J-S12005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEROY COTTON                               :
                                               :
                       Appellant               :    No. 1142 EDA 2019

               Appeal from the PCRA Order Entered April 3, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0410701-1980


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                    Filed: June 25, 2020

        Appellant, Leroy Cotton, appeals pro se from the April 3, 2019 order

entered in the Philadelphia County Court of Common Pleas denying his second

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        Appellant was found guilty of second-degree murder, robbery, and

criminal conspiracy after a bench trial held on March 12, 1982.1 On June 29,

1982, the trial court sentenced Appellant to a term of life imprisonment

without parole. We affirmed the judgment of sentence and the Pennsylvania

Supreme      Court     denied     allowance    of   appeal   on   July   30,   1985.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(b), 3701, and 903, respectively.
J-S12005-20


Commonwealth v. Cotton, 487 A.2d 830 (Pa. Super. 1984), appeal denied,

No. 318 E.D. Alloc. Dkt. 1985 (Pa. filed July 30, 1985).

       Appellant filed his first pro se PCRA petition on March 22, 1990.

Appointed counsel filed an amended petition alleging ineffective assistance of

counsel. The PCRA court denied the petition on September 16, 1992. On

January 28, 1994, this Court affirmed the denial of post-conviction relief,

Commonwealth v. Cotton, 640 A.2d 470, 3257 PHL 1992 (Pa. Super. 1994)

(unpublished memorandum filed January 28, 1994) and the Supreme Court

denied allowance of appeal on June 20, 1994. Commonwealth v. Cotton,

647 A.2d 507, 141 E.D. 1994 (Pa. filed June 20, 1994).

       On July 19, 2012, twenty-six years after his judgment of sentence

became final, Appellant filed a second pro se PCRA petition, styled as a

“Memorandum of Law.”2           In this pleading, Appellant asserted that he was

entitled to a new sentencing hearing pursuant to the requirements outlined in

the then-recent United States Supreme Court opinion in Miller v. Alabama,

567 U.S. 460 (2012).            In Miller, the Supreme Court held that it is

unconstitutional for state courts to impose an automatic life sentence without



____________________________________________


2 The PCRA court properly treated Appellant’s Memorandum of Law as a PCRA
petition. See Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001)
(a collateral petition that raises an issue for which the PCRA statute could
provide relief is to be considered a PCRA petition). “This is true regardless of
the manner in which the petition is titled.” Commonwealth v. Kutnyak, 781
A.2d 1259, 1261 (Pa. Super. 2001) (citation omitted).


                                           -2-
J-S12005-20


the possibility of parole upon a homicide defendant for a murder committed

while the defendant was under eighteen years old. Id. at 489. Appellant

sought leave to amend the petition on December 19, 2013, and again on

February 18, 2016. The PCRA court never ruled on these motions; nonetheless

Appellant filed an amended petition on February 18, 2016. Therein, Appellant

contended that his life sentence also was unconstitutional under Alleyne v.

United States, 570 U.S. 99 (2013). Alleyne held, other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury and proved beyond

a reasonable doubt. Id. at 116. Appellant further averred that the holding in

Alleyne was made retroactive under Montgomery v. Louisiana, 136 S.Ct.

718 (2016), which declared that “when a new substantive rule of constitutional

law controls the outcome of a case, the Constitution requires state collateral

review courts to give retroactive effect to that rule.” Id. at 729.

      Appellant also filed two supplements to the amended petition wherein

he: 1) submitted that the statute under which he was sentenced was rendered

unconstitutional by Alleyne, Supplemental Petition, 5/26/16, at 1; and 2)

directed this Court’s attention to the holding in Commonwealth v. Ciccone,

2016 PA Super 149, 3114 EDA 2014 (Pa. Super. filed July 12, 2016) (en banc)




                                     -3-
J-S12005-20


(withdrawn), that Alleyne applied retroactively.3       Supplemental Petition,

8/22/16, at 1.

