Com. v. Munson, I. ( 2018 )

J-A21028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IDRIS MUNSON :
:
Appellant : No. 3380 EDA 2017
Appeal from the PCRA Order September 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007379-2010,
CP-51-CR-0007380-2010
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 06, 2018
Appellant, Idris Munson, appeals from the order entered on September
18, 2017, which dismissed his petition filed under the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
On December 2, 2010, Appellant pleaded nolo contendere to three
counts of corruption of minors and one count of luring a child into a motor
vehicle;1 on January 11, 2011, the trial court sentenced Appellant to serve an
aggregate term of one to five years in prison, followed by five years of
probation. N.T. Sentencing, 1/11/11, at 14. Following the nunc pro tunc
restoration of Appellant’s direct appeal rights, we affirmed Appellant’s
judgment of sentence on April 4, 2014 and, on October 16, 2014, the
____________________________________________
1 18 Pa.C.S.A. §§ 6301(a)(1) and 2910(a), respectively.
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Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Munson, 102 A.3d 520 (Pa. Super. 2014)
(unpublished memorandum) at 1-4, appeal denied, 102 A.3d 985 (Pa. 2014).
On January 6, 2016, Appellant filed a timely, pro se petition under the
PCRA. 42 Pa.C.S.A. § 9545(a) (“Any petition under [the PCRA], including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final”); see also U.S. Sup. Ct. R. 13.1 (allowing 90 days
to file a petition for writ of certiorari with the United States Supreme Court);
42 Pa.C.S.A. § 9545(b)(3) (“a judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review”). The PCRA court appointed counsel to represent
Appellant and counsel then filed an amended petition on Appellant’s behalf.
See Amended PCRA Petition, 2/22/17, at 1.
However, on July 27, 2017, the PCRA court issued Appellant notice,
pursuant to Pennsylvania Rule of Criminal Procedure 907, of its intent to
dismiss Appellant’s petition in 20 days, without holding a hearing. PCRA Court
Order, 7/27/17, at 1; Pa.R.Crim.P. 907(1). The PCRA court finally dismissed
Appellant’s PCRA petition on September 18, 2017 and Appellant filed a timely
notice of appeal.
Within the “statement of questions involved” section of Appellant’s brief,
Appellant lists five claims:
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1. [Appellant] was denied the effective assistance of counsel
in violation of his constitutional rights . . . [because
Appellant] was not advised, nor assisted by his counsel as to
the preparation, investigation, and post-trial phases of the
above-captioned cases; the plea of “nolo contendere”
unlawfully was induced where the circumstances make it
likely that the inducement caused [Appellant] to plead guilty
and [Appellant] is innocent.
2. [Appellant] was denied the effective assistance of counsel
in violation of his constitutional rights . . . [because] trial
counsel failed to “withdraw” the “nolo contendere” plea, failed
to file a [] reconsideration and failed to file an appeal to the
Superior Court as requested by [Appellant].
3. [Appellant] was denied the effective assistance of counsel
in violation of his constitutional rights . . . [because] the
unavailability at the time of trial of exculpatory evidence that
has subsequently become available and would have changed
the outcome if there would have been a trial.
4. [Appellant] was denied the effective assistance of counsel
in violation of his constitutional rights . . . [because
Appellant] was improperly advised and/or induced by his trial
counsel to plead “nolo contendere” in which [Appellant]
wanted to have a trial, and present exculpatory and character
evidence in [Appellant’s] defense.
[5.] [Appellant] received an unreasonable and inappropriate
sentence under the Sentencing Code, in that the total
confinement for a period of [one to five] years followed by
[five] years of probation, is an excessive sentence and
disproportionate to the crimes.
Appellant’s Brief at 6 (some internal capitalization omitted).
Notwithstanding the claims listed above, the argument section of
Appellant’s brief contains only three sections, which are titled: 1) “[Appellant]
was denied the effective assistance of counsel;” 2) “subsequent exculpatory
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evidence;” and, 3) “the sentence was excessive.” Appellant’s Brief at 8-13
(some internal capitalization omitted).
The first section of Appellant’s brief consists merely of citation to and
discussion of general legal principles; the section contains no actual,
applicable argument or cognizable claim and contains no discussion of how or
why the general legal principles apply to Appellant’s case. See Appellant’s
Brief at 8-11. Hence, any claim contained within this section is waived.
Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the
Pennsylvania Supreme Court] has held that an issue will be deemed to be
waived when an appellant fails to properly explain or develop it in his brief”);
Commonwealth v. Hallman, 67 A.3d 1256, 1263 (Pa. Super. 2013) (“this
Court may not act as counsel for an appellant and develop arguments on his
behalf”) (internal quotations and citations omitted).
Any claim contained within the second section of Appellant’s brief is
similarly waived. Within this section, Appellant does not set forth any
argument as to how the PCRA court erred or why he is entitled to relief.
Instead, he incorporates by reference his “Pro Se Initial PCRA Petition Brief[]
and Exhibits.” See Appellant’s Brief at 11. As our Supreme Court has
explained, “our appellate rules do not allow incorporation by reference of
arguments contained in briefs filed with other tribunals, or briefs attached as
appendices, as a substitute for the proper presentation of arguments in the
body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343
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(Pa. 2011) (citation omitted); see Pa.R.A.P. 2119(a). Accordingly,
Appellant’s second claim is waived. See Pa.R.A.P. 2101 and 2119(a).
Within the third and final section of Appellant’s brief, Appellant attempts
to challenge the discretionary aspects of his sentence. However, “[r]equests
for relief with respect to the discretionary aspects of sentence are not
cognizable in PCRA proceedings.” Commonwealth v. Wrecks, 934 A.2d
1287, 1289 (Pa. Super. 2007). Accordingly, Appellant's third claim is not
cognizable under the PCRA and, thus, fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/18
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