J

### -S30029-19 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
GERMAN SOTO-MORENO, 

### Appellant. : No. 3072 EDA 2018 Appeal

### from theJudgment of Sentence Entered, September 12, 2018, in 

### the Courtof Common Pleas of Chester County, Criminal Divisionat No(s): 

### CP-15-CR-0000423-2017, CP-15-CR-0000424-2017. BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY KUNSELMAN, J.: 

### FILEDAUGUST 

### 09, 

### 2019 German Soto Moreno appeals 

### from the

### judgmentof sentence imposed 

### following his 

### conviction of 

### multiple counts of 

### burglary' and related offenses. 

### Additionally, Moreno's counsel hasfiled a 

### petition to

### withdraw as counsel and
an accompanying 

### brief pursuantto

### Anders v. 

### California, 386 U.S. 738, 744 

### (1967). We 

### grant counsel's 

### petition, and 

### affirm Moreno's 

### judgment of sentence. Between

### August and 

### September of2016, several burglaries occurred at 

### modular or 

### trailer-style residences in Chester County, Pennsylvania, which were occupied by 

### low-income, 

### migrantfarmworkers of Hispanic descent. In



### ' 18 Pa.C.S. § 

### 3502(a)(2).J

### -S30029-19
each instance, the 

### burglar entered the premiseswhile theoccupantswere 

### out working in the local 

### mushroom 

### industry, and stole

### jewelry, religious objects, and U.S. currency.2 Police discovered 

### that several 

### of the stolen items had been sold to pawn shops in 

### Wilmington, Delaware. 

### Surveillance video from
one of the pawn shops revealed 

### that Moreno, using a 

### fraudulent U.S. 

### permanent residentcard,3 pawned thestolen items. During an 

### interviewwith police, Moreno confessed to 

### committing the crimes. Police

### arrested Morenoand charged him

### with multiplecountsof 

### burglary at two separate 

### docket numbers. On March 26, 2018, Moreno entered an open 

### guilty plea to one 

### count of 

### burglary at 

### docket number CP-15-CR-423- 2017, and six counts 

### of 

### burglary at 

### docket number CP-15-CR-424-2017.4 All of the 

### convictions were graded as 

### first-degree felonies. On June 13, 2018, the 

### trial court sentenced Moreno to five to 

### twenty years of 

### imprisonmentfor the single count of 

### burglary at 

### 423-2017. At 

### 424-2017, the 

### trial court

2 Because of

### their immigrationstatus, these types of

### victims generallyavoid using banking 

### institutions, and 

### sometimes keep large 

### amounts of U.S. 

### currency in

### their residences.

3 Moreno is a Mexican citizen who is not 

### lawfully in 

### this country. He has been deportedtwice, and each

### time he has 

### returned illegally backinto 

### this country.

4 Atthe 

### time ofthe burglaries, Moreno was serving a 

### term of parole

### for prior residential burglaryconvictions at

### fourotherdocket numbers: CR-1158-2015; CR-1205-2013; CR-3233-2013; and 

### CR-2743-2013. The 

### trial court revoked his paroleat those 

### docket numbers, and 

### reinstated 

### probationarysentences on his 

### prior convictions.


## -2J

### -S30029-19
sentenced Moreno to ten to

