J-S14002-17

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 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-40-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 arrest, 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 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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$1,700.00 in U.S. currency, 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 information 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. No 
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concise statement 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 standard 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 

denied, 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. 

Commonwealth 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 no relief. The PCRA 

court opinion comprehensively discusses and properly disposes of the 

question presented. (See PCRA Court Opinion, filed April 7, 2016, at 2-6) 
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(finding: record does not support Appellant’s ineffective assistance of 

counsel claims; while 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 promise 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 three 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 failed 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 on 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 for 
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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 assistance 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: 4/11/2017
Jeffrey 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 

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a'f?orney, ;i, the party, if unrepresented, pursuant to Pa.R.Crim.P. 114 

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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 

JERRY S. ELEY, JR. NO: 2998 OF 2011 

INMATE NO: MC0774 

v. CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

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was 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 

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

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~id~~~~onducted by the Wilkes-Barre City police. During the search, police located 2 

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~dg\ip~cocaine, a scale and assorted items of drug paraphernalia including plastic 

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b!ggie'"(. ~n January 11, 2013, the Commonwealth's Motion to Amend theInformation 

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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 Petition 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 to address the issues raised in the Motion for Post 

I. INTRODUCTION 

MEMORANDUM 

JERRY S. ELEY, JR. NO: 2998 OF 2011 

INMATE NO: MC0774 

v. CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 
Defendant 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 or 
meritless 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.2 
Knighten, 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 requested 
gun. 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 trial 

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 evidence presented by the Commonwealth as far as the 

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