J -S04028 - 15

*Retired Senior Judge appointed to Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, 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 commun icate 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] subseq uently 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 Sente ncing 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 t he 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 m ay 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 constitution al 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 U nusual 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 cha llenges: [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 [Appell ant] 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 [Ap pellant’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 a nd affirming his judgment of sentence. Judgment of sentence affirmed.

Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/2/2015Circulated 01/07/2015 03:37 PM



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


### COMMONWEALTH OF PENNSYLVANIA
. 

## ,....**~** l> 

### = vs. No
. : . 1422-2013 · 

# '"**~** n '- l> c: <f) . c --I 

# '" N 

# '" &" 

### JOSHUA ADAM MARTIN
n -0 <:> :.: c: :z xc -I 

### :< PA R.A.P. 1925 OPINION 

# " N l> 

### BY TOTARO, J. On May 16,2013, the AttorneyGenera1 bfthe Commonwe alth ofPennsylvania filed a Criminal Information (No. 1422-2013) charging JoshuaAdarn Martin (''Defendant'') with four counts ofUnla wful Contact With a Minor' and one count of Criminal Use ofa Communication Facility.2 According to the Infonnation, these**offens~s** 

### occurred between the dates 

### ofJuly 

### 11, 2012 and 

### February 13,2013, at which time Defendant used a computer OD 

### several occasions to 

### communicate 

### with an undercover agent 

### ofthe Pennsylvania Offi . ce ofAttom. 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. 

### . . 

# ,..,

.r- . ,.." 

# "" 

# "" C> 

# " " 0 

### c ;;0 -I '.I>



### More specifically
. Count I ofthe 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
.ofthe 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 ofthe**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 ofthe 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 ofthe

.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 

### ofhis 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 ofthis offeose was 

### charged 

# as a felony ' ofthe 

### second degree,4 the OGS is "5," and**the st~dard**  

### range guideline sentence 

### with
no PRS is a minimum ofRestorative 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 woul d be a felony ofthe 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 ofa felony ofthe th. ird degree ifthat offender has no prior convictions under subsection (c) or (d) . Because Defendant has no prior record, this should be graded as a felony ofthe 

### third degree. 2Circulated 01/07/2015 03:37 PM "



### COWlt 5 char . ged Defendant with 

### Criminal 

### Usc ofa 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 ofthis offense is a felony ofthe 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 ofthe 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 ofa 14-year-old minor, for·the purpose of 

### engaging in oral intercourse with the minor, (Notes ofTestimony 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 guil ty 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 t o 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 of4 to 8 years 

### injail. Id

j For purposes ofthe 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 ofthe Crim inal lnformation 

## at tbe time ofsentencing. (N.T. " at 3). 

### 3Circulated 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]hejudge 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 ofdiscretion•



### . notjustifiable 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

## thejudge is**~vell** aware ofwhatthe 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 ofthe standard range. All right? Yes.


### After reviewing the Sentencing Guidelines Worksheet, being·informed by the Court of the standard range ofthe Sentencing Guidelines for the offense for which Defendant was pleading guilty, and being advised by 

### the Court that a sentence of4 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 of4 to 8"

years incarceration 

### in a State 

### Correctional Institution that 

### was referenced 

### by Judge Farina.

7 At the time ofthe 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 ofDefendant and his counsel appear on that Sentencing Guidelines Worksheet. ld. 4Circulated 01/07/2015 03:37 PM

At the conclusion ofthe 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 ofsentence, 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 ofthe guilty plea, which listed a standard range sentence of48 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 ofthe 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 ofthe Court. ld Prior to imposition ofsentence, Defendant's counsel asked the 

### Court to deviate below the standard range of the Sentencing**G~idelines ,**  because ofDefendant's personal history, lack of prior record, and acceptance ofresponsibility. (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. 5Circulated 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-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 ofengaging in sexual activities. Id at 25. While doing so, Defendant recognized his conduct was wrong and he could go tojail. 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 'ofthe 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 

