Opinion
NO. 93096–1
06-29-2016
In re the Personal Restraint of Daniel Simms, Petitioner.
ORDER
¶ 1 Department II of the Court, composed of Chief Justice Madsen and Justices Owens, Stephens, González and Yu, considered the personal restraint petition at its June 28, 2016, Motion Calendar. The Petitioner, Daniel Simms, filed the personal restraint petition in the Court of Appeals in February 2016. The petition challenges Simms' 2006 convictions for first degree robbery, two counts of second degree assault, and first degree unlawful possession of a firearm. To avoid the one-year limit in RCW 10.73.090 on seeking collateral relief, Simms relies on the exemption for “newly discovered evidence”. RCW 10.73.100(1) provides that the time limit does not apply to a petition based on newly discovered evidence if the defendant acted with reasonable diligence in discovering the evidence and filing the petition. The Court of Appeals found the petition improperly successive under RCW 10.73.140 and transferred the petition to this Court.
¶ 2 The “newly discovered evidence” relied on by Simms consists of mental health evaluations calling into question his competency to stand trial and to represent himself at trial. But this evidence does not qualify as “newly discovered” because it was discoverable before trial in the exercise of reasonable diligence. See In re Pers. Restraint of Lord , 123 Wn.2d 296, 320, 868 P.2d 835 (1994). And Simms did not act with reasonable diligence in discovering the evidence and filing his latest petition for purposes of RCW 10.73.100(1). Accordingly, it was unanimously agreed that the following order be entered.
¶ 3 IT IS ORDERED:
¶ 4 That the Petitioner's Personal Restraint Petition is denied as time-barred.
For the Court
/s/ Madsen, C.J.
CHIEF JUSTICE