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___________________________ __ *Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

Appellee

v. JERRY S. ELEY, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 774 MDA 2016 Appeal from the PCRA Order April 7, 2016 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP

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- CR
- 0002998

- 2011

BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.* MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 11, 2017 Appellant, Jerry S. Eley, Jr., appeals from the order entered in the Luzerne County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm. The relevant facts and procedural history of this case are as follows. On September 16, 2011, police arrested Appellant on outstanding traffic warrants after a traffic stop. During a search incident to arre st, police discovered narcotics on Appellant’s person. That same day, police executed a search warrant at Appellant’s residence, which resulted in the recovery of additional narcotics, a digital scale, drug

- packaging materials, over

____________________________________________ 1 42 Pa.C.S.A. §§ 9541

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$1,700.00 in U.S. curr ency, and two firearms. On December 6, 2011, the Commonwealth charged Appellant with various firearm and drug offenses. The Commonwealth subsequently filed a motion to amend the information, which the court granted on May 19, 2014. The amended informa tion charged Appellant with two counts of persons not to possess firearms, and one count each of possession of a controlled substance, possession of drug paraphernalia, and PWID. On April 15, 2015, Appellant proceeded to a jury trial on the drug charges. The jury convicted Appellant of possession of a controlled substance, possession of drug paraphernalia, and PWID on April 16, 2015. On June 8, 2015, Appellant entered a negotiated no

- contest plea to carrying a firearm without a license, in exchange for the Commonwealth’s recommendation that the court dismiss the remaining firearm charge and impose a total sentence of three (3) to six (6) years’ imprisonment. On June 30, 2015, the court sentenced Appellant in accordance with the plea agreement. On July 17, 2015, Appellant timely filed a pro se PCRA petition, and the court appointed counsel on August 11, 2015. Counsel subsequently filed supplements to Appellant’s PCRA petition, which raised ineffective assistance of trial counsel claims. The court held PCRA hearings on October 7, 2015, December 22, 2015, and March 31, 2016, where both Appellant and trial counsel testified. The court ultimately denied PCRA relief on April 7, 2016. Appellant timely filed a notice of appeal on May 6, 2016. NoJ
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concise st atement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), was ordered or filed. Appellant raises the following issue for our review: WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN REPRESENTING...APPELLANT? (Appellant’s Brief at 1). Our stan dard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011), appeal de nied , 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A. 2d 74 (2007). We give no such deference, however, to the court’s legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a PCRA court’s credibility determination, it is binding on the appellate court. Common wealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014). After a thorough review of the record, the briefs of the parties, the applicable law, and the well

- reasoned opinion of the Honorable Michael T. Vough, we conclude Appellant’s issue on appeal merits n o relief. The PCRA court opinion comprehensively discusses and properly disposes of the question presented. ( See PCRA Court Opinion, filed April 7, 2016, at 2

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(finding: record does not support Appellant’s ineffective assistance of counsel claims; whil e Appellant alleges trial counsel failed to file direct appeal on his behalf, Appellant admitted at PCRA hearing he discussed appeal with trial counsel prior to trial, but not after trial or sentencing; trial counsel stated at PCRA hearing he did not promi se to file direct appeal on Appellant’s behalf; trial counsel also testified Appellant did not ask him to file direct appeal at any time; after Appellant’s jury trial resulted in multiple drug convictions, Appellant and Commonwealth reached plea agreement with respect to Appellant’s remaining firearm charges; Appellant subsequently entered negotiated no contest plea to carrying firearm without license, in exchange for Commonwealth’s request to withdraw remaining firearm charge and impose aggregate term of t hree to six years’ imprisonment; court honored negotiated plea agreement and imposed recommended sentence; because Appellant received benefit he bargained for, he did not seek direct appeal; Appellant also claims trial counsel met with him only once and fa iled to discuss trial strategy with Appellant; nevertheless, trial counsel stated he met with Appellant in jail and at public defender’s office after Appellant posted bail; additionally, trial counsel testified he filed bail motion and suppression motion o n Appellant’s behalf and presented every defense requested by Appellant; trial counsel also provided details of his discussions with Appellant, which included explanation of charges, consideration of possible defenses, and preparation forJ
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Appellant’s trial testimony; PCRA court found trial counsel’s testimony on trial preparation credible and noted Appellant failed to provide any evidence to support his claim that counsel was unprepared for trial; under these circumstances, both of Appellant’s ineffective a ssistance of counsel claims are without merit, and court properly denied PCRA relief). Accordingly, we affirm on the basis of the PCRA court’s opinion. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/2017Jeffrey A. Y elen, Esquire

1000 Citizens Bank Center Wilkes-Barre, PA 18711 Luzerne County District Attorney's Office BY THE COURT:



# MJJZ!/~ MICHAEL T. VOUGH, J. The Clerk of Court shall promptly serve a copy of this Order on each party's lil7' ~ a'f?orney, 

