2023 Pennsylvania Consolidated & Unconsolidated Statutes › Act 44 - JUDICIAL CODE (42 PA.C.S.) - ORDER OF PROBATION, CONDITIONS OF PROBATION, MODIFICATION OR REVOCATION OF ORDER OF PROBATION AND PROBATION REVIEW CONFERENCE

Session of 2023
No. 2023-44
SB 838
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated
            Statutes, in sentencing, further providing for order of probation, for conditions
            of probation and for modification or revocation of order of probation and providing
            for probation review conference.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1.  Section 9754(b) of Title 42 of the Pennsylvania Consolidated Statutes is amended to
            read:
§ 9754.  Order of probation.
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(b)  Conditions generally.--The court shall attach reasonable conditions authorized by
            section 9763 (relating to conditions of probation) [as it deems necessary to ensure
            or assist the defendant in leading a law-abiding life].
* * *
Section 2.  Section 9763(b) introductory paragraph, (1), (2) and (11) of Title 42 are amended
            to read:
§ 9763.  Conditions of probation.
* * *
(b)  Conditions generally.--[The court may attach any of the following conditions upon
            the defendant as it deems necessary:]
Conditions shall be assessed and ordered based on individualized
circumstances. Following an individualized assessment of the
defendant, including the defendant's history and the underlying
crime or crimes committed, the court shall attach only those
conditions that the court deems necessary and the least
restrictive means available to promote the defendant's
rehabilitation and protection of the public, including any of
the following:
(1)  To meet family responsibilities[.]
, including
consideration of child-care responsibilities and limitations,
other than the child-care responsibilities and limitations
contained in 23 Pa.C.S. Ch. 43 (relating to support matters
generally) which shall be governed exclusively by the
provisions of that chapter.
(2)  To be devoted to a specific occupation, employment or education
, study or vocational training
initiative.
* * *
(11)  To [be subject to intensive supervision while remaining within the jurisdiction of
            the court and to] notify the court or designated person of any change in address or
            employment[.]
within 15 days, unless the defendant provides sufficient proof of extenuating circumstances
               to explain the delay.
* * *
Section 3.  Section 9771(a), (b) and (c) of Title 42 are amended and the section is amended by
            adding a subsection to read:
§ 9771.  Modification or revocation of order of probation.
(a)  General rule.--The court has inherent power to at any time terminate continued supervision,
            lessen the conditions upon which an order of probation has been imposed or increase
            the conditions under which an order of probation has been imposed upon a finding
by clear and convincing evidence
that a person presents an identifiable threat to public safety.
(b)  Revocation.--The court may increase the conditions, impose a brief sanction under
            section 9771.1 (relating to court-imposed sanctions for violating probation) or revoke
            an order of probation upon proof of the violation of specified conditions of the probation.
            [Upon]
Subject to the limitations of subsections
(b.1) and (c), upon
revocation the sentencing alternatives available to the court shall be the same as
            were available at the time of initial sentencing, due consideration being given to
            the time spent serving the order of probation. The attorney for the Commonwealth may file notice at any time prior to resentencing of the Commonwealth's
            intention to proceed under an applicable provision of law requiring a mandatory minimum
            sentence.
(b.1)  Nonpayment of fines or costs.--Notwithstanding subsection (b), the court may not extend
            the period of probation, may not impose a brief sanction under section 9771.1 and
            may not revoke an order of probation solely due to nonpayment of fines or costs unless
            the court finds, with respect to the payment of fines, the defendant is financially
            able to pay the fines and has willfully refused to do so.
(c)  Limitation on sentence of total confinement.--[The court shall not impose a sentence
            of total confinement upon revocation unless it finds that:
(1)  the defendant has been convicted of another crime; or
(2)  the conduct of the defendant indicates that it is likely that he will commit another
            crime if he is not imprisoned; or
(3)  such a sentence is essential to vindicate the authority of the court.]
