Com. v. Nibblins, L. ( 2021 )

J-A26012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY NIBBLINS :
:
Appellant : No. 2570 EDA 2019
Appeal from the Judgment of Sentence Entered August 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008692-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 26, 2021
Appellant, Larry Nibblins, appeals from the judgment of sentence of 2½
to 5 years’ imprisonment, imposed after the trial court revoked his probation
for his conviction of possessing an instrument of crime (PIC). Appellant
challenges the legality and discretionary aspects of his sentence. We affirm.
On January 21, 2014, Appellant was convicted, following a non-jury
trial, of aggravated assault, PIC, simple assault, and criminal mischief.
Appellant’s convictions were based on evidence that he entered the home of
Andre Coles and struck Coles in the head with a brick. Coles required eight
staples in his head as a result of the attack. On March 12, 2014, Appellant
was sentenced to 1½ to 5 years’ incarceration for his aggravated assault
offense, followed by 5 years’ probation for PIC. Additionally, “[m]andatory
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* Former Justice specially assigned to the Superior Court.
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supervision under the Mental Health Unit was ordered as part of Appellant’s
conditions of probation. He was committed to SCI Graterford on March 21,
2014[,] and was subsequently paroled nearly a year later on March 4, 2015.”
Trial Court Opinion (TCO), 5/12/20, at 1. However, he violated his parole and
was recommitted until December of 2018. See Appellant’s Brief at 8.
Upon Appellant’s release from prison, he began serving his probationary
sentence for his PIC offense. However, Appellant repeatedly failed to report
to his probation officer, and “a probation violation bench warrant was filed on
March 11, 2019.” TCO at 2.
At a violation of probation hearing on July 3, 2019, [Appellant’s]
supervision was revoked. After the completion of a Presentence
Investigation Report, including a full mental health evaluation, as
well as a thorough review of the guidelines and facts and
circumstances of the underlying case, Appellant was sentenced on
August 23, 2019[,] to … [2½ to 5] years’ incarceration on the
original charge of … [PIC]. Original probation conditions were
applied, including supervision under the Mental Health Unit.
Id.
Appellant filed a timely, post-sentence motion for reconsideration of his
sentence, which the court denied. He then filed a timely notice of appeal on
September 3, 2019. On October 18, 2019, the trial court ordered Appellant
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
within 21 days. Appellant untimely filed his concise statement on November
19, 2019. Notably, however, the court’s order did not advise Appellant that
his failure to comply with the order could result in his issues being deemed
waived. See Greater Erie Indus. Development Corp. v. Presque Isle
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Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (“[I]n
determining whether an appellant has waived his issues on appeal based on
non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers
an appellant’s obligation[.] ... [T]herefore, we look first to the language of
that order.”) (citations omitted). Additionally, the court addressed Appellant’s
issues in its Rule 1925(a) opinion filed on May 12, 2020. Under these
circumstances, we will review the merits of Appellant’s sentencing issues. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (holding
that where an appellant files an untimely Rule 1925(b) statement, “this Court
may decide the appeal on the merits if the trial court had adequate opportunity
to prepare an opinion addressing the issues being raised on appeal”).
Appellant raises the following three claims for our review, which we have
reordered for ease of disposition:
[I.] Whether the imposition of a sentence of [2½] to 5 years in
state custody after Appellant completed state parole for
Appellant’s very first violation was unreasonable and excessive?
[II.] Whether the [c]ourt abused its discretion in imposing a
sentence of [2½] to 5 years in state custody after Appellant
completed state parole for Appellant’s very first violation?
[III.] Whether the imposition of a sentence of [2½] to 5 years in
state custody after Appellant completed state parole for
Appellant’s very first violation was cruel and unusual
[punishment]?
Appellant’s Brief at 7.
Appellant’s first two issues implicate the discretionary aspects of his
sentence.
