Com. v. Iverson, C.

• Court: Superior Court of Pennsylvania
• Decided: November 15, 2016
• Docket: 338 WDA 2016
• Status: Unpublished

Opinion

J-S73024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHRISTIAN SCOTT IVERSON

Appellant No. 338 WDA 2016

Appeal from the PCRA Order December 30, 2015 In the Court of Common Pleas of Warren County Criminal Division at No(s): CP-62-CR-0000194-2007

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 15, 2016

Christian Scott Iverson appeals pro se from the order of the Court of

Common Pleas of Warren County denying his petition for relief filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After

review of the tortuous procedural history, set forth below, we have

determined that this petition is Iverson’s first following reinstatement of his

direct appeal rights nunc pro tunc. Thus, Iverson is entitled to appointment

of counsel. See Pa.R.Crim.P. 904(C), 904(F)(2). Accordingly, we vacate

and remand for appointment of counsel and further proceedings pursuant to

the PCRA.

Iverson pled guilty to third-degree murder. On February 29, 2008, the

court sentenced Iverson to twenty (20) to forty (40) years’ imprisonment.

He did not file a direct appeal. On June 23, 2008, Iverson filed a pro se J-S73024-16

PCRA petition alleging trial counsel was ineffective for failing to pursue a

“mental infirmities” defense. The PCRA court appointed counsel and,

following a hearing, found counsel was ineffective. On September 3, 2009,

the court reinstated Iverson’s appellate rights nunc pro tunc. On direct

appeal, this Court affirmed Iverson’s judgment of sentence on November 23,

2010. See Commonwealth v. Iverson, 22 A.3d 1078 (Pa. Super. 2010)

(unpublished memorandum). Iverson requested appellate counsel to file a

petition for allowance of appeal in the Pennsylvania Supreme Court, but

counsel did not do so. See Commonwealth v. Iverson, No. 1997 WDA

2011 (Pa. Super. 2012) (unpublished memorandum), at 2.

On June 13, 2011, Iverson filed a second PCRA petition, again alleging

trial counsel was ineffective for failure to pursue the “mental infirmities”

defense and that appellate counsel was ineffective for failure to petition the

Supreme Court for allowance of appeal. On November 15, 2011, the PCRA

court found appellate counsel was per se ineffective for failing to seek

allowance of appeal. The PCRA court granted Iverson’s petition, in part,

reinstating his direct appeal rights nunc pro tunc to file a petition for

allowance of appeal in the Pennsylvania Supreme Court.1 The PCRA court

also addressed the claim that counsel was ineffective for failing to pursue a

____________________________________________

1 The Supreme Court denied his petition on May 31, 2012. See Commonwealth v. Iverson, 47 A.3d 845 (Pa. 2012) (table).

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mental infirmities defense, and, contrary to law, reached the merits and

determined it was meritless.

In Commonwealth v. Miller, 868 A.2d 578 (Pa. Super. 2005), this

Court stated that when a PCRA court grants a request for reinstatement of

direct appeal rights nunc pro tunc, it may address, but not “reach the merits

of any remaining claims.” Id. at 580. The PCRA court “may inquire, but its

inquiry cannot result in an appealable disposition.” Id. Accordingly, the

PCRA court's “disposition” of Iverson’s additional ineffectiveness claim “was

essentially advisory.” Id. at 581. Nonetheless, Iverson appealed the

November 15, 2011 order, and this Court affirmed on September 7, 2012.2

Iverson filed a petition for allowance of appeal in the Supreme Court of

Pennsylvania on October 4, 2012, which was denied on April 3, 2013.

Iverson filed this, his third PCRA petition, pro se, on October 7, 2015.

The PCRA court dismissed the petition, concluding it was untimely and

Iverson failed to plead and prove a timeliness exception. While the court is

correct the petition is untimely, it incorrectly determined that judgment of

sentence became final on December 23, 2010, when the time to appeal this

Court’s November 23, 2010 order to the Pennsylvania Supreme Court ____________________________________________

2 The panel noted that for purposes of the PCRA, a petition filed following a direct appeal nunc pro tunc will be deemed a timely, first PCRA petition, so long as it is filed within one year of the date on which the judgment of sentence becomes final. See Commonwealth v. O’Bidos, 849 A.2d 243, 252 n.3 (Pa. Super 2004).

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expired.3 In fact, Iverson’s judgment of sentence did not become final until

August 29, 2012, upon expiration of the 90-day period in which Iverson

could seek review in the United State Supreme Court following our Supreme

Court’s denial of allowance of appeal on May 31, 2012. Thus, Iverson had

until August 29, 2013 to file a timely PCRA petition. Iverson filed this

petition on October 7, 2015 and, therefore, it is patently untimely.

However, since his judgment of sentence did not become final until

August 29, 2012, this is technically Iverson’s first PCRA petition filed after

his direct appellate rights were reinstated nunc pro tunc on November 15,

2011. Therefore, he is entitled to counsel to represent him despite any

apparent untimeliness of the petition or the apparent non-cognizability of the

claims presented. Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.

Super. 2001); see also Commonwealth v. Evans, 866 A.2d 442 (Pa.

Super. 2005).

Order vacated. Case remanded. Jurisdiction relinquished.

3 A judgment of sentence “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.” 42 Pa.C.S. § 9545(b)(3). See Pa.R.A.P. 1113(a)(“a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days of the entry of the order of the Superior court sought to review.”); U.S. Sup. Ct. Rule 13, 28 U.S.C.A (“[a] petition for writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when filed with the Clerk within ninety days after entry of the order denying discretionary review.”).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2016

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