HOUSE AMENDED
PRIOR PRINTER'S NOS. 934, 940, 973,
993, 1113 PRINTER'S NO. 1289
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 838
Session of
2023
INTRODUCED BY BAKER, BARTOLOTTA, A. WILLIAMS, HAYWOOD, KANE,
DILLON, SANTARSIERO, STEFANO, ROTHMAN, COSTA, BREWSTER,
STREET AND CAPPELLETTI, JUNE 21, 2023
AS REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, AS AMENDED, DECEMBER 12, 2023
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, in sentencing, further
3 providing for order of probation, for conditions of probation
4 and for modification or revocation of order of probation and
5 providing for probation review conference.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 9754(b) of Title 42 of the Pennsylvania
9 Consolidated Statutes is amended to read:
10 § 9754. Order of probation.
11 * * *
12 (b) Conditions generally.--The court shall attach reasonable
13 conditions authorized by section 9763 (relating to conditions of
14 probation) [as it deems necessary to ensure or assist the
15 defendant in leading a law-abiding life].
16 * * *
17 Section 2. Section 9763(b)(1), (2) and (11) of Title 42 are
 1 amended to read:
2 § 9763. Conditions of probation.
3 * * *
4 (b) Conditions generally.--[The court may attach any of the
5 following conditions upon the defendant as it deems necessary:]
6 Conditions shall be assessed and ordered based on individualized
7 circumstances. Following an individualized assessment of the
8 defendant, including the defendant's history and the underlying
9 crime or crimes committed, the court shall attach only those
10 conditions that the court deems necessary and the least
11 restrictive means available to promote the defendant's
12 rehabilitation and protection of the public, including any of
13 the following:
14 (1) To meet family responsibilities[.], including
15 consideration of child-care responsibilities and limitations,
16 other than the child-care responsibilities and limitations
17 contained in 23 Pa.C.S. Ch. 43 (relating to support matters
18 generally) which shall be governed exclusively by the
19 provisions of that chapter.
20 (2) To be devoted to a specific occupation, employment
21 or education, study or vocational training initiative.
22 * * *
23 (11) To [be subject to intensive supervision while
24 remaining within the jurisdiction of the court and to] notify
25 the court or designated person of any change in address or
26 employment[.] within 72 hours, unless the defendant provides <--
27 sufficient proof of extenuating circumstances to explain the
28 delay. WITHIN 15 DAYS, UNLESS THE DEFENDANT PROVIDES <--
29 SUFFICIENT PROOF OF EXTENUATING CIRCUMSTANCES TO EXPLAIN THE
30 DELAY.
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 1 * * *
2 Section 3. Section 9771(a), (b) and (c) of Title 42 are
3 amended and the section is amended by adding a subsection to
4 read:
5 § 9771. Modification or revocation of order of probation.
6 (a) General rule.--The court has inherent power to at any
7 time terminate continued supervision, lessen the conditions upon
8 which an order of probation has been imposed or increase the
9 conditions under which an order of probation has been imposed
10 upon a finding by clear and convincing evidence that a person
11 presents an identifiable threat to public safety.
12 (b) Revocation.--The court may increase the conditions,
13 impose a brief sanction under section 9771.1 (relating to court-
14 imposed sanctions for violating probation) or revoke an order of
15 probation upon proof of the violation of specified conditions of
16 the probation. [Upon] Subject to the limitations of subsections
17 (b.1) and (c), upon revocation the sentencing alternatives
18 available to the court shall be the same as were available at
19 the time of initial sentencing, due consideration being given to
20 the time spent serving the order of probation. The attorney for
21 the Commonwealth may file notice at any time prior to
22 resentencing of the Commonwealth's intention to proceed under an
23 applicable provision of law requiring a mandatory minimum
24 sentence.
25 (b.1) Nonpayment of fines or costs.--Notwithstanding
26 subsection (b), the court may not extend the period of
27 probation, may not impose a brief sanction under section 9771.1
28 and may not revoke an order of probation solely due to
29 nonpayment of fines or costs unless the court finds, with
30 respect to the payment of fines, the defendant is financially
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 1 able to pay the fines and has willfully refused to do so.