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Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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 under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
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). 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.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, as set forth supra, Appellant has timely appealed. In his post-
sentence motion, he averred that his sentence of incarceration should be
amended to a sentence of mental health treatment because he is
“[s]ignificantly mentally ill[,]” he is a veteran who was honorably discharged,
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and “it would best serve [Appellant] and society as a whole for [him] to receive
psychiatric treatment as opposed to state incarceration.” Post-Sentence
Motion, 8/26/19, at 2 (unnumbered). Notably, Appellant has not included a
Rule 2119(f) statement in his brief. However, the Commonwealth has not
objected to that omission and, therefore, we will overlook it and decide if
Appellant has presented a substantial question for our review. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (“[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 [Rule] 2119(f) sua sponte, i.e., deny allowance
of appeal.”).
In his first two issues, Appellant contends that his sentence of 2½ to 5
years’ incarceration is excessive when considering the factors set forth in 42
Pa.C.S. § 9721(b), specifically, “the gravity of [Appellant’s] technical violation,
the need for public protection, or his needs for rehabilitation.” Appellant’s
Brief at 19. Appellant stresses that he is a diagnosed schizophrenic, and that
his probation officer recommended he be “parole[d] to an appropriate
treatment facility….” Id. at 24. He argues that, given his mental illness, his
probation officer’s recommendation, and the fact that he committed only
technical violations of his probation, “his rehabilitative needs would be better
served in the community in a mental health treatment facility….” Id. at 23.
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Appellant further argues that a sentence of incarceration was not
justified under 42 Pa.C.S. § 9771(c), which states:
(c) Limitation on sentence of total confinement.--The court
shall not impose a sentence of total confinement upon revocation
unless it finds that:
(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). According to Appellant, incarceration in this case was
not warranted, because he was not convicted of another crime, and
[t]here was no evidence to suggest that [he] was likely to commit
another crime if not imprisoned. Since this was only a technical
violation, a state sentence of incarceration was not essential to
vindicate the authority of the court. Rather, Appellant’s mental
illness and history of schizophrenia warrants a sentencing option
of less than incarceration, which is reflected in [his probation
o]fficer[’s] … recommendation for immediate parole to an
appropriate treatment facility.
Appellant’s Brief at 17-18.
We conclude that Appellant has presented a plausible argument that his
sentence violates provisions of the Sentencing Code, namely sections 9721(b)
and 9771(c). See Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super.
2016) (holding that a claim that the violation-of-probation court failed to
consider the section 9721(b) factors presents a substantial question for our
review); Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)
(“A substantial question is raised when the appellant sets forth a plausible
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argument that the sentence violates a provision of the [S]entencing [C]ode or
is contrary to the fundamental norms of the sentencing process.”) (citation
omitted).
Nevertheless, Appellant is not entitled to sentencing relief. We are
mindful that,
[s]entencing 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 judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Here, in explaining its sentencing rationale, the trial court stated:
In the instant matter, Appellant was found guilty of
[a]ggravated [a]ssault, [PIC], [s]imple [a]ssault, and [c]riminal
[m]ischief. On March 12, 2014, he was sentenced to one and a
half (1½) to five (5) years[’] state incarceration for [a]ggravated
[a]ssault, followed by five (5) years reporting probation for PIC
([s]imple [a]ssault merged, and no further penalty was imposed
for [c]riminal [m]ischief). Mandatory supervision under the
Mental Health Unit was ordered as part of Appellant’s conditions
of probation. Appellant served his time in prison and was
released from [SCI] Phoenix on December 25, 2018. On
December 28, 2018, [Appellant’s] [p]robation [o]fficer[,] Crystal
Erb[,] spoke with Mr. Maxwell from the Veteran’s Reentry
Program. Officer Erb subsequently spoke with Chris Yarborough,
[with] who[m] Appellant stated he would be residing…. Mr.
Yarborough informed Officer Erb that Appellant did not believe he
had a probation period to follow his incarceration. (N.T.[,]
7/3/2019, [at] 5). In January of 2019, Officer Erb continued to
contact representatives from the Veterans Association (“VA”), Mr.
