J-S32015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX SCOTT SIMPSON :
:
Appellant : No. 589 WDA 2021
Appeal from the PCRA Order Entered April 5, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000021-2013,
CP-33-CR-0000153-2013
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: December 3, 2021
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Alex Scott Simpson, appeals,1 pro se, from the order,2 entered in the
Court of Common Pleas of Jefferson County, dismissing his petition filed
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1 On May 6, 2021, Simpson, pro se, filed a single notice of appeal listing two
docket numbers, in violation of Commonwealth v. Walker, 185 A.3d 969
(Pa. 2018) (where single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case); see also
Pa.R.A.P. 341(a). Nevertheless, we may overlook the requirements of
Walker where a breakdown occurs in the court system, and a defendant is
misinformed or misled regarding his appellate rights. See Commonwealth
v. Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc) (overlooking
Walker requirements due to court breakdown where PCRA court’s order
informed appellant that he had thirty days from date of order to file “an
appeal,” which misled appellant by suggesting one notice of appeal was
sufficient) (emphasis added). Here, the court’s April 5, 2021, order informed
Simpson that “you have a right to appeal . . . by filing a [n]otice of [a]ppeal
with the Jefferson County Clerk of Courts within thirty (30) days[.]” Order,
4/5/21 (emphasis added). Thus, we conclude that a breakdown in court
operations has occurred since Simpson was misled regarding the sufficiency
of filing one notice of appeal for both dockets. See Larkin, supra.
Consequently, we will proceed to address the merits of Simpson’s appeal.
2 Simpson’s notice of appeal purported to appeal from the trial court’s April 5,
2021 order dismissing his PCRA petition. From our review of the record, we
discern that the trial court filed two orders that day—notice of its intent to
dismiss Simpson’s petition, see Order, Notice to Defendant Re: Dismissal of
Post Conviction Pleadings, 4/5/21, pursuant to Pa.R.Crim.P. 907, (“you . . .
are hereby notified that your [p]ost [c]onviction [p]leadings . . . shall be
dismissed (20) days from the date of this [n]otice/[o]rder”) (emphasis
added), and an order dismissing the petition. See Order, Order of Court,
4/5/21 (“This order is a final order[,] accordingly[,] you have a right to
appeal to the Pennsylvania Superior Court by filing a Notice of Appeal with the
Jefferson County Clerk of Courts within thirty (30) days after the entry of the
within order dismissing your Post Conviction Pleadings and other filings. See:
PA R.CR.P. No. 907.”) (emphasis added). Because the second order, itself,
purports to be final, we will treat the order as dismissing Simpson’s petition,
rather than providing Rule 907 notice thereof. Consequently, we must
address the timeliness of Simpson’s notice of appeal. We conclude that
Simpson’s May 6, 2021 notice of appeal was timely filed because he delivered
the document to prison authorities on May 2, 2021. See Commonwealth v.
(Footnote Continued Next Page)
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pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,
and granting counsel’s petition to withdraw. After our careful review, we
affirm.
A panel of this Court previously set forth the facts and procedural history
of this case as follows:
In 2013, at docket number CP-33-CR-000153-2013 (“Docket
153”), Simpson pled guilty to one count of aggravated assault, 18
Pa.C.S.A. § 2702(a)(1). The trial court sentenced him to three to
six years’ imprisonment, followed by three years’ probation. On
that same date, [Simpson] pled guilty at docket number CP-33-
CR-000021-2013 (“Docket 21”), to aggravated assault, 18
Pa.C.S.A. § 2702(a)(3). The court sentenced [Simpson] to one to
six years’ imprisonment followed by four years’ probation,
concurrent to the sentence imposed at Docket 153.
In September 2019, the court held a probation revocation hearing,
where Simpson waived his right to the Gagnon I hearing, and the
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Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (“Pursuant to the prisoner
mailbox rule, [the courts] deem a document filed on the day it is placed in the
hands of prison authorities for mailing.”); Pa.R.A.P. 121(f).
Although the court simultaneously issued the Rule 907 notice and dismissed
Simpson’s PCRA petition on the same day, we are satisfied that Simpson did
not suffer any prejudice because the court permitted Simpson to respond, pro
se, to each of its orders. See Commonwealth v. Vo, 235 A.3d 365, 372 (Pa.
Super. 2020) (Rule 907 response is opportunity for petitioner to object to
dismissal and alert PCRA court of perceived error, permitting court to discern
potential for amendment to petition). Indeed, Simpson responded to the April
5, 2021 orders on April 26, 2021. The court issued a second order dismissing
Simpson’s petition on May 12, 2021, which Simpson also responded to pro se.