       The Commonwealth initially responded to Appellant’s filings in a letter

to the PCRA court stating that if Appellant was under age eighteen at the time

of the murder, the Commonwealth agreed that PCRA relief should be granted

by virtue of the holdings in Miller and Montgomery.           Commonwealth’s

Answer, 10/25/16, at unnumbered 1. The Commonwealth, however, reserved

the right to negate its recommendation if it “discover[ed] that this [Appellant]

was not in fact under 18 years of age at the relevant time. . . .”       Id. at

unnumbered 1 n.1

       On November 2, 2016, the Commonwealth exercised its right to

withdraw its concession that PCRA relief was warranted in Appellant’s case

and informed the PCRA court that Appellant’s matter was improvidently

bundled with cases involving juvenile defendants.       Miscellaneous Motion,

11/2/16, at unnumbered 1. In a follow-up letter brief, the Commonwealth

explained that Appellant was not entitled to relief under Miller because “his


____________________________________________


3 The version of Ciccone referenced by Appellant was withdrawn after our
Supreme Court decided Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016), and held that Alleyne does not apply retroactively “to attacks upon
mandatory     minimum    sentences  advanced     on   collateral   review.”
Washington, 142 A.3d at 820. In Commonwealth v. Ciccone, 152 A.3d
1004 (Pa. Super. 2016), we issued a superseding decision holding,
consistently with Washington, that Alleyne does not apply retroactively to
cases pending on PCRA review. Ciccone, 152 A.3d at 1006.



                                           -4-
J-S12005-20


date of birth is March 17, 1962, and he had just turned 18 at the time of the

crime.” Commonwealth’s Letter Brief, 4/13/16, at unnumbered 1.4

       On July 27, 2017, Appellant simultaneously filed a motion for leave to

amend his PCRA petition and a pleading titled, “Amended Answer to PCRA

Court’s Motion to Dismiss.”5 In both of these pleadings, Appellant referenced

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”), wherein

the Pennsylvania Supreme Court clarified that “there is a presumption against

the imposition of a sentence of life without parole for a juvenile offender[,]

and to rebut the presumption the Commonwealth “bears the burden of

proving, beyond a reasonable doubt, that the juvenile offender is incapable of

rehabilitation.” Commonwealth v. Machicote, 206 A.3d 1110, 1115 (Pa.

2019) (quoting Batts II, 163 A.3d at 411).

       On February 11, 2019, the PCRA court sent notice pursuant to

Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition, citing its

untimeliness.      Appellant filed a response wherein he claimed that the

untimeliness was excused under 42 Pa.C.S. § 9545 (b)(1)(iii) because Batts

II announced a new rule of constitutional law that he could not have

____________________________________________


4Appellant does not dispute that he was over age eighteen when the murder
was committed.

5 Appellant obviously mischaracterized the nature of this pleading in that the
PCRA court had yet to issue notice of intent to dismiss pursuant to
Pa.R.Crim.P. 907. The docket entry refers to this pleading as “Response to
Commonwealth’s Motion to Dismiss PCRA Petition.” Docket Entry # 19.



                                           -5-
J-S12005-20


previously raised. Also in his response, Appellant asserted for the first time

that his life sentence violated the Pennsylvania Constitution’s guarantees of

due process, equal protection, and prohibition of cruel punishments. Answer

to Commonwealth’s Motion to Dismiss, 3/4/19, at 5–6.6

       The PCRA court dismissed Appellant’s petition as untimely on April 3,

2019. This timely appeal followed wherein Appellant presents the following

question for our review:        “Whether the lower court err[ed] in finding that

Appellant’s Post Conviction petition was an untimely filed second and

subsequent PCRA petition?” Appellant’s Brief at 1 (unnecessary capitalization

omitted).

       Any PCRA petition must be filed within one year of the date the judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence

becomes final “at the conclusion of direct review, including discretionary



____________________________________________


6 Appellant also mistitled this pleading. The Commonwealth filed its initial
answer to Appellant’s petition on October 25, 2016, which it supplemented by
letter briefs dated November 11, 2016, and April 13, 2017. In the latter letter
brief, the Commonwealth asserted that Appellant was not entitled to relief
because he was not a juvenile when the crime was committed.
Commonwealth’s Letter Brief, 4/13/17, at unnumbered 1. Thus, if in fact
Appellant’s filing on March 4, 2019, was intended as a response to the
Commonwealth’s brief, it would be untimely.

      It is logical to assume instead that Appellant’s March 4, 2019 answer
was a response to the PCRA court’s February 11, 2019 notice of intent to
dismiss the petition, and we will henceforth treat it as such. See Docket Entry
# 30.



                                           -6-
J-S12005-20


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.” Id. at §

9545(b)(3). “The timeliness requirements of the PCRA are jurisdictional in

nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”

Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019) (citation

omitted); see also Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (stating that a PCRA petition cannot be addressed unless the PCRA court

has jurisdiction, and jurisdiction does not exist if the PCRA petition is untimely

filed). In addition, “the PCRA confers no authority upon this Court to fashion

ad hoc equitable exceptions to the PCRA time-bar in addition to those

exceptions expressly delineated in the Act.” Commonwealth v. Eller, 807

A.2d 838, 845 (Pa. 2002).