### twentyyears of 

### imprisonmentfor each 

### ofthe six counts 

### of burglary, to be served 

### concurrently with each 

### other and 

### consecutively to the sentence imposed at

### 423-2017. Moreno filed a 

### motion

### for reconsideration ofsentence,which resulted in the reduction of his sentence at 

### 423-2017 to 

### three to 

### twenty years of 

### imprisonment. Moreno filed a second 

### motion

### for reconsideration ofsentence, which resulted in 

### the 

### further reduction of his sentence at 

### 423-2017 to 

### three to six years of 

### imprisonment on 

### September 12, 2018.5 Upon both 

### motions, the 

### trial court denied 

### reconsideration of Moreno's sentence imposed at 

### 424- 2017. Thus, 

### following reconsideration, his 

### aggregate sentence was reduced to 

### thirteen to

### twenty-six years in prison. On October 1, 2018, Moreno filed a 

### timelypro se notice 

### of appeal. The 

### trial court appointed counsel, who filed 

### another notice of appeal on October 12, 2018.6 The

### trial courtordered Moreno to file a Pa.R.A.P. 

### 1925(b) concise

5 This sentence fell 

### within the standard range 

### of the sentencing guidelines. The sentences imposed at

### 424-2017 were the 

### statutory maximum.

6The notice

### ofappeal filed bycounsel is 

### deficient insofar as itdoes not 

### comply with 

### Commonwealth v. 

### Walker, 185 A.3d 969, 977 (Pa. 

### 2018) (decided June 1, 2018, and holding 

### that, "in future cases

. . . when a single 

### order resolves issues arising on morethan one lower

### courtdocket, separate notices of appeal 

### must be filed. The 

### failure to do so will 

### result in quashal of the 

### appeal."). Instead, counsel filed a single notice of appeal listing both 

### docket numbers. 

### Notwithstanding, the certified record reflects 

### that Moreno filed a 

### timely pro se notice 

### of appeal in the 

### trial court at both 

### docket numbers. However, those 

### filings are not included in the certified record. Given our willingness to 

### construepro se

### filings liberally, wewill assume

### for purposes of 

## -3J

### -S30029-19
statement of errors complained of on appeal. 

### In response, counsel filed a 

### statement of 

### intent to file an

### Anders brief. Given 

### that neither counsel nor Moreno raised anyclaim of

### error beforethe 

### trial court, the

### trial court declined to file an opinion 

### pursuantto Pa.R.A.P. 

### 1925(a). In 

### this Court, counsel filed a 

### petition to 

### withdraw as counsel and an accompanying

### Anders brief. In the

### Andersbrief, counsel raisesthefollowing issues

### that might arguablysupportthe appeal: 1. Did the imposition ofan 

### aggregatesentenceof

### thirteen (13) to 

### twenty-six (26) 

### years' confinement for seven 

### [b]urglary convictions raise a 

### substantial question 

### that the Sentencing Code was

### violated bythe sentencing court? 2. 

### If a 

### substantial question was raised, did the sentencing 

### court abuse its discretion? 

### Anders Briefat 5 

### (numbering added). "When presented 

### with an

### Anders brief, this Court may not review the 

### merits of the 

### underlying issues 

### without first passing on the request to 

### withdraw." 

### Commonwealth v. 

### Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc) 

