Com. v. Molchany, B. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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