204 Pa. Code § 303.1, et seq.,
treat the offense of IDS I, 18 Pa. C.S.A. § 3123(a)(7), a felony of the first degree, as a more
serious crime than Statutory Sexual Assaul~ 18 Pa. C.S.A. § 3122. 1(b), also a first degree
felony." Essentially, Defendant argues that designating oral intercourse undet the crime of IDSI
as a more serious crime than vaginal intercourse under Statutory Sexual Assault is
llDconstitutional under the Federal and State Due Process Clauses, the Pennsylvania and Federal
Equal Protection Clauses, and the Federal and State prohibitions against cruel and unusual
punishment.
Constitutional claiins, even those involving a sentence, are waived if they are not raised
and preserved at every level of the proceedings. Commonwealth v. Wallace,
533 A.2d 1051,
1053-54 (pa. Super. 1987); see also Commonwealth v. Walton,
397 A.2d 1179, 1185 (pa. 1979)
(allegation that the lower court's construction of a restitution statute violated due process was
12 As previously noted, Defendant pleaded guilty to the charge of Unlawful Contact with a
Minor pursuant to ) 8 Pa. C.S.A. § 6318(aXl), which incorpomted the offense he intended to commit
when he contacted a law enforcement officer posing as a minor. Defendant was not charged with the
underlying sexual offenses. For ease of analysis, and since the crime of Unlawful Contact with a Minor
takes on the grading and OGS of tho underlying crimes pursuant to 18 Pa. C.S.A. § 6318(b)(1), the
relevant underlying offenses of IDS! and Statutory Sexual Assault will be referred throughout this
Opinion as the challenged crimes.
8
Circulated 01/07/2015 03:37 PM
waived when not raised at the sentencing hearing); Commonwealth v. Boone,
354 A.2d 898, 904
(pa. 1975) (claim that the imposition of a maximum as well as minimum sentence violated due
process was waived for failure to advance this argument at the sentencing proCeedings).1l
Through jurisprudence, a distinction has emerged between legal questions involving
sentencing and an illegal sentencing claim." Commonwealth v. Archer,
722 A.2d 203, 209-10
(pa. Super. 1998). Simply raising a legal question as to a sentence does not require an appellate
coW1 to review the question as it would all illegal sentence claim. ld at 210.15
In the present case; Defendant has not raised an illegal sentencing claim. Rather, he bas
raised a legal question involving sentencing, which is a waivable claim. Specifically. Defendant
has raised a constitutional claim that must be raised and preserved at every level of the
proceedings. However, at no time did Defendant raise or preserve such a constitutional claim
during the guilty plea proceeding or at the sentencing hearing.
13 In Commonwealth v. Sessoms, the Supreme Court indicated that an attack upon the
constitutionality of the Sentencing Guidelines would be subject to appellate review only where the issue
has been "properly preserved at all stages of adjudication up to and including any direct appeal."
532
A.2d 775, 782 n. 2 (pa. 1987) (quoting Commonwealth v. Cabeza,
469 A.2d 146, 148 (pa. 1983».
14 Issues that go to the legality of a sentence are excepted from this general rule, they may never
be waived solely on the basis of a procedural error, and they may properly be raised for the first time on
appeal. Commonwealth v. Wallace,
533 A.2d 1051, 1053 (Pa. Super. 1987).
IS Defendant has not challenged the grading of any of the offenses to which he pleaded guilty.
Such a challenge would give rise to a legality of sentence claim and therefore could not be waived. See
Commonwealth v: Scarborough,
89 A.3d 679, 685 (pa. Supe~. 2014) ("a question as to the proper grading
of an offense goes to the legality of the sentence and not the discretionary aspects"). Questions involving
an application of the Sentencing Guidelines go to discretionary aspects of sentencing, and may be waived
ifnot raised at the proper juncture. Commonwealth v. Archer, 722 A.2d 203, 211 (Fa. Super. 1998). The
improper utilization of the Sentencing Guidelines is an error of law, which is a legal question, but does
not render the sentence illegal.
Id. If every improper calculation of an OGS was held to implicate the
legality of sentence, the Sentencing Guidelines would be given more weight than they were intended. Id
at 210. In the present case, Defendant's challenge to the assignment ofOGS by the Sentencing
Commission is at best a legal question, not one which renders the sentence illegal. 'Thus, Defendant's
failure to raise this issue at the proper time renders the question waived.
9
Circulated 01/07/2015 03:37 PM
On May 16,2013, the Attorney General of the Commonwealth of Pennsylvania filed a
Criminal Infonnation charging Defendant with four counts ofUnIawful Contact With a Minor
and one count of Criminal Use ofa Communication Facility, at which time Defendant and his
counsel became immediately aware of the nature of the charges and of the OGS assigned to each
offense. Nevertheless, Defendant did not raise a constitutional challenge to the statutory scheme
as it related to the applicable Sentencing Guidelines.
