J-S04028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSHUA ADAM MARTIN,

                            Appellant                 No. 858 MDA 2014


        Appeal from the Judgment of Sentence entered March 20, 2014,
              in the Court of Common Pleas of Lancaster County,
             Criminal Division, at No(s): CP-36-CR-0001422-2013


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED FEBRUARY 02, 2015

        Joshua Adam Martin (“Appellant”) appeals from the judgment of

sentence imposed after he pled guilty to one count of unlawful contact with a

minor and one count of criminal use of a communication facility.1

        The trial court summarized the factual background as follows:

              On May 16, 2013, the Attorney General of the
        Commonwealth of Pennsylvania filed a Criminal Information (No.
        1422-2013) charging [Appellant] with four counts of Unlawful
        Contact with a Minor and one count of Criminal Use of a
        Communication Facility. According to the Information, these
        offenses occurred between the dates of July 11, 2012 and
        February 13, 2013, at which time [Appellant] used a computer
        on several occasions to communicate with an undercover agent
        of the Pennsylvania Office of Attorney General who was posing
        as a 14-year-old female. During those occasions, [Appellant]
        expressed a desire to engage in oral and vaginal intercourse with
____________________________________________


1
    18 Pa.C.S.A. § 6318(a)(1) and § 7512(a).




*Retired Senior Judge appointed to Superior Court.
J-S04028-15


        the minor. When [Appellant] subsequently arrived at an agreed
        upon location to meet with the minor, he was arrested and taken
        into custody.

Trial Court Opinion, 6/24/14, at 1 (footnote omitted).

        Appellant entered his guilty plea on November 21, 2013.2     Appellant

was sentenced on March 20, 2014 to four (4) to ten (10) years of

incarceration for unlawful contact with a minor, and a concurrent seven (7)

years of probation for criminal use of a communication facility.          Both

sentences were “on the very low end of the standard range of the

Sentencing Guidelines.” Trial Court Opinion, 6/24/14, at 7; see also, N.T.,

11/21/13, at 8.

        On appeal, Appellant presents a single question for our review:

             IN THE CONTEXT OF IMPOSING SENTENCE FOR
        OTHERWISE CONSENSUAL ORAL SEX ACTIVITY BETWEEN AN
        ADULT DEFENDANT AND A COMPLAINANT WHO IS 13, 14 OR 15
        YEARS OF AGE, DOES PENNSYLVANIA’S ENTIRE SENTENCING
        SCHEME, INCLUDING THE SENTENCING GUIDELINES, VIOLATE
        DEFENDANT’S   CONSTITUTIONAL   RIGHTS     TO   EQUAL
        PROTECTION OF THE LAWS, DUE PROCESS, AND THE RIGHT
        AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE IT
        IMPOSES VASTLY GREATER SENTENCES FOR OTHERWISE
        CONSENSUAL ORAL SEX ACTIVITY THAN IT DOES FOR
        OTHERWISE CONSENSUAL VAGINAL SEX ACTIVITY?

Appellant’s Brief at 5.

        Before we reach the merits of Appellant’s issue, we consider the trial

court’s statement that “[a]t no time did [Appellant] or his counsel raise the

____________________________________________


2
    The three (3) remaining charges were nolle prossed.



                                           -2-
J-S04028-15



constitutionality of the Sentencing Guidelines” prior to sentencing.               Trial

Court Opinion, 6/24/14, at 5, 11.              Both the        trial    court and the

Commonwealth       assert   that   Appellant       has   waived    his    constitutional

challenges because he failed to raise them prior to sentencing. Trial Court

Opinion, 6/24/14, at 11; Commonwealth Brief at 5-7.                Appellant counters

that his issues involve the legality of his sentences, and therefore may be

raised for the first time on appeal. Appellant’s Brief at 9.

      Our review of the certified record, including the notes of testimony

from the November 21, 2013 guilty plea hearing, confirms that Appellant

first raised his constitutional challenges after sentencing in a post-sentence

motion and in his Pa.R.A.P. 1925(b) statement. We have held that “issues

regarding    the    constitutionality   of     a     statute      can    be    waived.”

Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014).

However, a constitutional challenge may be non-waivable where it pertains

to the legality of the sentence. Id. We explained:

            Through [previous] en banc cases, we have established
      the principle that the term illegal sentence is a term of art that
      our Courts apply narrowly, to a relatively small class of cases.
      This Court has consistently enunciated three distinct categories
      of legality of sentence claims as a baseline. These are (1) claims
      that the sentence fell outside of the legal parameters pre-scribed
      by the applicable statute; (2) claims involving merger/double
      jeopardy; and (3) claims implicating the rule in Apprendi v. New
      Jersey, 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (2000).
      This Court has also held that claims pertaining to the Eighth
      Amendment’s Cruel and Unusual Punishment Clause also pertain
      to the legality of the sentence and cannot be waived.




                                        -3-
J-S04028-15



Id. (citations omitted).

      Given that one of Appellant’s constitutional challenges invokes the

Eighth Amendment prohibition against cruel and unusual punishment, we

decline to dispose of this appeal on the basis of waiver.

      Appellant summarized the essence of his constitutional challenges:

      [T]he statutory scheme in Pennsylvania creates highly disparate
      sentences based on the type of sex act in the context of
      otherwise consensual sexual activity between an adult defendant
      and a complainant who is 13, 14, or 15 years of age.

