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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ERIC THOMAS PUGH, Appellant No. 361 WDA 2016

Appeal from the Judgment of Sentence February 5 , 2016 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP

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- 0002479

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BEFORE: SHOGAN, MOULTON, and STRASSBURGER, * JJ. MEMORANDUM BY SHOGAN, J.: FILED JANUARY 30, 2017 Appellant, Eric Thomas Pugh, appeals from the judgment of sentence entered following the revocation of his probation. We affirm. The trial court set forth the history of this cas e as follows: [Appellant] was originally sentenced on April 21, 2014 after pleading guilty to Possession with Intent to Deliver (Marijuana). 35 P.S. §780

- 113(a)(30). This plea was in conjunction with three other charges of Possession with Intent to Delive r, to which [Appellant] also pled guilty. He was sentenced [to] three (3) to twenty

- three (23) months [of] incarceration at the Blair County Prison on those charges. On this charge, he was sentenced to five (5) years [of] probation to run consecutively a fter his incarceration. After sentencing, [Appellant] was charged and convicted on two separate occasions in Blair County. On September 19, 2015[, Appellant] pled guilty to Driving Under the Influence of a

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* Retired Senior Judge assigned to the Superior Court.J

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Controlled Substance Schedule II or Schedule I II, First Offense, 75 Pa. C.S.A. §3802(d)(1)(ii) and was sentenced to seventy

- two (72) hours to six (months) incarceration and paroled after seventy
- two (72) hours. He also pled guilty to Accidents Involving Damage to Attended Vehicle or Property[,] 75 Pa

. C.S.A. §3743[,] to which he was sentenced to six (6) months probation and to the summary offense of Driving while Operating Privileges were Suspended or Revoked[,] 75 Pa. C.S.A. §1543(a). On September 25, 2015[, Appellant] pled guilty to one count of Fl ight to Avoid Apprehension/Trial/Punishment[,] 18 Pa. C.S.A. §5126(a). He was sentenced to six (6) to twenty

three (23) months incarceration at the Blair County Prison and was scheduled for a Gagnon II hearing. Trial Court Opinion, 5/18/16, at 1

- 2. On February 5, 2016, the trial court revoked Appellant’s probation and resentenced him to a term of incarceration of two and one

- half to five years minus one day, with credit for time served. This timely appeal followed. Both Appellant and the trial court c omplied with Pa.R.A.P. 1925. Appellant presents the following issue for our review: Did the Court of Common Please [sic] err by imposing a lengthy sentence of total confinement in light of Appellant’s rehabilitative needs? Appellant’s Brief at 5. Appell ant’s sole issue challenges the discretionary aspects of his sentence. Appellant’s Brief at 9. Specifically, Appellant contends that the trial court failed to properly consider Appellant’s rehabilitative needs when it imposed a sentence of incarceration, which he deems to be excessive. As this Court clarified in Commonwealth v. Cartrette , 83 A.3d 1030 (Pa. Super. 2013) ( en banc ) , our scope of review following the revocation ofJ

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probation is not limited solely to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Rather, it also i ncludes challenges to the discretionary aspects of the sentence imposed. Specifically, we unequivocally held that “this Court’s scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges.” Cartrette , 83 A.3d at 1034. Further, as we have long held, the imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. S ierra , 752 A.2d 910, 913 (Pa. Super. 2000). It is well settled that there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle , 894 A.2d 800, 805 (Pa. Super. 2006). Instead, where an appellant challenges the disc retionary aspects of a sentence, the appeal should be considered a petition for allowance of appeal. Commonwealth v. W.H.M. , 932 A.2d 155, 163 (Pa. Super. 2007). As we observed in Commonwealth v. Moury , 992 A.2d 162 (Pa. Super. 2010): An appellant challen ging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four

- part test: [W]e conduct a four

- part analysis to determine: (1) whether appellant has filed a timely notice of appeal,J

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- see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see 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 s entence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Id . at 170 (citing Commonwealth v. Evans , 901 A.2d 528 (Pa. Super. 2006)). The determination of whether there is a substantial question is made on a case

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- case b asis, and this Court will grant the appeal only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms wh ich underlie the sentencing process. Sierra , 752 A.2d at 912

- 913. Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Objec tions to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Moury , 992 A.2d at 170 (citing Commonwealth v. Mann , 820 A.2d 788 (Pa. Super. 2003)). In addition, Pa.R.Crim.P. 708 provides that a motion to modify sentence must be filed within ten days of the imposition of sentence following the revocation of probation. Pa.R.Crim.P. 708(D). As the comment to Rule 708 explains:J

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Issues properly preserved a t the sentencing proceeding need not, but may, be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel must carefully consider whether the record created at the sentencin g proceeding is adequate for appellate review of the issues, or the issues may be waived. Pa.R.Crim.P. 708 cmt. Thus, an objection to a discretionary aspect of a sentence is waived if not raised in a post

- sentence motion or during the sentencing proceedings. See Commonwealth v. Parker , 847 A.2d 745 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence was waived because appellant did not object at sentencing hearing or file post

sentence motion). Herein, the first requirement of the four

- part test is met because Appellant brought a timely appeal. However, our review of the certified record reflects th at Appellant waived his challenge to the discretionary aspects of his sentence by failing to raise the claim either at the sentencing proceeding or by means of a post

- sentence motion. Thus, this issue has not been properly preserved for appeal, and the re cord is not adequate to allow appellate review of Appellant’s claim. Accordingly, we deem this issue to be waived. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2017