Com. v. Valencia-Johnson, A.

J-S15044-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ANTONIO VALENCIA-JOHNSON :

:

Appellant : No. 1541 WDA 2024

Appeal from the Judgment of Sentence Entered April 30, 2024

In the Court of Common Pleas of Erie County Criminal Division at No(s):

CP-25-CR-0002358-2023

BEFORE: OLSON, J., SULLIVAN, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: September12, 2025

Appellant, Antonio Valencia-Johnson, appeals from the judgment of

sentence imposed by the Court of Common Pleas of Erie County after he

pleaded guilty to one count of robbery.1 He challenges the discretionary

aspects of his sentence. After review, we affirm.

On July 3, 2023, Appellant and two accomplices, all minors, participated

in entering the home of a nine-year-old victim and robbing him. See N.T. Plea

Hearing, 1/25/24, 3. Specifically, Appellant provided an accomplice with a

pellet “gun made to look like a [real and functional] gun” that one of the

accomplices used to threaten to kill the victim. N.T. Sentencing Hearing,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3701(a)(1)(ii).

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4/20/24, 9. The two accomplices then stole the victim’s phone and video game

system. See id.

On September 12, 2023, the case was transferred from juvenile court

to criminal court upon agreement of all parties. See Order (granting juvenile

to be transferred to criminal court), 9/12/23, 1. On January 25, 2024,

Appellant pleaded guilty to one charge of robbery involving a threat of serious

bodily injury, a felony of the first degree. See N.T. Plea Hearing, 1/25/24, 3.

In exchange for the plea, the Commonwealth withdrew the other charges.2

See Plea Agreement, 1/25/24, 1. The court deferred sentencing for the

preparation of a pre-sentence investigation report (PSI). See N.T. Plea

Hearing, 1/25/24, 4.

On April 30, 2024, the court presided over a sentencing hearing, where

it imposed 6 to 12 years’ incarceration with a 232-day credit for time served.

See N.T. Sentencing Hearing, 4/30/24, 12; Order (sentencing) 4/30/24, 1. 3

____________________________________________

2 The withdrawn charges included: burglary, criminal trespass, theft by

unlawful taking or disposition, receiving stolen property, terroristic threats,

possessing instruments of crime, simple assault, and loitering and prowling at

nighttime. See Petition Alleging Delinquency, 7/26/23, 1-6; see also 18

Pa.C.S. §§ 3502(a)(1)(ii), 3503(a)(1)(i), 3921(a), 3925(a), 2706(a)(1),

907(a), 2701(a)(3), and 5506, respectively.

3 The imposed sentence was within the standard range recommended by the

Pennsylvania Sentencing Guidelines: 72 to 84 months’ imprisonment, plus or

minus 12 months for aggravating or mitigating circumstances. See N.T.

Sentencing Hearing, 4/30/24, 8 (noting Appellant’s prior record score is a

repeat felony offender (REFL)); see also 204 Pa. Code § 303.15 (7th ed.,

amend. 6) (setting forth the offense gravity score of 10 for robbery under

(Footnote Continued Next Page)

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After reinstatement of Appellant’s post-sentence motion rights following his

filing of a successful petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-46, Appellant timely filed a post-sentence motion for

reconsideration of his sentence, which the trial court denied. See PCRA

Petition, 10/3/24; Order (post-sentence motion and direct appeal rights

reinstatement), 10/8/24; Order (extension of time granted for post-sentence

motion filing), 10/14/24; Post-Sentence Motion, 11/14/24; Order (post-

sentence motion denial), 11/14/2024. Subsequently, Appellant filed a timely

notice of appeal, and he and the trial court complied with Pennsylvania Rule

of Appellate Procedure 1925.

Appellant presents the following question for our review:

[Was] the sentence in this case [] manifestly excessive and clearly

unreasonable, particularly in [its] consecutiveness, when the trial

court considered his juvenile record and did not consider the

[Appellant’s] attorney’s recommendation?

Appellant’s Brief, 2.

“The right to appellate review of the discretionary aspects of a sentence

is not absolute and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) (en

banc). Since Appellant is challenging the discretionary aspects of sentencing,

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

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Section 3701(a)(1)(ii)); 204 Pa. Code § 303.16(a) (7th ed., amend. 6)

(applicable basic sentencing matrix).

