J-A26012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LARRY NIBBLINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 21⁄2 

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 11⁄2 to 5 years’ incarceration for his aggravated assault 

offense, followed by 5 years’ probation for PIC. Additionally, “[m]andatory 

____________________________________________

* 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supervision was revoked.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 ... [21⁄2 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 [21⁄2] 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 [21⁄2] 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 [21⁄2] 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 postsentence 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 21⁄2 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 (11⁄2) 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 [21⁄2 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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