On November 21, 2013, Defendant appeared before the Honomble Judge Louis J. Farina
and entered into an open guilty plea to Count 1 of the Criminal Infonnation, for contacting a law
.
enforcement officer who assumed the identity of a minor to engage in oral intercourse. During
the guilty plea proceeding, Judge Farina reviewed with Defendant the Sentencing Guidelines,
which included a standard range minimum sentence of at least four years in jail. The Sentencing
Guidelines Worksheet signed by Defendant and his counsel also reflected a standard range
minimwn sentence of 48 months to 66 months incarceration. Moreover, :Qefendant was told an
appeal would likely be unsuccessful if he received a minimum sentence of four years.
Nevertheless, at no point during this hearing did Defendant or his cOWlsel ever challenge the
constitutionality of the Sentencing Guidelines or raise a question about the OGS assigned to the
relevant offenses. Rather, Defendant chose to pro.ceed with a guilty plea.
On March 20, 2014, Defendant appeared before this Court for sentencing, at which time
the Court reviewed with Defendant the Sentencing Guidelines 'Vorksheet submitted at the time
of the guilty plea. Defendant acknowledged reviewing the worksheet with his attorney prior to
the guilty plea. he confinned it was his signature on the fonn, and he stated he understood the
infonnation contained on the worksheet. Prior to imposition of sentence, Defendant's counsel
10
Circulated 01/07/2015 03:37 PM
asked the Court to deviate below the standard range of the Sentencing Guidelines. primarily
because ofDefendant"s personal history and acceptance of responsibility. However, at no time
did Defendant or his counsel raise the constitutionality of the Sentencing Guidelines ~ an issue
during the sentencing hearing. Therefore. because Defendant failed to raise or preserve this
challenge at all applicable stages of the proceedings, his claims should be deemed waived.
Assuming, arguendo, Defendant has not waived his claims. the Court will address the
merits of each issue.
"In conducting [this] review, [the Court is] guided by the principle that acts passed by the
General Assembly are strongly presumed to be constitutional." Commonwealth 'V. Neiman,
84
A.3d 603, 611 (Pa 2013) (quoting Pennsylvania State Ass'n ofJury Comm'rs v. Commonwealth,
64 AJd 611 , 618 (Pa.2013)) (internal quotation marks omitted). Additionally:
When evaluating challenges to a statute - whether those challenges are based on
vagueness . .. or any other considerations - [this court] must also keep in mind that
there is a strong presumption that legislation is constitutional. A party challenging
legislation bears a heavy burden to prove otherwise. Accordingly, this Court will
strike the statute in question only if Appellant oonvinces us that it clearly, palpably
and plainly violates the federal or state constitutions.
Commonwealth v. Orie,
88 A.3d 983,1024 (pa. Super. 2014) (quoting Commonwealth v. Thur,
906 A.2d 552, 560-61 (pa Super. 2006)).
The Pennsylvania Commission on Sentencing was established as an agency of the
General Assembly. 42 Pa. C.S.A. §§ 2151.2." Pursuant to rules and regulations, the Sentencing
16 The Pennsylvania Commission on Sentencing was created in 1978, in part for the purpose of
promulgating guidelines to be considered by courts in imposing sentences. CQmmonweallh v. Sessoms,
532 A.2d 775, 776 (Pa. 1987). Enabling legislation contemplated that the Commission would adopt
Sentencing Guidelines after publication in the Pennsylvania Bulletin and an opportunity for public
comment. [d. In addressing the authority of the Sentencing Commission to en~t guidelines, Sessoms
stated:
II
Circulated 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 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).
12
Circulated 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 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).
13
Circulated 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 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).
14
Circulated 01/07/2015 03:37 PM
A state has a compelling interest in safeguarding the physical and psychological well-
being of children. New Yorkv. Ferber,
458 U.S. 747, 757 (1982). "A democratic society rests,
for its continuance, upun the healthy, well-rouuded growth of youug people into full maturity as
citizens." Prince v. Massachusetts, 321 U.s. 158, 168 (1944). This compelling interest justifies
a broad range of legislation aimed at protecting the well-being of children, even when
constitutionally protected rights are implicated. Ferber.
458 U.S. at 757. It rests within the
power of the individual states to enact and enforce their own criminal code as they see fit. Knapp
v. Schweitzer,
357 U.S. 371, 378 (1958). The "prevention of sexual exploitation and abuse of
children constitutes a government objective of surpassing importance,"
Id. To detennine
whether a regulation is a valid exercise of the state's police power, the question is whether it
benefits the public generally. Commonwealth v. BonadiO,
415 A.2d 47, 49 (1980). To that end,
the state clearl y has a proper role "in protecting minors from being sexually used by adults."
Id.
