J. S64037/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,5the 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 nonjurisdictional 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 wellsettled 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