Com. v. Martin, J.

J-S04028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSHUA ADAM MARTIN,

Appellant No. 858 MDA 2014

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

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

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

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

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

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

The trial court summarized the factual background as follows:

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

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

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

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

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

Appellant entered his guilty plea on November 21, 2013.2 Appellant

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

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

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

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

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

11/21/13, at 8.

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

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

Appellant’s Brief at 5.

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

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

____________________________________________

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

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J-S04028-15

constitutionality of the Sentencing Guidelines” prior to sentencing. Trial

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

Commonwealth assert that Appellant has waived his constitutional

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

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

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

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

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

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

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

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

regarding the constitutionality of a statute can be waived.”

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

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

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

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

-3-
J-S04028-15

Id. (citations omitted).

Given that one of Appellant’s constitutional challenges invokes the

Eighth Amendment prohibition against cruel and unusual punishment, we

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

Appellant summarized the essence of his constitutional challenges:

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

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

The trial court refined Appellant’s issue:

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

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

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

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

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

commented:

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

***

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J-S04028-15

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

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

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

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

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

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

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

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/2/2015

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 Circulated 01/07/2015 03:37 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
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PA R.A.P. 1925 OPINION :< '.I>
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BY TOTARO, J. "l>
On May 16,2013, the AttorneyGenera1 bfthe Commonwealth of Pennsylvaniafiled a

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

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

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

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

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

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

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

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

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

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

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

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

I 18 pa. C.SA § 6318(a)(l)

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

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

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

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

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

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

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

minimum of 12 months to 24 months incarceration.

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

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

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

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

minimum of22 months to 36 months incarceration.

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

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

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

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

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

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

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

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

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

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

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

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

, months incarceration,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3
 Circulated 01/07/2015 03:37 PM

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

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

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

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

the following oceurred: '

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

DEFENDANT: Yes.

(N.T. at 8-9).

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

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

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

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

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

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

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

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

4
 Circulated 01/07/2015 03:37 PM

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

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

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

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

should be classified as a sexually violent predator. ld.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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-year-

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

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

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

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

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

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

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

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

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

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

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

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

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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: