J-S71040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

TERRY GENE SIMPSON,

Appellant No. 1197 EDA 2017

Appeal from the PCRA Order February 24, 2017

in the Court of Common Pleas of Montgomery County

Criminal Division at No.: CP-46-CR-0005041-2011

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 13, 2018

Appellant, Terry Gene Simpson, appeals from the denial, after a hearing,

of his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

We take the factual and procedural history in this matter from our 

review of the certified record and the PCRA court’s May 16, 2017 opinion. On 

March 28, 2012, Appellant entered an open plea of guilty but mentally ill to 

attempted murder—serious bodily injury, aggravated assault, and possession 

of an instrument of a crime;1 after he attempted to kill his wife and attacked 

both his wife and daughter with a knife. At the plea hearing, Appellant 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), and 907(a).
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explained that he was aware of what was happening that day. He

acknowledged the charges that he was facing and the elements of the charges,

and the rights that he was giving up by pleading guilty. He admitted to the 

factual basis as set forth and stated that he understood he was pleading guilty 

but mentally ill, would receive treatment at a state mental hospital, would 

finish serving his term of incarceration in the state prison, and that he was 

satisfied with counsel’s representation. (See N.T. Guilty Plea Hearing, 

3/28/12, at 8-22). The court accepted Appellant’s plea of guilty but mentally 

ill, and deferred sentencing for preparation of a presentence investigation 

report. (See id. at 22-24).

On July 19, 2012, the trial court sentenced Appellant to an aggregate 

sentence of not less than fifteen nor more than thirty-four years of 

incarceration followed by ten years of probation. The court ordered that he 

receive mental health treatment at a facility designated by the Pennsylvania 

Department of Corrections. Appellant filed post-sentence motions challenging 

the length of the sentence, which the trial court denied.

This Court affirmed Appellant’s sentence on July 24, 2013. (See 

Commonwealth v. Simpson, 82 A.3d 1077 (Pa. Super. 2013) (unpublished 

memorandum)). Our Supreme Court denied his petition for allowance of

appeal on January 21, 2014. (See Commonwealth v. Simpson, 83 A.3d 

415 (Pa. 2014)). Appellant did not seek certiatori with the United States 
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Supreme Court. On March 12, 2015, he pro se filed a timely first PCRA 

petition. The PCRA court appointed counsel who filed an amended petition.2

The PCRA court conducted an evidentiary hearing on December 28, 

2016. At the hearing, Appellant testified that he had a clear head on the date 

of the guilty plea. He claimed that counsel failed to explain the difference

between a jury and bench trial and a plea agreement and an open guilty plea, 

and told him that after pleading guilty but mentally ill, he would receive 

treatment at a state hospital. (See N.T. Hearing, 12/28/16, at 5). Appellant 

stated that counsel only visited him in prison on three occasions before he 

pleaded guilty, and only presented plea offers on the morning of the guilty 

plea. (See id. at 7). Appellant claimed that counsel did not explain what the 

crimes to which he was pleading guilty meant, and did not discuss sentencing 

guidelines. (See id. at 8-9). Appellant admitted that the written guilty plea 

colloquy contained both his initials and signature, but alleged that he had not 

seen the colloquy before. (See id. at 13-14). He conceded that he

understood the charges to which he pleaded guilty, but stated he “didn’t 

believe that [he] did them.” (Id. at 19). 

The PCRA court found that Appellant’s testimony was “incredible, 

contradictory in some places, and in direct contradiction to his guilty plea 

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2 The PCRA court twice appointed new counsel to represent Appellant with his 

appeal. On July 5, 2016, Appellant’s current counsel filed an amended PCRA 

petition, which listed seventeen claims. Pursuant to the PCRA court’s order, 

Appellant filed a second amended petition on September 26, 2016. 
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colloquy testimony under oath.” (PCRA Court Opinion, 5/16/17, at 17). It 

dismissed his petition on February 24, 2017. This timely appeal followed.3

Appellant raises six issues on appeal.