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(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) whether there is

a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Harper, 273 A.3d 1089, 1096 (Pa. Super. 2022) (citing

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

and brackets omitted)). “Only if the appeal satisfies these requirements may

we proceed to decide the substantive merits of Appellant’s claim.”

Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super. 2017).

Appellant met the first three requirements. See Moury, 992 A.2d at

170. He filed a timely appeal to this Court, preserved the issue for our review

in his post-sentence motion, and included a Rule 2119(f) statement in his

brief. See Appellant’s Brief, 3-4. Therefore, we must decide whether Appellant

has raised a substantial question for our review.

The existence of a substantial question must be determined on a case-

by-case basis. See Commonwealth v. Sexton, 222 A.3d 405, 420 (Pa.

Super. 2019); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.

Super. 1995). This Court will not look beyond the statement of questions

involved and the prefatory Rule 2119(f) statement to determine whether a

substantial question exists. See Commonwealth v. Radecki, 180 A.3d 441,

468 (Pa. Super. 2018). Moreover, for purposes of determining what

constitutes a substantial question, “we do not accept bald assertions of

sentencing errors,” but rather require an appellant to “articulat[e] the way in

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which the court’s actions violated the sentencing code.” Commonwealth v.

Malovich, 903 A.2d 1247, 1252 (Pa. 2006). “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. Clary, 226 A.3d 571, 580 (Pa.

Super. 2020) (citation omitted).

Appellant argues that his sentence was manifestly excessive and clearly

unreasonable because the court failed to take into consideration his mitigating

evidence and inappropriately emphasized his juvenile record. See Appellant’s

Brief, 4. This Court has held that “an excessive sentence claim – in conjunction

with an assertion that the court failed to consider mitigating factors – raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014). Therefore, Appellant has presented a substantial question, and

we will address the merits of the issue. See Commonwealth v. Miller, 275

A.3d 530, 534 (Pa. Super. 2022) (stating trial court overlooking mitigating

factors and imposing an excessive sentence raises substantial question).

Our standard of review for challenges to the discretionary aspects of

sentencing is as follows:

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 is not 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

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judgment for reasons of partiality, prejudice, bias[,] or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (quoting

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014)). The

rationale for the broad discretion and deference in this standard is that the

sentencing court is “in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual circumstances

before it.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (quoting

Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990)). Moreover, an

appellate court may not reweigh the factors considered by the trial court when

imposing a sentence. See Commonwealth v. Macias, 968 A.2d 773, 778

(Pa. Super. 2009).

When we conduct the merits analysis of a challenge to the discretionary

aspects of a sentence, we are guided by the statutory requirements of 42

Pa.C.S. § 9781(c) and (d). See Commonwealth v. Zeigler, 112 A.3d 656,

661 (Pa. Super. 2015). Here, Subsection 9781(c)(2) applies, as the

sentencing court sentenced Appellant within the Sentencing Guidelines but he

alleges the case involves circumstances where the application of the guidelines

would be clearly unreasonable. See 42 Pa.C.S. § 9781(c). In reviewing the

record, this Court considers:

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant.

(2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation.

(3) the findings upon which the sentence was based.

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(4) the guidelines promulgated by the commission.

Id. at § 9781(d).

A sentence is unreasonable if it was imposed “without express or implicit

consideration” of the requirements outlined in Section 9721(b). Walls, 926

A.2d at 964; 42 Pa.C.S. § 9721(b). In imposing a sentence, the sentencing

court shall consider “the protection of the public, the gravity of the offense as

it relates to the impact on the life of the victim and on the community, and

the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Further, the

sentencing court is required to consider the circumstances of the offense and

the character of the defendant, paying particular attention to the defendant’s

prior criminal record, age, personal characteristics, and potential for

rehabilitation. See Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super.

2002). Although they must be considered, the Pennsylvania Sentencing

Guidelines are not mandatory, and thus do not prohibit any sentence

otherwise within the statutory maximum. See Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008); Commonwealth v. Mitchell, 883 A.2d

1096, 1107 (Pa. Super. 2005). The balancing of the sentencing factors is

within the sole province of the sentencing court. See Commonwealth v.

Velez, 273 A.3d 6, 10 (Pa. Super. 2022). Where the sentencing court had the

benefit of a 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.” Commonwealth v.

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Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (quoting Commonwealth v.

Devers, 546 A.2d 12, 18 (1988)).

