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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. JAMES CHARLES COLE, Appellant No. 656 WDA 2014
Appeal from the Judgment of Sentence Entered March 24 , 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP

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BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015 Appellant, James Charles Cole, appeals from the judgment of sentence entered on March 24, 2014, following the revocation of his probation.
We affirm. The tr ial court set forth the relevant facts and procedural history of this matter as follows:

On March 18, 2013, Appellant, James Cole, pled guilty to two counts of Indecent Assault Person Less than 13 Years of Age, one count of Corruption of Minors, one count of Unlawful Contact with a Minor, and one count of Sale of Tobacco. This Court sentenced him to six to twelve months [of] incarceration, paroled forthwith and placed him on five years [of] probation with one year of that probation to be served on intermed iate punishment. On March 24, 2014, after a hearing, this Court revoked Appellant’s probation based on technical violations and lack of housing to serve his intermediate punishment sentence,

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* Former Justice specially assigned to the Superior Court.J

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and resentenced him to 24 to 72 months [of] incarceration and 11 years of probation consecutive [to the term of incarceration]. On April 23, 2014, Appellant filed a Notice of Appeal and on June 25, 2014 a Concise Statement of Errors Complained Of. Trial Court Opinion, 11/14/14, at 1 (footnotes omitted). On appeal, App ellant raises the following question for this Court’s consideration: Did the trial court impose an illegal sentence of total confinement upon a revocation of probation where it explicitly justified such a sentence on factors not contained under 42 Pa.C.S. §9771(c)? Appellant’s Brief at 6 (full capitalization omitted). A claim that the trial court failed to make proper statutory findings pursuant to 42 Pa.C.S. § 9771(c) prior to imposing a sentence of total confinement upon revocation of probation is a cha llenge to the discretionary aspects of a sentence; it is not a challenge to the legality of sentence presenting a nonwaivable jurisdictional issue. Commonwealth v. Schutzues , 54 A.3d 86, 95

- 96 (Pa. Super. 2012). We point out that a statement pursuant to P a.R.A.P. 2119(f) that concisely sets forth the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence is required when a party is challenging the discretionary aspects of a sentence. Commonwealth v. Eisenberg , 98 A.3d 1268, 1275 (Pa. 2014). Where a defendant fails to file a Pa.R.A.P. 2119(f) statement relative to a challenge to the discretionary aspects of his sentence and the Commonwealth objects, the challenge will be deemed waived. Id . at 1274.J

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Here, Appe llant failed to file a Pa.R.A.P. 2119(f) statement, and the Commonwealth objected. The Commonwealth’s Brief at 6. In apparent recognition of his failure to file a Pa.R.A.P. 2119(f) statement, and despite the clearly stated Schutzues holding, Appellant ar gues that his claim may be addressed by this Court because it is actually a challenge to the legality of his sentence. Appellant’s Reply Brief at 1. Appellant attempts to bolster his argument by citing to Commonwealth v. Taylor , 104 A.3d 479 (Pa. 2014), w herein a majority of the Supreme Court concluded that a presentence assessment for alcohol and drug addiction under 75 Pa.C.S. § 3814 was mandatory where a defendant was convicted of DUI and had a prior DUI conviction within ten years. Taylor , 104 A.3d at 491. In that case, the Supreme Court held that the sentencing court’s failure to direct the defendant to undergo a presentence assessment for alcohol and drug addiction prior to imposing sentence implicated the legality of sentence, and the Court discuss ed the use of the word “shall” in 75 Pa.C.S. § 3814. Id . at 486. We point out, however, that there is no mandate in Taylor requiring this Court to extrapolate its conclusion relative to 75 Pa.C.S. § 3814 to the instant case and convert a challenge to a d iscretionary aspect of a sentence under 42 Pa.C.S. § 9771 into a challenge to the legality of a sentence. Commonwealth v. Tobin , 89 A.3d 663 (Pa. Super. 2014). In Tobin , this Court discussed the fact that simply because a sentencing statute uses the word “shall,” a violation of that statute does not necessarily implicate the legality of a sentence.J

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The rationale for concluding that RRRI eligibility is an illegal sentencing issue rests on the grounds that the RRRI statute declares that a court “shall” dete rmine eligibility. Commonwealth v. Robinson , 7 A.3d 868, 871 n.2 (Pa. Super. 2010). Similar use of the word “shall,” nonetheless, appears in discussing a trial court's obligation to consider the sentencing guidelines as well as state the reasons for the sentence imposed, see 42 Pa.C.S. § 9721, which are not considered legality of sentence concerns. Succinctly put, the use of the word “shall” in a sentencing statute is far from dispositive of whether a claim relates to an illegal sentence. See Commonweal th v. Schutzues , 54 A.3d 86 (Pa. Super. 2012); Commonwealth v. Cappellini , 690 A.2d 1220, 1228 (Pa. Super. 1997) (despite 42 Pa.C.S. § 9721(b) providing, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed” the court concluded that a claim that the court did not provide its reasons for sentencing constituted a discretionary sentencing claim). Tobin , 89 A.3d at 669 n.4. Accordingly, we conclude that pursuant to the express holding in Schutzues , Appellant presented a challenge to the discretionary aspects of his sentence. However, due to his failure to file a Pa.R.A.P. 2119(f) statement and the Commonwealth’s objection to that failure, we are constrained to conclude that Appellant’s issue is waived on appeal. Therefore, we affirm the judgment of sentence. Judgment of sentence affirmed. P.J. Gantman Joins the memorandum. Justice Fitzgerald Concurs in the Result.J

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Jud gment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/10/2015