There is a presumption against total
confinement for technical violations of probation. The
following shall apply:
(1)  The court may impose a sentence of total confinement upon revocation only if:
(i)  the defendant has been convicted of another crime;
(ii)  the court finds by clear and convincing evidence that the defendant committed a technical
            violation that involves an identifiable threat to public safety and the defendant
            cannot be safely diverted from total confinement through less restrictive means; or
(iii)  the court finds by a preponderance of the evidence that the defendant committed a
            technical violation and any of the following apply:
(A)  The technical violation was sexual in nature.
(B)  The technical violation involved assaultive behavior or included a credible threat
            to cause bodily injury to another, including acts committed against a family or household
            member.
(C)  The technical violation involved possession or control of a firearm or dangerous weapon.
(D)  The technical violation involved the manufacture, sale, delivery or possession with
            the intent to manufacture, sell or deliver, a controlled substance or other drug regulated
            under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
            Drug, Device and Cosmetic Act.
(E)  The defendant absconded and cannot be safely diverted from total confinement through
            less restrictive means.
(F)  The technical violation involved an intentional and unexcused failure to adhere to
            recommended programming or conditions on three or more separate occasions and the
            defendant cannot be safely diverted from total confinement through less restrictive
            means. For purposes of this clause, multiple technical violations stemming from the
            same episode of events shall not constitute separate technical violations.
(2)  If a court imposes a sentence of total confinement following a revocation, the basis
            of which is for one or more technical violations under paragraph (1)(ii) or (iii),
            the court shall consider the employment status of the defendant. The defendant shall
            be sentenced as follows:
(i)  For a first technical violation, a maximum period of 14 days.
(ii)  For a second technical violation, a maximum period of 30 days.
(iii)  For a third or subsequent technical violation, the court may impose any sentencing
            alternatives available at the time of initial sentencing.
(iv)  The time limitations contained in this paragraph shall not apply to the extent that
            a reasonable term of additional total confinement, not to exceed 30 days, is necessary
            to allow a defendant to either be evaluated for or to participate in:
(A)  a court-ordered drug, alcohol or mental health treatment program; or
(B)  a problem-solving court provided for in section 916 (relating to problem-solving courts).
(3)  Nothing in this section shall prevent the adoption of a program under section 9771.1.
* * *
Section 4.  Title 42 is amended by adding a section to read:
§ 9774.1.  Probation review conference.
(a)  General rule.--Except as otherwise provided in this section, the court shall hold
            a probation review conference no later than 60 days from the date the defendant is
            eligible. If a defendant's probation review conference has not commenced within the
            time frames specified in this subsection, the defendant's attorney, or the defendant
            if unrepresented, may file a motion demanding a probation review conference within
            five business days.
(b)  Eligibility for review conference.--Except as otherwise provided in this section,
            a defendant shall be eligible for an initial probation review conference as follows:
(1)  If the offense for which a sentence of probation was imposed was a misdemeanor, the
            defendant shall be eligible for an initial probation review conference after completing
            two years of probation or 50% of the probation sentence, whichever is sooner.
(2)  If the offense for which a sentence of probation was imposed was a felony, the defendant
            shall be eligible for an initial probation review conference after completing four
            years of probation or 50% of the probation sentence, whichever is sooner.
(3)  If the sentence or sentences imposed arose out of convictions for multiple offenses
            which the court ordered to be served consecutively and:
(i)  The offenses for which the sentence or sentences were imposed are misdemeanors based
            on the same conduct or arising from the same criminal episode, the defendant shall
            be eligible for a probation review conference after completing two years of probation
            or 50% of the aggregate probation sentence, whichever is sooner.
(ii)  The offenses for which the sentence or sentences were imposed included a felony and
            are based on the same conduct or arise from the same criminal episode, the defendant
            shall be eligible for a probation review conference after completing four years of
            probation or 50% of the aggregate probation sentence, whichever is sooner.
