J-S09034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ANTONIO CORDERO-VELEZ                      :
                                               :
                      Appellant                :       No. 725 MDA 2017

           Appeal from the Judgment of Sentence December 30, 2016
               In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003581-2015,
              CP-36-CR-0003586-2015, CP-36-CR-0003594-2015,
                            CP-36-CR-0003596-2015


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED MAY 25, 2018

        Appellant, Antonio Cordero-Velez, appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas, following

his guilty pleas to burglary, conspiracy to commit burglary, and theft. 1 We

affirm.

        The relevant facts and procedural history of this case are as follows.

Between December 2011 and March 2012, Appellant and a cohort

burglarized several homes in Lancaster County, Pennsylvania. In June 2015,

the Commonwealth charged Appellant with multiple counts of robbery,

conspiracy to commit robbery, theft, and related offenses at four separate
____________________________________________


1   18 Pa.C.S.A. §§ 3502(a), 903, and 3921(a), respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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docket numbers, Docket Nos. 3581-2015, 3586-2015, 3594-2015, and

3596-2015. On September 30, 2016, Appellant entered open guilty pleas at

all four docket numbers; collectively, Appellant pled guilty to twenty counts

of burglary, three counts of conspiracy to commit burglary, and one count of

theft.    With the benefit of a pre-sentence investigation (“PSI”) report, the

court conducted Appellant’s sentencing hearing on December 30, 2016. At

the conclusion of the hearing, the court sentenced Appellant to three (3) to

six (6) years’ incarceration at Docket No. 3581-2015. At Docket No. 3586-

2015, the court sentenced Appellant to one (1) to two (2) years’

incarceration, to run consecutive to the sentence at Docket No. 3581-2015.

At Docket No. 3594-2015, the court sentenced Appellant to one (1) to two

(2) years’ incarceration, to run concurrent to the sentence at Docket No.

3586-2015. At Docket No. 3596-2015, the court sentenced Appellant to five

(5) to ten (10) years’ incarceration, to run consecutive to the sentence at

Docket No. 3586-2015. In sum, the court imposed an aggregate sentence

of nine (9) to eighteen (18) years’ incarceration.

         On January 9, 2017, Appellant timely filed a motion for extension of

time to file a post-sentence motion, which the court granted. Appellant filed

a timely post-sentence motion on January 24, 2017. On March 28, 2017,

the court denied post-sentence relief.      Appellant filed a timely notice of

appeal on April 26, 2017. The court did not order Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and


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Appellant filed none.

       Appellant raises one issue for our review:

          DID    THE    SENTENCING      COURT   ERR   IN
          DENYING…APPELLANT’S     POST-SENTENCE   MOTION
          REQUESTING RELIEF UPON REVIEW OF THE SENTENCE
          WITH RESPECT TO AVAILABLE MITIGATING FACTORS,
          THUS MISAPPLYING THE SENTENCING GUIDELINES,
          RESULTING IN AN ABUSE OF DISCRETION WHEN IT
          HANDED DOWN AN AGGREGATE SENTENCE OF NINE TO
          EIGHTEEN YEARS’ INCARCERATION?

(Appellant’s Brief at 5).

       Appellant argues the sentencing court failed to consider Appellant’s

young age at the time of the offenses, his lack of a record of serious crimes,

and his rehabilitative needs. Appellant maintains the court did not properly

balance these mitigating factors against the need to protect the public and

the severity of the offenses.          Appellant concludes the court imposed an

excessive and unreasonable sentence.             Appellant’s challenge is to the

discretionary aspects of his sentence. See Commonwealth v. Lutes, 793

A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly

excessive challenges discretionary aspects of sentencing); Commonwealth

v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544

Pa. 653, 676 A.2d 1195 (1996) (stating allegation court ignored mitigating

factors challenges discretionary aspects of sentencing).2

____________________________________________


2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
(Footnote Continued Next Page)


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      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue:

          [W]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal, 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. 720; (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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by, inter alia, including in

his brief a separate concise statement demonstrating that there is a

substantial question as to the appropriateness of the sentence under the

Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812

A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f).            “The determination of what
(Footnote Continued) _______________________

than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”     Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
plea was “open” as to sentencing, so he can challenge the discretionary
aspects of his sentence.



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constitutes a substantial question must be evaluated on a case-by-case

basis.”    Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.

2003). A substantial question exists “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 which underlie the sentencing process.” Sierra,

supra at 913 (quoting Commonwealth v. Brown, 741 A.2d 726, 735

(Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013

(2001)).

      A claim that a sentence is manifestly excessive might raise a

substantial question if the appellant’s Rule 2119(f) statement sufficiently

articulates the manner in which the sentence imposed violates a specific

provision of the Sentencing Code or the norms underlying the sentencing

process.    Mouzon, supra at 435, 812 A.2d at 627.        Nevertheless, as a

general rule, “[a]n allegation that a sentencing court ‘failed to consider’ or

‘did not adequately consider’ certain factors does not raise a substantial

question that the sentence was inappropriate.”    Cruz-Centeno, supra, at

545 (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.

1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).            See also

Commonwealth v. Kane, 10 A.3d 327, 335-36 (Pa.Super. 2010), appeal

denied, 612 Pa. 689, 29 A.3d 796 (2011) (stating bald claim that sentencing

court “failed to consider” factors set forth in 42 Pa.C.S.A. 9721(b) does not


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raise substantial question). Moreover, where the sentencing court had the

benefit of a PSI, the law presumes the court was aware of and weighed

relevant information regarding a defendant’s character along with mitigating

statutory factors. Tirado, supra at 366 n.6.

      Instantly,   Appellant’s   post-sentence   motion    and   Rule   2119(f)

statement properly preserved his claims that the sentencing court failed to

consider his age, his lack of a record of serious crimes, and his rehabilitative

needs.   Nevertheless, Appellant’s bald assertion that the court improperly

weighed these mitigating factors does not raise a substantial question. See

Cruz-Centeno, supra.       Additionally, the court had the benefit of a PSI

report. (See N.T. Sentencing Hearing, 12/30/16, at 2, 6-7.) Therefore, we

can presume the court considered the relevant information and mitigating

factors. See Tirado, supra.

      Further, the court explained its rationale as follows:

         A review of [Appellant]’s sentences supports the court’s
         judgment that the sentence as a whole is not manifestly
         unreasonable.        Great consideration was given to
         [Appellant]’s particular situation and the circumstances
         surrounding it.         The court referenced extensive
         documentation, as well as counsel’s arguments and
         witness statements at the sentencing hearing, that
         provided a clear picture of the instant case, and the [PSI]
         Report.    Taken together, the court’s understanding of
         [Appellant]’s case is clear, as is the thought process for
         arriving at the sentence imposed. Upon further review of
         [Appellant]’s case, the court is satisfied that the sentence
         of nine to eighteen years’ incarceration reflects the
         magnitude of [Appellant]’s crimes and achieves the
         requisite rehabilitative, deterrent, and safety objectives.


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(Trial Court Opinion, filed March 28, 2017, at 7) (internal footnote omitted).

Here, the court fully balanced Appellant’s circumstances with the severity of

the offenses and the need to protect the public. Based upon the foregoing,

Appellant is not entitled to relief on his challenge to the discretionary aspects

of sentencing. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/25/18




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