### (citation 

### omitted). Pursuant to 

### Anders, when counsel believes an appeal is 

### frivolous and wishes to 

### withdraw from representation, she 

### must do the

### following: (1) 

### petition the 

### court for leave to 

### withdraw stating 

### that after making a conscientious 

### examination of the record, counsel has 

### determined theappeal would be

### frivolous; (2)file a 

### brief referring
this appeal 

### that Moreno's

### pro se notices 

### of appeal complied 

### with the dictates of 

### Walker. See 

### Commonwealth v. 

### Lyons, 833 A.2d 245, 

### 251-52 (Pa. Super. 

### 2003). 

## -4J

### -S30029-19
to any issues 

### that might arguablysupport the appeal, but which does not resemble a no

### -merit letter; and 

### (3) furnish a copy ofthe 

### brief to the 

### defendant and advise him of his 

### right to retain new counsel, proceed 

### pro se, or raise any

### additional points he deems 

### worthy of

### this Court's 

### attention. 

### Commonwealth v. 

### Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

### (citation 

### omitted). In 

### Commonwealth v. 

### Santiago, 978 A.2d 349 (Pa. 

### 2009),our SupremeCourt addressed 

### thesecond 

### requirementof

### Anders, i.e., the contents of an

### Anders brief, and required 

### that the brief: (1) provide a 

### summary ofthe procedural history and facts, 

### with citationsto the record; (2) 

### refer to 

### anything in the record 

### that counsel believes 

### arguablysupportsthe appeal; (3) set 

### forth counsel's conclusion 

### that the appeal is 

### frivolous; and (4) state counsel's reasons 

### for concluding 

### that the appeal is 

### frivolous. Counsel should 

### articulate the 

### relevant facts of record, 

### controlling case law, 

### and/or statutes on 

### point 

### that have led to the conclusion

### that the appeal is 

### frivolous. 

### Santiago, 978 A.2d at 361. Once counsel has satisfied 

### the 

### Anders requirements, it isthen this Court's 

### responsibility

### "to conduct a simple review ofthe record to ascertain if

### there appear on its faceto be 

### arguablymeritorious issues 

### that counsel, 

### intentionally or not, missed or 

### misstated." 

### Commonwealth v. 

### Dempster, 187 A.3d 266, 272 (Pa. Super. 

### 2018). Here, counsel has complied 

### with each of the 

### requirements of

### Anders. Counsel indicates 

### that she 

### conscientiously examined the record and 

### determined 

### that an appeal would be 

### frivolous. Further, the 

### Anders brief 

## -5J

### -S30029-19 comports 

### with the requirements set 

### forth by the Supreme Court of Pennsylvania in 

### Santiago. Finally, 

### the record includes a copy 

### of the 

### letter 

### that counsel sent to Moreno, advising him of his 

### right to proceed 

### pro se or retain 

### alternate counsel and file additional claims, and 

### stating counsel's 

### intention to seek permissionto 

### withdraw.7 Accordingly, counsel has complied 

### with the procedural 

### requirements for withdrawing from representation, and
wewill conduct an 

### independent review to 

### determinewhether Moreno'sappeal is 

### wholly frivolous. The issue raised in the 

### Anders brief presents a challenge to the 

### discretionaryaspects of Moreno's sentence.8 "Challengesto the 

### discretionary aspects of sentencing do not 

### entitle an 

### appellant to review as 

### of 

### right." 

### Commonwealth v. 

### Moury, 992 A.2d 162, 170 (Pa. Super. 

### 2010). Prior to reaching 

### the merits of a 

### discretionary sentencing issue, 

### this Courtconducts 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,

### [see] Pa.R.A.P. 

### 2119(f); and (4) 

### whetherthere
Moreno has not filed any responseto 

### the

### Anders brief.

8 As Moreno entered an open 

### guilty plea, he retained the 

### right to challenge the 

### discretionary aspects 

### of his sentence. 

### See 

### Commonwealth v. 

### Luketic, 162A.3d 1149, 1159 (Pa. Super. 

### 2017) (holding

### thatwhen a 

### defendantenters a 

### guilty plea which does not involve a plea bargain designating the sentence to be imposed, he waives the 

### right to challenge all non

### -jurisdictional defects exceptthe 

### legality ofthe sentence and 

### the

### validity ofthe plea, but retains the 

### right to challenge the 

### discretionary aspects 

### of his sentence).

- 6 -J

### -S30029-19

is a 

### substantial question 

### that the sentence appealed 

### from is not 

### appropriate under the Sentencing Code, 

### [see] 42 Pa.C.S. § 

### 9781(b). 

### Id. (citation

### omitted). When an

### appellantchallengesthe

### discretionaryaspects of his sentence, we 

### must consider his 

### brief on 

### this issue as a 

### petition 

### for permission to appeal. 

### Commonwealth v. 

### Yanoff, 690 A.2d 260, 267 (Pa. Super. 

### 1997); 

### see 

### also 

### Commonwealth v. 

### Tuladziecki, 522 A.2d 17, 18 (Pa. 

### 1987); 42 Pa.C.S. § 

### 9781(b). In the 

### instant case, Moreno filed a 

### timely notice 

### of appeal, and two 

### timely post-sentence motions 

### for reconsideration of sentence. However, Moreno raised no excessiveness challenge in 

### either motion. Nor did he claim 

### that his sentence was excessive at the original sentencing hearing, or during the two hearings conducted on his 

### motions 

### for reconsideration. Generally, issues 

### that challenge the 

### discretionary aspects of sentencing are waived if 

### they are not raised during sentencing proceedings or in a post-sentence motion. 

### See 

### Commonwealth v. 

### McAfee, 849 A.2d 270, 275 (Pa. Super. 2004) (holding

### that issues challenging 

### the discretionary aspects of a sentence arewaived if not raised in a post-sentence motion or by presenting the claim to the 

