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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

Was not the [trial] court’s sentence of five to ten years 

excessive, unreasonable, and lacking adequate justification? 

Appellant’s Brief 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). 

We note that “sentencing is a matter vested in the sound discretion of 

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

of discretion.” 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 

sentence, Pa.R.Crim.P. [708]; (3) whether appellant’s brief 

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, 943 A.2d 285, 289 (Pa. Super. 2008) (“when 

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 postsentence 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 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”).

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