Firearms and Drugs in the Same House or Apartment Requires a Five Year Mandatory Sentence Under Pennsylvania’s Drug and Gun Law

In 2004, Pennsylvaniadded a sentencing provision that increases penalties when drugs and weapons are used together. Generally, this provision was aimed at criminals who involved guns in their illegal sale of drugs. It requires a mandatory sentence of five years whenever a person is convicted of a drug offense and the Commonwealth demonstrates by a preponderance of the evidence that, at the time of the offense:1) the convicted person had a firearm on their person or within their reach;2) a co-conspirator of the convicted person had a firearm on their person or within their reach; or3) a firearm was in “close proximity to the controlled substance.”This statute requires a minimum sentence of five years total confinement and does not permit the court to exercise any discretion in whether or not to apply this mandatory minimum. In Pennsylvania, all sentence must be expressed in terms of maximum/minimum sentences. Therefore, any person sentenced under this enhancement must receive a minimum sentence of five to ten years, placing the decision to release the prisoner in the hands of the Pennsylvania Board of Probation and Parole.In 2008, the Pennsylvania Superior Court interpreted this sentencing provision and defined “close proximity” as within the same residence.  In Commonwealth v. Sanes, the defendant was asleep in his girlfriend’s apartment when the authorities executed a search warrant.  In the same room where he was sleeping, authorities found cocaine lying on top of a clothes dresser.  After rousing the defendant and the other occupants of the apartment, the defendant told the police the apartment contained two guns:  the first was lawfully registered to his girlfriend and was kept in a box in the closet of their bedroom; the second was in a jacket pocket hung in the closet of another bedroom.  The defendant was found guilty of possession of a controlled substance, possession with intent to deliver a controlled substance, and unlawful possession of a weapon (because he was a convicted felon).  The sentencing judge applied the mandatory minimum sentence of five years because it found that the cocaine and the weapons were in “close proximity” to each other.The Superior Court determined that the mandatory minimum was applicable.  Although the term “close proximity” was not defined in the statute, it had previously been used in the forfeiture context and case-law held that any money found in the same house as unlawfully possessed controlled substances was subject to forfeiture.  Reasoning that the forfeiture statute and the sentencing enhancement served similar purposes, the Superior Court held that all case-law interpreting “close proximity” for forfeiture purposes applied to the sentencing provision.The practical implication of this ruling is having a gun in the same house where drugs are sold requires a judge to sentence to at least five to ten years incarceration.  It is important to understand that this sentencing provision does not require unlawful possession of a weapon; if a child is dealing drugs from the home where his father keeps his lawfully owned gun, that child is subject to the mandatory sentencing provision and must serve five years of incarceration.Read the statute here.Read the case here.