1. [Whether t]he PCRA court erred in finding that the guilty plea 

colloquy was sufficient to insure (sic) a voluntary, knowing, and 

intelligent plea, generally and specifically acknowledging 

[Appellant’s] mental health issues[?]

2. [Whether t]he PCRA court erred in finding that the guilty plea 

colloquy was sufficient to insure (sic) a voluntary, knowing, and 

intelligent plea, when the record does not reveal an explanation 

of attempted homicide[?]

3. [Whether t]he PCRA court erred in finding that the guilty plea 

colloquy was sufficient to insure (sic) a voluntary, knowing, and

intelligent plea, when the record does not reveal an explanation 

of aggravated assault[?]

4. [Whether t]he PCRA court erred in finding that trial counsel’s 

explanation of the criminal trial process was sufficient to insure 

(sic) a voluntary, knowing, and intelligent plea, generally and 

specifically, acknowledging [Appellant’s] mental health 

issues[?]

5. [Whether t]he PCRA court erred in finding that trial counsel’s 

preparation of [Appellant] for the criminal trial process was 

sufficient to insure (sic) a voluntary, knowing, and intelligent 

plea, generally and specifically, acknowledging [Appellant’s] 

mental health issues[?]

6. [Whether t]he PCRA court erred in finding that trial counsel’s 

preparation of [Appellant] for the sentencing process was 

sufficient to insure (sic) a voluntary, knowing, and intelligent 

plea, generally and specifically, acknowledging [Appellant’s] 

mental health issues[?]

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3 On April 3, 2017, the PCRA court granted Appellant’s request to file his 

appeal from the denial of his PCRA petition nunc pro tunc. Appellant filed a 

timely appeal. Pursuant to the trial court’s order, he filed a concise statement 

of errors complained of on appeal on April 25, 2017. The trial court entered 

its opinion on May 16, 2017. See Pa.R.A.P. 1925.
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(Appellant’s Brief, at 4-5).

On appeal, Appellant claims that his guilty but mentally ill plea was not 

valid because it was not knowingly, intelligently and voluntarily given. (See 

id. at 14-31). Appellant has failed to set forth any cognizable argument that 

he is entitled to relief under the PCRA, and has waived his claims for failure to 

develop them.4

Our well-settled standard and scope of review for the denial of a PCRA 

petition is as follows:

This Court examines PCRA appeals in the light most 

favorable to the prevailing party at the PCRA level. Our review is 

limited to the findings of the PCRA court and the evidence of 

record[.] Additionally, [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. In this respect, we will 

not disturb a PCRA court’s ruling if it is supported by evidence of 

record and is free of legal error. However, we afford no deference 

to its legal conclusions. [W]here the petitioner raises questions 

of law, our standard of review is de novo and our scope of review 

is plenary. . . .

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4 Because Appellant’s issues all challenge the validity of his guilty plea, and 

because all suffer the same deficiencies resulting in waiver, we discuss them 

together. Generally, in issues one through four, he claims the court failed to 

provide “an on the record colloquy which included specific and detailed 

descriptions of the charges to which [Appellant] was pleading and the rights 

that [he] was waiving[.]” (Appellant’s Brief, at 13; see id. at 14-29). 

Appellant’s one-sentence discussion with respect to issue five claims that, 

“[t]here was no discussion of any preparation of [Appellant] for the criminal 

trial process included in the plea colloquy.” (Id. at 30). In his sixth issue, 

Appellant claims, without citation to any legal authority, that the plea was 

invalid because counsel incorrectly described “how a guilty but mentally ill 

plea would be handled by the Department of Corrections.” (Id. at 31).
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Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal 

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

To be eligible for relief under the PCRA, an appellant must prove that 

his conviction resulted from one of several enumerated events, including the 

ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2); 

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012).

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA petitioner 

pleads and proves all of the following: (1) the underlying legal 

claim is of arguable merit; (2) counsel’s action or inaction lacked 

any objectively reasonable basis designed to effectuate his client’s 

interest; and (3) prejudice, to the effect that there was a 

reasonable probability of a different outcome if not for counsel’s 

error. See Commonwealth v. Pierce, 527 A.2d 973, 975–76 

(Pa. 1987); Strickland v. Washington, 466 U.S. 668 (1984). . . 

