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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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