Insofar as the May 12, 2021 order might serve as the final order, which would
cause Simpson’s appeal to arise from a non-final order, we note that we may
treat Simpson’s appeal as timely filed on May 12, 2021. See Pa.R.A.P.
905(a)(5) (“[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).
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court took judicial notice of new convictions from Franklin County
for theft of services and possession of drug paraphernalia. At the
Gagnon II hearing, counsel stated that he reviewed the pre-
sentence investigation report (“PSI”) with Simpson. N.T.
[Gagnon II Hearing], 9/27/19, at 2. The PSI included a list of
the probation violations, including the new convictions, for which
[Simpson] received probation sentences, and that Simpson failed
to report for probation intake, he engaged in threatening and
overt behavior, and he failed to make payments since his release.
PSI, [] Sept. 2019, at 1-3. The PSI further stated that the first
new offense occurred 41 days after Simpson’s release from prison
and the second offense occurred “82 days later.” Id. at 3. []
At Docket 153, the court [re]sentenced Simpson to ten to [twenty]
years’ imprisonment. At Docket 21, the court imposed a
concurrent sentence of five to ten years’ imprisonment[, for an
aggregate term of ten to twenty years]. Simpson received credit
for all time spent incarcerated on the convictions.
Commonwealth v. Simpson, 1675 WDA 2019, 1676 WDA 2019, at *2-*3
(Pa. Super. filed Nov. 6, 2020) (unpublished memorandum decision).
This Court affirmed Simpson’s revocation of probation and new
judgment of sentence, and further concluded that: (1) Simpson’s
discretionary aspects of sentencing claim did not raise a substantial question,
id. at *7, and, even if it did raise one, that the claim was meritless, id. at *7-
*8; (2) Simpson’s claim that he never signed a document acknowledging the
conditions of probation and was never instructed to report to the probation
department was waived for failure to raise it in the trial court, id. at *10; and,
(3) this Court could not review Simpson’s claim that counsel “did not speak
with him, and ignored his letters, [because that argument] raises a counsel
ineffectiveness claim, which . . . cannot be raised on direct appeal.” Id.
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Simpson filed a pro se PCRA petition on February 19, 2021,3 alleging a
violation of the United States and Pennsylvania Constitutions, as well as
ineffective assistance of counsel insofar as Mark Wallisch, Esquire, Simpson’s
revocation counsel, failed to investigate and assert Simpson’s claim that
Simpson was never informed of the terms of his probation prior to the court
finding him to have violated its terms, revoking his probation, and
resentencing him. Pro Se PCRA Petition, 2/19/21, at 3, 5-6. In his petition,
Simpson cited to our prior decision in Commonwealth v. Allshouse, 33 A.3d
31 (Pa. Super. 2011), for the proposition that “[an] Appellant’s written
acknowledgment of the terms and conditions of his probation . . . is an
obvious, implied condition of his probation.” Id. at 38; Pro Se PCRA Petition,
2/19/21, at 8. Essentially, Simpson argues that the court erred insofar as it
revoked his probation and resentenced him based on probation terms that
were unknown to Simpson.
On February 26, 2021, the court appointed George N. Daghir, Esquire,
as PCRA counsel. On March 26, 2021, Attorney Daghir sent Simpson a no-
merit letter concluding that the court had revoked Simpson’s petition under
the condition of probation to not commit any new crimes, and petitioned the
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3 Simpson filed two pro se PCRA petitions on the same date. On February 22,
2021, Simpson, pro se, sent a letter, which was docketed on March 1, 2021,
addressed to the county clerk of courts, for the purpose of informing the clerk
that there was a “mistake with two different PCRAs,” and “the one that I want
to be filed is the one that was sent certified mail and has [two exhibits].” Pro
Se Letter, 2/22/21.