2 (c) Limitation on sentence of total confinement.--[The court
3 shall not impose a sentence of total confinement upon revocation
4 unless it finds that:
5 (1) the defendant has been convicted of another crime;
6 or
7 (2) the conduct of the defendant indicates that it is
8 likely that he will commit another crime if he is not
9 imprisoned; or
10 (3) such a sentence is essential to vindicate the
11 authority of the court.] There is a presumption against total
12 confinement for technical violations of probation. The
13 following shall apply:
14 (1) The court may impose a sentence of total confinement
15 upon revocation only if:
16 (i) the defendant has been convicted of another
17 crime;
18 (ii) the court finds by clear and convincing
19 evidence that the defendant committed a technical
20 violation that involves an identifiable threat to public
21 safety and the defendant cannot be safely diverted from
22 total confinement through less restrictive means; or
23 (iii) the court finds by a preponderance of the
24 evidence that the defendant committed a technical
25 violation and any of the following apply:
26 (A) The technical violation was sexual in
27 nature.
28 (B) The technical violation involved assaultive
29 behavior or included a credible threat to cause
30 bodily injury to another, including acts committed
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 1 against a family or household member.
2 (C) The technical violation involved possession
3 or control of a firearm or dangerous weapon.
4 (D) The technical violation involved the
5 manufacture, sale, delivery or possession with the
6 intent to manufacture, sell or deliver, a controlled
7 substance or other drug regulated under the act of
8 April 14, 1972 (P.L.233, No.64), known as The
9 Controlled Substance, Drug, Device and Cosmetic Act.
10 (E) The defendant absconded and cannot be safely
11 diverted from total confinement through less
12 restrictive means.
13 (F) The technical violation involved an
14 intentional and unexcused failure to adhere to
15 recommended programming or conditions on three or
16 more separate occasions and the defendant cannot be
17 safely diverted from total confinement through less
18 restrictive means. For purposes of this clause,
19 multiple technical violations stemming from the same
20 episode of events shall not constitute separate
21 technical violations.
22 (2) If a court imposes a sentence of total confinement
23 following a revocation, the basis of which is for one or more
24 technical violations under paragraph (1)(ii) or (iii), the
25 COURT SHALL CONSIDER THE EMPLOYMENT STATUS OF THE DEFENDANT. <--
26 THE defendant shall be sentenced as follows:
27 (i) For a first technical violation, a maximum
28 period of 14 days.
29 (ii) For a second technical violation, a maximum
30 period of 30 days.
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 1 (iii) For a third or subsequent technical violation,
2 the court may impose any sentencing alternatives
3 available at the time of initial sentencing.
4 (iv) The court shall consider allowing the term of <--
5 incarceration to be served on weekends or other nonwork
6 days for employed probationers who have committed a first
7 or second technical violation.
8 (v) (IV) The time limitations contained in this <--
9 paragraph shall not apply to the extent that a reasonable
10 term of additional total confinement, not to exceed 30
11 days, is necessary to allow a defendant to either be
12 evaluated for or to participate in:
13 (A) a court-ordered drug, alcohol or mental
14 health treatment program; or
15 (B) a problem-solving court provided for in
16 section 916 (relating to problem-solving courts).
17 (3) Nothing in this section shall prevent the adoption
18 of a program under section 9771.1.
19 * * *
20 Section 4. Title 42 is amended by adding a section to read:
21 § 9774.1. Probation review conference.
22 (a) General rule.--Except as otherwise provided in this
23 section, the court shall hold a probation review conference no
24 later than 60 days from the date the defendant is eligible. If a
25 defendant's probation review conference has not commenced within
26 the time frames specified in this subsection, the defendant's
27 attorney, or the defendant if unrepresented, may file a motion
28 demanding a probation review conference within five business
29 days.
30 (b) Eligibility for review conference.--Except as otherwise
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 1 provided in this section, a defendant shall be eligible for an
2 initial probation review conference as follows:
3 (1) If the offense for which a sentence of probation was
4 imposed was a misdemeanor, the defendant shall be eligible
5 for an initial probation review conference after completing
6 two years of probation or 50% of the probation sentence,
7 whichever is sooner.
8 (2) If the offense for which a sentence of probation was
9 imposed was a felony, a defendant shall be eligible for an
10 initial probation review conference after completing four
11 years of probation or 50% of the probation sentence,
12 whichever is sooner.
13 (3) If the sentence or sentences imposed arose out of
14 convictions for multiple offenses which the court ordered to
15 be served consecutively and:
16 (i) The offenses for which the sentence or sentences
17 were imposed are misdemeanors based on the same conduct
18 or arising from the same criminal episode, the defendant
19 shall be eligible for a probation review conference after
20 completing two years of probation or 50% of the aggregate
21 probation sentence, whichever is sooner.
22 (ii) The offenses for which the sentence or
23 sentences were imposed included a felony and are based on
24 the same conduct or arise from the same criminal episode,
25 the defendant shall be eligible for a probation review
26 conference after completing four years of probation or
27 50% of the aggregate probation sentence, whichever is
28 sooner.
