§ 9712. Sentences for offenses committed with firearms.
(a) Mandatory sentence.--Except as provided under section 9716 (relating to two or more mandatory minimum sentences
applicable), any person who is convicted in any court of this Commonwealth of a crime
of violence as defined in section 9714(g) (relating to sentences for second and subsequent
offenses), shall, if the person visibly possessed a firearm or a replica of a firearm,
whether or not the firearm or replica was loaded or functional, that placed the victim
in reasonable fear of death or serious bodily injury, during the commission of the
offense, be sentenced to a minimum sentence of at least five years of total confinement
notwithstanding any other provision of this title or other statute to the contrary.
Such persons shall not be eligible for parole, probation, work release or furlough.
(b) 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.
(c) 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.
(d) 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.
(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given
to them in this subsection:
"Firearm." Any weapon, including a starter gun, which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive or the expansion of
gas therein.
"Replica of a firearm." An item that can reasonably be perceived to be a firearm.
(Mar. 8, 1982, P.L.169, No.54, eff. 90 days; June 13, 1995, 1st Sp.Sess., P.L.1024,
No.17, eff. 120 days; Oct. 11, 1995, 1st Sp.Sess., P.L.1058, No.21, eff. 60 days)
1995 Amendments. Act 17, 1st Sp.Sess., amended subsecs. (a) and (e) and Act 21, 1st Sp.Sess., amended
subsec. (a). See the preamble to Act 17, 1st Sp.Sess., in the appendix to this title
for special provisions relating to legislative purpose. Section 6 of Act 21, 1st Sp.Sess.,
provided that the amendment of subsec. (a) shall apply to all offenses committed on
or after the effective date of Act 21.
Cross References. Section 9712 is referred to in sections 9712.1, 9715 of this title; sections 505,
2702.1 of Title 18 (Crimes and Offenses); section 6137 of Title 61 (Prisons and Parole).
Notes of Decisions
Cited in
364
cases (
25 in the last 5 years), 1985–2026 · leading case:
Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007).
Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007).
· cites it 22× “We are asked to consider whether the sentencing enhancement codified at 42 Pa. C.S. § 9712, which imposes a mandatory sentence enhancement on a person who *97 visibly possesses a firearm or firearm replica during the commission of a crime of violence, [1] applies to an unarmed…”
Commonwealth v. Washington, T., Aplt., 142 A.3d 810 (Pa. 2016).
· cites it 4× “United States had rejected a claim that Apprendi, the precursor to Alleyne, applied to mandatory minimum sentencing provisions, and explicitly reaffirmed [the Court’s previous upholding of] 42 Pa.C.S. §9712. Thus, had a court been presented with defendant’s current sentencing…”
Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. Ct. 2011).
· cites it 11× “At sentencing, the Commonwealth invoked 42 Pa.C.S. § 9712, and requested that the court sentence Appellant to a five-year mandatory term based on possession of a firearm during a crime of violence.”
Commonwealth v. Foster, 960 A.2d 160 (Pa. Super. Ct. 2008).
· cites it 10× “We conclude that Appellant, as an unarmed coconspirator in an armed robbery, was improperly sentenced pursuant to 42 Pa.C.S. § 9712(a). We therefore vacate the judgment of sentence and remand for re-sentencing.”
Commonwealth v. Bell, 516 A.2d 1172 (Pa. 1986).
· cites it 12× “This case requires our review of the applicability and constitutionality of section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which requires the imposition of a minimum prison sentence of at least five years *338 upon conviction of certain enumerated…”
Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985).
· cites it 10× “The issue in these appeals is the constitutionality of section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which requires the imposition of a minimum sentence of five years' total confinement upon persons found to have been in visible possession of a firearm…”
Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011).
· cites it 6× “Prior to sentencing, the Commonwealth invoked the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712(a), which provides, Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of…”
Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004).
· cites it 6× “§ 9712 (1982), which contained a provision mandating a minimum sentence of five years imprisonment if the judge found, by a preponderance of the evidence, the defendant visibly possessed a firearm while committing one of the specified felonies. Id., § 9712(a). The High Court…”
Apprendi v. New Jersey, 530 U.S. 466 (2000).
· cites it 2× “That case involved a challenge to the State's Mandatory *486 Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982). According to its provisions, anyone convicted of certain felonies would be subject to a mandatory minimum penalty of five years' imprisonment if the judge…”
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. Ct. 2014).
· cites it 3× “, 42 Pa.C.S. § 9712(c); 42 Pa.C.S. § 9712.1(c); 42 Pa.”
Commonwealth v. Bavusa, 832 A.2d 1042 (Pa. 2003).
· cites it 6× “Although the General Assembly did not speak that explicitly here, we are no less confident that it did not intend to set forth an additional element of the Section 6106(a)(1) felony offense. This case involves an amendatory statute which retained the primary felony offense…”
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).
· cites it 6× “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 *598 conviction and before…”
— 42 Pa. Cons. Stat. § 9712(a) — 61 cases
Commonwealth v. Foster, 960 A.2d 160 (Pa. Super. Ct. 2008).
“We conclude that Appellant, as an unarmed coconspirator in an armed robbery, was improperly sentenced pursuant to 42 Pa.C.S. § 9712(a). We therefore vacate the judgment of sentence and remand for re-sentencing.”
Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011).
“Prior to sentencing, the Commonwealth invoked the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712(a), which provides, Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of…”
Commonwealth v. Washington, T., Aplt., 142 A.3d 810 (Pa. 2016).
“United States had rejected a claim that Apprendi, the precursor to Alleyne, applied to mandatory minimum sentencing provisions, and explicitly reaffirmed [the Court’s previous upholding of] 42 Pa.C.S. §9712. Thus, had a court been presented with defendant’s current sentencing…”
Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007).
“We are asked to consider whether the sentencing enhancement codified at 42 Pa. C.S. § 9712, which imposes a mandatory sentence enhancement on a person who *97 visibly possesses a firearm or firearm replica during the commission of a crime of violence, [1] applies to an unarmed…”
— 42 Pa. Cons. Stat. § 9712(b) — 27 cases
Commonwealth v. Bavusa, 832 A.2d 1042 (Pa. 2003).
“Although the General Assembly did not speak that explicitly here, we are no less confident that it did not intend to set forth an additional element of the Section 6106(a)(1) felony offense. This case involves an amendatory statute which retained the primary felony offense…”
Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007).
“We are asked to consider whether the sentencing enhancement codified at 42 Pa. C.S. § 9712, which imposes a mandatory sentence enhancement on a person who *97 visibly possesses a firearm or firearm replica during the commission of a crime of violence, [1] applies to an unarmed…”
Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004).
“§ 9712 (1982), which contained a provision mandating a minimum sentence of five years imprisonment if the judge found, by a preponderance of the evidence, the defendant visibly possessed a firearm while committing one of the specified felonies. Id., § 9712(a). The High Court…”
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).
“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 *598 conviction and before…”
— 42 Pa. Cons. Stat. § 9712(c) — 12 cases
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. Ct. 2014).
“, 42 Pa.C.S. § 9712(c); 42 Pa.C.S. § 9712.1(c); 42 Pa.”
— 42 Pa. Cons. Stat. § 9712(d) — 3 cases
Commonwealth v. Bell, 516 A.2d 1172 (Pa. 1986).
“This case requires our review of the applicability and constitutionality of section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which requires the imposition of a minimum prison sentence of at least five years *338 upon conviction of certain enumerated…”
— 42 Pa. Cons. Stat. § 9712(e) — 8 cases
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