J-S64028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

SCOTT MICHAEL MCELROY

                            Appellant                      No. 886 MDA 2015


                Appeal from the Order Entered on April 29, 2015
              In the Court of Common Pleas of Huntingdon County
               Criminal Division at No.: CP-31-CR-0000392-2011


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                             FILED DECEMBER 16, 2015

       Scott Michael McElroy appeals the April 29, 2015 order dismissing his

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.

       In February 2011, a corrections officer at the state correctional

institution in Huntingdon (“SCI-Huntingdon”) discovered five packets of

heroin inside of a greeting card addressed to an inmate at the prison. That

inmate    subsequently       confessed     to   Trooper   Charles   Aungst   of   the

Pennsylvania State Police that he had sent McElroy $150.00 in exchange for

heroin, which McElroy agreed to mail to the prison.             On May 26, 2011,



____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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McElroy was charged with possession with intent to deliver (“PWID”),

contraband, and possession of a controlled substance.1

       Prior to trial, McElroy’s attorney negotiated a plea agreement with the

District Attorney.     Pursuant to that agreement, the Commonwealth would

stipulate that all three of the offenses merged for sentencing purposes. On

March 5, 2012, McElroy pleaded guilty to the crimes charged. On May 10,

2012, the trial court sentenced McElroy to twenty-eight to fifty-six months’

imprisonment and imposed a $1,000.00 fine.             Pursuant to the parties’

agreement, the trial court did not impose a sentence either on the

possession of a controlled substance count or on the PWID count. McElroy

did not file a motion to withdraw his guilty plea, nor did he file a direct

appeal.

       On March 18, 2013, McElroy timely filed a PCRA petition, wherein he

alleged: (1) that he did not enter his guilty plea knowingly and voluntarily;

(2) that the trial court imposed an illegal sentence; and (3) that trial counsel

was ineffective for allowing McElroy to plead guilty and for failing to file a

direct appeal.      The PCRA court held hearings on McElroy’s petition on

September 5, 2014 and October 24, 2014.          On April 29, 2015, the PCRA

court issued an order dismissing McElroy’s petition.



____________________________________________


1
     35 Pa.C.S. § 780-113(a)(30), 18 Pa.C.S. § 5123(a), and 35 Pa.C.S.
§ 780-113(a)(16), respectively.



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      On May 26, 2015, McElroy filed a notice of appeal. On the following

day, the PCRA court directed McElroy to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       McElroy timely

complied.    On July 9, 2015, the PCRA court filed a Pa.R.A.P. 1925(a)

opinion.

      McElroy raises four issues for our consideration:

      1. Whether the PCRA court erred in ruling that McElroy’s plea
         was voluntary where he indicated on his guilty plea colloquy
         that threats had been made to him and the court admitted
         that it negligently failed to colloquy McElroy?

      2. Whether McElroy’s sentence is illegal given that the [trial]
         court sentenced him outside of the statutorily prescribed
         mandatory sentence associated with the crime committed
         herein?

      3. Whether McElroy’s trial counsel was ineffective for having him
         plead open to all counts on the criminal information, with
         seemingly no benefit?

      4. Whether McElroy’s trial counsel was ineffective for failing to
         file an appeal?

Brief for McElroy at 2 (capitalization modified).

      This Court analyzes PCRA appeals “in the light most favorable to
      the prevailing party at the PCRA level.” Commonwealth v.
      Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “review is
      limited to the findings of the PCRA court and the evidence of
      record” and we do not “disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.” Id.
      Similarly, “[w]e grant great deference to the factual findings of
      the PCRA court and will not disturb those findings unless they
      have no support in the record. However, we afford no such
      deference to its legal conclusions.”    Id. (citations omitted).
      “[W]here the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary.” [Id.]



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     Finally, we “may affirm a PCRA court’s decision on any grounds if
     the record supports it.” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

     In his first issue, McElroy argues that his guilty plea was not knowing,

intelligent, or voluntary because, on his written colloquy form, he indicated

that he had been threatened to enter his guilty plea. See Brief for McElroy

at 5-11. McElroy claims that the trial court should have inquired into these

perceived threats and the effect that they had upon his plea. McElroy has

waived this claim.