29 (iii) The offenses for which the sentence or
30 sentences were imposed are based on separate conduct and
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 1 arose from separate criminal episodes, the defendant
2 shall be eligible for a probation review conference after
3 completing four years of probation or 50% of the
4 aggregate probation sentence, whichever is sooner.
5 (4) A defendant sentenced to a period of probation
6 consecutive to a period of incarceration in a State
7 correctional institution shall be eligible for an initial
8 probation review conference 12 months prior to the date that
9 the defendant would otherwise be eligible for a probation
10 review conference under this subsection if the defendant
11 completed the final 12 months of State parole supervision
12 without violating the terms and conditions of the defendant's
13 parole. This paragraph shall not apply to a defendant who
14 serves fewer than 12 months on State parole supervision.
15 (5) Notwithstanding any other provisions of this
16 section, a defendant shall not be eligible to receive an
17 initial probation review conference less than 12 months from
18 the original date of sentencing.
19 (c) Accelerated early review conference.--
20 (1) Subject to the limitations in subsection (b)(5), a
21 defendant serving probation that was imposed for a
22 misdemeanor or felony offense shall be eligible for an
23 initial probation review conference six months prior to the
24 date that the defendant would otherwise be eligible under
25 subsection (b) if the defendant successfully satisfies any of
26 the following conditions while serving the term of probation:
27 (i) Earns a high school diploma or certificate of
28 high school equivalency.
29 (ii) Earns an associate degree from an accredited
30 university, college, seminary college, community college
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 1 or two-year college.
2 (iii) Earns a bachelor's degree from an accredited
3 university, college or seminary college.
4 (iv) Earns a master's or other graduate degree from
5 an accredited university, college or seminary college.
6 (v) Obtains a vocational or occupational license,
7 certificate, registration or permit.
8 (vi) Completes a certified vocational, certified
9 technical or certified career education or training
10 program.
11 (vii) Any other condition approved by the court at
12 the time of sentencing that substantially assists the
13 defendant in leading a law-abiding life or furthers the
14 rehabilitative needs of the defendant.
15 (2) Subject to the limitations in subsection (b)(5), a
16 defendant serving probation that was imposed for a felony
17 offense shall be eligible for an initial probation review
18 conference up to a total of six months prior to the date that
19 the defendant would otherwise be eligible under paragraph (1)
20 if the defendant satisfies an additional condition specified
21 in paragraph (1) while serving the term of probation.
22 (3) To qualify a defendant for an accelerated initial
23 probation review conference under paragraphs (1) and (2), any
24 condition under paragraph (1)(v), (vi) or (vii) must be
25 approved by the Pennsylvania Commission on Crime and <--
26 Delinquency or an advisory committee of that commission
27 designated to provide approval PROBATION OFFICER OFFICE <--
28 RESPONSIBLE FOR THE SUPERVISION OF THE DEFENDANT., IN <--
29 ACCORDANCE WITH STANDARDS DEVELOPED BY THE PENNSYLVANIA
30 COMMISSION ON CRIME AND DELINQUENCY. THE PENNSYLVANIA
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 1 COMMISSION ON CRIME AND DELINQUENCY SHALL DEVELOP STANDARDS
2 PURSUANT TO THIS PARAGRAPH.
3 (d) Probation status report.--No later than 30 days prior to
4 the date the defendant is otherwise entitled to a probation
5 review conference under subsection (b) or (c), the probation
6 office responsible for the supervision of the defendant shall
7 complete and submit a probation status report to the defendant,
8 THE DEFENDANT'S LAST COUNSEL OF RECORD, the court, AND, the <--
9 Commonwealth and any victim registered with either the <--
10 Pennsylvania Office of Victim Advocate or a county victim
11 witness program AND ANY VICTIM REGISTERED WITH EITHER THE <--
12 PENNSYLVANIA OFFICE OF VICTIM ADVOCATE OR A COUNTY VICTIM
13 WITNESS PROGRAM. The probation status report shall contain the
14 following:
15 (1) The date the probation office believes the defendant
16 is eligible for a probation review conference.
17 (2) A statement as to whether:
18 (i) Any of the factors or violations specified in
19 subsection (g)(1)(ii) and (iii) have occurred.
20 (ii) The defendant has committed any other technical
21 violation within the six months prior to the probation
22 status report.
23 (iii) The defendant was convicted of a misdemeanor
24 or felony while either incarcerated or s