# a14-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 ifthe 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 ofyou in my car." ld
10 Defendant sent several cautionary messages to the child where he acknowledged his conduct was wrong and he could go tojail ifcaught. (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. 6Circulated 01/07/2015 03:37 PM

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 ofthe standard range ofthe 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 ofdue process oflaw, equal protection ofthe 

### 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, ChiefPublic Defender, timely filed a Notice ofAppeal. On June 4, 2014, Mr
. Karl filed a Statement ofErrors Complained of on Appeal, alleging the Sentencing Guidelines violate Defendant's: <a) rights to equal 

### protection ofthe 

### laws·under the Fourteenth Aniendment to the United States Constitution and under Article 

## r, Section 1 ofthe Pennsylvania Constitution; (b) rights to Due Process ofLaw under the Fourteenth Amendment ofthe 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 ofhis 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. 

### 7Circulated 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) ofthe Pennsylvania Rules ofAppellate Procedure. DISCUSSION In 

### his Post-Sentence Motion and Statement ofErrors Complained ofon 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 ofIDSI, 18 Pa. C.S.A. § 

### 3123(a)(7), a felony ofthe 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 ofIDSI
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 

### ifthey 

### are not raised 

### and preserved at every level ofthe 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 ofa restitution statute violated due process was

12 As previously noted, Defendant pleaded guilty to the charge ofUnlawful 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 ofanalysis, and since the crime ofUnlawful Contact with a Minor takes on the grading and OGS oftho underlying crimes pursuant to 18 Pa. C.S.A. § 6318(b)(1), the relevant underlying offenses ofIDS! and Statutory Sexual Assault 

### will be referred throughout this Opinion as the challenged crimes. 8Circulated 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 ofa maximum as well as minimum sentence violated due process was waived for failure to advance this argument at the sentencing proCeedings).1l 

### Throughjurisprudence, 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 ofthe 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 ofthe Sentencing Guidelines would be subject to appellate review only where the issue has been "properly preserved at all stages ofadjudication 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 ofa sentence are excepted from this general rule, they may never be waived solely on the basis ofa 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 ofany ofthe offenses to which he pleaded guilty
. Such a challenge would give rise to a legality ofsentence 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 ofan offense goes to the legality ofthe sentence and not the discretionary aspects"). Questions involving an application ofthe Sentencing Guidelines go to discretionary aspects of sentencing, and may be waived ifnot raised at the properjuncture. Commonwealth v. Archer, 722 A.2d 203 , 211 (Fa
. Super. 1998). The improper utilization ofthe Sentencing Guidelines is an error of law, which is a legal question, but does not render the sentence illegal. Id. Ifevery i mproper calculation ofan OGS was held to implicate the legality ofsentence, 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
. 

### 9Circulated 01/07/2015 03:37 PM



### On May 16,2013, the Attorney General ofthe Commonwealth ofPennsylvania filed 

### a Criminal Infonnation charging Defendant with 

### four counts ofUnIawful Contact With a Minor and one count ofCriminal Use ofa Communication Facility, at which time Defendant and his counsel became immediately aware ofthe nature ofthe charges and ofthe 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 ofthe Criminal Infonnation, for contacting a law



# . enforcement officer who assumed the identity ofa 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 injail. 

### The Sentencing Guidelines Worksheet signed by Defendant and his counsel also reflected 

### a standard range minimwn sentence of48 months to 66 months incarceration. Moreover, :Qefendant 

### was told an appeal would likely be unsuccessful ifhe received a minimum sentence offour years. Nevertheless, at no point during this hearing did Defendant or his cOWlsel ever challenge the constitutionality ofthe 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 ofthe 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 

### 10Circulated 01/07/2015 03:37 PM



### asked the Court to deviate below the standard range ofthe Sentencing Guidelines. primarily because ofDefendant"s personal history and acceptance 

### ofresponsibility. However, at no time did Defendant or his counsel raise the constitutionality ofthe 

### Sentencing Guidelines**~** 

### an issue during the sentencing hearing. Therefore. because Defendant failed to raise or preserve this challenge at all applicable stages ofthe proceedings, his claims should be deemed waived. 

