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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum).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 Super. 2012) (unpublished memorandum), at 2.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

____________________________________________

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