     Under the PCRA, an appellant waives any issue that could have been

raised before trial, at trial, during unitary review, on appeal, or in a prior

state post-conviction proceeding. See 42 Pa.C.S. § 9544(b). Our review of

the record in this case reveals that McElroy did not file a post-sentence

motion to withdraw his guilty plea. In addition, as noted supra, McElroy did

not pursue a direct appeal before this Court. Accordingly, his first issue is

waived.

     In his second issue, McElroy challenges the legality of his sentence.

Specifically, McElroy argues that his sentence is illegal because it exceeds

the applicable mandatory minimum sentence. This issue lacks merit.

     “A claim that the trial court erroneously imposed an illegal sentence is

a question of law and, as such, our scope of review is plenary and our

standard of review is de novo.” Commonwealth v. Wilson, 11 A.3d 519,

525 (Pa. Super. 2010) (en banc).     Further, challenges to the legality of a



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sentence are not waivable, and may be raised for the first time on appeal.

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008).

      McElroy challenges the legality of the sentence that he received after

pleading guilty to contraband. The trial court sentenced McElroy to twenty-

eight to fifty-six months’ imprisonment and imposed a $1,000.00 fine.

According to McElroy, this sentence “lacked statutory authorization,”

because it exceeded the statutory mandatory minimum sentence provided

for by 18 Pa.C.S. § 5123(a.1).       McElroy evidently misunderstands that

statute.

      Section 5123 provides, in pertinent part, as follows:

      Any person convicted of a violation of subsection (a) shall be
      sentenced to a minimum sentence of at least two years of
      total confinement, notwithstanding any other provision of this
      title or any other statute to the contrary. Nothing in the
      subsection shall prevent the sentencing court from
      imposing a sentence greater that that provided in this
      subsection, up to the maximum penalty prescribed by this
      title for a felony of the second degree. There shall be no
      authority in any court to impose on an offender to which this
      subsection is applicable any lesser sentence that provided for in
      subsection (a) or to place such offender on probation or to
      suspend sentence. Sentencing guidelines promulgated by the
      Pennsylvania Commission on Sentencing shall not supersede the
      mandatory sentences provided in this subsection.            If a
      sentencing court refuses to apply this subsection where
      applicable, the Commonwealth shall have the right to appellate
      review of the action of the sentencing court. The appellate court
      shall vacate the sentence and remand the case to the sentencing
      court for imposition of a sentence in accordance with this
      subsection if it finds that the sentence was imposed in violation
      of this subsection.




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18 Pa.C.S. § 5123(a.1) (emphasis added).2

       From this language, McElroy concludes that the trial court was

required to sentence him to exactly two years’ imprisonment. However, the

statute plainly authorizes the trial court to impose a sentence “up to the

maximum penalty . . . for a felony of the second degree.”          18 Pa.C.S.

§ 5123(a.1); See 18 Pa.C.S. § 1103 (“[A] person who has been convicted of

a [second degree] felony may be sentenced to imprisonment . . . for a term

which shall be fixed by the court at not more than ten years.”). Because the

trial court was free to impose any term of imprisonment between two to ten

years, this claim is frivolous.3

       McElroy’s assertion that “th[is] entire case is flawed and must be

thrown out” because “he was not provided notice of the mandatory

[sentence] prior to ent[ering] his plea” similarly is frivolous.     Brief for

McElroy at 13.      McElroy cites Commonwealth v. Zorn, 580 A.2d 8 (Pa.

Super. 1990), wherein we held that, prior to a defendant’s entry of a guilty

plea, the Commonwealth must give notice of its intent to seek a five-year
____________________________________________


2
        This provision does not implicate the United States Supreme Court’s
decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013),
because section 5123’s mandatory sentence is triggered by the offense
itself, and does not require any additional judicial fact-finding.
3
       McElroy also argues that “it was unlawful for the [c]ourt to
order/sentence him with a fine” because “the mandatory sentencing statute
does not provide for a fine.” Brief for McElroy at 12. McElroy overlooks the
fact that 18 Pa.C.S. § 1101 permits the trial court to impose a fine of up to
$25,000.00 following a conviction for a first or second-degree felony.



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mandatory minimum sentence for offenses committed with firearms.             See

42 Pa.C.S. § 9712 (mandatory minimum sentencing provision for persons

who visibly possess a firearm or a replica of a firearm during the commission

of a crime of violence), invalidated by Commonwealth v. Valentine, 101

A.3d 801 (Pa. Super. 2014).          That provision explicitly required the

Commonwealth to give the defendant notice of the mandatory sentence prior

to sentencing.    Section 5123, however, does not have such a notice

requirement. Thus, McElroy’s reliance upon Zorn is misplaced.

