J-S49006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DERRICK BUTTS

                            Appellant                   No. 1583 EDA 2013


               Appeal from the Judgment of Sentence May 1, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0016103-2009


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 25, 2014

        Appellant, Derrick Butts, appeals from the judgment of sentence

entered on May 1, 2013. We affirm.

        The trial court has provided us with a succinct explanation of the

underlying facts and procedural posture. As the trial court explained:

          On November 9, 2009[, Appellant] was arrested and
          charged with[ burglary and conspiracy to commit
          burglary.1] . . . On June 2, 2011[, Appellant], pursuant to a
          negotiated plea agreement with the Commonwealth,
          entered a plea of guilty to these charges. On that same
          date, pursuant to the plea agreement, [Appellant] was
          sentenced to [serve two concurrent terms of 11 months and
          15 days to 23 months in jail, followed by five years of
          probation.     The trial court ordered that Appellant was
          immediately paroled to home confinement].

____________________________________________


1
    18 Pa.C.S.A. §§ 3502(a) and 903(a), respectively.
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          On July 3, 2012[, Appellant] was arrested and charged with
          [possession of a firearm by a prohibited person.2] On April
          18, 2013, [following a violation of probation hearing, the
          trial court determined that Appellant was] in violation of his
          probation on [the two underlying] burglary [convictions].
          On May 1, 2013, [the trial court resentenced Appellant to
          serve an aggregate term of five to ten years in prison for
          the underlying burglary convictions].

Trial Court Opinion, 11/19/13, at 1-2.

        Appellant filed a timely notice of appeal and now raises the following

claim before this Court:


          excessive, unreasonable, and lacking adequate justification?

                    at 4.

        Appellant does not challenge the revocation of his probation or the fact

that the trial court imposed a sentence of total confinement.              Rather,

Appellant objects to the length of his sentencing term, which is a challenge

to the discretionary aspects of his sentence. Commonwealth v. Rhoades,

8 A.3d 912, 916 (Pa. Super. 2010) (claim that sentence is excessive is a

challenge to the discretionary aspects of a sentence).



the sentencing judge, whose judgment will not be disturbed absent an abuse

                    Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.

Super. 2001).      Moreover, pursuant to statute, Appellant does not have an

____________________________________________


2
    18 Pa.C.S.A. § 6105.



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automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).      Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify

        has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
        is a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code, 42 [Pa.C.S.A.]
        § 9781(b).

Commonwealth         v.   Cook,   941   A.2d   7,   11   (Pa.       Super.   2007);

Commonwealth v. Kalichak

a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a post-

sentence             Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

                 issues 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 dis                                              .

      In the case at bar, Appellant did not object to his sentence during the

sentencing hearing and, following sentencing, Appellant did not file a motion

to modify his sentence.    Therefore, Appellant has waived his discretionary



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aspects of sentencing claim.   Kalichak, 943 A.2d at 289; Cartrette, 83

A.3d at 1042.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2014




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