MERGER OF SENTENCE REQUIRED FOR RAPE OF A CHILD AND IDSI CONVICTIONS
The PA Superior Court has decided the case of Commonwealth v. Brown, No. 481 WDA 2016 (March 28, 2017), holding that the trial court erred when it imposed separate sentences for the rape of a child and involuntary deviate sexual intercourse (IDSI) with a child convictions.
On December 11, 2015, a jury found Brown guilty of various charges, including rape of a child and IDSI with a child. Brown was sentenced to 120 to 240 months’ imprisonment plus 5 years’ probation for the rape of a child conviction; 60 to 120 months’ imprisonment plus 5 years’ probation for the IDSI with a child conviction; and 5 years’ probation for an indecent assault conviction. The trial court ordered that the prison terms for the IDSI with a child and the rape of a child convictions run consecutively, and ordered that the probation sentences run consecutive to the confinement but concurrent to each other. The trial court imposed no further penalty for convictions for unlawful contact with a minor and corruption of a minor.
Brown filed an appeal, arguing that the trial court erred in imposing a sentence for both the rape of a child and IDSI with a child convictions.
The Superior Court noted that the sentencing statute regarding merger prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other.
In Brown’s case, the Commonwealth conceded that the crimes arose from one criminal act of oral sex and the information charged Brown with rape of child and IDSI with child based on one act of oral sex. Therefore, the court was required to determine whether “all of the statutory elements of one offense are included in the statutory elements of the other offense.”
The Superior Court concluded that the offenses of rape of a child and IDSI with a child are identical where the sexual act at issue is oral sex. A person commits rape of a child “when the person engages in sexual intercourse with a complainant who is less than 13 years of age” and a person commits IDSI with a child “when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age.” In other words, both statutes prohibit intercourse per os or per anus with a child less than 13 years of age.
Accordingly, because the statutory elements for rape of a child and IDSI with a child – where the underlying act was oral sex – are the same, and because the criminal act underlying the convictions for each offense is the same, the convictions for rape of a child and IDSI with a child merged for sentencing purposes. Therefore, the trial court erred when it imposed separate sentences for the rape of a child and IDSI with a child convictions.
DISCLAIMER – The information contained in this article is for general guidance on the subject matter only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information in this article. Case summaries are primarily excerpted directly from the decisions authored by the Courts. The decisions are cited and linked and the reader is encouraged to read the entire decision. Accordingly, the information in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should NOT be used as a substitute for consultation with a McMahon & Winters Law Firm attorney. Before making any decision or taking any action, you should always consult with a McMahon & Winters Law Firm attorney.
