Com. v. Rubly, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LARRY RAY RUBLY, JR.
Appellant No. 306 WDA 2014
Appeal from the Judgment of Sentence December 16, 2013
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000629-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 27, 2015
Larry Ray Rubly, Jr., appeals from the judgment of sentence imposed
on December 16, 2013, in the Court of Common Pleas of Clearfield County,
upon the second revocation of his probation, and made final by the denial of
post-sentence motions on January 22, 2014.1 On January 25, 2011, Rubly
pled guilty to possession with intent to deliver marijuana (“PWID”),
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1
As will be explained infra, Rubly purported to appeal from the judgment of
sentence entered on April 22, 2013, in an unrelated matter at Criminal
Docket No. CP-17-CR-679-2009 (“Docket No. 679-2009”). Rubly was
sentenced for convictions at Docket No. 679-2009 and in the present matter,
at Criminal Docket No. CP-17-CR-629-2009 (“Docket No. 629-2009”), on the
same day. As such, his appeal properly lies from the judgment of sentence
at Docket No. 629-2009. We have amended the caption accordingly.
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possession of drug paraphernalia, and disorderly conduct,2 and was
sentenced to an aggregate term of four to 12 months of county
imprisonment, plus two years of probation. On December 16, 2013, the
court revoked his probation, and sentenced him to a term of 12 months to
three years of state incarceration. Contemporaneous with this appeal,
counsel for Rubly filed a petition to withdraw from representation pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The sole issue identified in the Anders
brief is a challenge to the discretionary aspects of sentencing. After a
thorough review of the submissions by the parties, the certified record, and
relevant law, we grant counsel’s motion and affirm the judgment of
sentence.
The facts and procedural history of this case have been gleaned from
the certified record and the parties’ briefs, since no trial court opinion was
filed in contravention of Pa.R.A.P. 1925(a). On July 15, 2009, police were
called to a scene where Rubly and a female were engaged in a verbal
altercation on a public street. After receiving consent, police searched a
backpack in Rubly’s possession and discovered a multi-colored pipe that
contained a green leafy substance inside, a box of sandwich baggies, a
sandwich bag containing a green leafy substance that subsequently tested
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2
35 P.S. §§ 780-113(a)(30), (a)(32), and 18 Pa.C.S. § 5503(a)(2),
respectively.
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positive for marijuana, and a sum of cash and coins totaling $545.00. As
stated above, on January 25, 2011, Rubly pled guilty to possession with
intent to deliver marijuana, possession of drug paraphernalia, and disorderly
conduct. That same day, the court sentenced him to a term of four to 12
months’ county incarceration, plus a consecutive term of two years’
probation, for the PWID conviction 3 which was to be served consecutively to
an unrelated matter at Docket No. 679-2009.4 On February 7, 2011, the
trial court amended the sentence, ordering that the sentence in the present
matter be served concurrently to the matter at Docket No. 679-2009.
Rubly was later released from jail on March 31, 2011. In the summer
of 2012, he was charged with violating several conditions of his probation.5
On September 24, 2012, after finding Rubly violated the terms of probation
at Docket No. 629-2009, the trial court entered an order re-sentencing Rubly
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3
With respect to the drug paraphernalia and disorderly conduct offenses,
the court sentenced Rubly to one year of probation on each count, to be
served concurrently to the PWID crime.
4
At Docket No. 679-2009, Rubly received a sentence of four months to one
year of county imprisonment, plus two years of consecutive probation. The
same probation terms and conditions were to be applied in both matters.
5
These violations were applied to both Docket Nos. 629-2009 and 679-
2009. Specifically, Rubly failed to: (1) report to his probation officer as
directed; (2) abstain from the possession or use of a controlled substance
without a valid prescription; (3) complete drug and alcohol counseling; and
(4) maintain his monthly payments.
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to a term of two years’ probation, to be served consecutive to the period of
incarceration imposed at Docket No. 679-2009.6
Subsequently, in November of 2013, Rubly, again, was charged with
violating his probation by failing to report in person to his probation officer
and obtain permission to change his residence or leave the jurisdiction of the
court.7 A probation revocation hearing was held on December 16, 2013.
That same day, the court re-sentenced Rubly to a term of 12 months to
three years of state incarceration. Rubly filed a motion for reconsideration
on December 19, 2013. A hearing was held on January 21, 2014, and
Rubly’s post-sentence motion was denied the following day. This appeal
followed.8
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6
Based on the language of the September 24, 2012, sentencing order, it
appears Rubly was also resentenced for the probation violation at Docket No.
679-2009. However, the record in this matter does not disclose the details
of the new sentence at Docket No. 679-2009.
7
These violations were only applied to the present matter at Docket No.
629-2009.