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court to permit him to withdraw pursuant to Turner/Finley.4 As noted
previously, the PCRA court filed two orders on April 5, 2021, see supra, at
n.2; the order of court that dismissed Simpson’s petition also granted Attorney
Daghir’s petition to withdraw. See Order of Court, 4/5/21. On April 26, 2021,
Simpson filed a response to the court’s Rule 907 notice of its intent to dismiss
his petition, identifying several issues he claimed were meritorious. See
Pa.R.Crim.P. 907(4); Response to the Court’s Intention to Dismiss Petitioner’s
PCRA Petition, 4/26/21, at 1-4 (citing Allshouse, supra). Simpson then filed
a timely pro se notice of appeal from the court’s April 5, 2021 order dismissing
his petition. See supra, at n.2. The PCRA court ordered Simpson to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and
issued a Rule 1925(a) opinion concluding that Simpson’s petition was wholly
meritless.5 On June 14, 2021, Simpson filed his Rule 1925(b) statement,
raising seven issues, including, revocation counsel was ineffective for failing
to investigate and argue that: (1) Simpson was never instructed to report to
the county probation office upon his release from custody; (2) Simpson never
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4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (established
procedure for withdrawal of court-appointed counsel in collateral attacks on
criminal convictions); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc) (same).
5 We are cognizant that, generally, the trial court awaits appellant’s filing of a
Rule 1925(b) statement before filing its own Rule 1925(a) opinion. Although
the procedural posture of this case is somewhat unique, we are able to identify
the claims Simpson wishes to raise on appeal because the court properly
permitted Simpson to respond, pro se, to its various orders. Simpson has not
identified, and we do not discern, any prejudice suffered by him under these
circumstances. See supra, at n.2.
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signed or acknowledged, in writing, the terms and conditions of his probation;
and, (3) the PSI was erroneous insofar as it stated that Simpson violated
specific terms of probation. See Rule 1925(b) Statement, 6/14/21, at 1-3.
Additionally, Simpson raised claims of PCRA counsel’s ineffectiveness insofar
as PCRA counsel determined that Simpson’s issues were meritless and filed a
Turner/Finley letter in this matter instead of asserting Simpson’s claims on
his behalf.6 Id. at 3-4. On June 18, 2021, the court issued another Rule
1925(a) opinion referring to Attorney Daghir’s March 26, 2021 no-merit letter,
and its prior May 12, 2021 opinion and order, to dispose of all of Simpson’s
issues on appeal. On June 24, 2021, Simpson filed a “Supplemental
Statement of Matters Complained of on Appeal,” wherein he alleged errors in
the trial court’s prior opinions and stated that he had not yet received a copy
of the sentencing transcripts. See Supplemental Statement of Matters
Complained of on Appeal, 6/24/21. On June 28, 2021, the court denied
Simpson’s motion for disclosure of the requested transcripts and clarified for
Simpson its prior revocation decision that, “the defendant’s revocation was
based solely on his new charges, not the technical violations he was alleged
to have committed. The [c]ourt does not contest, moreover, that [Simpson]
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6 The Supreme Court of Pennsylvania recently held “a PCRA petitioner may,
after a PCRA court denies relief, and after obtaining new counsel or acting pro
se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to
do so, even if on appeal.” Commonwealth v. Bradley, 37 EAP 2020, at *53
(Pa. filed Oct. 20, 2021).
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did not sign a copy of the Jefferson County Probation Office’s standard terms
and conditions.” Order of Court, 6/28/21.
On appeal, Simpson raises the following issues for our review:
1. Whether the court improperly revoked [Simpson]’s probation
as a result of counsel’s ineffective assistance for failing to
investigate the error within the record . . .[,] for failing to object
and argue that the [PSI] contained false and inaccurate
information[,] and[] for failing to argue that[,] technically[,
Simpson] did not violate the conditions of probation.
2. Whether counsel was ineffective for failing to raise a substantial
question in the post-sentence motion and on appeal, when
counsel failed to state why or what underlying circumstances
rendered the sentence excessive, unreasonable, and
inappropriate. The question is, [“]Did [Simpson] violate the
conditions of probation that he never acknowledged in writing
or had any knowledge of[?”]
Appellant’s Brief, at 4 (unnecessary capitalization omitted).7
In his first issue, Simpson alleges that Attorney Wallisch, Simpson’s
revocation counsel, was ineffective for failing to investigate, and assert at the
probation revocation hearing, Simpson’s claim that he was never made aware
of the terms of his probation.
Under our standard of review for an appeal from the denial of PCRA
relief, we must determine whether the ruling of the PCRA court is supported
by the record and is free of legal error. Commonwealth v. Washington,
927 A.2d 586, 593 (Pa. 2007). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
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7 The Commonwealth has not filed a brief in this case.
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Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). The PCRA court’s
credibility determinations are binding on the appellate courts when they are
supported by the record. Commonwealth v. Johnson, 966 A.2d 523, 532,
539 (Pa. 2009). However, appellate courts apply a de novo standard of review
to the PCRA court’s legal conclusions. Commonwealth v. Rios, 920 A.2d
790, 810 (Pa. 2007).