(iii)  The offenses for which the sentence or sentences were imposed are based on separate
            conduct and arose from separate criminal episodes, the defendant shall be eligible
            for a probation review conference after completing four years of probation or 50%
            of the aggregate probation sentence, whichever is sooner.
(4)  A defendant sentenced to a period of probation consecutive to a period of incarceration
            in a State correctional institution shall be eligible for an initial probation review
            conference 12 months prior to the date that the defendant would otherwise be eligible
            for a probation review conference under this subsection if the defendant completed
            the final 12 months of State parole supervision without violating the terms and conditions
            of the defendant's parole. This paragraph shall not apply to a defendant who serves
            fewer than 12 months on State parole supervision.
(5)  Notwithstanding any other provisions of this section, a defendant shall not be eligible
            to receive an initial probation review conference less than 12 months from the original
            date of sentencing.
(c)  Accelerated early review conference.--
(1)  Subject to the limitations in subsection (b)(5), a defendant serving probation that
            was imposed for a misdemeanor or felony offense shall be eligible for an initial probation
            review conference six months prior to the date that the defendant would otherwise
            be eligible under subsection (b) if the defendant successfully satisfies any of the
            following conditions while serving the term of probation:
(i)  Earns a high school diploma or certificate of high school equivalency.
(ii)  Earns an associate degree from an accredited university, college, seminary college,
            community college or two-year college.
(iii)  Earns a bachelor's degree from an accredited university, college or seminary college.
(iv)  Earns a master's or other graduate degree from an accredited university, college or
            seminary college.
(v)  Obtains a vocational or occupational license, certificate, registration or permit.
(vi)  Completes a certified vocational, certified technical or certified career education
            or training program.
(vii)  Any other condition approved by the court at the time of sentencing that substantially
            assists the defendant in leading a law-abiding life or furthers the rehabilitative
            needs of the defendant.
(2)  Subject to the limitations in subsection (b)(5), a defendant serving probation that
            was imposed for a felony offense shall be eligible for an initial probation review
            conference up to a total of six months prior to the date that the defendant would
            otherwise be eligible under paragraph (1) if the defendant satisfies an additional
            condition specified in paragraph (1) while serving the term of probation.
(3)  To qualify a defendant for an accelerated initial probation review conference under
            paragraphs (1) and (2), any condition under paragraph (1)(v), (vi) or (vii) must be
            approved by the probation office responsible for the supervision of the defendant,
            in accordance with standards developed by the Pennsylvania Commission on Crime and
            Delinquency. The Pennsylvania Commission on Crime and Delinquency shall develop standards
            pursuant to this paragraph.
(d)  Probation status report.--No later than 30 days prior to the date the defendant is
            otherwise entitled to a probation review conference under subsection (b) or (c), the
            probation office responsible for the supervision of the defendant shall complete and
            submit a probation status report to the defendant, the defendant's last counsel of
            record, the court, the Commonwealth and any victim registered with either the Pennsylvania
            Office of Victim Advocate or a county victim witness program. The probation status
            report shall contain the following:
(1)  The date the probation office believes the defendant is eligible for a probation review
            conference.
(2)  A statement as to whether:
(i)  Any of the factors or violations specified in subsection (g)(1)(ii) and (iii) have
            occurred.
(ii)  The defendant has committed any other technical violation within the six months prior
            to the probation status report.
(iii)  The defendant was convicted of a misdemeanor or felony while either incarcerated or
            serving probation.
(iv)  The defendant has completed all treatment or any other program required as a condition
            of probation.
(v)  The defendant has paid all restitution owed to the victim.
(3)  A description of the defendant's progress on probation and a recommendation that:
(i)  the defendant's probation be terminated at or before the date the probation office
            believes the defendant is eligible for a probation review conference;
(ii)  the defendant should continue on probation as previously ordered; or
(iii)  the defendant should continue on probation under different, reduced or increased terms
            and conditions.
