J. S01020/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J. S01020/17

- 2 -

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 31⁄2 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.
J. S01020/17

- 3 -

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:
J. S01020/17

- 4 -

(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 
J. S01020/17

- 5 -

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 
J. S01020/17

- 6 -

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. 
J. S01020/17

- 7 -

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/2017