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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 explana tion 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 sam e date, pursuant to the plea agreement, [Appellant] wa s sentenced to [serve two concurrent terms of 11 months and 15 days to 23 months in jail, followed by five years o f probation. The trial court ordered that Appellant w as immediately paroled to home confinement].

____________________________________________
1 18 Pa.C.S.A. §§ 3502(a) and 903(a), respectively.J-S49006- 14

- 2 - 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 heari ng, the trial court determined that Appellant was] in violati on of his probation on [the two underlying] burglary [convictio ns]. 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 ra ises the following claim before this Court:

Was not the [trial] court’s sentence of five to ten year s excessive, unreasonable, and lacking adequate justifica tion? Appellant’s Brief

at 4. Appellant does not challenge the revocation of his pro bation or the fact that the trial court imposed a sentence of total confine ment. 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). We note that “sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be distu rbed absent an abuse of discretion.” Commonwealth v. Ritchey , 779 A.2d 1183, 1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appella nt does not have an

____________________________________________ 2 18 Pa.C.S.A. § 6105.J-S49006- 14

- 3 -

automatic right to appeal the discretionary aspects of h is sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petitio n this Court for permission to appeal the discretionary aspects of his senten ce. Id. As this Court has explained: To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whethe r 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 sentence, Pa.R.Crim.P. [708]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whethe r there is a substantial question that the sentence appealed fr om 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 , 943 A.2d 285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a new sentence, a c riminal defendant needs to preserve challenges to the discretionary aspects o f that sentence either by objecting during the revocation sentencing orby filing a postsenten ce motion”); Commonwealth v. Cartrette , 83 A.3d 1030, 1042 (Pa. Super. 2013) (“ issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presentin g the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a dis cretionary aspect of a sentence is waived”)

. In the case at bar, Appellant did not object to his sen tence during the sentencing hearing and, following sentencing, Appellant did not file a motion to modify his sentence. Therefore, Appellant has waived his discretionaryJ-S49006- 14

- 4 -

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