(e)  Objections to status report.--The Commonwealth and the defendant shall have 30 days
            from the date of the status report to object or otherwise respond to the probation
            status report. A victim shall have 30 days from the date of the status report to provide
            input or otherwise respond to the probation status report. The following shall apply:
(1)  If a party objects to all or any component of the probation status report, the court
            shall hold a probation review conference as otherwise provided by this subsection
            and shall notify the defendant, the Commonwealth and any victim registered with either
            the Pennsylvania Office of Victim Advocate or a county victim witness program of the
            date of the probation review conference.
(2)  If none of the parties entitled to the probation status report object to the recommendation
            contained in the report within 30 days, upon evidence satisfactory to the court that
            the probation status report was sent to each party entitled to receive the probation
            status report, the probation review conference shall be deemed waived. The court shall
            enter an order memorializing the recommendation contained in the probation status
            report and so notify the defendant, the Commonwealth and any victim registered with
            either the Pennsylvania Office of Victim Advocate or a county victim witness program.
            The court may enter the order even if the defendant's probation, sentence or plea
            of guilty was the result of an agreement between the Commonwealth and the defendant.
(f)  Termination of probation.--
(1)  Except as provided in subsection (g), immediately following the probation review conference,
            the court shall terminate probation unless the court finds:
(i)  by clear and convincing evidence that the conduct of the defendant while on probation
            created an identifiable threat to public safety, including consideration of whether
            the defendant is the subject of an active protection from abuse order under 23 Pa.C.S.
            Ch. 61 (relating to protection from abuse) or an active protection from intimidation
            order under 18 Pa.C.S. Ch. 49 Subch. B. (relating to victim and witness intimidation);
(ii)  by a preponderance of the evidence that the defendant has not successfully completed
            all treatment or other programs required as a condition of probation, and termination
            of probation would either prevent the defendant from continuing in the court-mandated
            treatment or programming that the court determines is still necessary to aid in the
            defendant's rehabilitation or would create a substantial likelihood that the defendant
            would discontinue the treatment or programs; or
(iii)  by a preponderance of the evidence that the defendant has failed to pay the total
            restitution owed by the defendant.
(2)  The court may terminate probation under paragraph (1) even if the defendant's probation,
            sentence or plea of guilty was the result of an agreement between the Commonwealth
            and the defendant.
(3)  If the court does not terminate probation at a probation review conference, the defendant
            shall receive written notice of the court's order detailing the court's findings.
            The defendant shall be eligible for a subsequent probation review conference no later
            than 12 months after the date of the most recent probation review conference.
(g)  Prohibitions on early termination.--
(1)  A defendant shall not have the defendant's probation terminated under this section
            if:
(i)  the defendant was convicted of a misdemeanor of the first degree, misdemeanor of the
            second degree or felony offense of any degree committed while either incarcerated
            or serving probation;
(ii)  the court finds by clear and convincing evidence that the defendant committed a technical
            violation within the six months immediately preceding the defendant's probation review
            conference that involved an identifiable threat to public safety; or
(iii)  a court determines at the probation review conference by a preponderance of the evidence
            that the defendant committed one of the following technical violations within the
            six months immediately preceding the defendant's probation review conference:
(A)  A technical violation that was sexual in nature.
(B)  A technical violation that involved assaultive behavior or included a credible threat
            to cause bodily injury to another, including acts committed against a family or household
            member.
(C)  A technical violation that involved possession or control of a firearm or dangerous
            weapon.
(D)  The technical violation involved the manufacture, sale, delivery or possession with
            the intent to manufacture, sell or deliver, a controlled substance or other drug regulated
            under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
            Drug, Device and Cosmetic Act.
(E)  The defendant absconded.
(F)  A technical violation that involved an intentional and unexcused failure to adhere
            to recommended programming or conditions on three or more separate occasions. For
            purposes of this clause, multiple technical violations stemming from the same episode
            of events shall not constitute separate technical violations.