As stated above, Appellant contends that his sentence was manifestly

excessive, and the Court did not consider his mitigation evidence. See

Appellant’s Brief, 4. Specifically, Appellant points to three factors that he

believes the trial court failed to weigh properly—his juvenile record, his co-

defendant’s sentences relating to the same charge, and his life circumstances

as mitigating aspects for consideration. See id. at 6-7.

First, Appellant argues that he should have received a mitigated range

because it was his first time in an adult court, and the trial court erred insofar

as it considered his juvenile record when imposing a sentence not in the

mitigated range. Id. at 7. However, we observe that the sentencing court is

required to examine the defendant’s juvenile record when crafting an

appropriate sentence. See Commonwealth v. Lilley, 978 A.2d 995, 1000

(Pa. Super. 2009) (quoting Commonwealth v. Smith, 481 A.2d 1365, 1366

(Pa. Super. 1984) (“[A] child who continues his pattern of serious and violent

anti-social activity into adulthood, should not receive the benefit of a cloak of

immunity regarding that behavior, when it is relevant to predicting future

behavior and the public safety is at risk.”)); see also 204 Pa. Code. §

303.6(a). Therefore, we conclude that the sentencing court did not err in

considering Appellant’s juvenile criminal history.

Second, Appellant argues that his co-defendants received a lesser

sentence for the same charge, and therefore, he should have been sentenced

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in the mitigated range. See Appellant’s Brief, 6. This Court has ruled that a

defendant is not entitled to the same sentence as that imposed on another

person involved in the same crime. See Commonwealth v. Mastromarino,

2 A.3d 581, 589 (Pa. Super. 2010). The trial court in its opinion acknowledged

that it was aware that Appellant’s co-defendants received lesser periods of

incarceration, due to having lower prior record scores. See Trial Court

Opinion, 1/14/25, 1. After reviewing the record and the trial court’s reasoning

for Appellant’s sentence, this Court finds no error. See Walls, 926 A.2d at

966 (“Pennsylvania’s sentencing system [. . .] is based upon individualized

sentencing.”)

Finally, Appellant argues that the trial court did not consider his defense

counsel’s mitigating factors, such as having a job lined up before he committed

the robbery, that he accepted responsibility for his actions, and that he wants

to go home and be there for his family. See Appellant’s Brief, 7; see also

N.T. Sentencing Hearing, 4/30/24, 9. Appellant essentially requests this Court

to reweigh the sentencing factors, which this Court will not do. See

Commonwealth v. Kurtz, 294 A.3d 509, 536 (Pa. Super. 2023). The

sentencing court’s consideration of the pertinent statutory factors pursuant to

42 Pa.C.S. § 9721(b) is evident from the sentencing hearing:

THE COURT: [] Well, the court has considered the statements of

defense counsel, the attorney for the [C]ommonwealth, as well as

the age, background, criminal record, character, rehabilitative

needs, nature, circumstances and seriousness of the offense,

protection of the community, [S]entencing [G]uidelines, impact of

crime on the victim and the [PSI]. Obviously, we’re very

concerned here that you have a very violent juvenile record,

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including several aggravated assaults, and you’ve been revoked

several times. So, I see no basis to depart from the standard

range, so what we’re going to do, we will sentence you to 6 to 12

years’ incarceration. []

N.T. Sentencing Hearing, 4/30/25, 11-12.

Clearly, the sentencing court explained its reasoning for Appellant’s

sentence. See Commonwealth v. Mouzon, 812 A.2d 617, 620-621 (Pa.

Super. 2002) (“In every case in which the court imposes a sentence for a

felony or a misdemeanor, the court shall make as a part of the record and

disclose in open court at the time of sentencing, a statement of the reason or

reasons for the sentence imposed.”). Appellant was sentenced within the

standard guidelines, and the trial court’s imposition of its sentence is not

unduly harsh or unreasonable. See Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009) (noting that standard guideline range sentence

“is presumptively where a defendant should be sentenced”) (citation omitted).

The trial court had the benefit of the PSI, considered the requirements of

Section 9721(b), and explained the reasons for Appellant’s sentence. See

Devers, supra. Upon review of the record and relevant case law, we conclude

the court did not abuse its discretion in imposing a sentence. See Conte,

supra. Accordingly, Appellant is not entitled to relief.

Judgment of sentence affirmed.

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DATE: 9/12/2025

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