Appellant’s Brief at 11 (underline in original text).

      The trial court refined Appellant’s issue:

      Essentially, [Appellant] argues that designating oral intercourse
      under the crime of IDSI as a more serious crime than vaginal
      intercourse under Statutory Sexual Assault is unconstitutional
      under the Federal and State Due Process Clauses, the
      Pennsylvania and Federal Equal Protection Clauses, and the
      Federal and State prohibitions against cruel and unusual
      punishment.

Trial Court Opinion, 6/24/14, at 8.

      Upon review, we find Appellant’s claim to be specious. We note that in

the absence of waiver, the trial exercised forbearance in addressing the

merits of Appellant’s constitutional challenges.        The trial court aptly

commented:

           [T]here is no substantive due process right for an adult to
      engage in deviate sexual intercourse with an adolescent under
      16 years of age, …

                                       ***


                                      -4-
J-S04028-15


             [Appellant’s] morals and standards do not control the
      constitutionality of a policy judgment made by the Sentencing
      Commission. While [Appellant] may believe that engaging in
      oral intercourse with a young adolescent girl is less serious than
      engaging in vaginal intercourse, thus deserving of a lesser or
      equal [offense gravity score], the Sentencing Commission clearly
      did not agree. Despite [Appellant’s] argument, the wisdom,
      accuracy, or agreeability of a policy decision does not control the
      constitutionality of an otherwise valid policy decision.

Trial Court Opinion, 6/24/14, at 16.

      Moreover, the entirety of the trial court opinion, authored by the

Honorable Donald R. Totaro on June 24, 2014, thoroughly disposes of

Appellant’s claims, such that further analysis by this Court is not necessary.

We therefore adopt Judge Totaro’s opinion as our own in rejecting

Appellant’s constitutional claims and affirming his judgment of sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




                                       -5-
                                                                                 Circulated 01/07/2015 03:37 PM




IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                            CRIMINAL


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                                      PA R.A.P. 1925 OPINION                             :<           '.I>
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BY TOTARO, J.                                                                            "l>
       On May 16,2013, the AttorneyGenera1 bfthe Commonwealth of Pennsylvaniafiled a

Criminal Information (No. 1422-2013) charging JoshuaAdarn Martin (''Defendant'') with four

counts of Unlawful Contact With a Minor' and one count of Criminal Use of a Communication

Facility.2 According to the Infonnation, these offens~s occurred between the dates of July 11,

2012 and February 13,2013, at which time Defendant used a computer OD several occasions to

communicate with an undercover agent of the Pennsylvania Offi.ce of Attom.ey General who was

posing as a 14-year-old female. During ,those occasions, Defendant expressed 8 desire to engage

in oral and vaginal interco~e with the minor. When Defendant subsequently arrived at an

agreed upon location
                .    to meet with the minor,. he was arrested and taken into custody.

       More specifically. Count I of the Criminal Information cbarged Defendant with Unlawful

Contact With a Minor, for expressing a desire to engage in oral intercourse with the minor .as

prohibited under 18 Pa. C.S.A. §3123(a)(7), relating to Involuntary Deviate Sexual Intercourse

("IDSP'). The greding for this offense is a felony.of the fust degree, the Offense Gravity Soore


       I   18 pa. C.SA § 6318(a)(l)

       2   18 Pa. C.S.A. § 7512(a)
                                                                                    Circulated 01/07/2015 03:37 PM




 ("OGS") is "12," and the standard (ODge guideline sentence with no ·Prior Record Score ("PRS'1

 is 'a niinimum of 48 months to 66 months incarceration.

        Count 2 charged Defendant with Unlawful Contact With a Minor, for expressing a desire

to engage in vaginal intercourse with the minor as prohibited under l8Pa. C.S.A. §3l22.1,

relating to Statutory Sexual Assault The grading for this offense was charged as a felony of the

seco~d degree,) the OGS is "9," and the standard range guideline seiltence with no PRS is a

minimum of 12 months to 24 months incarceration.

        Count 3 charged Defendant with Unlawful Contact With a Minor, for expressing a desire

to digitally penetrate the vagina of the minor as prohibited under 18 Pa. C.S.A. §3l25(a)(8),

relating to Aggravated Indecent Assault. The grading for this offense is listed as a felony of the

. second degree, the OOS is "10," and the standard range guideline sentence with no FRS is a

minimum of22 months to 36 months incarceration.

        Count 4 charged Defendant with Unlawful Contact With a Minor, for sending an image

of his exposed penis for the minor to view as prohibited under 18 Pa. C.S.A. §5903(c), relating to

Obscene aud Other Sexual Materials and Performances. The grading of this offeose was charged

as a felony 'of the second degree,4 the OGS is "5," and the .st~dard range guideline sentence with
no PRS is a minimum of Restorative Sanctions ("RS',) to 9 months incarceration.




        3 Because Defendant was 31 years old when the offenses occurred and the undercover agent was
posing as a '14-year-old female, Defendant was 11 or more years olderthan the purported victim. Thus,
the proper grading for this offense would be a felony of the first degree. 18 Pa C.S.A. §3122.1(b).

        4 Pursuant to 18 Pa. C.S.A. §5903(h)(2), any person who disseminates explicit sexual materials
to a minor is guilty of a felony of the th.ird degree if that offender has no prior convictions under
subsection (c) or (d). Because Defendant has no prior record, this should be graded as a felony of the
third degree.