Our Supreme Court has previously explained the eligibility requirements
for relief under the PCRA:
To be eligible for PCRA relief, a petitioner must plead and prove
by a preponderance of the evidence that his or her conviction or
sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S.[A.] § 9543(a)(2). . . . Furthermore, a
petitioner must establish that the claims of error raised in the
PCRA petition have not been previously litigated or waived and
that “the failure to litigate the issue prior to or during trial . . . or
on direct appeal could not have been the result of any rational,
strategic[,] or tactical decision by counsel.” 42 Pa.C.S.[A.] §[§]
9543(a)(3) and (4); Washington, supra at 593. An issue has
been waived “if the petitioner could have raised it but failed to do
so before trial, at trial, . . . on appeal or in a prior state post[-
]conviction proceeding.” 42 Pa.C.S.[A.] § 9544(b). An issue has
been previously litigated if “the highest appellate court in which
the petitioner could have had review as a matter of right has ruled
on the merits of the issue.” 42 Pa.C.S.[A.] § 9544(a)(2).
Commonwealth v. Paddy, 15 A.3d 431, 441-42 (Pa. 2011).
Here, we note that Simpson’s PCRA petition is timely filed. See 42
Pa.C.S.A. § 9545(b) (jurisdictional timing provision requiring that any post-
conviction petition be filed within one year of date judgment became final).
Second, Simpson’s petition has properly alleged his eligibility for relief under
the PCRA, see 42 Pa.C.S.A. § 9543, insofar as his petition states that Simpson
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is still serving a period of incarceration as a result of his revocation of
probation, id. at § 9543(a)(1)(i), no reliable adjudication of Simpson’s guilt
could have taken place due to counsel’s ineffective assistance, id. §
9543(a)(2)(ii), Simpson’s allegation of error has not been previously litigated
or waived, id. at § 9543(a)(3), and Simpson’s failure to litigate the issue prior
to or during trial, or on direct appeal was not the result of any rational,
strategic, or tactical decision by counsel. Id. at § 9543(a)(4). Therefore, we
may proceed to the merits of Simpson’s claim of ineffective assistance of
probation revocation counsel.
In analyzing claims of ineffective assistance of counsel, we
presume that trial counsel was effective unless the PCRA
petitioner proves otherwise. Commonwealth v. Williams, 732
A.2d 1167, 1177 (Pa. 1999). In order to succeed on a claim of
ineffective assistance of counsel, Appellant must demonstrate[:]
(1) that the underlying claim is of arguable merit; (2) that
counsel’s performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). . . .
Appellant bears the burden of proving each of these elements, and
his “failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009).
Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). See also
Strickland v. Washington, 466 U.S. 668, 694 (1984).
In his first issue, Simpson relies on our Court’s decision in Allshouse,
supra, for the proposition that he was required to acknowledge the terms of
his probation, in writing, prior to its commencement, and that the failure to
do so amounted to a technical violation of probation. Id. at 38. Although we
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agree that a probationer must acknowledge in writing the specified terms
of probation prior to the court revoking probation on those grounds, we
find Allshouse does not afford Simpson relief.
In Allshouse, the defendant probationer appeared for a violation of
probation hearing wherein the court revoked probation on the bases that the
probationer, inter alia, failed to sign and acknowledge the conditions of his
probation, which was a condition not imposed by the trial court at sentencing,
and that the probationer had threatened prison staff. On appeal, defendant
argued that the probation department cannot impose conditions of probation
that were not expressly ordered by the trial court. This Court agreed, but
affirmed the defendant’s revocation and judgment of sentence because the
court revoked probation prior to its commencement pursuant to
Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980),
overruled by Commonwealth v. Simmons, 2461 EDA 2018 (Pa. Super. filed
Aug. 18, 2021) (en banc),8 on the theory that the defendant was a danger to
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8 In Simmons, this Court held that,
Wendowski was incorrect in holding that a trial court may
anticipatorily revoke an order of probation and in reasoning that
“a term of probation may and should be construed for revocation
purposes as including the term beginning at the time probation is
granted.” Wendowski, 420 A.2d at 630 (quotations omitted).
No statutory authority exists to support this understanding.
