Com. v. Lebron-Garcia, J. ( 2017 )

J-S26006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSE ENRIQUE LEBRON-GARCIA
Appellant No. 1451 MDA 2016
Appeal from the PCRA Order August 8, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004312-2012
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 20, 2017
Jose Enrique Lebron-Garcia appeals from the August 8, 2016 order
denying him PCRA relief. We affirm.
On June 17, 2012, Appellant was charged with homicide in connection
with the shooting death of Pablo Fuentes-Robles. On the day in question,
Lancaster City Police were dispatched to a parking garage on North Duke
Street, Lancaster, based upon a report of a shooting. The exit ramps to the
garage were immediately blocked while police searched for the victim, who
was found with multiple gunshot wounds to the upper torso. Appellant was
observed running past the ticket booth of the garage, and police detained
him. Police searched for eyewitnesses to the crime, and Bedzaida Padilla-
Fernandez and Shirley Rodriguez both indicated that they had seen the
* Former Justice specially assigned to the Superior Court.
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criminal incident. They were segregated, and they were brought to where
Appellant was being held. Both eyewitnesses identified Appellant as the
person who shot Mr. Fuentes-Robles.
The Commonwealth filed notice that it intended to seek the death
penalty. On August 4, 2014, Appellant entered a negotiated guilty plea for
life imprisonment to first-degree murder in exchange for the
Commonwealth’s agreement not to seek the death penalty. The negotiated
sentence was imposed immediately after the plea court conducted the oral
colloquy and accepted the guilty plea. Appellant did not appeal, but he filed
a timely PCRA petition. Counsel was appointed, and filed an amended PCRA
petition averring that the plea was coerced in that plea counsel informed
Appellant that he would receive the death penalty unless he accepted the
guilty plea to first-degree murder and the term of life imprisonment. In the
petition, Appellant also claimed that plea counsel was ineffective for failing
to file a requested direct appeal. After a hearing, the PCRA court concluded
that the guilty plea was knowingly and voluntarily entered and that no
appeal was requested. It denied PCRA relief.
Appellant filed the present appeal, and PCRA counsel moved to
withdraw. Thereafter, different counsel entered his appearance and asked to
file a merits brief with this panel. We granted the requested relief, and
Appellant raises these issues on appeal.
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1. Was the Appellant deprived of his federal and state
constitutional right to the effective assistance of trial counsel
where he was not informed at the time of the guilty plea that the
sentence of life imprisonment would be without any possibility of
release on parole?
2. Was the Appellant deprived of his Pennsylvania constitutional
and Rule-based right to effective assistance of PCRA counsel in
view of the failure to advance and preserve the above claim?
Should this case be remanded to the PCRA court for further
proceedings so that the Appellant can fully litigate this issue in
the lower court?
Appellant’s brief at 3.
This Court reviews the “denial of PCRA relief to determine whether the
findings of the PCRA court are supported by the record and free of legal
error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016)
(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)).
Initially, we note that the Commonwealth avers that the first issue raised on
appeal is waived. It points out that the allegation on appeal is that
Appellant’s plea was unknowingly entered because he was not apprised of
the fact that life imprisonment meant life without parole, and that this issue
was not presented in the court below or in the Pa.R.A.P. 1925(b) statement.
The Commonwealth also maintains that the second issue cannot be
presented on appeal since allegations of PCRA counsel’s ineffectiveness
cannot be raised for the first time on appeal. We agree with the
Commonwealth, noting that Appellant concedes that the first issue was not
raised below or in his Pa.R.A.P. 1925(b) statement and that allegations of
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PCRA counsel’s ineffectiveness cannot be presented for the first time on
appeal. Appellant’s brief at 18; Appellant’s reply brief at 3.
In this case, Appellant never averred during the PCRA proceedings or
in his Pa.R.A.P. 1925(b) statement that his guilty plea was unknowingly
entered since he was not told that life imprisonment meant life without
parole. Hence, the issue is waived under Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”) and pursuant to Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the [Pa.R.A.P. 1925(b) ] statement . . . are waived”).1
Additionally, we are not permitted to entertain the position that PCRA
counsel was ineffective for not raising the averment that Appellant’s guilty
plea was unknowingly entered since he was not told that life imprisonment
meant that he would be ineligible for parole at any point. It is now beyond
question that allegations of PCRA counsel’s ineffectiveness may not be raised
initially on appeal. Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa.
2011); Commonwealth v. Hill, 16 A.3d 484, 497 n.17 (Pa. 2011);
Commonwealth v. Colavita, 993 A.2d 874, 894 n.12 (Pa. 2010);
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009); Commonwealth v.
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1 We are aware of Pa.R.A.P. 1925(c)(3), which permits a finding of per se
ineffectiveness and filing of a supplemental Pa.R.A.P. 1925(b) statement
under certain circumstances. However, even if we were to permit the filing
of an amended statement, the first allegation presented in this appeal
nevertheless would remain waived due to Pa.R.A.P. 302(a).
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Ligons, 971 A.2d 1125 (Pa. 2009) (plurality); see also Commonwealth
v. Henkel, 90 A.3d 16 (Pa.Super. 2014).2 Appellant never raised a single
allegation that PCRA counsel was ineffective at any point during the PCRA
court proceedings. Hence, Appellant may not raise his second position on
appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
____________________________________________
2 Appellant suggests that this case authority is inapplicable because the
PCRA court never issued a notice under Pa.R.Crim.P 907 that it intended to
dismiss the PCRA petition without a hearing, and, thus, he never had the
opportunity to raise PCRA counsel’s ineffectiveness. Appellant’s brief at 18.
However, Appellant did receive a hearing on his PCRA petition, and
Pa.R.Crim.P. 907 was inapplicable. The cited case authority therefore is
controlling.
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