      In his third and fourth issues, McElroy raises ineffective assistance of

counsel claims. Both are without merit. We begin with McElroy’s contention

that his “trial counsel was ineffective for having [McElroy] plead open to all

counts o[f] the criminal information with seemingly no benefit.”       Brief for

McElroy at 2.

      Pennsylvania   has   recast   the   two-factor   inquiry   regarding   the

effectiveness of counsel set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), as the following three-

factor inquiry:

      [I]n order to obtain relief based on [an ineffective assistance of
      counsel] claim, a petitioner must establish: (1) the underlying
      claim has arguable merit; (2) no reasonable basis existed for
      counsel’s actions or failure to act; and (3) petitioner suffered
      prejudice as a result of counsel’s error such that there is a
      reasonable probability that the result of the proceeding would
      have been different absent such error.




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Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is

presumed to be effective, and a PCRA petitioner bears the burden of

pleading and proving each of the three factors by a preponderance of the

evidence.        Commonwealth      v.   Rathfon,    899     A.2d    365,    369

(Pa. Super. 2006); see Commonwealth v. Meadows, 787 A.2d 312, 319-

20 (Pa. 2001).

      In his brief, McElroy does not provide separate discussion or analysis

of each of the three prongs of the Pierce test. Instead, he offers nothing

more than conclusory statements to support his claim that trial counsel’s

representation did “not fall within the range of competence demanded of

attorneys in criminal cases.” Brief for McElroy at 15-16.

      At McElroy’s PCRA hearing, trial counsel testified that, although the

plea bargain that he negotiated required McElroy to plead guilty to three

charges, he was able to get the district attorney to stipulate that that

contraband and PWID convictions merged for the purposes of sentencing.

Counsel explained to McElroy that he could receive a substantially longer

sentence if he proceeded to trial and was convicted, because the trial court

might impose separate sentences for contraband and PWID.           Trial counsel

also explained that the Commonwealth’s evidence against McElroy was

strong, and that McElroy’s chances of prevailing at trial were slim.       These

factors belie McElroy’s contention that trial counsel had no reasonable basis

for allowing his client to plead guilty without first negotiating a specific

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sentence with the district attorney.               McElroy’s failure to prove by a

preponderance of the evidence this factor of the Pierce test is fatal to his

claim.4 See Rathfon, 899 A.2d at 369 (holding that a PCRA petitioner bears

the burden of pleading and proving each of the three Pierce factors by a

preponderance of the evidence).

       In his final issue, McElroy argues that trial counsel was ineffective for

failing to file a direct appeal. It is well-settled that ignoring a request to file

a   direct     appeal    generally      is     considered   per   se   ineffectiveness

notwithstanding the potential merit of any underlying appellate issues.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999).

       Although counsel may be ineffective for failing to file a direct
       appeal on his client’s behalf, a PCRA petitioner must prove that
       he asked counsel to file an appeal in order to be entitled to
       relief.   The petitioner has the burden of proving that he
       requested a direct appeal and that his counsel heard but ignored
       or rejected the request.

Commonwealth v. Maynard, 900 A.2d 395, 397-98 (Pa. Super. 2006).

       Here, McElroy failed to establish that he asked counsel to file a direct

appeal.      At his PCRA hearing, McElroy testified only that he called trial


____________________________________________


4
      In his brief, McElroy also suggests that trial counsel was ineffective for
“allowing an obviously defective colloquy to be submitted to the [trial
c]ourt.” Brief for McElroy at 16. McElroy failed to raise this issue in his
concise statement of errors complained of on appeal. Therefore, it is
waived. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.”).



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counsel from prison and “asked him what I could appeal, you know, what

were my appeal rights.”     Notes of Testimony, 10/24/2014, at 8.       This

testimony falls short of demonstrating that McElroy actually asked counsel

to file an appeal. In any event, trial counsel denied receiving such a phone

call, see Notes of Testimony, 9/5/2014, at 4-5, and the trial court evidently

found that denial to be credible. See Trial Court Opinion, 4/29/2015, at 33.

“[W]e are bound by the credibility determinations of the PCRA court, where

such findings have support in the record.” Commonwealth v. Clark, 961

A.2d 80, 87 (Pa. 2008). Thus, McElroy’s final claim also lacks merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2015




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