Over the past decade or so, Pennsylvania’s mandatory minimum sentencing law in drug-gun cases has resulted in increased prison sentences for many residents of Pennsylvania, including residents of major cities like Philadelphia, which has a high number of drug-gun cases compared to other Pennsylvania cities.
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Passed in 2004 and effective in 2005, 42 Pa.C.S. § 9712.1 (Sentences for certain drug offenses committed with firearms) imposes a mandatory 5 year prison sentence in certain drug offense cases.
Related: Who is the Best Criminal Lawyer for Your Philadelphia Criminal Case?
Section (a) lays out the mandatory 5 year prison sentence:
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.
LEGAL ANALYSIS
THE MANDATORY SENTENCE LAW APPLIES TO PWID CASES
Under section (a), the mandatory sentence (5 years) applies only to drug dealing (possession with intent to deliver, or PWID) cases, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, Section 13(a)(30), which provides:
Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
POSSESSION OF A GUN
Under the mandatory sentence law, the person being charged with the crime or an accomplice must have had physical possession or control of a gun (visible or concealed):
- on the body (i.e., in a pocket),
- within reach of the body, or
- within reach of the drugs.
Therefore, the mandatory 5 year sentence probably applies to cases where the individual is charged with PWID and at the time of the alleged offense had possession of a gun in a pocket, near their body or otherwise near the drugs. In addition, the individual can be sentenced under the law if an accomplice had possession of a gun, near their body or near drugs. This last point is crucial because someone who was dealing drugs could be sentenced to a mandatory 5 years if an accomplice carried a gun.
Also, it is important to note that there have been major changes in how the DA must prove the sentencing factor (possession of a gun). Click here to read about Alleyne v. U.S., a 2013 U.S. Supreme Court case, which drastically changes how the mandatory drug sentencing law applies in court.
If you or a loved one is facing a drug-gun charge in the Philadelphia area or surrounding areas such as Norristown, please call us for a free case review. (215) 515-0042
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