Maxwell and Mr. Hazel, who had regularly been attempting to get
in touch with Appellant to provide him with services. Appellant
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failed to appear for both probation appointments and VA
appointments.
Not only had Appellant absconded, but also, he was not
enrolled in mental health therapy or taking prescribed medications
and was thus in violation of the probation condition that he be
supervised by the Mental Health Unit. Wanted cards were issued
for Appellant on March 11, 2019. A violation of probation (“VOP”)
hearing was conducted on July 3, 2019. At that time, Appellant
relayed that he had been residing with his friend, Mr. Yarborough,
and that he [had] not [been] taking medications from his release
date until June, when he started taking Prinivil, Maraviroc, and
Zoloft[,] as prescribed by a nurse practitioner at the Veteran’s
Medical Center. (Id. at 11-12). At the conclusion of the hearing,
Appellant’s probation was revoked.
Appellant now complains that the trial court erred by
imposing a sentence of total confinement after revoking probation
based on technical violations. Although the offenses that
triggered Appellant’s probation revocation, namely his failure to
appear for appointments and enroll with the Mental Health Unit,
were not assaultive or independently criminal, “technical
violations are sufficient to trigger the revocation of probation.”
Commonwealth v. Sierra, … 752 A.2d 910, 912 [(Pa. Super.
2000) (citation omitted).]
In Appellant’s 1925(b) [s]tatement, he claims that the
sentenc[e] of [2½ to 5] years’ incarceration after a revocation of
probation is “unreasonable and excessive” as well as “cruel and
unusual,” and that the sentencing court abused its discretion.
Upon sentencing following a revocation of probation, the trial court
is limited only by the maximum sentence that it could have
imposed originally at the time of the probationary sentence.
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super.
2001).
***
Following revocation, a sentencing court need not undertake
a lengthy discourse for its reasons for imposing a sentence of total
confinement, but the record as a whole must reflect the
sentencing court’s consideration of the facts of the crime as well
as character of the offender. … Crump, 995 A.2d [at] 1283…. In
Commonwealth v. Fowler,[893 A.2d 758, 767 (Pa. Super.
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2006)], the Superior Court noted[:] “When a sentencing court has
reviewed a presentence investigation report, we presume that the
court properly considered and weighed all relevant factors in
fashioning the defendant’s sentence.”
Here, the record reflects that the [c]ourt did not err or abuse its
discretion when resentencing Appellant. The [c]ourt succinctly
stated the reasons for the imposed sentence and incorporated all
relevant sentencing factors after conducting a full evidentiary
hearing. The evidence introduced at the hearing abundantly
supported this [c]ourt’s findings that Appellant had repeatedly
violated the terms of this [c]ourt’s probation and the cited reasons
amply justified the Order of Sentence imposed. The [c]ourt first
took note of Appellant’s lengthy criminal history, which includes
nineteen (19) arrests, ten (10) convictions, six (6) commitments,
[and] six (6) violations corresponding to three (3) revocations of
previous orders of probation and/or parole.
Furthermore, the record reflects that the [c]ourt reviewed and
incorporated Appellant’s presentence investigation report and
mental health assessment. (N.T.[,] 8/23/19, [at] 13). The
gravity of the underlying offense was considered -- Appellant had
bashed a man’s head with a brick and threatened to kill the man
and his grandmother.[1] [Appellant’s] penchant for violence was
not only demonstrated by the underlying offense, but also by his
record while he was incarcerated. His prison record reflected
assaultive conduct, threatening employees, abusive and
inappropriate behavior, and at least three (3) major violations.
Appellant indicated that he began smoking marijuana and drinking
alcohol during his teenage years but denied taking any other
illegal substances, although he tested positive for cocaine. (Id.
at 15-16). Although Appellant claims he had no knowledge of his
probationary period, he was reminded that he had signed forms
informing him of his probation.
