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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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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