                                                   2
                                                                                         Circulated 01/07/2015 03:37 PM
"




             COWlt 5 char.ged Defendant with Criminal Usc of a Communication Facility for using a

     computer with internet accesS to make contact with an undercover agent posing ~ a 14-year-old

     minor, expressing a desire to engage in sexual activity with the minor, and transmitting images of

     his penis for the minor to view.. The giading of this offense is a felony of the third degree, the

     OGS is "5," and the standard 'range guideline sentence with no PRS is a minimum ofRS to 9

    , months incarceration,

            On November 21, 2013, Defendant appeared before the Honorable Judge Louis J, Farina

     to enter an open guilty plea to Count I of the Criminal Information, charging him with Unlawful

     Contact \Vith a Minor. This-count was based upon Defendant's conduct in contacting a law

     enforcement officer who had assumed the identity of a 14-year-old minor, for·the purpose of

     engaging in oral intercourse with the minor, (Notes of Testimony at 2) (hereinafter "N,T,"),

     This sexual activity is prohibited under 18 Pa, C.S,A, §3123(a)(7), relating to IDSL' Defendant

     also entered an open guilty plea to,Count 5,' Id

            During the guilty plea proceeding, Judge Farina reviewed with Defendant the maximum

     penalties he could receive: 27 years incarceration and fUles totaling $40,000, (N,T, at 2-3),

     ~en    asked whether any promises had been made to him as to the sentence he would receive.

     Defendant replied ''No,'' Id at 6-7, The Court then asked Defendant whether he was aware that

     Under the sentencip.g guidelines the standard range called for a sentence of 4 to 8 years in jail. Id


             j For purposes of the present case, "[d]eviate sexual intercourse" is defined as "[s]exual
     intercourse per os or per anus between human beings. . .... )8 Pa. C.S.A. § 3101. "Our courts have
     viewed the phrase 'intercourse per os or per anus' as describing oral and anal sex." Commonwealth v.
     Kelley, 801 A.2d 551, 555 (Pa, 2002), '                  '

            6  The Commonwealth agreed to nolle pros Counts 2, 3, and 4 of the Criminal lnformation at tbe
     time of sentencing. (N.T. "at 3).

                                                        3
                                                                                    Circulated 01/07/2015 03:37 PM




at 7. Defendant replied "Yes. Your Honor.'" Id. Judge Farina then made it vel)' clear to

Defendant that "[t]he judge is not restricted by that, he could go up or he could go down, but you .

are most likely looking at State time; do you understand that?" Id Again, Defendant responded

by saying "Yes, Your Honor." Id. Later, while discussing with Defendant his appellate rights,

the following oceurred: '

        TIIECOURT:              You can raise that the sentence was an abuse of discretion•
                              . not justifiable under the.law. Now, The [sic] judge bas got a
                                lot ofroom in that regard, but you don't knowtbat until your
                                sentence. But, generally speaking, they seldom get reversed
                                because the judge is ~vell aware of what the restrictions are on"
                                it. I mean, four to eight - - you are not going to touch four lp
                                eight. Iithat's what you ge~ I mean, that's the bottom of the
                                standard range. All right?

        DEFENDANT:              Yes.

(N.T. at 8-9).

        After reviewing the Sentencing Guidelines Worksheet, being·informed by the Court of

the standard range of the Sentencing Guidelines for the offense for which Defendant was

pleading guilty, and being advised by the Court that a sentence of 4 to 8 years incarceration

would likely withstand any appeal, Defendant expressed to the Court that he still wished to 'plead

guilty. (N.T. at 9-10). At rio time did Defendant or his counsel hesitate about pleading guilty,

they did 'not challenge the Sentencing Guidelines, nor did they question the likely sentence of 4 to

8"years incarceration in a State Correctional Institution that was referenced by Judge Farina.




        7 At the time of the guilty plea hearing, the Court was provided with a Sentencing Guideline
Worksheet listing Defendant's name aDd the specific charges for which he was pleading guilty. See
Sentencing Guidelines"Workshoet. The Sentencing"Guidelines Worksheet clearly reflected a ~dard
range minimum sentenco o.fbctween 48 months and 66 months incarceration for Count 1. ld The
signatures of Defendant and his counsel appear on that Sentencing Guidelines Worksheet. ld.

                                                   4
                                                                                      Circulated 01/07/2015 03:37 PM




       At the conclusion of the guilty plea hearing; Judge Farma accepled Defendant's guilty

plea after finding it was knowing, voluntary and inlelligent. (N.T. at II). The Court then

directed that a pre-sentence investigation be completed prior to imposition of sentence, along

with an assessment by the Sexual Offenders Assessment Board to detennine whether Defendant

should be classified as a sexually violent predator. ld.

       On March 20, 2014, Defendant appeared before this Court for sentencing before the

Honorable Judge Donald R. Tolaro' At the start of the hearing, this Court specifically reviewed

with Defendant the Sentencing Guidelines Worksheet that was submitted at the time of the guilty

plea, which listed a standard range sentence of 48 months to 66 months incarceration. (Notes of

Sentencing at 4) (hereinafter ''N.S.''). Defendant acknowledged reviewing the worksheet with

bis attorney prior to the guilty plea, and confinned it was his signature on the form. ld. at 4-5.

Defendant also stated he understood the information contained on the worksheet. ld. at 5.