Because of the foregoing reasons, the argument for the imposition
of another period of probation lacked prudence. Appellant
flagrantly disregarded this [c]ourt’s authority and ignored the
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1 In arguing that the gravity of his offense did not warrant the sentence the
court imposed, Appellant focuses on his technical violations of probation,
rather than the PIC offense for which he was being sentenced. We agree with
the trial court’s consideration of the PIC crime in assessing the gravity of
Appellant’s offense under section 9721(b).
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rehabilitative conditions and purposes of probation that were
imposed when this [c]ourt entered the original merciful sentence.
This [c]ourt’s original Order had reflected a sentence at the very
bottom range of the recommended sentencing guidelines at issue.
Appellant repeatedly and blatantly ignored the authority of the
Criminal Justice System and the evidence unmistakably
demonstrated that he was not amenable to probation.
Confinement was deemed necessary because Appellant’s actions
combined with his lack of respect for authority demonstrates that
he constitutes a threat to the safety of the Philadelphia
community, as there is a high risk of recidivism. Parole and
probation were ineffective in rehabilitating Appellant, therefore
further incarceration of this degree was appropriate, and was not
an abuse of discretion. Appellant’s arguments lack merit because
the imposed sentence constituted a reasonable exercise of judicial
discretion.
TCO at 5-9.
Our review of the record and the court’s opinion demonstrates that it
considered the section 9721(b) factors, and found that the gravity of
Appellant’s underlying offense, the protection of the public, and Appellant’s
failure to take advantage of the rehabilitation opportunities that had been
previously provided to him weighed in favor of a sentence of incarceration.
The court further concluded that such a sentence was necessary under section
9771(c)(2) and (3) to vindicate its authority, and because Appellant’s
recidivism risk was high, considering his lengthy prior record, misconduct in
prison, and his inability to adhere to the conditions of his parole and probation.
Given this record, we discern no abuse of discretion in the court’s sentencing
decision.
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We also disagree with Appellant that his sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment.2 In support
of this claim, Appellant states only that, “[g]iven [his] mental illness[,] within
the context of a technical violation where [his probation o]fficer …
recommended placement at [a] mental health facility, a state sentence of
incarceration was clearly cruel and unusual [punishment,] warranting that it
be vacated and [his case] remanded for resentencing.” Appellant’s Brief at
21-22. Appellant cites no legal authority to support his position. Moreover,
as the Commonwealth observes, he “does not proffer any evidence as to why
a period of incarceration constitutes cruel and unusual punishment. Nor does
he demonstrate why he would have fared better with an alternative sentence.”
Commonwealth’s Brief at 12. The Commonwealth further stresses that “the
court was aware of [Appellant’s] mental health needs and addressed those
needs in rendering his sentence. The court ordered that [Appellant] receive
mental health treatment while incarcerated and upon release. There is no
evidence here indicating that the medical services and treatment available
through the state correctional institution would be inadequate for [Appellant’s]
condition.” Id. (citation omitted).
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2 While not raised in his post-sentence motion, Appellant’s claim implicates
the legality of his sentence and, therefore, it is non-waivable. See
Commonwealth v. Brown, 71 A.3d 1009, 1016 (Pa. Super. 2013) (“[A]
claim that a sentence constitutes cruel and unusual punishment raises a
question of the legality of the sentence, and … can be raised for the first time
on direct appeal.”).
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We agree that Appellant’s scant argument fails to demonstrate that his
sentence of incarceration constitutes cruel and unusual punishment simply
because he believes his mental health issues would be better served with
treatment outside of prison. See Commonwealth v. Lankford, 164 A.3d
1250, 1254 (Pa. Super. 2017) (noting that this Court has previously “held that
a sentence is not cruel and unusual punishment simply because a lesser
sentence, e.g. [a] proposed alternative probationary scheme, might better
accommodate a defendant’s mental health needs”). Appellant was afforded
an opportunity to receive treatment while serving probation, and he failed to
do so. Accordingly, his third and final challenge to his sentence is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2021
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