Com. v. Zuback, S., Jr. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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