       When questioned, Defendant recalled that at the time of the guilty plea it was explained

to bim there was no agreement as to the sentence he would receive. (N.S. at 6). Furtheml0re,

Defendant stated there were no promises made to him at any time. ld. AdditionalJy, Defendant

understood the sentence would be at the complete discretion of the Court. ld

       Prior to imposition of sentence, Defendant's counsel asked the Court to deviate below the

standard range ofthe Sentencing G~idelines, because of Defendant's personal history, lack of

prior record, and acceptance of responsibility. (N.S. at 12-15), Counsel further argued that no

child was banned, and it was questionable whether Defendant intended to actually carry out the

act. ld At no time did Counsel challenge the constitutionality oftlle Sentencing Guidelines.


       g   Judge Farina retired at the end of20l3, and this case was then reassigned to Judge Totaro.

                                                     5
                                                                                      Circulated 01/07/2015 03:37 PM




        In response, the Court noted it was clear from the pre-sentence report that Defendant

engaged in predatory behavior by deliberately grooming an individual he thought to be a 14-year-

old child for a sexual liaison.' (N.S. at 18-20, 25-26). Defendant engaged in this course of

conduct for almost seven months, repeatedly initiating contact for the purpose of engaging in

sexual activities. Id at 25. While doing so, Defendant recognized his conduct was wrong and he

could go to jail. lO Id at 19-21. Yet Defendant was prepared to act out on his urges when he

drove to a designated location to meet with the child. Thus, the Court found that Defendant was

a danger to the public, incarCeration was warranted because a lesser sentence would depreciate

the seriousness 'of the offense, and the statute for which Defendant was convicted was designed

to prevent people like him from successfully abusing minor children. Id. at 19,26.

        For these reasons, and based upon all additional factors contained within the record, the

Court imposed the following sentence: Count 1: four to ten years incarceration in the State




         9 According to text messages contained within the pre-sentence investigation report, Defendant
replied ''No. I dig younger girls" when he w~ asked by the purported victim whether it bothered him
                                 a
that he was communicating with 14-year-old girl. (N.S. at 20). Defendant then sent a picture ofbis
exposed penis to the agent whom he believed was the 14-year-old girl. ld Further, during several
communications between July 11,2012 and the date of arrest on February 13,2013, Defendant discussed
engaging in sexual activities with the person' he thought was a child. For example, in October 2012
Defendant wrote "I really need.to meet you soon. That okay with you?" ld. In January 2013, Defendant
asked if the child was ready to lose ~er virginity, while stating he wanted to sleep with her. ld at 21. On
February 12, 2013, one day before he went to the designated meeting location to meet with the purported
child, Defendant wrote "I'm excited by the thought of you in my car." ld

         10 Defendant sent several cautionary messages to the child where he acknowledged his conduct
was wrong and he could go to jail if caught. (N.S. at 19). For example, in one communication Defendant
wrote "[j]ust keep it to yourself. My wife can't fmd out. Your mom would have me arrested." ld. at 20.
In October 2012, Defendant wrote "I'm sure your mom would call the cops on me." ld On January 2,
2013, in response to the agent indicating her mom wasn't letting her on the computer, Defendant wrote
"she's trying to keep you away from guys like me, haha." ld. at 20-21. On February 12,2013, one day
before his arrest, Defendant wrote "[s]till ready to get in my car with me, maybe tomorrow? I'm scared
though. I could be arrested and ~arged with child rape or something like tbat." ld. at 21.

                                                     6
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Correctional Institution and a fine of $300.00; Count 5: seven years probation, concurrent to the

sentence on Count I." (N.S. at 22-27). Both sentences were on ilie very low end of the standard

range of the Sentencing Guidelines. Defendant did not object to the sentence imposed, nor did

he raise any constitutional challenge.

        Thereafter, on March 31, 2014. Defendant's counsel filed a timely Post-Sentence Motion

to Modify Sentence, asserting that the trial court erred in tailing to deviate from the standard

range of1he Sentencing Guidelines when fashioning the ~entence imposed. Additionally, counsel

alleged the Sentencing Guidelines were inc.onsistent and irrational, thus depriving him of due

process of law, equal protection of the law, and subjecting him to cruel and unusual punislunent.

In response, the Commonwealth filed an Answer requesting that the Court deny Defendant's

Motion to Modify Sentence. On April 15,2014, the Court entered an Order denying Defendant's

Post-Sentence Motion to Modify Sentence.

        On May 15, 2014, Defendant's new counsel, James J. Karl, Esquire, Chief Public

Defender, timely filed a Notice of Appeal. On June 4, 2014, Mr. Karl filed a Statement of Errors

Complained of on Appeal, alleging the Sentencing Guidelines violate Defendant's: <a) rights to

equal protection of the laws·under the Fourteenth Aniendment to the United States Constitution

and under Article r, Section 1 of the Pennsylvania Constitution; (b) rights to Due Process of Law

under the Fourteenth Amendment of the United States ConstitutiOn, and Article I, Section 9 of

the Pennsylvania Constitution; and (c) his rights against cruel and unusual punishment under the




         I I The Court approved the Commonwealth's request for 3 nolle pros on Counts 2, 3, and 4.
(N.S. at 27). Further. Defendant wa,s not sentenced as a sexually violent predator. ld. However. as a
Tier II offender, Defendant was notified of his responsibility to register with the Pennsylvania State
Police for the next 25 years and verify his registration information in person semi~annually. Id at 27-33.