       Here, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on July 30, 1985. Thus, Appellant’s judgment of sentence

became final on September 30, 1985, when his time for seeking review with

the United States Supreme Court expired. See U.S. Sup.Ct. Rule 13.7

Appellant’s instant PCRA Petition, which was filed almost twenty-seven years

later, is facially untimely. See 42 Pa.C.S. § 9545(b)(3).



____________________________________________


7U.S. Sup. Crt. Rule 13, effective January 1, 1990, was preceded by U.S. Sup.
Crt. Rule 20.1, which is applicable to the instant case. In 1985, Rule 20.1
required the filing of a petition for writ of certiorari within sixty days of the
order denying discretionary review by the state court of last resort.


                                           -7-
J-S12005-20


       However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can explicitly plead and prove one of the three exceptions set

forth at 42 Pa.C.S § 9545(b)(1)(i)-(iii).          To establish an exception to the

timeliness requirement, a petitioner must plead and prove: 1) the failure to

raise the claim was the result of government interference; 2) the facts upon

which the claim is predicated were unknown and could not have been

discovered with due diligence; or 3) the right asserted is a Constitutional right

recognized by the Supreme Court of the United States or the Supreme Court

of Pennsylvania after the time period provided in the section, and the court

has held that it applies retroactively.          Id.   See also Commonwealth v.

Bennett, 930 A.2d 1264, 1268 (Pa. 2009). Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).8

       The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)

statement, but it did author an opinion explaining its rationale for dismissing

Appellant’s petition as untimely.              The PCRA court rejected Appellant’s




____________________________________________


8  We note that effective December 24, 2018, the period in which to file a
petition invoking one of the three exceptions was extended from sixty days to
one year. 42 Pa.C.S. § 9545(b)(2). This amendment applies to claims arising
one year prior to the effective date of the amendment arising December 24,
2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Because Appellant
filed his instant PCRA petition on July 19, 2012, this amendment does not
apply.


                                           -8-
J-S12005-20


argument that he met the exception to the timeliness dictates of the PCRA

outlined in 42 Pa.C.S. § 9545(b)(1)(iii) on the following basis:

             Petitioner attempted to satisfy the newly-recognized
      constitutional right exception, § 9545(b)(1)(iii), by invoking the
      new constitutional right announced in Miller v. Alabama, 132 S.Ct.
      2455 (2012). Although the United States Supreme Court in
      Montgomery v. Louisiana[,] 136 S.Ct. 718 (2016), as revised (Jan.
      27, 2016) ruled that Miller has retroactive effect in cases on state
      collateral review, the Miller holding specifically limited itself to
      juveniles under the age of eighteen years at the time of the
      offense who were sentenced to a mandatory term of life
      imprisonment without parole. Miller, 132 S.Ct. at 2460. Although
      Petitioner was sentenced to life imprisonment, he was over the
      age of eighteen at the time of the offense, placing his sentence
      outside the reach of the Supreme Court’s Miller decision.

             Petitioner additionally sought relief on the ground that his
      sentence was illegal in light of Alleyne v. United States, 133 S.Ct.
      2151 (2013). In Alleyne, the Supreme Court held that any fact
      other than a prior conviction requiring imposition of a mandatory
      minimum sentence must be found beyond a reasonable doubt by
      the trier of fact. Id. at 2155. Petitioner argued that Montgomery
      rendered Alleyne retroactive to cases on collateral review.
      However, the decision in Montgomery is narrowly applied to the
      decision in Miller.     Additionally, to date, the courts of this
      Commonwealth considering the issue have held that Alleyne does
      not apply retroactively. See Commonwealth v. Washington, 142
      A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not apply
      retroactively to cases pending on collateral review"); see also
      Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)
      (stating that while Alleyne claims go to the legality of the
      sentence, a court cannot review a legality claim where it does not
      have jurisdiction).

            Lastly, Petitioner attempted to invoke the newly recognized
      constitutional right exception by citing to Commonwealth v. Batts,
      163 A.3d 410 (Pa. 2017). The Pennsylvania [Supreme] Court
      addressed in Batts the procedural requirements for sentencing a
      juvenile homicide defendant in light of the United States Supreme
      Court precedents in Miller and Montgomery. Batts, 163 A.3d at
      443-44. The holding in Batts did not create a new constitutional
      law but rather applied the existing law as held by Miller.

