Com. v. Iverson, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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(unpublished memorandum).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 Super. 2012) (unpublished memorandum), at 2.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
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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
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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.
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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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