Com. v. Simpson, K.

J-A21043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KOVET SIMPSON :
:
Appellant : No. 618 EDA 2018
Appeal from the PCRA Order Entered February 12, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001139-2012
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 06, 2018
Kovet Simpson appeals from the dismissal as untimely of his third
petition under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Simpson maintains that while his petition is facially untimely, he
satisfied the newly-discovered facts time-bar exception of the PCRA. We
affirm.
The trial court convicted Simpson of rape, sexual assault, and indecent
assault.1 On April 29, 2013, it sentenced Simpson to 11 to 22 years’
imprisonment, and this Court subsequently affirmed the judgment of
sentence. See Commonwealth v. K.S., 100 A.3d 324, (Pa.Super. March 31,
2014) (unpublished memorandum). Simpson filed two PCRA petitions which
were denied. He filed the instant pro se petition on January 16, 2018. The
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1 18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, and 3126(a)(1), respectively.
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PCRA court issued notice of its intent to dismiss the petition without a hearing
and Simpson replied to the notice. See Pa.R.Crim.P. 907. The court then
dismissed the petition on February 12, 2018. This timely appeal followed.
On appeal, Simpson asks us to review three issues:
I. Did the court below err as a matter of law when it denied
the PCRA petition?
II. Was [Simpson’s] Pennsylvania and United States rights
pertaining to due process and access to the court’s denied
where [Simpson] did not possess the ability to properly
communicate and participate in his defense?
III. Did the trial court lack jurisdiction to bring [Simpson] to trial
where [Simpson] did not understand the proceedings?
Simpson’s Br. at 4.
We first address the timeliness of Simpson’s PCRA petition. See
Commonwealth v. Smith, 194 A.3d 126, 2018 WL 3490917 at *4 (Pa.Super.
July 20, 2018). Once the judgment of sentence is final, a petitioner has one
year to file a first or subsequent PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).
“[A] judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (quoting
42 Pa.C.S.A. § 9545(b)(3)). The PCRA is jurisdictional in nature and a court
may not address the merits of an untimely petition unless the petitioner pleads
and proves one of the time-bar exceptions. Commonwealth v. Pursell, 749
A.2d 911, 913-14 (Pa. 2000). These exceptions include: (1) the failure to raise
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the claim previously was due to governmental interference; (2) the facts of
the claim were unknown to the petitioner and could not have been ascertained
by due diligence; or (3) a newly recognized constitutional right that the United
States Supreme Court or the Pennsylvania Supreme Court has held to apply
retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A time-bar exception
must be raised within 60 days from the time the claim could have been raised.
See Commonwealth v. Kretchmar, 189 A.3d 459, 462 (Pa.Super. 2018)
(citing 42 Pa.C.S.A. § 9545(b)(2)).
Here, Simpson’s judgment of sentence became final on April 30, 2014,
when his time to file a petition for allowance of appeal to our Supreme Court
expired. See Pa.R.A.P. § 1113(a). Thus, he had until April 30, 2015, to file a
timely petition. The instant petition filed three years after the deadline is
untimely and the PCRA court lacked jurisdiction to consider the petition. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Simpson contends that he pled and proved the newly-discovered facts
exception. See Simpson’s Br. at 8; see also 42 Pa.C.S.A. § 9545(b)(1)(ii). In
the one and one-half pages in support of his argument, Simpson claims “[he]
suffers from mental health problems and prior to, at trial, and subsequent to
trial, [his] mental deficiencies prevented him from a meaningful
understanding of the proceedings.” Simpson’s Br. at 8. However, this bald
assertion fails to satisfy the newly-discovered facts exception.
When pleading and proving the time-bar exception of newly-discovered
facts, a petitioner must plead and prove: (1) the facts were unknown to him,
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and (2) the facts could not have been ascertained through due diligence. See
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). Simpson must
also show that he raised the claimed within 60 days of the date he could have
first raised it. 42 Pa.C.S.A. § 9545(b)(2). First, Simpson failed to plead or
prove in his PCRA petition that his mental deficiency was previously unknown
to him. Rather, from our review of the record Simpson was aware of his
alleged “mental deficiencies” at least by the time of his second PCRA petition
in 2016. In his second PCRA petition, he claimed that the trial court erred by
not allowing him to introduce evidence of his “mental retardation.” See
Commonwealth v. Simpson, No. 1346 EDA 2015, unpublished
memorandum at 1 (Pa.Super. August 24, 2016) (mental incapacity claim
rejected since it could have been raised on direct appeal). Therefore,
Simpson’s mental deficiencies were known to him by his second PCRA petition
and he has exceeded the 60 day time-bar deadline to raise the claim. Thus,
he cannot claim relief under the newly-discovered facts exception. See
Commonwealth v. Smallwood, 155 A.3d 1054, 1071 (Pa.Super. 2017)
(concluding petitioner who knew or had reason to know “newly-discovered
fact” for more than 60 days failed to meet time-bar exception).
Additionally, Simpson’s reliance on Commonwealth v. Cruz, 852 A.2d
287, 293 (Pa. 2004), is misplaced. The Court in Cruz held that “mental
incompetence at the relevant times, if proven, may satisfy the requirements”
of the newly-discovered fact exception. Id. at 288 (emphasis in original).
Simpson’s case mirrors Cruz in no aspect. To begin, Simpson has not made a
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claim that he is mentally incompetent, unlike Cruz who was found to be
mentally incompetent after he shot himself in the head causing him to lose
part of his brain and rendering him unable to “express emotions and really
discuss the facts of [his] case in any sort of sensible way . . . .” Cruz, 852
A.2d at 288 (quoting Notes of Testimony (“N.T.”), Nolo Contendere Plea
Hearing, 10/13/94, at 2-3)). Simpson fails to meet the requirements of Cruz
because he did not plead much less prove he was incompetent during the time
his right to file a PCRA petition lapsed or that he filed his petition within 60
days of regaining sufficient competency to ascertain the basis of his PCRA
claims. Id.
Here, Simpson filed the subject PCRA petition more than one year after
his judgment of sentence became final, and he did not plead sufficient facts
that, if true, would qualify him for the newly-discovered facts exception.
Simpson provided the PCRA court with no evidence of his mental deficiency
and on appeal only claims that his “mental health problems” prevented him
from understanding the proceedings at trial. Simpson’s Br. at 8. However, his
argument fails to provide further discussion of what mental illness he believes
he has that impaired his ability to understand his trial proceedings. While
Simpson contends that “the facts of record support said contention that the
issues raised in his pro se PCRA [p]etition contained sufficient arguable merit
. . .,” we must disagree. Id. He does not cite to any support in the record
where these “mental deficiencies” prevented him from participating in and
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understanding his proceedings.2 Additionally, his PCRA petition provided no
support that his mental deficiencies were unknown to him and could not have
been discovered through due diligence. Thus, the trial court did not err in
denying Simpson’s untimely PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/18
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2 Our review of the record shows that Simpson knowingly waived his right to
counsel; gave a clear opening statement and closing argument; crossed-
examined the Commonwealth’s witnesses; knew when to ask for a judgment
of acquittal; and presented two defense witnesses for his case in chief. See
N.T., Jury Selection, 1/28/13, at 6-10; see also N.T., Trial, 1/29/13, at 21-
23, 56-91, 149, 174-79.
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