### Assuming, arguendo, 

### Defendant has not waived his claims. the Court 

### will address the merits ofeach 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 ifAppellant 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 ofthe 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 ofthe Sentencing Commission to**en~t** guidelines, Sessoms stated: IICirculated 01/07/2015 03:37 PM

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 ofthe 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 ofthe 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 govemor ts approval has deemed it proper that the findings ofsuch 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 ofthe**Commission~** a legislative agency. be given effect beyond the confmes ofthe 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 ofthe 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). 12Circulated 01/07/2015 03:37 PM



### 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 ofscrutiny are applied to • challenged statute based on the nature ofthe 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 UniversityJor 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 ofdifferent guidelines for different types of sexual activity, · Defendant's claim must fail, as the Equal Protection Clause
concerns classifications 

### ofpeople 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 ofPhiladelphia. which resulted in defendant being charged with athird 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 ofboth age and marital status. Commonwealth v. Albert, 758 A.2d 1149, 1155 (Pa. 2000). 13Circulated 01/07/2015 03:37 PM



### 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 ofthe United States Constitution, which provides that no state shall "deprive any person oflife. liberty, or property without due process oflaw." U
.S. Const. amend
. XIV, 

### § 1." The constitutional guarantee ofDue 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 ofour 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 ofa particular group, or ifthe 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 ofpurposeful unequal treatment, or relegated to such a position ofpolitical 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 ofLaw 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). 

### 14Circulated 01/07/2015 03:37 PM

A state has a compelling interest in safeguarding the physical and psychological wellbeing ofchildren. New Yorkv
. Ferber, 458 U.S. 747, 757 (1982). "A democratic society rests, for its continuance, upun the healthy, well-rouuded growth ofyouug people into full maturity as citizens." Prince 

### v . Massachusetts, 321 U.s. 158, 168 (1944). This compelling interestjustifies


### a broad range oflegislation aimed at protecting the well-being ofchil dren, even when constitutionally protected rights are implicated. 

### Ferber. 458 U.S. at 757. It 

### rests within the power ofthe 

### individual states to enact and enforce their 

### own criminal code as they see 

### fit. Knapp
v. Schweitzer, 357 U.S. 37 1, 378 (1958). The "prevention ofsexual exploitation and abuse of 

### children constitutes a government objective ofsurpassing importance," Id. 

### To detennine whether a regulation is a valid exercise 

### ofthe 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 ofage 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 ofage. See Commonwealth v. Gautier-i. 636 A. 2d 1153, 1156 (Pa. Super. 1994). 15Circulated 01/07/2015 03:37 PM

more severely than one who engages in vaginaf intercourse 

### with a minor in some way violates his
. rights to Due Process ofLaw. 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 policyjudgment ofthe Sentencing Commission. Defendant's mmals and standards do not control the constitutionality ofa 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 ofa 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 ParisAdult 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 

### 16Circulated 01/07/2015 03:37 PM



### unusual punishment stemming from the Eighth Amendment to the United States Constitution and Article l, 

### Section 13, ofthe 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 ofwhat constitutes cruel and unusual punishment is not a static line, but one that must comport with "evolving standards ofdecency that 

### mark the progress ofa maturing society." 

### Hall v. 

### Florida, 2014 WL 2178332 (U.S. 2014) (quoting 

### Trop v. 

### Dulles,356 U.S. 86, 101 (1958)). Punishment may bejustified under one or more ofthree 

### 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 of48 to 66 months incarceration, pmsuant to the Sentencing Guidelines, for conduct involving a 31-yearold adult individual who contacts a minor child 14 years 

### ofage for the purpose ofengaging 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 ofrehabilitation, deterrence, and retribution. The fact that Defendant would likely receive a lesser tenn ofincarceration 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). 

### 17Circulated 01/07/2015 03:37 PM



### 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 con stitutionality 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. ChiefPublic Defender. Attorney fo r 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

18Circulated 01/07/2015 03:37 PM