(2)  If the defendant is ineligible for termination of probation as a result of a technical
            violation enumerated in paragraph (1)(ii) or (iii) occurring within the six months
            immediately preceding the probation review conference and if all other conditions
            are satisfied, a probation review conference shall be held six months after the date
            that the enumerated technical violation occurred.
(h)  Failure to pay restitution.--
(1)  If the court does not terminate probation at a probation review conference solely
            because of the defendant's failure to pay restitution in full, the court shall order
            that the defendant be placed on administrative probation for the remaining balance
            of the defendant's probation sentence if:
(i)  the defendant has paid at least 50% of the restitution owed; or
(ii)  the court determines, considering the defendant's resources, income and family, legal
            or other obligations, that the defendant has made a good faith effort to pay.
(2)  The provisions of section 9771(c) (relating to modification or revocation of order
            of probation) shall apply to individuals placed on administrative probation pursuant
            to this subsection.
(3)  Nothing in this section shall be construed to interfere with a victim's right to pursue
            private remedies in accordance with 18 Pa.C.S. § 1106(g) (relating to restitution
            for injuries to person or property).
(i)  Applicability.--This section shall not apply and the defendant shall not be entitled
            to a probation review conference or to early termination of probation under this section
            if the offense for which the defendant was sentenced to probation was one of the following:
(1)  an offense under 18 Pa.C.S. Ch. 25 (relating to criminal homicide);
(2)  a crime of violence;
(3)  an offense listed under Subchapter H (relating to registration of sexual offenders)
            or I (relating to continued registration of sexual offenders);
(4)  an offense under 18 Pa.C.S. § 2701 (relating to simple assault) when committed against
            a family or household member; or
(5)  an offense under 18 Pa.C.S. § 2709.1 (relating to stalking).
(j)  Other remedies preserved.--Nothing in this section shall be construed to:
(1)  prevent a defendant from petitioning a court for early termination of probation or
            modification of the terms and conditions of probation as otherwise permitted by law;
(2)  prohibit the court, in its discretion, from eliminating or decreasing the term of
            probation under section 9771(d); or
(3)  diminish the court's power to:
(i)  otherwise, at any time, terminate continued supervision or lessen the conditions upon
            which an order of probation has been imposed;
(ii)  create or administer a process or program which seeks to terminate continued supervision
            or lessen the conditions upon which an order of probation has been imposed; or
(iii)  seek information from the Commonwealth, defendant, victim, county probation officer
            or any other individual or entity to assist in these processes or programs.
(k)  Definitions.--As used in this section, the following words and phrases shall have
            the meanings given to them in this subsection unless the context clearly indicates
            otherwise:
"Administrative probation."  A term of imposed probation that:
(1)  Requires a defendant to make supervision contact at least one time and no more than
            four times per year.
(2)  Requires a defendant to notify the court or the designated person of any change in
            address or employment within a reasonable period of time.
(3)  Requires a defendant to pay the remaining restitution, as ordered by the court on
            a schedule or payment plan that the defendant can afford to pay.
(4)  Does not require the defendant to pay monthly probation administration fees or any
            additional costs for the continuation of supervision on administrative probation.
(5)  Does not impose any other condition of probation.
"Crime of violence."  As defined in section 9714(g) (relating to sentences for second and subsequent offenses).
"Dangerous weapon."  Any of the following:
(1)  A "weapon" as defined in 18 Pa.C.S. § 907 (relating to possessing instruments of crime);
            or
(2)  An "offensive weapon" as defined in 18 Pa.C.S. § 908 (relating to prohibited offensive
            weapons).
"Family or household members."  As defined in 23 Pa.C.S. § 6102(a) (relating to definitions).
"Firearm."  As defined in 18 Pa.C.S. § 908.
