J-S09034-18

____________________________________

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ANTONIO CORDERO-VELEZ 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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. 
J-S09034-18

- 2 -

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 
J-S09034-18

- 3 -

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)
J-S09034-18

- 4 -

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.
J-S09034-18

- 5 -

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 
J-S09034-18

- 6 -

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.
J-S09034-18

- 7 -

(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