall be
     determined at sentencing. The court shall consider any evidence
     presented at trial and shall afford the Commonwealth and the
     defendant an opportunity to present any necessary additional
     evidence and shall determine, by a preponderance of the
     evidence, if this section is applicable.
        (d)  Authority of court in sentencing.--There shall be no
     authority in any court to impose on an offender to which this
     section is applicable any lesser sentence than provided for in
     subsection (a) or to place such offender on probation or to
     suspend sentence. Nothing in this section shall prevent the
     sentencing court from imposing a sentence greater than that
     provided in this section. Sentencing guidelines promulgated by
     the Pennsylvania Commission on Sentencing shall not supersede
     the mandatory sentences provided in this section.
        (e)  Appeal by Commonwealth.--If a sentencing court refuses
     to apply this section where applicable, the Commonwealth shall
     have the right to appellate review of the action of the
     sentencing court. The appellate court shall vacate the sentence
     and remand the case to the sentencing court for imposition of a
     sentence in accordance with this section if it finds that the
     sentence was imposed in violation of this section.
        (f)  Definition.--As used in this section, the term "firearm"
     shall have the same meaning as that given to it in section 9712
     (relating to sentences for offenses committed with firearms).
     (Dec. 1, 2004, P.L.1747, No.225, eff. 60 days)

        2004 Amendment.  Act 225 added section 9712.1. See section 2
     of Act 225 in the appendix to this title for special provisions
     relating to public information campaign.
        Cross References.  Section 9712.1 is referred to in section
     4503 of Title 61 (Prisons and Parole).

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