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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
DONALD HENRY GLOVER, SR.,                   :
                                            :
                            Appellant       :     No. 729 MDA 2015

            Appeal from the Judgment of Sentence October 10, 2013
             In the Court of Common Pleas of Susquehanna County
               Criminal Division No(s).: CP-58-CR-0000019-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 26, 2015

        Appellant, Donald Henry Glover, Sr., appeals from the judgment of

sentence entered in the Susquehanna County Court of Common Pleas

following an open guilty plea to third-degree murder.1 He claims the court’s

sentence of ten to thirty years’ imprisonment was excessive and he should

have been sentenced in the mitigated range. We affirm.

        The facts are not relevant to our disposition.    The court sentenced

Appellant on October 10, 2013.2         Appellant did not appeal and the court



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
   We note the court acknowledged the existence of a presentence
investigation report. See N.T. Sentencing Hr’g, 10/10/13, at 2.
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docketed Appellant’s Post Conviction Relief Act3 (“PCRA”) petition on October

14, 2014.4 On March 27, 2015, the court granted Appellant’s petition to the

extent he requested reinstatement of his direct appeal rights.        Order,

3/27/15. Appellant timely appealed on April 24, 2015. The court did not

order Appellant to comply with Pa.R.A.P. 1925(b).

        Appellant raises the following issue:

           Whether the sentence imposed was excessive and an
           abuse of discretion?

Appellant’s Brief at 7.    In support of his sole issue, Appellant presents a

somewhat confusing argument.         He contends that sentencing counsel was

ineffective by not presenting evidence of the victim’s abuse, which would

have purportedly warranted a mitigated sentence.       Id. at 10.   Appellant

argues that the court should have given greater weight to expert testimony

that he had diminished capacity. Id. He contends that had these mitigating

factors been presented,5 the court would have sentenced him in the

mitigated range. Id. We hold Appellant is due no relief.




3
    42 Pa.C.S. §§ 9541-9545.
4
  The record did not indicate when Appellant mailed the petition. See
generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super.
2006) (discussing prisoner mailbox rule).
5
  Expert testimony was introduced that Appellant had diminished capacity.
N.T. Sentencing Hr’g at 6.




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      As a prefatory matter, we acknowledge that when a defendant enters

a guilty plea, he waives his right to “challenge on appeal all non-

jurisdictional defects except the legality of [his] sentence and the validity of

[his] plea.”     Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.

Super. 2008) (citation omitted). However, “where a plea agreement is an

open one as opposed to one for a negotiated sentence, unquestionably, after

sentencing the defendant can properly request reconsideration as the court

alone decided the sentence and no bargain for a stated term, agreed upon

by the parties, is involved.” Commonwealth v. Coles, 530 A.2d 453, 457

(Pa. Super. 1987); accord Commonwealth v. Dalberto, 648 A.2d 16, 21

(Pa. Super. 1994) (“We believe that justice requires that we treat this case

as an ‘open’ plea and permit an appeal to the discretionary aspects of

sentencing.”).

      This Court has stated that

               [c]hallenges to the discretionary aspects of
               sentencing do not entitle an appellant to appellate
               review as of right. 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



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              under the Sentencing Code, 42 Pa.C.S.A. §
              9781(b).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm . . . .

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).   “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Id.

         [W]hen the appellant has not included a Rule 2119(f)
         statement and the appellee has not objected, this Court
         may ignore the omission and determine if there is a
         substantial question that the sentence imposed was not
         appropriate, or enforce the requirements of Pa.R.A.P.
         2119(f) sua sponte, i.e., deny allowance of appeal.
         However, this option is lost if the appellee objects to a
         2119(f) omission. In such circumstances, this Court is
         precluded from reviewing the merits of the claim and the
         appeal must be denied.

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (citations

omitted).


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      Instantly, we reproduce Appellant’s Rule 2119(f) in its entirety:

“Pursuant to Pa.R.A.P. 2119(f), the following is offered in support of a

reduced sentence for Appellant: mitigating factors that Appellant’s prior

counsel failed to advance at the time of sentencing.” Appellant’s Brief at 9.

The   Commonwealth       contends      Appellant’s    Rule   2119(f)    statement   is

deficient, but does not object.        See Commonwealth’s Brief at 2 n.1.           We

agree that the statement does not fulfill the requirements of Googins,

supra, but because the Commonwealth does not object, we examine the

merits of Appellant’s arguments. Cf. Kiesel, 854 A.2d at 533.

      “[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Bullock, 868 A.2d 516, 529

(Pa. Super. 2005) (citations omitted).             Thus, to the extent Appellant

contends the court should have weighed his expert’s diminished-capacity

testimony more heavily, such a claim does not raise a substantial question.

See id. To the extent Appellant claims counsel was ineffective, it is well-

settled   that   such   claims   are    deferred     to   collateral   review.   See

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Accordingly, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2015




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