Dissenting Opinion by
Justice SCOTT.I must respectfully dissent from the majority.
What we are doing here today is disposing of an RCr 11.42 motion as untimely according to the language of the rule. Ordinarily, I would agree with this disposition without reservation. But here, I can*818not ignore the circumstances surrounding Stacey prior to, during, and after his entry of his plea of guilt.
In this case, we are not simply denying an untimely collateral attack on a conviction. We are summarily disposing of a claim directly involving Stacey’s constitutional right to due process.
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.” Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). These are the Fifth and Sixth Amendment rights (1) against self-incrimination, (2) to trial by jury, and (3) to confront one’s accusers. Id., e.g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed2.d 923 (1965). The United States Supreme Court has further held that for this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known privilege.” Id. (quoting McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)); See also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
Stacey suffered brain injuries in an automobile accident prior to his.plea. There was medical evidence available to establish that Stacey had suffered permanent brain damage from which he would never recover. The injury to his brain was sufficient enough to prompt a report from the Department of Corrections suggesting that Stacey’s “status” would not change “in regards to treatment” in the sex offender program, as a direct result of his injury, and that he should not be penalized as a result. The question becomes whether Stacey had the capability of understanding that he was brain damaged and whether he could, despite the brain damage, knowingly, intelligently, and voluntarily waive his right to a trial by jury.
The majority points out that the first report of his brain damage was available to him prior to the entry of the plea but he entered the plea nonetheless. They also point out that he knew of his injury for the entire three years thereafter but did not file his RCr 11.42 motion until six months or so after the running of the statute of limitations. Maybe this is so, but the gravity of the denial of due process is such that I cannot deny Stacey the opportunity, in the form of an evidentiary hearing before the trial court, to make the case that because of his brain injury (which is documented) he did not, and could not, through the exercise of due diligence, discover that he was unable to knowingly, intelligently, and voluntarily enter a guilty plea. The real question to be ascertained through the hearing is simply did this injury — and the resulting and uncontroverted deficit — keep him from knowing these things.
We have valid cause to question whether Stacey possessed this understanding and when an individual’s due process rights are in the balance, we must err on the side of caution. Maybe he did know what he was doing — but maybe he did not. An eviden-tiary hearing would answer that question. We are sworn to uphold the Constitution of the United States and that of this Commonwealth wherein all persons are guaranteed the right to due process under the law. As a consequence thereof, we are bound to ensure that Roy Stacey did, in fact, knowingly, intelligently, and voluntarily enter his guilty plea.
The Court of Appeals did not make that determination one way or another — they simply did what was constitutionally required of them and remanded the question to the trial court for a determination based *819upon the evidence. The guarantee of due process requires we do as much.
LAMBERT, C.J., joins this dissent.