Com. v. Moran, M. ( 2023 )

J-S14030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK MORAN :
:
Appellant : No. 1255 WDA 2022
Appeal from the PCRA Order Entered April 22, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014809-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 22, 2023
Appellant, Mark Moran, appeals pro se from the post-conviction court’s
April 22, 2022 order denying his timely-filed petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts of Appellant’s underlying convictions are not relevant to the
issue he raises on appeal. The PCRA court summarized the procedural history
of his case, as follows:
In a criminal complaint dated November 20, 2018, [Appellant] …
was charged at CC#201814809 with two counts of robbery ([18
Pa.C.S. §] 3701[(a)(1)(ii)]) and one count of robbery ([18 Pa.C.S.
§] 3701[(a)(1)(vi)] - robbery of a financial institution). On
December 5, 2018, [Appellant] appeared for a preliminary hearing
before Magisterial District Judge Richard King. [Appellant] waived
the preliminary hearing. All charges were held for court.
On August 2, 2019, [Appellant] appeared before the Honorable
David R. Cashman and entered a nolo contendere plea. …
[Appellant] executed a nolo contendere explanation of
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant’s] rights form and testified regarding his understanding
of the proceedings. Judge Cashman found that [Appellant] made
a knowing, voluntary[,] and intelligent plea. The plea was
accepted by the court. A presentence investigation [(PSI) report]
was ordered.
By Order of Sentence dated October 30, 2019, Judge Cashman
sentenced [Appellant] to an aggregate period of incarceration of
seven and a half to fifteen years.
On November 8, 2019, [Appellant] filed a post[-]sentence motion.
By order dated February 27, 2020, Judge Cashman denied the
post[-]sentence motion. [Appellant] did not appeal the denial of
his post[-]sentence motion.
On August 6, 2020, [Appellant], proceeding pro se, filed a PCRA
petition. … John Markey[, Esq.,] was appointed to represent
[Appellant]. On April 26, 2021, Attorney Markey filed a no[-]merit
letter [and petition to withdraw].[1] By order dated July 22, 2021,
Judge Cashman ordered the Commonwealth to show cause why a
hearing should not be granted. On November 19, 2021, the
Commonwealth filed an answer to [Appellant’s] PCRA petition.
Following Judge Cashman’s retirement, the case was assigned to
the Honorable Elliot C. Howsie. By order dated April 22, 2022,
Judge Howsie dismissed the PCRA petition.
On May 19, 2022, [Appellant], proceeding pro se, filed a notice of
appeal to the Superior Court. [2] Judge Howsie ordered [Appellant]
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(explaining the procedure to withdraw in the PCRA context, including the filing
of a ‘no-merit’ letter detailing why the issue(s) the petitioner seeks to raise
are meritless).
2 The PCRA court’s April 22, 2022 order did not indicate whether Attorney
Markey was granted permission to withdraw. Thus, after Appellant filed his
pro se notice of appeal, this Court issued an order on November 10, 2022,
directing the PCRA court to clarify whether Attorney Markey was continuing to
represent Appellant and, if not, to clarify whether Attorney Markey was
granted permission to withdraw his appearance. The PCRA court responded
by entering an order on December 7, 2022, granting Attorney Markey
permission to withdraw his appearance. The December 7, 2022 order is
included in the certified record. Accordingly, it appears that Appellant is
properly proceeding pro se on appeal.
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to file a [Pa.R.A.P. 1925(b)] concise statement of matters
complained of on appeal. [Appellant] raised one issue in his
concise statement[:]
1. Is [Appellant’s] sentence illegal[,] as it was imposed
based on an incorrect [PSI] report?
PCRA Court Opinion (PCO), 1/11/23, at 1-2 (unnecessary capitalization
omitted). The PCRA court filed its Rule 1925(a) opinion on January 11, 2023.