"Technical violation."  A violation of the specific terms and conditions of a defendant's probation, other
            than by the commission of a new crime of which the defendant is convicted or found
            guilty by a judge or jury or to which the defendant pleads guilty or nolo contendere
            in a court of record.
Section 5.  This act shall apply as follows:
(1)  This act shall apply to individuals sentenced or resentenced on or after the effective
            date of this section.
(2)  Except for the addition of 42 Pa.C.S. § 9774.1, this act shall apply to individuals
            sentenced or resentenced prior to the effective date of this section.
Section 6.  Nothing in this act shall be construed to prevent a defendant from petitioning a court
            for early termination of probation or modification of the terms and conditions of
            probation as otherwise permitted by law.
Section 7.  The following apply:
(1)  The following apply to postsentencing reviews:
(i)  Subject to paragraph (2), the courts shall ensure that the probation of all individuals
            sentenced or resentenced prior to the effective date of this section are reviewed
            to determine whether the individuals should be considered for early termination of
            probation or modification of the terms and conditions of probation. The review shall
            occur at the later of one year after the effective date of this section or:
(A)  For a probation sentence on a misdemeanor conviction, the date the defendant has completed
            two years of probation.
(B)  For a felony conviction, the date the defendant has completed four years of probation.
(C)  For a probation sentence based on a conviction involving multiple offenses arising
            out of the same criminal episode:
(I)  the date the defendant has completed two years of probation if all the offenses resulting
            in the sentence were misdemeanors; or
(II)  the date the defendant has completed four years of probation if one of the offenses
            resulting in the sentence included a felony.
(ii)  For each case under review, the defendant and the Commonwealth shall have the opportunity,
            in advance of a decision, to provide written comments to the court. Courts may by
            local rule adopt such procedures as they deem appropriate to accomplish the reviews.
(2)  (i)  This section shall not apply if:
(A)  The defendant committed one of the following technical violations within the six months
            immediately preceding the defendant's probation review conference:
(I)  A technical violation that was sexual in nature.
(II)  A technical violation that involved assaultive behavior or included a credible threat
            to cause bodily injury to another, including incidents involving domestic violence.
(III)  A technical violation that involved possession or control of a firearm or dangerous
            weapon.
(IV)  The technical violation involved the manufacture, sale, delivery or possession with
            the intent to manufacture, sell or deliver, a controlled substance or other drug regulated
            under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
            Drug, Device and Cosmetic Act.
(V)  The defendant absconded.
(VI)  A technical violation which involved an intentional and unexcused failure to adhere
            to recommended programming or conditions on three or more separate occasions. For
            the purposes of this clause, multiple technical violations stemming from the same
            episode of events shall not constitute separate technical violations.
(VII)  A technical violation that involved an identifiable threat to public safety.
(ii)  The defendant was convicted of a misdemeanor of the first degree, misdemeanor of the
            second degree or felony offense committed while either incarcerated or serving probation.
(iii)  The defendant was convicted of an offense listed under 42 Pa.C.S. Ch. 97 Subch. H
            (relating to registration of sexual offenders) or I (relating to continued registration
            of sexual offenders).
(iv)  The defendant was convicted of a crime of violence.
(v)  The defendant was convicted of an offense under 18 Pa.C.S. § 2701 (relating to simple
            assault) or 2709.1 (relating to stalking) against any of the defendant's family or
            household members.
Section 8.  When a court, either as a result of a petition or as a result of its review under
            section 7 of this act, seeks to determine whether an individual sentenced or resentenced
            prior to the effective date of this section should be considered for early termination
            of probation or modification of the terms and conditions of probation, the court shall
            ensure that due consideration is given to whether the individual has successfully
            satisfied the conditions contained in 42 Pa.C.S. § 9774.1(c)(1) or (2).
Section 9.  This act shall take effect in 180 days.
APPROVED--The 14th day of December, A.D. 2023.
JOSH SHAPIRO