.

Commonwealth v. Natividad, 938 A.2d 310, 321 (Pa. 2007) (citation 

formatting provided). “When an appellant fails to meaningfully discuss each 

of the three ineffectiveness prongs, he is not entitled to relief, and we are 

constrained to find such claims waived for lack of development.” 

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (citations, internal 

quotation marks, and footnote omitted); see Commonwealth v. Spotz, 18 

A.3d 244, 282 (Pa. 2011) (finding ineffective assistance of counsel claims 

waived for lack of development where, other than asserting that his rights 

were violated, appellant failed to develop issue). “This Court will not act as 

counsel and will not develop arguments on behalf of an appellant.” 
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Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010), appeal 

denied, 29 A.3d. 796 (Pa. 2011) (citation omitted).

Here, aside from one sentence claiming that counsel’s ineffectiveness 

“deprived him of [c]onstitutionally effective counsel, which resulted in an 

unlawfully induced guilty plea[,]” Appellant has failed to set forth any 

cognizable argument that he is entitled to relief under the PCRA. (Appellant’s 

Brief, at 15; see id. at 14-31). He does not discuss or apply the standard for 

ineffectiveness claims, and he fails to develop an argument concerning any of 

the Pierce factors. “Such an undeveloped argument, which fails to 

meaningfully discuss and apply the standard governing the review of 

ineffectiveness claims, simply does not satisfy Appellant’s burden of 

establishing that he is entitled to any relief.” Commonwealth v. Bracey, 

795 A.2d 935, 940 n.4 (Pa. 2001); see Kane, supra at 331.

Therefore, upon review, we conclude that Appellant has waived these 

claims for failure to develop them properly. See Fears, supra at 804; Spotz, 

supra at 282; Bracey, supra at 940 n.4. Accordingly, we conclude that the 

PCRA court did not err when it dismissed his petition because Appellant has 

waived his ineffectiveness claims on appeal.

Moreover, we note that even if Appellant had attempted to frame his 

argument according to the Pierce factors, based on our review of the record 

he would not have been able to sustain his burden to prove counsel’s 

ineffectiveness. During the guilty plea hearing in this matter, Appellant 

underwent a detailed colloquy during which he stated that he understood the 
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crimes to which he was pleading guilty, the elements of those crimes, the 

rights that he was giving up by pleading guilty, and admitted to the factual 

basis of his plea. (See N.T. Guilty Plea Hearing, at 8-22). There is absolutely 

no evidence in the record that, but for counsel’s alleged ineffectiveness in 

failing to even more thoroughly explain the charges to which Appellant was 

pleading guilty, the trial process, or the sentencing process, Appellant would 

not have pleaded guilty but mentally ill. See Commonwealth v. Barndt, 74 

A.3d 185, 192 (Pa. Super. 2013) (“[T]o establish prejudice, the defendant 

must show that there is a reasonable probability that, but for counsel’s errors, 

he would not have pleaded guilty and would have insisted on going to trial.”) 

(citation and internal quotation marks omitted). Therefore, Appellant cannot 

prove that he was prejudiced by counsel’s actions, and would not be able to 

satisfy his burden to prove the Pierce factors. Thus, even if not waived, 

Appellant’s claims would not merit relief.5 

Order affirmed.

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5 To the extent that Appellant attempts to challenges the validity of his plea, 

rather that the effectiveness of counsel, we note that a challenge to the 

voluntariness of a guilty plea must be preserved by either objecting during the 

plea colloquy or filing a timely post-sentence motion to withdraw the plea. 

See Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); Pa.R.A.P. 302(a). Although, “the 

failure to file a petition to withdraw an unlawfully induced plea does not result 

in a waiver where such failure is due to the ineffectiveness of counsel[,]” 

Appellant has not pleaded or proven that counsel was ineffective for failing to 

object to or withdraw his plea. Commonwealth v. Faust, 471 A.2d 1263, 

1266 (Pa. Super. 1984). Therefore, his challenge to the validity of his plea is 

also waived.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/18