Com. v. Lobo-Estrada, W. ( 2017 )

J-S37002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WALTER JONATHAN LOBO-ESTRADA
Appellant No. 1720 MDA 2016
Appeal from the PCRA Order September 26, 2016
In the Court of Common Pleas of York County
Criminal Division at Nos: CP-67-CR-0004784-2014; CP-67-CR-0004807-
2014
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 04, 2017
Appellant, Walter Jonathan Lobo-Estrada, appeals pro se from the
September 26, 2016 order of the Court of Common Pleas of York County
(“PCRA court”), dismissing Appellant’s petition under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The factual and procedural history of the matter is undisputed. Briefly,
on February 9, 2015, Appellant pled nolo contendere to two counts of rape
of a child.1 Following a sexually violent predator (“SVP”) hearing, Appellant
was sentenced to a negotiated term of 13 to 35 years’ incarceration on June
22, 2015. Appellant did not file any post-sentence motions or a direct
appeal.
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1
18 Pa.C.S.A. § 3121(c).
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On April 26, 2016, Appellant filed a timely pro se PCRA petition. On
May 29, 2016, the PCRA court appointed Korey Leslie, Esquire, as PCRA
counsel. On August 30, 2016, Appellant filed a pro se motion for new
counsel. On September 2, 2016, PCRA counsel filed a Turner/Finley2 “no
merit” letter and application to withdraw. The PCRA court granted PCRA
counsel’s request to withdraw and dismissed Appellant’s pro se PCRA petition
on September 26, 2016. Appellant timely appealed. On October 27, 2016,
the PCRA court directed Appellant to file a concise statement of errors
complained of on appeal. Appellant complied on November 14, 2016, and
the PCRA court issued a Pa.R.A.P. 1925(a) opinion on December 15, 2016.
Appellant raises five issues on appeal, which we quote verbatim.
[I.] Was justice delivered where I (the [Appellant]) was not
permitted adequate counsel who wanted to present my
case and instead encouraged me, a layman to take a plea?
[II.] Was I deprived of a just verdict where court appointed
counsel pushed for a plea agreement to avoid addressing
the issues?
[III.] Was a fair conviction handed down where “all” of the said
evidence and/or testimony was ignored because of the
defense counsel and prosecutors actions?
[IV.] Was it fair and/or just that in this case of a sexual nature
“no” tests were done on the said victim to prove any type
of penetration? Upon my request?
[V.] Being a first time conviction and/or arrest, was it fair
and/or just that I was given a sentence of 13 years to 36
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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years? Does a gravity score matterto the courts? Is my
sentence excessive?
Appellant’s Brief at 3 (sic) (capitalization omitted).
Our standard of review of a denial of a PCRA petition is well
established. “When reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is ‘supported by the record and
free of legal error.’” Commonwealth v. Johnson, 139 A.2d 1257, 1272
(Pa. 2016) (additional citations omitted). “The PCRA court may dismiss a
petition without a hearing when the court is satisfied ‘that there are no
genuine issues concerning any material fact, the defendant is not entitled to
post-conviction collateral relief, and no legitimate purpose would be served
by any further proceedings.’” Id. (quoting Pa.R.Crim.P. 909(B)(2)).
Appellant’s brief is bereft of discussion regarding his issues. Thus,
Appellant’s claims are waived. See Pa.R.A.P. 2119(a); see also
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where 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.”) (citations omitted). Even if
Appellant adequately discussed his claims, his issues are meandering and
unclear; however, insofar as we can decipher them, it appears Appellant is
asserting that his plea was unlawfully induced.
Appellant asserts that he was unlawfully induced to a nolo contendere
plea and that the resulting sentence was excessive. “A defendant is bound
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by the statements made during the plea colloquy, and a defendant may not
later offer reasons for withdrawing the plea that contradicts statements
made when he pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.
Super. 2012) (citing Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.
Super. 2001)). Furthermore, a PCRA challenge to counsel’s ineffectiveness
as it relates to a plea “will provide a basis for relief only if the ineffectiveness
actually caused an involuntary or unknowing plea.” Id. at 1278. Appellant
asserts that his plea was unknowingly entered; however, Appellant’s plea
colloquy belies his assertion. See N.T. Guilty Plea, 2/9/15, at 1-4.
Furthermore, the trial court found on the record that the plea was entered
knowingly, voluntarily, and intelligently. Id. at 4. Thus, Appellant’s claim
fails.3
As all of Appellant’s PCRA claims are waived and meritless, the PCRA
court properly dismissed Appellant’s PCRA petition.
Order affirmed.
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3
Insofar as Appellant challenges the sufficiency of the evidence and the
discretionary aspects of sentence, these claims are waived as he was
sentenced in accordance with a negotiated nolo contendere plea. See
Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)
(Following a negotiated guilty plea, challenges to the discretionary aspects of
sentence are waived).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
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