                                     -9-
J-S12005-20


       Furthermore, irrespective of whether Batts provided Petitioner
       with a new constitutional right, the Pennsylvania Supreme Court
       has never held Batts should be applied retroactively. Therefore,
       Petitioner’s reliance upon the newly recognized constitutional right
       exception necessarily failed.

PCRA Court Opinion, 6/28/19, at 3–4 (footnotes omitted).

       Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.”   Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citations omitted).

       In his appellate brief, Appellant shifts his focus from the holdings of

Miller, Montgomery, and Alleyne and instead attempts to overcome the

PCRA’s jurisdictional time-bar by claiming that Batts II created a new and

retroactive constitutional right, which rendered his life without parole sentence

illegal.   Appellant’s Brief at 4–5.    This attempt fails.   In Batts II, the

Pennsylvania Supreme Court held that trial courts must apply a presumption

against the imposition of life without parole sentences for juvenile offenders,

which is rebuttable in cases where the juvenile is “incapable of rehabilitation”

and “permanently incorrigible.” Batts II, 163 A.3d at 416, 439. Thus, Batts

II is inapposite to the instant case because Appellant was not a juvenile at

the time he committed his crime. Further, even if Batts II were otherwise


                                       - 10 -
J-S12005-20


applicable, our Pennsylvania Supreme Court has never held that its holding is

a newly-recognized constitutional right or that it applies retroactively.

Accordingly, Appellant cannot satisfy subsection 9545(b)(1)(iii)’s time-bar

exception.

       Appellant also argues that “the creation of two classes of offenders, one

eligible for relief under [Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016)]

and one ineligible, based solely on the date their convictions became final”

violates the Pennsylvania Constitution’s guarantee of due process, equal

protection, and prohibition on cruel punishments.     Answer to PCRA Court’s

Notice of Intent to Dismiss, 3/4/19, at 5–6. 9 We must first consider whether

Appellant has waived of this issue. Such analysis requires a brief review of

Appellant’s numerous filings in this matter.

       After Appellant filed his initial petition, he sought leave to amend on

three dates, December 19, 2013, February 18, 2016, and July 27, 2017. The

2016 motion to amend was accompanied by an amended petition. The July

2017 filing included the inaptly titled, “Amended Answer to PCRA Court’s

Motion to Dismiss.” See n.5, supra. Additionally, on two other occasions,


____________________________________________


9 In Wolfe, the Pennsylvania Supreme Court recognized that the effect of
Alleyne was “to invalidate a range of Pennsylvania sentencing statutes
predicating mandatory minimum penalties upon non-elemental facts and
requiring such facts to be determined by a preponderance of the evidence at
sentencing.” 140 A.3d 654. The High Court then held that “the entire
sentencing plan must be reevaluated in instances in which a defendant
[successfully] challenges one of several interdependent sentences.” Id. at
663.

                                          - 11 -
J-S12005-20


May 26, 2016, and August 22, 2016, Appellant filed supplemental petitions.

All of these additional pleadings were filed without leave of court.

Nonetheless, in its February 11, 2019 Notice of Dismissal and its Pa.R.A.P.

1925(a) opinion, the PCRA court addressed the allegations raised in the

amended and supplemental filings.

      This Court has held that if a PCRA court does not strike the supplemental

petitions or amended petitions filed without leave of court and considers these

pleadings when it addressed the petitioner’s arguments, the PCRA court

implicitly permitted amendment under Pa.R.Crim.P. 905(A) (the PCRA court

“may grant leave to amend or withdraw a petition for post-conviction collateral

relief at any time. Amendment shall be freely allowed to achieve substantial

justice.”). Commonwealth v. Brown, 141 A.3d 491, 503–504 (Pa. Super.

2016) (citation omitted). Thus, the allegations raised in the above-referenced

filings were not subject to waiver.    We do not, however, reach a similar

conclusion in regard to the claim raised in Appellant’s Answer to the PCRA

Court’s Notice of Intent to Dismiss the petition.

      In Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), we

concluded that claims raised for the first time in response to a PCRA court’s

Rule 907 notice are not preserved for review unless petitioner seeks, and the

PCRA court grants, permission to file an amended petition.       Id. at 1192.

Herein, Appellant did not request leave to amend his petition to assert his

claim concerning the legality of his sentence under the Pennsylvania


                                     - 12 -
J-S12005-20


Constitution and the PCRA court did not address the allegation. Accordingly,

Appellant has not preserved the issue for our review.

     For the above-stated reasons we affirm the order dismissing Appellant’s

PCRA petition. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/20




                                   - 13 -
