J-S44036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,2and 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. 

____________________________________________

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 postsentence 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 

____________________________________________

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