J-S47019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ENRIQUE SOTO                               :
                                               :
                       Appellant               :   No. 1649 WDA 2017

       Appeal from the Judgment of Sentence Entered January 19, 2017
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0004795-2016


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 13, 2018

       Enrique Soto appeals from the judgment of sentence entered following

his pleas of guilty to the charges of aggravated assault, criminal conspiracy,

endangering the welfare of a child, simple assault of a child, and recklessly

endangering another person.1 We affirm.

       Soto pleaded guilty to the above-listed charges on October 25, 2016.

Soto admitted that he had watched and laughed while Anna Russell, his co-

defendant, inflicted at least 15 cigarette burns on her then-one-year-old child.

In exchange for Soto’s plea, the Commonwealth amended the charges to

reduce the grading of the aggravated assault charge from a first-degree felony
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S.A. §§ 2702(a)(8), 903, 4304(a), 2701(b)(2), and 2705,
respectively.
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to a second-degree felony.2 The parties made no agreement as to Soto’s

sentence.

        Following a pre-sentence investigation and a sentencing hearing on

January 19, 2017, the trial court sentenced Soto to an aggregate term of 38

to 76 months’ incarceration. Soto’s sentence was comprised of a term of 19

to 38 months’ incarceration for aggravated assault and a consecutive term of

19 to 38 months’ incarceration for conspiracy. Soto did not object to the

sentence during the sentencing hearing or challenge it in a post-sentence

motion for reconsideration. Nor did he at that time file a direct appeal.

        Soto thereafter filed a Post-Conviction Relief Act3 (“PCRA”) petition. The

PCRA court appointed counsel, who sought reinstatement of Soto’s direct

appeal rights nunc pro tunc. The petition did not request the reinstatement of

post-sentence rights.

        The PCRA court granted the petition and reinstated Soto’s right to a

direct appeal without reinstating Soto’s post-sentence rights. Soto filed the

instant direct appeal from his judgment of sentence. He presents the following

question: “Did the [t]rial [c]ourt abuse its discretion when it denied [Soto]’s

Motion to Modify Sentence and where the sentence that was imposed did not

make a meaningful inquiry into the factors set forth in 42 Pa.C.S.A. § 9721?”

Soto’s Br. at 5.

____________________________________________


2   Soto was initially charged under 18 Pa.C.S.A. § 2702(a)(2).

3   See 42 Pa.C.S.A. §§ 9541-9546.

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       Soto’s challenge goes to the discretionary aspects of sentence, we must

therefore determine whether (1) his appeal is timely, (2) he preserved the

issue at sentencing or in a motion to reconsider and modify sentence, (3) he

included a Pa.R.A.P. 2119(f) statement,4 and (4) there is a substantial

question that his sentence is not appropriate under the Sentencing Code. See

Commonwealth v. Heaster, 171 A.3d 268, 271-72 (Pa.Super. 2017), appeal

denied, 181 A.3d 1078 (Pa. 2018).

       Soto’s appeal is timely, and his brief includes a Pa.R.A.P. 2119(f)

statement. However, he did not preserve his sentencing claim by first raising

it before the trial court, either at the time of sentencing or in a post-sentence

motion. Although the language Soto uses in the question he presents on

appeal suggests that he filed a post-sentence motion in the nature of a motion

to modify sentence, Soto filed no such motion, and he did not otherwise raise

his sentencing issue before the trial court. Rather, he first raised the question

in his Rule 1925(b) statement. Soto thus waived his challenge to discretionary

aspects of his sentence. See Heaster, 171 A.3d at 272.

       Even if he had not waived his sentencing challenge, we would reject it.

Soto argues that his individual “sentence[s] in the aggravated range of the

[S]entencing      [G]uidelines     and    running   consecutively   are   manifestly
____________________________________________


4 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the discretionary aspects
of the sentence.” Pa.R.A.P. 2119(f).

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excessive,” and that the trial court “failed to adequately consider [Soto]’s facts

and circumstances and [focused] solely on the offensive conduct.” Soto’s Br.

at 10. To the extent he argues that his aggregate sentence is excessive due

to the consecutive nature of his individual sentences, he has failed to invoke

our jurisdiction. He does not discuss the length of his aggregate sentence in

comparison to his criminal conduct, or cite any fact the court allegedly failed

to consider that would have warranted non-consecutive sentences. Such a

bald claim of excessiveness due to the imposition of consecutive sentences

does not raise a substantial question. See Commonwealth v. Dodge, 77

A.3d 1263, 1270 (Pa.Super. 2013).

      To the extent he contends that the sentencing court focused solely on

the nature of the crime, he would state a substantial question. See

Commonwealth v. Boyer, 856 A.2d 149 (Pa.Super.2004). However, we

would reject his argument as meritless. The sentencing court here reviewed

the pre-sentence investigation report, and we therefore presume that it was

aware of all relevant sentencing factors. Commonwealth v. Finnecy, 135

A.3d 1028, 1038 (Pa.Super. 2016). Soto does not attempt to rebut that

presumption.

      Soto’s further argument in his brief that his sentence was unreasonable

because it was greater than the sentence that Russell received likewise

entitles him to no relief. Soto’s Br. at 18. This issue does not appear in any

form in Soto’s Rule 2119(f) statement, and he thus does not even attempt to

establish our jurisdiction over this question.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2018




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