J-S50039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JUAN ESTABEN GONZALEZ

                            Appellant                No. 3488 EDA 2016


          Appeal from the Judgment of Sentence September 23, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0006384-2007


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                       FILED SEPTEMBER 08, 2017

        Appellant, Juan Estaben Gonazalez, appeals from the judgement of

sentence of six months to three years of incarceration followed by five years

of probation, imposed September 23, 2016, following a probation revocation

hearing. We affirm.

        We adopt the following statement of facts from the trial court opinion,

which in turn is supported by the record.      See Trial Court Opinion (TCO),

2/7/17, at 1-4.       On July 25, 2008, Appellant entered a guilty plea to

aggravated indecent assault of a child1 and was sentenced to three and one-

half to eight years of incarceration followed by five years of probation.

Appellant was also ordered to participate in any sexual offender programs

____________________________________________


1
    18 Pa.C.S. § 3125(b).
J-S50039-17



ordered by the prison, have no contact with the victim or victim’s family, and

have no unsupervised contact with minors.        Appellant did not appeal his

judgment of sentence.

       Appellant was released after serving an eight-year sentence. He did

not complete the required offender programs in prison and was accordingly

ordered to do so when beginning probation. Once he began probation, the

problems continued.           Appellant did not register for sexual offender

programs; did not provide an accurate sexual offense history; failed two

therapeutic polygraph tests; and was discharged from outpatient treatment

due to his failure to answer questions.

       The court conducted a Gagnon II2 hearing.         The Commonwealth

argued that Appellant had committed a technical violation due to his failure

to comply with the special conditions of his probation, namely, compliance

with the rules and regulations of his sex offender treatment.     Appellant’s

counsel admitted that Appellant had not completed treatment. Additionally,

the Commonwealth offered the testimony of Sahra Riccardi, Appellant’s

therapist.    Ms. Riccardi testified that Appellant had not provided her with

accurate information to develop a relapse prevention plan; Appellant could

not be successfully maintained in a community-based treatment program;


____________________________________________


2
 See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding that due
process requires parolee be given a preliminary (Gagnon I) and final
(Gagnon II) hearing prior to parole revocation).



                                           -2-
J-S50039-17



and without successful completion of a program, Appellant would pose a

danger to the community.

       The court found Appellant in violation of his probation. The court then

sentenced Appellant to six months to three years of incarceration, followed

by five years of probation, with the condition that he complete sex offender

treatment in prison, continue treatment outside of prison, and comply with

all appropriate rules and regulations.    Appellant did not file post-sentence

motions.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

       On appeal, Appellant raises a single issue:

       I) Whether the sentence of total confinement imposed by the
       court in this matter on September 23, 2016, was harsh and
       excessive since the evidence of record failed to establish that
       continued probation was not appropriate under the facts and
       circumstances of the case.

Appellant’s Brief at 7.

       Appellant challenges the discretionary aspects of his sentence, a

challenge which does not entitle him to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).           Prior to addressing a

discretionary challenge, this Court engages in a four-part analysis: 1)

whether the appeal is timely; 2) whether Appellant preserved his issue; 3)

whether Appellant’s brief contains a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether

that   statement   raises   a   substantial   question   that   the   sentence   is

                                      -3-
J-S50039-17



inappropriate under the sentencing code. See Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).

     Although Appellant timely filed a notice of appeal and included in his

brief a Rule 2119(f) statement, he did not preserve his claim at sentencing

or in a timely post-sentence motion. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005) (noting that issues challenging the

discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the court during sentencing

proceedings; absent these efforts the issue is waived).        Accordingly,

Appellant has waived his challenge to the discretionary aspects of his

sentence. Id.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




                                   -4-