                                                     7
                                                                                   Circulated 01/07/2015 03:37 PM




Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 13,

ofthe Pennsylvania Constitution. This opinion is written pursuant to Rule 1925(a) of the

Pennsylvania Rules of Appellate Procedure.

                                           DISCUSSION

        In his Post-Sentence Motion and Statement of Errors Complained of on Appeal,

Defendant challenges the constitutionality ofPcIUlSyivania's legislative scheme which regulates

criminal sexual activity by noting that the Sentencing Guidelines, 204 Pa. Code § 303.1, et seq.,

treat the offense of IDS I, 18 Pa. C.S.A. § 3123(a)(7), a felony of the first degree, as a more

serious crime than Statutory Sexual Assaul~ 18 Pa. C.S.A. § 3122. 1(b), also a first degree

felony." Essentially, Defendant argues that designating oral intercourse undet the crime of IDSI

as a more serious crime than vaginal intercourse under Statutory Sexual Assault is

llDconstitutional under the Federal and State Due Process Clauses, the Pennsylvania and Federal

Equal Protection Clauses, and the Federal and State prohibitions against cruel and unusual

punishment.

        Constitutional claiins, even those involving a sentence, are waived if they are not raised

and preserved at every level of the proceedings. Commonwealth v. Wallace, 533 A.2d 1051,

1053-54 (pa. Super. 1987); see also Commonwealth v. Walton, 397 A.2d 1179, 1185 (pa. 1979)

(allegation that the lower court's construction of a restitution statute violated due process was


        12 As previously noted, Defendant pleaded guilty to the charge of Unlawful Contact with a
Minor pursuant to ) 8 Pa. C.S.A. § 6318(aXl), which incorpomted the offense he intended to commit
when he contacted a law enforcement officer posing as a minor. Defendant was not charged with the
underlying sexual offenses. For ease of analysis, and since the crime of Unlawful Contact with a Minor
takes on the grading and OGS of tho underlying crimes pursuant to 18 Pa. C.S.A. § 6318(b)(1), the
relevant underlying offenses of IDS! and Statutory Sexual Assault will be referred throughout this
Opinion as the challenged crimes.

                                                   8
                                                                                       Circulated 01/07/2015 03:37 PM




waived when not raised at the sentencing hearing); Commonwealth v. Boone, 354 A.2d 898, 904

(pa. 1975) (claim that the imposition of a maximum as well as minimum sentence violated due

process was waived for failure to advance this argument at the sentencing proCeedings).1l

        Through jurisprudence, a distinction has emerged between legal questions involving

sentencing and an illegal sentencing claim." Commonwealth v. Archer, 722 A.2d 203, 209-10

(pa. Super. 1998). Simply raising a legal question as to a sentence does not require an appellate

coW1 to review the question as it would all illegal sentence claim. ld at 210.15

        In the present case; Defendant has not raised an illegal sentencing claim. Rather, he bas

raised a legal question involving sentencing, which is a waivable claim. Specifically. Defendant

has raised a constitutional claim that must be raised and preserved at every level of the

proceedings. However, at no time did Defendant raise or preserve such a constitutional claim

during the guilty plea proceeding or at the sentencing hearing.


         13 In Commonwealth v. Sessoms, the Supreme Court indicated that an attack upon the
constitutionality of the Sentencing Guidelines would be subject to appellate review only where the issue
has been "properly preserved at all stages of adjudication up to and including any direct appeal." 532
A.2d 775, 782 n. 2 (pa. 1987) (quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (pa. 1983».

        14 Issues that go to the legality of a sentence are excepted from this general rule, they may never
be waived solely on the basis of a procedural error, and they may properly be raised for the first time on
appeal. Commonwealth v. Wallace, 533 A.2d 1051, 1053 (Pa. Super. 1987).

         IS Defendant has not challenged the grading of any of the offenses to which he pleaded guilty.
Such a challenge would give rise to a legality of sentence claim and therefore could not be waived. See
Commonwealth v: Scarborough, 89 A.3d 679, 685 (pa. Supe~. 2014) ("a question as to the proper grading
of an offense goes to the legality of the sentence and not the discretionary aspects"). Questions involving
an application of the Sentencing Guidelines go to discretionary aspects of sentencing, and may be waived
ifnot raised at the proper juncture. Commonwealth v. Archer, 722 A.2d 203, 211 (Fa. Super. 1998). The
improper utilization of the Sentencing Guidelines is an error of law, which is a legal question, but does
not render the sentence illegal. Id. If every improper calculation of an OGS was held to implicate the
legality of sentence, the Sentencing Guidelines would be given more weight than they were intended. Id
at 210. In the present case, Defendant's challenge to the assignment ofOGS by the Sentencing
Commission is at best a legal question, not one which renders the sentence illegal. 'Thus, Defendant's
failure to raise this issue at the proper time renders the question waived.

                                                     9
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       On May 16,2013, the Attorney General of the Commonwealth of Pennsylvania filed a

Criminal Infonnation charging Defendant with four counts ofUnIawful Contact With a Minor

and one count of Criminal Use ofa Communication Facility, at which time Defendant and his

counsel became immediately aware of the nature of the charges and of the OGS assigned to each

offense. Nevertheless, Defendant did not raise a constitutional challenge to the statutory scheme

as it related to the applicable Sentencing Guidelines.