In the present case, Defendant pleaded guilty to the crime ofUnIawfu1 Contact With a
Minor, for soliciting an individual he believed to be 14 years of age to engage in oral sexual
intercourse.22 By comparison, the legislature enacted the crime of Statutory Sexual Assault,
which prohibits vaginal intercourse between an adult and a minor under 16 years old. when the
adult is at least 4 years older than the victim. 18 Pa. C.S.A. § 3122.1. Under the Sentencing
Guidelines. the OGS for IDSI involving oral intercourse is "12," while the OGS for Statutory
Sexual Assault involving vaginal intercourse is "9".
204 Pa. Code § 303.16a. Defendant claims
a legislative scheme that punishes an individual who engages in oral intercourse with a minor
22 There is no substantive due process right for an adult to engage in deviate sexual intercourse
with an adolescent under 16 years of age. See Commonwealth v. Gautier-i.
636 A.2d 1153, 1156 (Pa.
Super. 1994).
15
Circulated 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 of Law.
As noted, there is no substantive due process right for an adult to engage in deviate sexual
intercourse with an adolescent under 16 years of age, and when no fundamental right has been
implicated a law need only be rationally related to some legitimate state interest. See Romer,
supra. Thus, to succeed on his due process claim, Defendant must successfully argue that the
Sentencing Guidelines and the difference in OGS between the two offenses are not rationally
related to serving any legitimate policy judgment of the Sentencing Commission.
Defendant's mmals and standards do not control the constitutionality of a policy
judgment made by the Sentencing Commission. While Defendant may believe that engaging in
oral intercourse with a young adolescent girl is less serious than engaging in vaginal intercourse,
thus deserving of a lesser or equal ~OS, the Sentencing Commission clearly did not agree.
Despite Defendant' s argument, the wisdom, accuracy, or agreeability of a policy decision does
not control the constitutionality ofan otherwise valid policy decision. See Paris Adult Theatre I
v. Slaton, 4 \
3 U.S. 49 (1973) (a state may constitutionally make a policy decision based on non-
conclusory data). As such, the legislative scheme and Sentencing Guidelines undoubtedly
benefit the public at large. Moreover. they are rationally related to a compelling state interest in
protecting minors from sexual exploitation by adults. Therefore, Defendant's claim in this regard
must fail.
In Defendant's final challenge. Defendant claims a legislative scheme that punishes an
individual who engages in oral intercourse with a minor more severely than one who engages in
vaginal intercourse with a minor violates his rights under the prohibition against cruel and
16
Circulated 01/07/2015 03:37 PM
unusual punishment stemming from the Eighth Amendment to the United States Constitution and
Article l, Section 13, of the Pennsylvania Constitution,2J
"Every person has a fundamental right to liberty in the sense that the Government may
not punish him wtless and until it proves his guilt beyond a reasonable doubt at a criminal trial
conducted in accordance with the relevant constitutional guarantees." Chapman v. United Stales,
500 U.S. 453. 465 (1991). Following a valid conviction, a court may impose whatever
punishri::tent is authorized by law so long as it is not ct:Uel and unusual. ld. The mark of what
constitutes cruel and unusual punishment is not a static line, but one that must comport with
"evolving standards of decency that mark the progress of a maturing society." Hall v. Florida,
2014 WL 2178332 (U.S. 2014) (quoting Trop v. Dulles,
356 U.S. 86, 101 (1958)). Punishment
may be justified under one or more of three primary rationales: rehabilitation, deterrence, and
retribution. Kennedy v. Louisiana,
554 U.S. 407, 420 (2008).
Presently, there is nothing cruel or unusual about a recommended minimwn term of 48 to
66 months incarceration, pmsuant to the Sentencing Guidelines, for conduct involving a 31-year-
old adult individual who contacts a minor child 14 years of age for the purpose of engaging in
oral intercourse with the child. Such a sentence is not outlandish, nor disproportionate to the
crime committed. Furthermore, the sentence imposed will allow for Defendant to obtain
cmmseling. while deterring him and others from committing the same or similar crimes. Thus,
the sentence serves the interests of rehabilitation, deterrence, and retribution. The fact that
Defendant would likely receive a lesser tenn of incarceration upon conviction for a different
23 As with other constitutional provisions discussed herein. the Pennsylvania prohibition on
cruel and unusual punishment has been held to provide no greater rights than those stemming from the
United States Constitution. Commonwealth v. Elia.
83 A.3d 254, 267 (Pa. Super. 2013).
17
Circulated 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 constitutionality should be upheld.
For the aforementioned reasons. Defendant's appeal should be dismissed and the
judgment of sentence aff~ed.
BY THE COURT:
June 24. 2014 cQ.........,n~
DATE DONALD R. TOTARO. JUDGE
ATTEST:
cc: Christopher J. Jones, Esquire, Senior Deputy Attorney General
James J, Karl. Esquire. Chief Public Defender. Attorney fo r Defendant
I certify this document to be filed
In the Lancas'ler County Office of
.... ;I'L..6 12-
the Clerll 01 the Cour,s.
~,
JOShua G. Parsons .,
Clerk of the Courts
18
Circulated 01/07/2015 03:37 PM