8
Rubly’s counsel erroneously filed the motion for reconsideration and an
untimely notice of appeal under Docket No. 679-2009. Realizing the error,
counsel filed a petition to allow appeal nunc pro tunc on March 19, 2014,
under the proper docket number. The trial court granted nunc pro tunc
relief the same day, transferring the matter to Docket No. 629-2009 and
extending the appeal period. Moreover, the court ordered Rubly to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Rubly complied with this directive. As noted above, the trial court
did not issue an opinion pursuant to Pa.R.A.P. 1925(a).
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Preliminarily, we must address counsel’s petition to withdraw. When
counsel files a petition to withdraw and accompanying Anders brief, we
must first examine the request to withdraw before addressing any of the
substantive issues raised on appeal. Commonwealth v. Goodwin, 928
A.2d 287, 290 (Pa. Super. 2007). Here, our review of the record reveals
that counsel has substantially complied with the requirements for withdrawal
outlined in Anders, supra, and its progeny. Specifically, counsel filed a
petition for leave to withdraw, in which he states his belief that the appeal is
frivolous, filed an Anders brief pursuant to the dictates of Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a copy of the Anders
brief to Rubly, and advised Rubly of his right to retain new counsel or
proceed pro se. Commonwealth v. Ferguson, 761 A.2d 613, 616 (Pa.
Super. 2000). Moreover, our review of the record reveals no additional
correspondence from Rubly. Accordingly, we will proceed to examine the
record and make an independent determination of whether the appeal is
wholly frivolous.
The sole issue identified in the Anders brief is a challenge to the
discretionary aspects of Rubly’s probation revocation sentence. Specifically,
he contends the resentence was manifestly excessive and the court failed to
remedy its abuse of discretion when it denied his motion for reconsideration.
See Anders’ Brief at 7. Moreover, he requests this Court remand the
matter to the trial court to be resentenced to a lesser term of imprisonment
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in a county facility based on the following: (1) he works at a
construction/scrapping job and would be eligible to participate in work
release if he was incarcerated at a county jail; (2) the income he would
receive, if he were permitted to work, would go towards his costs and fines
and aiding in the care of his family; (3) he had been sober for 49 months at
the time of resentencing due to rehabilitative services; (4) he had been
participating in community service; (5) his present violation was only his
second violation in the underlying matter; and (6) he has undisclosed
medical issues, including mental health issues. Id. at 12.9
The standard of review for a claim challenging a discretionary aspect
of sentencing is well-established:
Sentencing is a matter vested in the sound
discretion of the judge, and will not be disturbed on
appeal absent a manifest abuse of discretion. 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
judgment for reasons of partiality, prejudice, bias or
ill will, or arrived at a manifestly unreasonable
decision.
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9
See Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003)
(“a claim that the sentence imposed by the trial court was manifestly
excessive is a challenge to the discretionary aspects of the sentence.”);
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (a
claim that a trial court failed to consider the defendant’s rehabilitative needs
and the protection of society is a challenge to the discretionary aspects of
sentencing).
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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citations and quotation marks omitted). To reach the merits
of a discretionary issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, Rubly filed a notice of appeal,10 preserved the issue in a post-
sentence motion, and included the requisite statement pursuant to Pa.R.A.P.
2119(f) in his appellate brief. Therefore, we may proceed to determine
whether Rubly has presented a substantial question that the sentence
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10
We note the appeal was timely filed after nunc pro tunc relief was
granted.
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appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013).11
To the extent Rubly argues his sentence was manifestly excessive,
such a claim does raise a substantial question. See Commonwealth v.
Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is
manifestly excessive such that it constitutes too severe a punishment raises
a substantial question.”). However, generally, “an allegation that the
sentencing court ‘failed to consider’ or ‘did not adequately consider’ various
factors does not raise a substantial question that the sentence was
inappropriate.” Id., citing Dunphy, 20 A.3d at 1222. While Rubly does
raise an excessiveness argument, his attempts to assert the court failed to
consider certain mitigating circumstances does not present a substantial
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11
With respect to whether an issue presents a substantial question, we are
guided by the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. See
Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825(Pa. Super. 2007). “A substantial question exits 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. Griffin, 2013 PA Super 70, 65 A.3d 932,
2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
quotation marks omitted).
Edwards, 71 A.3d at 330 (citation omitted).
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question. Therefore, our review is restricted to Rubly’s claim that his
sentence was manifestly excessive.
“In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006). “[A]
sentence should not be disturbed where it is evident that the sentencing
court was aware of sentencing considerations and weighed the
considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d
921, 923 (Pa. Super. 2000). “[T]he scope of review in an appeal following a
sentence imposed after probation revocation is limited to the validity of the
revocation proceedings and the legality of the sentence imposed following
revocation.” Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005)
(citation omitted).
Upon the revocation of a defendant’s probation, a trial court may
impose any sentencing option that was available under the Sentencing Code
at the time of the original sentencing, regardless of any negotiated plea
agreement. 42 Pa.C.S. § 9771(b); Commonwealth v. Wallace, 870 A.2d
838, 843 (Pa. 2005). Moreover, “[t]he trial court is limited only by the
maximum sentence that it could have imposed originally at the time of the
probationary sentence.” Fish, 752 A.2d at 923. Section 9771(c), however,
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limits the trial court’s authority to impose a sentence of total confinement
upon revocation unless one of three circumstances are present:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he
will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the
court.