### trialcourtduring 

### the sentencing 

### proceedings);

### see

### also Pa.R.A.P. 302. 

### Additionally, while the

### Anders brief includes a separate 

### "Statement of Reasons to allow Appeal 

### from the 

### DiscretionaryAspects of 

### Sentence," which
we presume is intended to be a Rule 

### 2119(f) statement, it does not indicate the 

### manner in which Moreno's sentence raises a 

### substantial question. See 

## -7J

### -S30029-19 

### Commonwealth v. 

### Feucht, 955 A.2d 377, 384 (Pa. Super. 2008) 

### (stating 

### that an

### appellate court willonlyevaluate substantive 

### discretionarysentencing claims

### that were relied upon in the Rule 

### 2119(f) concise 

### statement). While these deficiencies would 

### generally result in 

### waiver, in 

### light ofthe fact 

### that counsel has filed an

### Anders brief and 

### petition to 

### withdraw, we will address Moreno's 

### contention. See

### Commonwealth v. 

### Lilley, 978A.2d 995, 998 (Pa. Super. 

### 2009) (addressing a 

### discretionary sentencing issue despite the absence of a Rule 

### 2119(f) statement in 

### the 

### Anders brief); 

### see 

### also Commonwealth v. 

### Hernandez, 783 A.2d 784, 787 (Pa. Super. 

### 2001) (concluding 

### that 

### Anders requires review of issues 

### otherwise waived on appeal). Our review is governed bythefollowing principles: Sentencing is a 

### matter vested in the sound 

### discretion of the sentencing

### judge, and a sentence will not be 

### disturbed on appeal absent a 

### manifest abuse of 

### discretion. In 

### this context, an abuse of

### discretion isnot shown

### merely by an

### error in

### judgment. Rather, the 

### appellant must establish, by reference to 

### the record,

### that the sentencing 

### court ignored or misapplied the law, exercised its 

### judgment for reasons 

### of 

### partiality, prejudice, bias or ill 

### will, or arrived at a 

### manifestly unreasonable decision. 

### Commonwealth v. 

### Fullin, 892 A.2d 843, 847 (Pa. Super. 

### 2006) 

### (citation 

### omitted). In making a reasonableness 

### determination, a 

### court should consider 

### four factors: (1) The 

### nature and 

### circumstancesoftheoffense and the 

### history and 

### characteristics ofthe 

### defendant. (2) The 

### opportunity of the sentencing 

### court to observe the 

### defendant, including any presentence 

### investigation.

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### -S30029-19
(3) The 

### findings upon which the sentence was based. (4) The guidelines promulgated bythe commission. 42 Pa.C.S. § 

### 9781(d)(1)-(4). Here, Moreno came before the 

### trial court with a 

### prior record score of RFEL 

### (repeat felon). He was sentenced on seven counts of residential 

### burglary, each graded as a

### first-degreefelony 

### with an offense

### gravity score of
seven. He was also on parole

### for

### four other residential 

### burglary convictions. Given his 

### convictions and 

### criminal history, Moreno faced a 

### maximum aggregate sentence of 

### seventy to 140 years in prison. Yet, the 

### trial court, upon 

### reconsideration, sentenced Moreno to an 

### aggregate prison 

### term of 

### thirteen to

### twenty-six years. Despitethe 

### imposition of a 

### statutory maximum sentence on six of the convictions, the 

### trial court's decision to run those sentences

### concurrently resulted in an 

### aggregate sentence 

### forall seven counts of 

### burglary in the 

### mitigated range 

### of the sentencing guidelines. Therefore, Moreno's sentence is 

### clearly not excessive. 

### Additionally, the 

### trial court considered a pre-sentence 

### investigation report. Where a sentencing 

### court is 

### informed by a pre-sentence 

### investigation report, 

### "it is presumed 

### that the 

### court is aware of all 

### appropriate sentencing factors and 

### considerations, and 

### that where the court has been so 

### informed, its 

### discretion should not be 

### disturbed." 

### Commonwealth v. 

### Ventura, 975 A.2d 1128, 1135 (Pa. Super. 

### 2009).

## -9J

### -S30029-19 Moreover, the 

### trial courtexplained its reasons 

### forthe sentence on the record, noting the nature ofthe crimes, Moreno's 

### criminal record, his 

### failure to 

### rehabilitate, and the fact 

### that he was in 

### this country illegally. See N.T. Sentencing, 

### 6/13/18, at 

### 21-23; 

### see

### also 42 Pa.C.S.A. § 

### 9721(b). Thus, we discern no abuse 

### of discretion by the 

### trial court, and agree 

### with counsel's conclusion 

### that Moreno's excessive sentencing challenge is 

### wholly frivolous and does not 

### entitle him to relief. Finally, our review ofthe record discloses no 

### other non

### -frivolous issues 

### that Moreno could raise 

### that his counsel 

### overlooked. 

### Dempster, supra. Accordingly, we

### grant counsel's 

### petition to

### withdraw, and 

### affirm the

### judgment of sentence. Petition to 

### withdraw granted,

### judgment of sentence 

### affirmed. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 8/9/19

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