Com. v. Carson, K.
Com. v. Carson, K. No. 1624 WDA 2016
| Pa. Super. Ct. | May 15, 2017Background
- Kenneth A. Carson pleaded nolo contendere (counseled) on March 5, 2013 to possession of a controlled substance and possession of drug paraphernalia; sentences imposed May 2, 2013 ran consecutively and consecutive to an unrelated indecent-assault sentence.
- Carson did not file post-sentence motions or a direct appeal; his judgment of sentence became final on June 2, 2013.
- Carson filed three pro se PCRA petitions: first (Sept. 3, 2013) dismissed and affirmed on appeal; second (July 17, 2015) dismissed as untimely; third (Sept. 1, 2016) was the petition at issue and was dismissed by the PCRA court on Sept. 30, 2016 as untimely.
- Carson’s third petition asserted: improper merger of counts for sentencing, ineffective assistance for failing to move to dismiss on double-jeopardy grounds, and failure to explain payment-plan rights prior to sanctions.
- The PCRA court treated the filing as a PCRA petition, issued Rule 907 notice, and dismissed it for lack of jurisdiction due to untimeliness; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts should have merged for sentencing | Carson: counts (1) and (3) should have merged | Commonwealth/PCRA court: claim untimely; merits not reached | Petition untimely; merger claim not considered on merits |
| Whether counsel was ineffective for not moving to dismiss on double jeopardy grounds | Carson: counsel’s failure prejudiced him | Commonwealth/PCRA court: untimely petition; no jurisdiction to review ineffectiveness | Ineffectiveness claim time‑barred; not reached on merits |
| Whether court failed to explain rights about payment plans before sanctions | Carson: court erred by not explaining payment-plan rights | Commonwealth/PCRA court: untimely petition; merits not reached | Claim untimely and dismissed |
Key Cases Cited
- Commonwealth v. Brown, 143 A.3d 418 (Pa. Super. 2016) (standard of review for PCRA denial)
- Commonwealth v. Brown, 141 A.3d 491 (Pa. Super. 2016) (PCRA timeliness and finality rules)
- Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999) (legality-of-sentence claims still must satisfy PCRA time limits)
- Commonwealth v. Johnston, 42 A.3d 1120 (Pa. Super. 2012) (burden to plead and prove timeliness exceptions)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedure for court-appointed PCRA counsel withdrawal)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (procedures for counsel to withdraw under PCRA)