42 Pa.C.S. § 9771(c). Furthermore, it is well-established that “[t]echnical
violations can support revocation and a sentence of incarceration when such
violations are flagrant and indicate an inability to reform.” Commonwealth
v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007). “In addition, in all cases
where the court resentences an offender following revocation of probation ...
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 [and] [f]ailure to comply with these provisions shall be
grounds for vacating the sentence or resentence and resentencing the
defendant.” Commonwealth v. Cartrette, 83 A.3d 1030, 1040-1041 (Pa.
Super. 2013) (internal quotations omitted); 42 Pa.C.S. § 9721(b). “A trial
court need not undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the facts of the
crime and character of the offender.” Commonwealth v. Crump, 995 A.2d
1280, 1282-1283 (Pa. Super. 2010).
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Although Rubly contends the sentence imposed by the trial court
following revocation was excessive, it bears mentioning he does not assert
the sentence imposed by the court was beyond the statutory maximum.12
Nor does the record support such an assertion. Rather, the record reveals
the following: Rubly has a prior criminal history, in which he was previously
incarcerated in state prison. N.T., 1/21/2014, at 3. This was his second
probation violation in the underlying matter. The Commonwealth presented
the following evidence to demonstrate Rubly violated conditions of his
probation:
The supporting facts are that on August 7th of this year Mr.
Rubly reported to probation for his monthly visit. He was told to
report the following week, August 14th. He failed to show on
that date.
His probation officer tried to track him down for the few
weeks that followed. Finally on September 11th he reported and
he stated he did not remember when he was to report. He was
told at that time that he should report every week from them on.
He failed to report for three weeks in October and two
weeks in November.
Following that, on November 14th, juvenile probation was
to detain his 12-year-old son due to lack of parental supervision.
The juvenile’s supervisor, Ms. Davis, tried to reach a parental
figure to sign for the child’s placement, and finally Mr. Rubly’s
wife was called, and she was to come to the office by 3:30. She
failed to show.
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12
Indeed, Rubly’s conviction was graded as an ungraded felony. See
Negotiated Plea Agreement and Guilty Plea Colloquy, 12/9/2010, at 1.
Therefore,the statutory maximum sentence was five years’ imprisonment.
See 35 P.S. § 780-113(f)(2).
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On November 15th they were continuing to try to track
down Mr. Rubly to have him sign the papers for his son. His
probation officer, along with juvenile probation, checked [other]
addresses where he was known to be staying, [including] his
grandmother’s in Lawrence Park Village.
At the end of the day they heard that Mr. Rubly was at
Lawrence Park Village while Family Stabilization and CYS were
visiting. His probation officer went to that location, and upon
arrival[,] the door to the apartment was open, and inside were
two worker[s] from those agencies and Mandy Rubly[, his wife].
His probation officer asked where Mr. Rubly was, and she
said he was in the bedroom. He came out and he signed a paper
and was taken into custody at that time and detained. Prior to
being taken, he did say that he had been in Mount Union,
Pennsylvania, scrapping with someone.[13]
N.T., 12/16/2013, at 3-4.
When the court asked why he did not report every week, Rubly
testified he was working and that he was told to report every two weeks by
his probation officer, Steve Gillespie. Id. at 5. Gillespie denied this
allegation and testified that he told Rubly he was to report every week. Id.
at 6. Nevertheless, Rubly also admitted that he did not even comply with
the request to report every two weeks. Id. After hearing further testimony
that Rubly had not used drugs or alcohol in nine months, he was working to
better himself and his family, and he suffered from schizophrenia, the court
concluded that state incarceration was necessary in view of the fact that this
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13
Mount Union, Huntingdon County, Pennsylvania, is over 60 miles from
Clearfield, Pennsylvania, where Rubly resides.
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was Rubly’s second violation and “the Court believe[d] that he is not
amenable to county probation.” Id. at 8.
We conclude Rubly’s conduct during his release demonstrates a lack of
intent to reform, and that a sentence of state imprisonment is essential to
vindicate the authority of the trial court. See Commonwealth v.
Cappellini, 690 A.2d 1220, 1225-1226 (Pa. Super. 1997) (although trial
court did not make specific finding that sentence of total confinement upon
revocation of probation was necessary pursuant to Section 9771(c)(2) and
(3), the record was sufficient to support such a finding). Accordingly,
because the trial court properly considered the applicable factors in
formulating its sentence, and the sentence did not exceed the statutory
maximum, we find the trial court did not abuse its discretion in revoking
Rubly’s probation and imposing a term of state imprisonment.
As mandated by law, we have independently reviewed the record and
agree with counsel that the appeal is wholly frivolous. See Commonwealth
v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). For the foregoing
reasons, we grant counsel’s application to withdraw from representation and
affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel’s motion to withdraw
granted.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2015
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