J-S65027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

IESHA RAE COTTO

Appellant No. 805 MDA 2018

Appeal from the Judgment of Sentence Entered January 27, 2016

In the Court of Common Pleas of Lebanon County

Criminal Division at No.: CP-38-CR-0000175-2015

BEFORE: SHOGAN, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019

Appellant Iesha Rae Cotto appeals from the January 27, 2016 judgment 

of sentence entered in the Court of Common Pleas of Lebanon County (“trial 

court”), following her jury conviction of delivery of a controlled substance 

(marijuana).1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. Briefly, on 

January 27, 2016, the trial court sentenced Appellant to a term of one to ten 

years’ imprisonment for the above-referenced crime.

2

 Upon collateral review, 

the trial court reinstated nunc pro tunc Appellant’s right to file post-sentence 

motions and a direct appeal because of a breakdown in the court processes 

following her sentencing. See Trial Court Order, 12/27/17. Appellant nunc 

____________________________________________

1 35 P.S. §§ 780-113(a)(30) and 780-115.

2 The standard range sentence was six to sixteen months with the maximum 

sentence of ten years. 
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pro tunc filed a post-sentence motion, alleging that her sentence of one to ten 

years in prison was “unfair and excessive in light of several mitigating factors.” 

Consolidated Post-Sentence Motion, 12/22/17, at ¶ 6. On April 23, 2018, the 

trial court denied the post-sentence motion. Appellant timely appealed. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents a single issue for our review: “[w]hether 

Appellant received an unfair, excessive, and/or illegal sentence of one (1) to 

ten (10) years’ incarceration in light of several mitigating factors.” Appellant’s 

Brief at 4. In other words, Appellant premises her sentencing claim on her 

argument that the trial court failed to consider her mitigating circumstances. 

It is well-settled that “[t]he right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 

(Pa. Super. 2011). Rather, where an appellant challenges the discretionary 

aspects of sentence, an appellant’s appeal should be considered as a petition 

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. 

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

[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 
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from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-bycase basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, Appellant has satisfied the first three requirements of the fourpart Moury test. Appellant filed a timely appeal to this Court, preserved the 

issue on appeal through his post-sentence motions, and included a Pa.R.A.P. 

2119(f) statement in his brief.3 We, therefore, need to determine only if 

Appellant’s sentencing issues raise a substantial question. 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 

828 (Pa. Super. 2007). We have found that a substantial question exists 

“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.” Commonwealth v. Phillips, 946 A.2d 103, 112 

____________________________________________

3 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary 

aspects of a sentence in a criminal matter shall set forth in his brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 

2009). 

In the matter sub judice, Appellant claims that the trial court did not 

consider sufficiently the mitigating circumstances in this case. 

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. 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. 

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)). Further, 

we have “held on numerous occasions that a claim of inadequate consideration 

of mitigating factors does not raise a substantial question for our review.” Id.

at 903 (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 

2010)); see Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. 

Super. 1995) (“[a]n allegation that a sentencing [judge] ‘failed to consider’ or 

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

question that the sentence was inappropriate,”), appeal denied, 676 A.2d 

1195 (Pa. 1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. 

Super. 1997) (finding absence of substantial question where appellant argued 

the trial court failed to adequately consider mitigating factors and to impose 

an individualized sentence). Thus, consistent with the foregoing cases, 

Appellant’s claim does not raise a substantial question for our review. 
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Even if we were to review the merits of Appellant’s sentencing claim, 

she still would not be entitled to relief. It is well-settled that “[w]here the 

sentencing court had the benefit of a presentence investigation (‘PSI’), we can 

assume the sentencing court ‘was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with mitigating 

statutory factors.’” Moury, 992 A.2d at 171. 

Here, the trial court explained:

In announcing [Appellant’s] sentence, we reviewed the 

[PSI], referred to [Appellant’s] previous record and we specifically 

referenced the fact that she performs well when she is supervised 

and in structured programs. We recognized [Appellant’s] 

accomplishments, including the attainment of her GED, while 

under supervision, but also observed that when [Appellant] moves 

off supervision, she runs into trouble. We stated that [Appellant] 

“can do incredible things if guided in the correct way, but when 

she doesn’t have that guidance, falls back into unfortunate and 

quite criminal patterns.”

Trial Court Opinion, 4/23/18, at 4-5 (unpaginated). Accordingly, Appellant’s 

sentencing claim based on insufficient consideration of mitigating factors lacks 

merit. 

Moreover, to the extent Appellant argues that the trial court abused its 

discretion in running her sentence of one to ten years’ imprisonment 

consecutively with other sentences she was serving, such argument likewise 

lacks merit. We consistently have recognized that bald excessiveness claims 

premised on imposition of consecutive sentences do not raise a substantial

question for our review. See Commonwealth v. Caldwell, 117 A.3d 763, 

769 (Pa. Super. 2015) (en banc) (stating, “[a] court’s exercise of discretion in 

imposing a sentence concurrently or consecutively does not ordinarily raise a 
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substantial question[ ]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see 

also Commonwealth v. Ahmad, 961 A.2d 884, 887 n.7 (Pa. Super. 2008); 

Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006). 

In sum, we conclude that the trial court did not abuse its discretion in 

sentencing Appellant to one to ten years’ imprisonment. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2019