## ;i, the party, if unrepresented, pursuant to Pa.R.Crim.P. 114 N , , '" z
~ 

## . : : :~:; Attached hereto is a Memorandum setting forth the reasons for this Order. HEREBY ORDERED that the Motions are DENIED. hearings held on October 7, 2015, December 18, 2015 and March 31, 2016, IT IS Commonwealth on October 2, 2015 and the testimony and exhibits presented at the Petition filed on December 22, 2015 as well as the Brief in Opposition filed by the Supplement to PCRA Petition filed on September 18, 2015, the Supplement to PCRA Post Conviction Collateral Relief filed by Defendant, Jerry S. Eley, on July 17, 2015, the AND NOW, this 

## l day of April, 2016, upon consideration of the Motion for 

### ORDER NO: 2998 OF 2011 JERRY S. ELEY, JR. INMATE NO: MC0774 CRIMINAL DIVISION v. COMMONWEALTH OF PENNSYLVANIA

IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY

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- · · · j ' C. ) ' ~ · Circulated 03/15/2017 09:56 AMwas amended to simple possession.

was granted so that one count of possession with intent to deliver a controlled substance 

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- · ' firearm prohibited, two counts of possession with intent to deliver a controlled substance GT\ 

### » £}d o~~ ~unt of possession of drug paraphernalia in connection with a search of his 

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. · : t--J • b!ggie '" (. ~n January 11, 2013, the Commonwealth's Motion to Amend theInformation 

# - (',I .r » On September 17, 2011, Defendant was charged with two counts of possession of II. PROCEDURAL HISTORY to pursue an appeal and lack of preparation prior to trial. 2015. At the PCRA hearings, Defendant alleged trial counsel's ineffectiveness for failing as the Supplement to PCRA Pe t ition filed on September 18, 2015 and December 22, r Conviction Collateral Relief filed by Defendant, Jerry S. Eley, on July 17, 2015 as well This Memorandum is filed t o address the issues raised in the Motion for Post INTRODUCTION I. MEMORANDUM NO: 2998 OF 2011 JERRY S. ELEY, JR. INMATE NO : MC0774 CRIMINAL DIVISION 

### v. COMMONWEALTH OF PENNSYLVANIA

IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTYDefendant requested a jury trial which commenced on April 15, 2015 in

connection with the charges of possession of a controlled substance, possession of drug paraphernalia and possession with intent to deliver a controlled substance. On April 16, 2015 , the jury found Defendant guilty of all three counts. Prior to sentencing, Defendant
entered a no contest plea to an amended count of firearms not to be carried without a license. This amended count replaced count one on information 2998 of 2011 which had been possession of firearm prohibited. Sentencing took place on June 30, 2015. Defendant received a sentence of twenty-one to forty-two months on the firearms charge, fifteen to thirty months on the possession with intent charge and three to six months concurrent on the remaining charges. The sentence on the firearms charge was to run consecutive to the possession with intent charge resulting in a total aggregate sentence of thirty-six to seventy-two months. All sentences were within the standard range of the guidelines. Rather than file a direct appeal, Defendant filed a pro se Motion for Post Conviction Collateral Relief on July 17, 2015. Counsel for Defendant supplemented the Motion on September 14, 2015 and September 22, 2015. As previously indicated, Defendant alleged trial counsel's ineffectiveness for failing to pursue an appeal and lack of preparation prior to trial.
III. LEGAL ANALYSIS To be eligible for relief under Section 9543(a)(2)(ii) of the Post Conviction Relief Act, a Petitioner must plead and prove by a preponderance of the evidence that "ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt ormeritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003).

1981 ). Finally, trial counsel cannot be deemed ineffective for failing to pursue a 862-63 (Pa.Super. 2000) quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa. no competent lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, not having a reasonable basis for his action, his approach must be "so unreasonable that citing Commonwealth v . Sneed , 899 A.2d 1067, 1076 (Pa. 2006). With regard to counsel the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (Pa

. 1999). "A failure to satisfy any prong of the ineffectiveness test requires rejection of Pierce, 786 A.2d 203, 213 (Pa. 2001); Commonwealth v. Kimball, 724 A.2d 326, 333 Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010) citing Commonwealth v. (Michael) reasonability probability that the outcome of the proceedings would have been different." designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a particular course of conduct pursued by counsel did not have some reasonable basis prong test and demonstrate that: "( 1) his underlying claim is of arguable merit; (2) the For a Defendant to prevail on an ineffectiveness claim, he must satisfy a threeshift. Cross, 634 A.2d at 175 citing Commonwealth v. Jones, 471 A.2d 879 (Pa. 1984)

