Com. v. Munson, I.

• Court: Superior Court of Pennsylvania
• Decided: November 6, 2018
• Docket: 3380 EDA 2017
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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1 18 Pa.C.S.A. §§ 6301(a)(1) and 2910(a), respectively. J-A21028-18

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(unpublished memorandum) at 1-4, appeal denied, 102 A.3d 985 (Pa. 2014).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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