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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
                                           :
SAMUEL ALAN ZUBACK JR.,                    :
                                           :
                          Appellant        :     No. 923 MDA 2016

              Appeal from the Judgment of Sentence May 2, 2016
                In the Court of Common Pleas of Clinton County
              Criminal Division at No(s): CP-18-CR-0000279-2013

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                           FILED JANUARY 31, 2017

        Appellant Samuel Alan Zuback, Jr., appeals from the Judgment of

Sentence entered upon the revocation of his intermediate punishment

sentence resulting after he pled guilty to his fourth offense of Driving Under

the Influence (“DUI”). Appellant challenges the discretionary aspect of his

sentence imposed on revocation. We affirm.

        On October 28, 2013, the Clinton County Court of Common Pleas

(“CCP”) sentenced Appellant to a term of 60 months’ intermediate

punishment after Appellant pled guilty to his third DUI, 75 Pa.C.S. §

3802(a).1 The sentence included restrictive intermediate punishment of 60

days served at a work release center, followed by 300 days of house arrest



1
    His first two DUI offenses occurred in 2003 and 2004, respectively.
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with secure continuous remote alcohol monitoring, and 30 days intensive

supervision with continuous alcohol monitoring.

        On January 17, 2016, Appellant was arrested in Centre County and

charged with his fourth DUI. On March 23, 2016, Appellant pled guilty to

the Centre County DUI.2      Clinton County Adult Probation Services filed a

Petition to revoke Appellant’s Intermediate Punishment.

        On April 4, 2016, the Clinton County CCP took judicial notice of

Appellant’s   Centre   County   guilty   plea,   revoked   his   Clinton   County

Intermediate punishment, and ordered a presentence investigation report.

        On May 2, 2016, after a hearing, the Clinton County CCP resentenced

Appellant to a term of 642 days’ to 48 months’ incarceration at the Clinton

County Correction Facility, with 360 days credit for time served previously,

and an additional 3½ months’ credit for time spent in custody from January

22, 2016. The court ordered that the sentence be served consecutively to

any sentence imposed by the Centre County CCP, and also ordered that

Appellant be immediately eligible for work release. Appellant filed a timely

Post-Sentence Motion to Modify Sentence to “time-served,” which the court

ultimately denied without a hearing.

        On June 2, 2016, Appellant filed a Notice of Appeal.      Both Appellant

and the trial court complied with Pa.R.A.P. 1925.


2
    The Centre County CCP imposed a term of incarceration.




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      Appellant raises the following five issues for our review:

      1. Whether the sentencing court failed to appropriate consider
         Appellant’s compliance with his original sentence, including
         sixty (60) days of incarceration at Clinton County Correctional
         Facility and three hundred (300) days of GPS house arrest
         without incident?

      2. Whether the trial court committed an abuse of discretion in
         failing to appropriately consider that Appellant satisfied all
         financial obligations underlying the original sentence?


      3. Whether the trial court committed an abuse of discretion in
         failing to appropriately consider the fact that Appellant’s
         fiancé[e] is in the midst of a high-risk pregnancy without
         adequate family/financial support, instead sentencing
         Appellant to a period of incarceration scheduled to end weeks
         after her due date?

      4. Whether the trial court committed an abuse of discretion in
         failing to appropriately consider the fact that Appellant is in
         the midst of obtaining a college degree and cannot
         adequately do so while incarcerated?

      5. Whether the trial court failed to appropriately consider
         Appellant’s sentence on the new DUI in Centre County, which
         the sentencing court believed to be a sixty (60) day sentence
         when, in fact, Appellant was sentenced to a minimum of
         ninety (90) days of incarceration?

Appellant’s Brief at 7.

      Each of Appellant’s issues challenge the discretionary aspects of his

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right.” Commonwealth v. Griffin, 65

A.3d 932, 935 (Pa. Super. 2013) (citation omitted). Rather, Appellant must

first meet his burden of satisfying the following four elements before we will

review the discretionary aspect of a sentence:


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     (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 under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

     Here, Appellant met the first three elements by filing a timely Notice of

Appeal, properly preserving the issues in a post-sentence motion, and

including in his brief a Statement of Reasons Relied Upon for Allowance of

Appeal, pursuant to Pa.R.A.P. 2119(f).     Accordingly, we next determine

whether Appellant’s claims present a “substantial question” for review.

     An appellant raises a “substantial question” when he “sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citation omitted). An argument that the sentencing court failed to consider

mitigating factors in favor of a lesser sentence does not present a

substantial question appropriate for our review.        Commonwealth v.

Hanson, 856     A.2d 1254, 1257-58 (Pa.        Super. 2004).       See also

Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing

Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en

banc) (an allegation that the sentencing court did not adequately consider



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various factors is, in effect, a request that this court substitute its judgment

for that of the lower court in fashioning a defendant’s sentence)). Moreover,

on appeal, the appellant “must provide a separate statement specifying

where the sentence falls in the sentencing guidelines, what provision of the

sentencing code has been violated, what fundamental norm the sentence

violates, and the manner in which it violates the norm.” Commonwealth v.

Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013).

      Here, Appellant avers that the sentence imposed following the

revocation of his intermediate punishment sentence was “unduly harsh and

place[d] an undue burden upon not only the Appellant, but also his fiancée,

who is in the midst of a high-risk pregnancy and is without adequate

financial and family support while Appellant is incarcerated.”      Appellant’s

Brief at 11. He also notes that he has “a history of successful incarceration

… during which [he] maintained successful employment and satisfied all

financial obligations owed in this matter.” Id. Appellant acknowledges that

his sentence is within the maximum sentencing range, but avers that the

sentence was “not aimed at successfully rehabilitating the Appellant, but

rather, denied Appellant an opportunity to continue with his successful life

outside of incarceration.” Id.

      It is clear from our precedent that Appellant has failed to raise a

substantial question as to his sentence.       See, e.g., Commonwealth v.

Cannon, 954 A.2d 1222, 1228–29 (Pa. Super. 2008) (finding no substantial



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question raised by a claim that the trial court failed to consider the

defendant's    rehabilitative   needs,   age,    and    educational   background);

Commonwealth v. Coolbaugh, 770 A.2d 788, 792-93 (Pa. Super. 2001)

(finding no substantial question raised by a claim that the probation

revocation sentence failed to take into consideration the defendant's

rehabilitative needs and was manifestly excessive where sentence was

within     statutory     guidelines   and      within    sentencing    guidelines);

Commonwealth v. Coss, 695 A.2d 831, 833-34 (Pa. Super. 1997) (holding

that, when the sentence imposed falls within the statutory limits, an

appellant's claim that a sentence is manifestly excessive fails to raise a

substantial question).

      Moreover, Appellant concedes that his sentence is within the statutory

limits.   His statement -- that the sentence imposed was not aimed at his

rehabilitation – does not inform us of “what provision of the sentencing code

has been violated, what fundamental norm the sentence violates, and the

manner in which it violates the norm.” Dodge, supra at 1268.

      Because Appellant has failed to raise a substantial question, we will

not address the merits of Appellant’s sentencing claim.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/31/2017




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