. Defendant bears the burden of proving counsel's ineffectiveness and that burden does not A.2d 173, 175 (Pa. 1993) citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). There is a presumption that counsel is effective. Commonwealth v. Cross , 634 (Pa.Super. 2002) quoting 42 Pa

. C

. S.A. Section 9543(a)(2)(ii). innocence could have taken place." Commonwealth v. Hickman, 799 A.2d 136, 140 n.2Knighten, 742 A.2d 679, 682 (Pa.Super. 1999). "A mere allegation will not suffice to

ineffectiveness of counsel for failing to file a direct appeal. The , ~efendant must prove that he requested an appeal and that counsel disregarded that request." Commonwealth v. v. Bath, 907 A.2d 619, 622 (Pa.Super. 2006). However, "before a court will find successful to establish the prejudice prong of the test for ineffectiveness. Commonwealth assistance of counsel per se and there is no need to show that the appeal would have been An unjustified failure to file a direct appeal requested by defendant is ineffective received the sentence for which he bargained. state correctional institution. It is clear that Defendant did not request an appeal since he This Court honored the agreement and imposed a total sentence of three to six years in a sentenced to an aggregate term of imprisonment of thirty-six to seventy-two months. plead no contest to one count of firearms not to be carried without a license and be After Defendant was convicted, he reached an agreement with the Commonwealth to never promised to file an appeal and Defendant never requested that an appeal be filed. advised that an appeal would be filed after trial ifthere were any appealable issues. He Trial counsel testified for the Commonwealth. He indicated that Defendant was expired. Post Conviction Collateral Relief thirteen days before his time to file a direct appeal not discuss or request an appeal after trial or sentencing. Defendant filed his Motion for Defendant testified that he discussed an appeal with counsel before trial. He did unsupported by the testimony presented at the PCRA hearings and the record. to do so. He also alleges a failure to prepare prior to trial. Both of these allegations are Defendant alleges that trial counsel failed to file an appeal despite being requestedgun. Two meetings occurred prior to trial and Defendant was advised of the charges he would be facing at trial. His defense would be the cocaine was for personal use and not for sale. Trial counsel prepared Defendant prior to testifying and a plausible explanation Defendant provided the name of a person in North Carolina who allegedly owned the public defender's office. His tax records and photographs were given to trial counsel and County Public Defender's Office. Defendant also met with the investigator from the After Defendant posted bail, he began meeting with trial counsel at the Luzerne Suppress. a bail petition on his behalf. He also filed pre-trial motions which included a Motion to 2011. He originally met Defendant at the Luzerne County Correctional Facility and filed Trial counsel testified that he began representing Defendant sometime in late presented all the defenses requested by Defendant. charge while contesting the possession with intent to deliver charge. Trial counsel also to the charges he faced at trial. Defendant's trial strategy was to admit to the possession trial. He further testified that no trial strategy was discussed and he was misinformed as testified that he met with trial counsel and a private investigator on one occasion prior to Defendant's remaining allegation is that trial counsel failed to prepare. He filing of a direct appeal on his behalf. trial counsel presented credible testimony establishing Defendant did not request the connection with Defendant's Motion for Post Conviction Collateral Relief and finds that A.2d 1023, 1024 (Pa.Super. 1999). This Court presided at the three hearings held in Spencer, 892 A.2d 840, 842 (Pa.Super. 2006) citing, Commonwealth v. Harmon, 738 prove that counsel ignored a petitioner's request to file an appeal." Commonwealth v.Copies To:

Luzerne County District Attorney ' s Office Jeffrey A : Yelen, Esquire BY THE COURT: 

# ~z~~~J. attorney, or the party, if unrepresented, pursuant to Pa.R.Crim.P. 114 The Clerk of Court shall promptly serve a copy of this Order on each party's denied. without merit. As a result, his Motion for Post Conviction Collateral Relief must be record established in this case, this Court finds Defendant's ineffectiveness claims to be Upon review of the testimony and exhibits presented at the hearings, and the and counsel then presents that defense to the jury. Trial counsel did exactly that. defense. It is the responsibility of the Defendant to communicate his defense to counsel trial counsel was inadequately prepared

. It is not the attorney's responsibility to invent a issue. Defendant has failed to provide the evidence required to support his allegation that Once again this Court finds that trial counsel presented credible testimony on this 960 (Pa

. Super. 1997). preparation." Howard, 732 A.2d at 1215 quoting, Commonwealth v. Ellis , 700 A.2d 948, dedicated to client consultation affords no basis for inferring the extent of t r ial citing, Commonwealth v. Johnson, 588 A.2d 1303 (Pa. 1991). "The length of time ·1 sufficient proof. Commonwealth v. Howard, 732 A.2d 1213, 1215 (Pa.Super. 1999)

possession with intent to deliver charge. was provided for all the e v idence presented by the Commonwealth as far as the

Trial counsel will not be deemed ineffective for lack of preparation without