J-S04028-15

*Retired Senior Judge appointed to Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
J-S04028-15

- 2 -

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.
J-S04028-15

- 3 -

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.
J-S04028-15

- 4 -

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, ... 

***
J-S04028-15

- 5 -

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

CRIMINAL 

COMMONWEALTH OF PENNSYLVANIA . ,.... ~ l> = 

vs. No.: . 1422-2013 · '" ~ n 

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JOSHUA ADAM MARTIN 

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:< PA R.A.P. 1925 OPINION 

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l> BY TOTARO, J. 

On May 16,2013, the AttorneyGenera1 bfthe Commonwealth of Pennsylvania filed 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. . . 

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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) 
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("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 older than 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. 

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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). 

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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: 

DEFENDANT: 

(N.T. at 8-9). 

You can raise that the sentence was an abuse of discretion • 

. not justifiable under the. law. Now, The [sic] judge bas got a 

lot of room 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? 

Yes. 

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. 

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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 of the 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. 

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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-yearold 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 

that he was communicating with a 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. 

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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. 

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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 IDS I 

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 
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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. 

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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 

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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 of Jury 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 wellbeing 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 nonconclusory 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-yearold 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. 

June 24. 2014 

DATE 

ATTEST: 

BY THE COURT: 

cQ.........,n~ 

DONALD R. TOTARO. JUDGE 

cc: Christopher J. Jones, Esquire, Senior Deputy Attorney General 

James J, Karl. Esquire. Chief Public Defender. Attorney for Defendant 

I certify this document to be filed 

In the Lancas'ler County Office of 

the Clerll 01 the Cour,s . 

.... ;I 12- 'L..6 , 

JOShua G. Parsons ., 

Clerk of the Courts 

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