Rather, the plain language of the relevant statutes provides that:
a trial court may only revoke an order of probation “upon proof of
the violation of specified conditions of the probation;” the
“specified conditions” of an order of probation are attached to, or
(Footnote Continued Next Page)
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society and, therefore, unworthy of probation since he had committed another
crime while on probation. Allshouse, supra at 39. This Court found that a
violation of an implied condition of probation, “such as, ‘do not commit another
crime,’” Allshouse, supra at 37 (quoting Commonwealth v. Vilsaint, 893
A.2d 753, 757 n.5 (Pa. Super. 2006)), may serve as the basis for anticipatory
revocation.9 Id. at 39 (citing Wendowski, supra). In describing implied
conditions of probation, the Allshouse Court opined that:
It seems obvious that, in order to comply with a trial court’s order
of probation, an appellant must acknowledge the terms with which
he is ordered to comply. The purpose of probation is rehabilitation
and reintroduction into society. Without acknowledgment of the
limitations and requirements involved in this rehabilitation, a
defendant cannot achieve success in this regard. To hold that
Appellant should be released to probation after five years’
incarceration and not require that he acknowledge in writing the
terms of that probation is contrary to our system of justice. We
hold, therefore, that Appellant’s written acknowledgment of the
terms and conditions of his probation, a sentence he was serving
five years after it was first ordered, is an obvious, implied
condition of his probation.
Allshouse, supra at 38.
We conclude that the foregoing analysis and holding in Allshouse
applies to circumstances where the court revokes probation on account of a
violation of specific, rather than generally implied, conditions of probation,
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are a part of, the order of probation; and, when the trial court
imposes an “order of probation” consecutively to another term,
the entirety of the “order of probation”—including the “specified
conditions”—do not begin to commence until the prior term ends.
Simmons, supra at *21.
9 Anticipatory revocation is no longer permitted. Simmons, supra at *21.
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especially since the Allshouse Court affirmed the defendant probationer’s
revocation because he committed a new crime,10 even though that probationer
never acknowledged the terms of probation in writing.
Here, Simpson’s claim of his lack of knowledge of the terms of his
probation, or of any probation at all, is overstated. Our review of the record
reveals that the court informed Simpson, at sentencing, that he would serve
a four-year period of probation immediately and consecutively to his
maximum six-year period of incarceration, which Simpson served in its
entirety prior to his release. See N.T. Guilty Plea and Sentencing Hearing,
6/5/13, at 7. Therefore, Simpson was aware that he was serving a period of
probation at the time that he committed the new crimes. See also Simmons,
supra at *12 (citing Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa.
2019)) (“The trial court may[,] as a condition of its order[,] require the
defendant to comply with certain, specific conditions of probation. 42
Pa.C.S.A. § 9754. Further, the Pennsylvania Supreme Court has held that a
general condition of any order of probation is that the defendant lead a law-
abiding life, i.e., that the defendant refrain from committing another crime.”)
(internal quotation marks omitted). We note that the court informed Simpson,
at sentencing, of the specific conditions of his probation, and that those
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10 Although the court may no longer revoke probation anticipatorily, see
Simmons, supra at *21, Simpson committed his new crime during the four-
year probationary period that commenced immediately upon his maximum
release date. Therefore, anticipatory revocation is not at issue in Simpson’s
case.
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specified conditions also appear in the sentencing order, see Sentencing
Order, 6/5/13, and in the court commitment document filed by the county
clerk, see Court Commitment, 6/6/13, at 2. Thus, we conclude that Simpson
was aware of his probation, at least generally,11 and violated the implied
general condition of his probation—that he refrain from committing other
crimes—while serving that period of probation. See Foster, supra; see also
Vilsaint, supra. Additionally, we are satisfied that the due process concerns
at issue in Allshouse, as they relate to a probationer’s lack of knowledge of
the specified terms of probation, do not apply to Simpson’s case, where
the court found Simpson violated a “general condition of any order of
probation.” Foster, supra.
Since we have already concluded that Simpson was aware that he was
on probation as a result of the court’s instruction and order at his sentencing
hearing, and since the court determined that Simpson only violated the
general condition that he not commit any new crimes, and did not determine
that Simpson had violated any specific condition, we find Simpson’s second
issue on appeal is meritless.
Accordingly, Simpson has failed to establish that either of his claims has
arguable merit. See Fulton, supra; see also Daniels, supra.
Consequently, Simpson has not proven that counsel was ineffective. See
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11We agree that there is no evidence that Simpson was aware of any of the
specified terms of his probation, and that revocation based on any of those
specified grounds would have been improper. See Allshouse, supra.
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Jarosz, supra. Therefore, we must affirm the order of the PCRA court. See
Washington, supra; see also Rios, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2021
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