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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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2014) (unpublished memorandum).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

____________________________________________


1   18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, and 3126(a)(1), respectively.
J-A21043-18



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


                                       -2-
J-A21043-18



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,

                                         -3-
J-A21043-18



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

                                    -4-
J-A21043-18



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




                                     -5-
J-A21043-18



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




____________________________________________


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.

                                           -6-