       On November 21, 2013, Defendant appeared before the Honomble Judge Louis J. Farina

and entered into an open guilty plea to Count 1 of the Criminal Infonnation, for contacting a law
                                                         .
enforcement officer who assumed the identity of a minor to engage in oral intercourse. During

the guilty plea proceeding, Judge Farina reviewed with Defendant the Sentencing Guidelines,

which included a standard range minimum sentence of at least four years in jail. The Sentencing

Guidelines Worksheet signed by Defendant and his counsel also reflected a standard range

minimwn sentence of 48 months to 66 months incarceration. Moreover, :Qefendant was told an

appeal would likely be unsuccessful if he received a minimum sentence of four years.

Nevertheless, at no point during this hearing did Defendant or his cOWlsel ever challenge the

constitutionality of the Sentencing Guidelines or raise a question about the OGS assigned to the

relevant offenses. Rather, Defendant chose to pro.ceed with a guilty plea.

        On March 20, 2014, Defendant appeared before this Court for sentencing, at which time

the Court reviewed with Defendant the Sentencing Guidelines 'Vorksheet submitted at the time

of the guilty plea. Defendant acknowledged reviewing the worksheet with his attorney prior to

the guilty plea. he confinned it was his signature on the fonn, and he stated he understood the

infonnation contained on the worksheet. Prior to imposition of sentence, Defendant's counsel


                                                 10
                                                                                  Circulated 01/07/2015 03:37 PM




asked the Court to deviate below the standard range of the Sentencing Guidelines. primarily

because ofDefendant"s personal history and acceptance of responsibility. However, at no time

did Defendant or his counsel raise the constitutionality of the Sentencing Guidelines ~ an issue

during the sentencing hearing. Therefore. because Defendant failed to raise or preserve this

challenge at all applicable stages of the proceedings, his claims should be deemed waived.

       Assuming, arguendo, Defendant has not waived his claims. the Court will address the

merits of each issue.

       "In conducting [this] review, [the Court is] guided by the principle that acts passed by the

General Assembly are strongly presumed to be constitutional." Commonwealth 'V. Neiman, 84

A.3d 603, 611 (Pa 2013) (quoting Pennsylvania State Ass'n ofJury Comm'rs v. Commonwealth,

64 AJd 611 , 618 (Pa.2013)) (internal quotation marks omitted). Additionally:

       When evaluating challenges to a statute - whether those challenges are based on
       vagueness . .. or any other considerations - [this court] must also keep in mind that
       there is a strong presumption that legislation is constitutional. A party challenging
       legislation bears a heavy burden to prove otherwise. Accordingly, this Court will
       strike the statute in question only if Appellant oonvinces us that it clearly, palpably
       and plainly violates the federal or state constitutions.

Commonwealth v. Orie, 88 A.3d 983,1024 (pa. Super. 2014) (quoting Commonwealth v. Thur,

906 A.2d 552, 560-61 (pa Super. 2006)).

       The Pennsylvania Commission on Sentencing was established as an agency of the

General Assembly. 42 Pa. C.S.A. §§ 2151.2." Pursuant to rules and regulations, the Sentencing



        16 The Pennsylvania Commission on Sentencing was created in 1978, in part for the purpose of
promulgating guidelines to be considered by courts in imposing sentences. CQmmonweallh v. Sessoms,
532 A.2d 775, 776 (Pa. 1987). Enabling legislation contemplated that the Commission would adopt
Sentencing Guidelines after publication in the Pennsylvania Bulletin and an opportunity for public
comment. [d. In addressing the authority of the Sentencing Commission to en~t guidelines, Sessoms
stated:

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 Commission shall·have the power to, inter alia. adopt guidelines for sentencing within the limits

 established by law. 42 Pa. C.S.A. § 2154. Subject to gubernatorial review pursuant to Article

 ill, Section 9 of the Pennsylvania Constitution. the General Assembly may by concurrent

 resolution reject in their entirety any guidelines adopted by the conunission within 90 days of

 their publication in the Pennsylvania Bulletin. 42 Pa. C.S.A. § 2155(b). Sentencing Guidelines

. adopted by the commission shan become effective 90 days after pUblication in the Pennsylvania

 Bulleting unless disapproved pursuant to subsection (b) .... 42 Pa. C.S.A. § 2155(c).

        Defendant's fiist constitutional challenge to the Sentencing Guidelines is made under the

 Equal Protection Clause of the United States and Pennsylvania Constitutions. 17 According to

 Defendant, a legislative scheme that punishes more severely an·individual who engages in oral

 intercourse with a minor than one who engages in vaginal intercourse with a minor violates his

 rights to equal protection.

        The Equal Protection Clause requires similarly-situated individuals to be treated alike

 under the law. Plyler v. Doe, 457 U.S. 202, 216 (1982). However, "[tlhe Constitution does not



        The legislature with the govemorts approval has deemed it proper that the findings of such
        a body, assembled to assist it in developing and overseeing a sound sentencing system, be
        given practical application in individual cases as well. We may say that in directing courts
        to consider these guidelines, just as they must consider a number of listed though
        non-exclusive factors in imposing probation, the legislature has done no more than direct
        that tbe courts take notice of the Commission's work.. Only in this limited way can the
        work· product of the Commission~ a legislative agency. be given effect beyond the confmes
        of the General Assembly and at the same time avoid invalidation on constitutional grounds.

  Id. at 781 (sentence vacated because previous Sentencing Guidelines were adopted with the lack of
 required presentment to the Governor and.thus were deemed unconstitutional).