In Appellant’s pro se brief, he states one issue for our review: “Did the
sentencing court rely on an incorrect [PSI report] in imposing sentence[,]
thereby resulting in an illegal sentence being imposed?” Appellant’s Brief at
1 (unnecessary capitalization omitted).
Initially, we note that:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
Here, Appellant contends that the PCRA court erred by denying his
petition because his sentence is illegal, as the trial court relied on an incorrect
PSI report when fashioning his term of imprisonment. According to Appellant,
“the Commonwealth mixed his prior convictions with his brothers [sic] prior
convictions in the [PSI] report[,]” and the trial court then imposed his
sentence “[b]ased solely on the number of prior offenses listed in the [PSI]
report.” Appellant’s Brief at 2. Appellant maintains that, because his brother’s
convictions were erroneously attributed to Appellant in the PSI report, which
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was then relied upon by the court in sentencing him, his term of incarceration
is illegal and must be vacated.
No relief is due. Initially, only legality-of-sentencing claims are
cognizable under the PCRA. See 42 Pa.C.S. § 953(a)(2)(vii). “Challenges to
the discretionary aspects of sentencing are not cognizable under the PCRA.”
Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (citing 42
Pa.C.S. § 9543(a)(2)(vii)). Here, while Appellant claims that the court’s
considering an incorrect PSI report impacts the legality of his sentence, we
disagree.
The Pennsylvania Rules of Criminal Procedure vest a sentencing
judge with the discretion to order a [PSI report] as an aid in
imposing an individualized sentence. See Pa.R.Crim.P.
702(A)(1); see also Commonwealth v. Goggins, 748 A.2d 721,
728 (Pa. Super. 2000). Accordingly, a claim that the court erred
in failing to order a PSI report raises a discretionary aspect of
sentencing of which a defendant’s right to appellate review is
exceptionally limited. See Commonwealth v. Fiascki, 886 A.2d
261, 263 (Pa. Super. 2005); Commonwealth v. Hoch, 936 A.2d
515, 518 (Pa. Super. 2007) (“A challenge to the discretionary
aspects of a sentence must be considered a petition for permission
to appeal[.]”).
Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super. 2008)
(emphasis added). If a court’s complete failure to order a PSI report is an
issue implicating the discretionary aspects of a sentence, then so too is a claim
that the court relied on an incorrect PSI report in fashioning a sentence.3
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3 We also note that Appellant’s argument is similar to a claim challenging the
accuracy of a prior record score, as he contends that the PSI report incorrectly
listed his brother’s prior convictions as his. A challenge to the calculation of a
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Accordingly, Appellant’s sentencing argument is not cognizable under the
PCRA.
We also note that, even if cognizable, Appellant’s claim is waived, as he
could have raised it, but failed to do so, at his sentencing hearing, or on direct
appeal from his judgment of sentence. See 42 Pa.C.S. § 9543(a)(3) (stating
that, to be eligible for PCRA relief, the petitioner must prove his claim was not
previously litigated or waived); 42 Pa.C.S. § 9544(b) (“For purposes of this
subchapter, an issue is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding.”).
Additionally, we would also agree with the PCRA court that Appellant’s
claim is waived based on his failure to meaningfully develop it. See PCO at
4. As the PCRA court observed, although Appellant alleges “that his criminal
history was comingled with his brother’s record, [he] has not plead [sic] any
facts for the [c]ourt to assess the alleged error. Specifically, [Appellant] has
not identified those cases that he perceives were erroneously attributed to
him.” Id. Appellant also does not offer any explanation of the precise errors
in the PSI report on appeal. Thus, we would deem his claim waived on this
basis, as well. See Commonwealth v. Johnson, 985 A.2d 95, 924 (Pa.
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prior record score goes to the discretionary aspects of a sentence, not its
legality. See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.
2004) (holding miscalculation of prior record score “constitutes a challenge to
the discretionary aspects of [a] sentence”).
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2009) (“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
For all these reasons, we discern no error in the court’s dismissing
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
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