J-S63011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
BRADLEY MOLCHANY,                        :
                                         :
                  Appellant              :    No. 72 EDA 2015

         Appeal from the Judgment of Sentence November 13, 2014,
                   Court of Common Pleas, Lehigh County,
             Criminal Division at No. CP-39-CR-0000957-2006

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 05, 2015

       Appellant, Bradley Molchany (“Molchany”), appeals from the judgment

of sentence entered on November 13, 2014 by the Court of Common Pleas

of Lehigh County, Criminal Division, following the revocation of his

probation. We affirm.

       On April 30, 2007, Molchany pled nolo contendere to aggravated

assault and indecent assault.1      At the time of Molchany’s plea, the

Commonwealth summarized the facts underlying the case as follows:

                Your Honor, if the victim, [H.S.], were here, she
             would testify that in June of 2000, she was twelve
             years old and she was left in the care of [Molchany]
             when her mother went on a two[-] week vacation to
             Florida. [Molchany] resided at that time at 6714
             Lower Macungie Road, Apartment D-4, in Lower
             Macungie Township, Lehigh County. She indicated
             that during this two[-]week period, she was sexually


1
    18 Pa.C.S.A. §§ 2702(a)(1), 3126(a)(7).
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           assaulted by [Molchany] several times. She stated
           that during the first incident, [Molchany] forced her
           into a bedroom at knife point, he forced her to
           remove her clothing, tied her hands to her neck,
           taped her mouth with duct tape and the way her
           hands were tied, any time she tried to move, she
           would end up choking herself.         She said – she
           indicated she did have trouble breathing. During the
           assault, after he duct taped her and -- and tied her
           up, he -- she indicated that he had sexual
           intercourse with her. During this assault, [Molchany]
           told [H.S.] that he would kill her if she screamed or
           told anybody about this incident. She indicated that
           the following night, [Molchany] was intoxicated, told
           her to go into the bedroom, she refused to go, he
           picked her up, dragged her into the bedroom,
           removed her clothing, again tied her hands to her
           neck with a cord where when she moved her hands,
           she would end up choking herself, taped her mouth
           with duct tape and again had intercourse with her.
           [H.S.] indicated that [Molchany] threatened to kill
           her if she told anybody this incident. On August
           25[,] 2005, [Molchany] was interviewed by State
           Police at State Police headquarters. He was advised
           of his Miranda [w]arnings, he agreed to speak [to]
           the police and he provided a statement indicating
           that he had sexual intercourse with [H.S.] when she
           was twelve years old.

N.T., 4/30/07, at 24-27.

     Following Molchany’s plea,

           [o]n August 8, 2007, a [p]resentence [i]nvestigation
           [r]eport was completed by the Lehigh County
           Department of Probation and Parole. On January 25,
           2008, a hearing was held before the [c]ourt to
           determine     [Molchany]’s    [s]exually   [v]iolent
           [p]redator (hereinafter “SVP”) status.      At the
           conclusion of the hearing, the [c]ourt found
           [Molchany] to be a SVP.




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               On January 28, 2008, [Molchany] was sentenced
            in the aggregate to undergo imprisonment for no
            less than three years nor more than six years in a
            [s]tate [c]orrectional [i]nstitution, to be followed by
            a period of four years of probation under the
            Pennsylvania Board of Probation & Parole.

                On October 17, 2014, a [p]robation and [p]arole
            [i]ntermediate [p]unishment [v]iolation [w]arrant
            was filed, alleging that [Molchany] failed to obey
            imposed conditions of his probation, specifically that
            he failed to successfully complete sex offender
            treatment. The warrant was issued on October 20,
            2014.

               On November 13, 2014, a Gagnon II [h]earing
            was held before this [c]ourt.        At the [h]earing,
            [Molchany] conceded the allegations of the
            [p]etition.      The [c]ourt revoked [Molchany]’s
            probation supervision and resentenced him to a
            period of incarceration of not less than three years
            nor more than six years in a state correctional
            institution, to be followed by eight years of probation
            supervision.

               On December 2, 2014, [Molchany] filed a pro se
            [n]otice of [a]ppeal.     The [c]ourt appointed the
            Office of the Public Defender to represent [Molchany]
            for the purpose of [a]ppeal. Counsel filed a [timely]
            [c]oncise [s]tatement of [m]atters [c]omplained of
            on [a]ppeal on January 14, 2015.

Trial Ct. Op., 1/26/15, at 2-3.

      On appeal, Molchany raises the following issue for our review:

            Was the sentence imposed by the lower court
            manifestly excessive or otherwise unjustified based
            upon the lack of any proportional punishment based
            upon the nature of [Molchany]’s probation violation
            and need for rehabilitation as well as the court’s
            perceived dislike of Molchany?




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Molchany’s Brief at 8.

       Molchany argues that the trial court abused its discretion in sentencing

him following his revocation of probation because it did not sentence him in

accordance with the mandates of section 9721(b)2 of the Sentencing Code.

Molchany contends that his sentence of three to six years of incarceration

was manifestly excessive, disproportionate to the technical nature of his

probation violation, and influenced by the trial court’s personal dislike of

him.    See id. at 13-20.     Molchany further asserts that his sentence was

manifestly excessive because he was compliant in all other respects with his

probation. Id. at 19. These arguments challenge the discretionary aspects

of Molchany’s sentence. See Commonwealth v. Cartrette, 83 A.3d 1030,

1040-41 (Pa. Super. 2013) (en banc) (holding that a claim that a trial court

did not sentence a defendant following the revocation of probation pursuant

to section 9721(b) of the Sentencing Code raised a challenge to the

discretionary aspects of sentencing).




2
    Section 9721(b) states, in pertinent part, as follows:

             [T]he court shall follow the general principle that the
             sentence imposed should call for confinement that is
             consistent with the protection of the public, the
             gravity of the offense as it relates to the impact on
             the life of the victim and on the community, and the
             rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).


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     “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a

four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. We conduct this four-part test to

determine whether,

           (1) the appellant preserved the issue either by
           raising it at the time of sentencing or in a post[-
           ]sentence motion; (2) the appellant filed a timely
           notice of appeal; (3) the appellant set forth a concise
           statement of reasons relied upon for the allowance of
           his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
           appellant raises a substantial question for our
           review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Molchany failed to preserve his discretionary aspects of

sentencing claim by raising it at sentencing or in a post-sentence motion.

Accordingly, Molchany has failed to preserve his discretionary aspects of




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sentencing claim for review.    See Baker, 72 A.3d at 662; Cartrette, 83

A.3d at 1042 (“[I]ssues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.       Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.”). As this is the

only issue Molchany has raised on appeal, he is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2015




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