         11 Equal protection provisions of the Pennsylvania Constitution are analyzed under the same
 standards used by the United States Supreme Court when reviewing equal protection claims under the
 Fourteenth Amendment to the United States Constitution. Commonwealth v. Albert, 758 A.2d 1149,
 1151 (pa. 2000).

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require things which are different in fact or opinion to be treated in law as though they were the

same." Id. (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940» (internal quotation marks

omitted). It is inherent and unavoidable in the legislative process that lines creating distinctions

between citizens will be formed. Massachusetts Bd. oJRet. v. Murgia, 427 U.S. 307,314 (1976).

        Varying levels of scrutiny are applied to • challenged statute based on the nature of the

group distinction involved. See, e.g. City oJCleburne v. Cleburne Living Crr., 473 U.S. 432

(1985) (racial classifications are subject to strict scrutiny); Mississippi University Jor Women v.

Hogan, 458 U.S. 718 (1982) (gender classifications receive intermediate scrutiny). Absent a

classification based on a suspect class such as gender or race, a state law enjoys a presumption of

validity ond will only be struck down if the challenger con prove it bears no rational relationship

to any legitimate government objective. Parham v. Hughes, 441 U.S. 347, 351 (1979)."

        Presently, neither 18 Pa. C.S.A. § 3122J nor 18 Pa. C.S.A. § 3123(aX7) contain any

distinctions based on gender or race. Rather, there are only two characteristics referenced in

these statutc.s, age and marital status, with only age referenced in the Sentencing Guidelincs. 19

To the extent Defendant is challenging the legislative scheme on the basis of different guidelines

for different types of sexual activity,·Defendant's claim must fail, as the Equal Protection Clause

concerns classifications of people and not the sentences imposed for particular acts where no


        18 In Commonwealth v. Scarborough, 89 A.3d 679, 685-88 (pa. Super. 2014), the Superior Court
ofPennsyivania recently beld that a geographic classification based on that defendant's location in the
City of Philadelphia. which resulted in defendant being charged with a third degree felony for carrying a
concealed firearm without a license, did not create a suspect classification and did not violate due process
nor equal protection rights even though such an offense is graded as a first degree misdemeanor if
committed anywhere else in Pennsylvania. Although defendant argued certain fundamental rights were
implica~ed, in an attempt to garner strict scrutiny. the Court applied a rational basis review. Id. at 686.


        19  IDSI and Statutory Sexual Assault have been deemed constitutional under the equal protection
classifications of both age and marital status. Commonwealth v. Albert, 758 A.2d 1149, 1155 (Pa. 2000).

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fimdamental right is implicated. See Probst v. Commonwealth, Depft o/Transp., Bureau 0/

Driver Licensing, 849 A.2d 1135, 1143 (pa 2004) (like persons in like circwnstances will be

treated similarly)."

       Defendant's next constitutional challenge to the Sentencing Guidelines is made under the

Fourteenth Amendment Due Process Clause of the United States Constitution, which provides

that no state shall "deprive any person of life. liberty, or property without due process of law."

U.S. Const. amend. XIV, § 1."

       The constitutional guarantee of Due Process protects more than simply fair process, but

provides for the protection of certain substantive liberty interests as well. Washington v.

G/ucksberg, 521 U.S. 702, 719 (1997). This rule specifically protects fundamental rights and

liberties that are objectively and deeply rooted in the history and tradition of our country. !d.

Any governmental intrusion into a fundamental right is required to be narrowly tailored to

achieve a compelling state interest Id When no fundamental right has been implicated, a law

need only be rationally related to some legitimate state interest. Romer v. Evans, 517 U.S. 620,

631 (1996). Ordinarily, a law will be upheld if it advances a legitimate state interest even when

"the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it

seems tenuous." Id. at 632.



        20 Courts will only create a new suspect classification when the group is "subjected to such a
history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process." Marsachusetts Bd o/Rel. v.
Murgia, 427 U.S. 307, 313 (1976) (quoting San Antonio School District v. Rodriguez, 411 u.s. 1,28
(1973)). Clearly we are not presented with such a situation in the present case.

        21 Defendant also claims his right to Due Process of Law was violated under the Pennsylvania
Constitution. Due Process claims under the United States and Pennsylvania Constitutions are analyzed
under the same standard. Commonwealth v. Snyder, 71 .3 A.2d 596, 602 (Pa. 1998).

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       A state has a compelling interest in safeguarding the physical and psychological well-

being of children. New Yorkv. Ferber, 458 U.S. 747, 757 (1982). "A democratic society rests,

for its continuance, upun the healthy, well-rouuded growth of youug people into full maturity as

citizens." Prince v. Massachusetts, 321 U.s. 158, 168 (1944). This compelling interest justifies

a broad range of legislation aimed at protecting the well-being of children, even when

constitutionally protected rights are implicated. Ferber. 458 U.S. at 757. It rests within the

power of the individual states to enact and enforce their own criminal code as they see fit. Knapp

v. Schweitzer, 357 U.S. 371, 378 (1958). The "prevention of sexual exploitation and abuse of

children constitutes a government objective of surpassing importance," Id. To detennine

whether a regulation is a valid exercise of the state's police power, the question is whether it

benefits the public generally. Commonwealth v. BonadiO, 415 A.2d 47, 49 (1980). To that end,

the state clearl y has a proper role "in protecting minors from being sexually used by adults." Id.

       In the present case, Defendant pleaded guilty to the crime ofUnIawfu1 Contact With a

Minor, for soliciting an individual he believed to be 14 years of age to engage in oral sexual

intercourse.22 By comparison, the legislature enacted the crime of Statutory Sexual Assault,

which prohibits vaginal intercourse between an adult and a minor under 16 years old. when the

adult is at least 4 years older than the victim. 18 Pa. C.S.A. § 3122.1. Under the Sentencing

Guidelines. the OGS for IDSI involving oral intercourse is "12," while the OGS for Statutory

Sexual Assault involving vaginal intercourse is "9". 204 Pa. Code § 303.16a. Defendant claims

a legislative scheme that punishes an individual who engages in oral intercourse with a minor


       22   There is no substantive due process right for an adult to engage in deviate sexual intercourse
with an adolescent under 16 years of age. See Commonwealth v. Gautier-i. 636 A.2d 1153, 1156 (Pa.
Super. 1994).

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more severely than one who engages in vaginaf intercourse with a minor in some way violates his .

rights to Due Process of Law.

       As noted, there is no substantive due process right for an adult to engage in deviate sexual

intercourse with an adolescent under 16 years of age, and when no fundamental right has been

implicated a law need only be rationally related to some legitimate state interest. See Romer,

supra. Thus, to succeed on his due process claim, Defendant must successfully argue that the

Sentencing Guidelines and the difference in OGS between the two offenses are not rationally

related to serving any legitimate policy judgment of the Sentencing Commission.

       Defendant's mmals and standards do not control the constitutionality of a policy

judgment made by the Sentencing Commission. While Defendant may believe that engaging in

oral intercourse with a young adolescent girl is less serious than engaging in vaginal intercourse,

thus deserving of a lesser or equal ~OS, the Sentencing Commission clearly did not agree.

Despite Defendant' s argument, the wisdom, accuracy, or agreeability of a policy decision does

not control the constitutionality ofan otherwise valid policy decision. See Paris Adult Theatre I

v. Slaton, 4 \3 U.S. 49 (1973) (a state may constitutionally make a policy decision based on non-

conclusory data). As such, the legislative scheme and Sentencing Guidelines undoubtedly

benefit the public at large. Moreover. they are rationally related to a compelling state interest in

protecting minors from sexual exploitation by adults. Therefore, Defendant's claim in this regard

must fail.

        In Defendant's final challenge. Defendant claims a legislative scheme that punishes an

individual who engages in oral intercourse with a minor more severely than one who engages in

vaginal intercourse with a minor violates his rights under the prohibition against cruel and


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unusual punishment stemming from the Eighth Amendment to the United States Constitution and

Article l, Section 13, of the Pennsylvania Constitution,2J

       "Every person has a fundamental right to liberty in the sense that the Government may

not punish him wtless and until it proves his guilt beyond a reasonable doubt at a criminal trial

conducted in accordance with the relevant constitutional guarantees." Chapman v. United Stales,

500 U.S. 453. 465 (1991). Following a valid conviction, a court may impose whatever

punishri::tent is authorized by law so long as it is not ct:Uel and unusual. ld. The mark of what

constitutes cruel and unusual punishment is not a static line, but one that must comport with

"evolving standards of decency that mark the progress of a maturing society." Hall v. Florida,

2014 WL 2178332 (U.S. 2014) (quoting Trop v. Dulles,356 U.S. 86, 101 (1958)). Punishment

may be justified under one or more of three primary rationales: rehabilitation, deterrence, and

retribution. Kennedy v. Louisiana, 554 U.S. 407, 420 (2008).

       Presently, there is nothing cruel or unusual about a recommended minimwn term of 48 to

66 months incarceration, pmsuant to the Sentencing Guidelines, for conduct involving a 31-year-

old adult individual who contacts a minor child 14 years of age for the purpose of engaging in

oral intercourse with the child. Such a sentence is not outlandish, nor disproportionate to the

crime committed. Furthermore, the sentence imposed will allow for Defendant to obtain

cmmseling. while deterring him and others from committing the same or similar crimes. Thus,

the sentence serves the interests of rehabilitation, deterrence, and retribution. The fact that

Defendant would likely receive a lesser tenn of incarceration upon conviction for a different


        23 As with other constitutional provisions discussed herein. the Pennsylvania prohibition on
cruel and unusual punishment has been held to provide no greater rights than those stemming from the
United States Constitution. Commonwealth v. Elia. 83 A.3d 254, 267 (Pa. Super. 2013).

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crime is simply irrelevant to a constitutional challenge under the Eighth ~endment.

Consequently, the legislative scheme and Sentencing Guidelines do not impose cruel and unusual

punishment, and their constitutionality should be upheld.

       For the aforementioned reasons. Defendant's appeal should be dismissed and the

judgment of sentence aff~ed.




                                                    BY THE COURT:

   June 24. 2014                                            cQ.........,n~
DATE                                                DONALD R. TOTARO. JUDGE



ATTEST:

cc:    Christopher J. Jones, Esquire, Senior Deputy Attorney General
       James J, Karl. Esquire. Chief Public Defender. Attorney fo r Defendant



                   I certify this document to be filed
                   In the Lancas'ler County Office of

                     .... ;I'L..6 12-
                   the Clerll 01 the Cour,s.


                                                        ~,

                                           JOShua G. Parsons .,
                                           Clerk of the Courts




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