Com. v. Cottman, G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY COTTMAN :
:
Appellant : No. 1386 EDA 2020
Appeal from the PCRA Order Entered June 29, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004176-1999
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 31, 2020
Gregory Cottman (Cottman) appeals pro se from the order entered
denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546, in the Court of Common Pleas of Delaware County
(PCRA court). Cottman challenges the legality of his sentence. After our
thorough review, we affirm.
I.
We take the following factual and procedural histories from our
independent review of the certified record. On April 20, 2000, a jury convicted
Cottman of Robbery, Theft by Unlawful Taking, Conspiracy and Possession of
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*
Retired Senior Judge assigned to the Superior Court.
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a Firearm Without a License. The charges related to Cottman’s robbing of an
undercover Upper Darby Police Detective and confidential informant at
gunpoint during the purchase of illegal narcotics.1 On June 6, 2000, the court
sentenced Cottman to a term of incarceration of not less than 66 nor more
than 216 months for the Robbery conviction, a consecutive term of not less
than 36 nor more than 180 months for Conspiracy to Commit Robbery, and a
consecutive term of not less than 14 nor more than 84 months on the
Possession of a Firearm Without a License conviction, resulting in an aggregate
term of not less than nine years, eight months nor more than 40 years’
incarceration. The Theft by Unlawful Taking and Conspiracy to Commit Theft
by Unlawful Taking conviction merged for sentencing purposes. The court
denied Cottman’s post-sentence motion requesting that it reconsider the
sentence because it was imposed upon consideration of information contained
in the Pre-Sentence Investigation (PSI) report that conflicted with his version
of events. (See Motion to Reconsider Sentence, 6/06/00, at 1). This Court
affirmed2 his judgment of sentence on June 21, 2001, and the Pennsylvania
Supreme Court denied further review on November 20, 2001. (See
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1
18 Pa.C.S. §§ 3701(a)(2), 3921(a), 903(a) and 6106(a)(1), respectively.
2
On direct appeal, Cottman challenged the sufficiency of the evidence to
support his Robbery conviction, not the issue raised in his post-sentence
motion. (See Commonwealth v. Cottman, No. 2666 EDA 2000,
unpublished memorandum at *5 (Pa. Super. filed 6/21/01).
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Commonwealth v. Cottman, 779 A.2d 1215 (Pa. Super. 2001), appeal
denied, 790 A.2d 1013 (Pa. 2001)).
Eighteen years later, on December 30, 2019, Cottman filed a pro se
Application for Modification and Reconsideration in which he argued that his
sentence, although “well within the statute,” is excessive and illegal.
(Application for Modification/Reconsideration, 12/30/19, at Paragraphs 8, 14).
Specifically, he claimed the aggregate sentence violates the Sentencing
Guidelines, was in retaliation for him not taking the plea deal offered by the
Commonwealth, and was not supported by the record. (See id. at Paragraphs
8, 11, 14, 15). The court denied the motion on January 2, 2020, as an
untimely post-sentence motion that raised a discretionary and not a legality
issue as alleged by Cottman.3 (See Order, 1/02/20, at 1 n.1 & 2). Cottman
did not appeal the court’s order.
On January 17, 2020, Cottman filed a pro se first PCRA petition in which
he argued that the court’s imposition of consecutive sentences resulted in an
aggregate sentence that “was manifestly excessive, unreasonably harsh,
outside of the recommended sentencing guidelines, not imposed in
accordance with the currently established precedent[,] imposed in retaliation
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3
The PCRA opinion reflects that Cottman’s Application for
Modification/Reconsideration was filed on December 13, 2019, and that the
court treated it as a PCRA petition. (See PCRA Court Opinion, 7/17/20, at 1-
2). However, we are relying on the court’s docket and review of the record
for our recitation of the procedural history.
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for not accepting a negotiated plea agreement previously offered,” failed to
consider mitigating factors, and violated the Sentencing Code, which he
recently discovered by talking to an inmate and doing research at the prison
law library. (See PCRA Petition, 1/17/20, at Paragraphs 16, 19-22, 25).
Appointed counsel filed a Turner/Finley4 letter and application to
withdraw on April 16, 2020. On May 14, 2020, the PCRA court provided
Cottman with Rule 907 notice of its intent to dismiss the petition without a
hearing and granted counsel’s application. See Pa.R.Crim.P. 907. It formally
dismissed Cottman’s PCRA petition as untimely with no exception proven on
July 1, 2020. He timely appealed.5 No Rule 1925(b) statement was ordered,
but the court filed an opinion on July 20, 2020. See Pa.R.A.P. 1925.
II.
A.
As a preliminary matter, we note that Cottman’s PCRA petition appears
to be an attempt at a “second bite at the apple” where he raised similar claims
in his Application for Modification/Reconsideration that the court denied as
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4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
5
“We review an order granting or denying a petition for collateral relief to
determine whether the PCRA court’s decision is supported by the evidence of
record and free of legal error. We will not disturb the findings of the PCRA
court unless there is no support for those findings in the record.”
Commonwealth v. Velazquez, 216 A.3d 1146, 1149 (Pa. Super. 2019).
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untimely only two weeks prior to the PCRA petition’s filing. Moreover, we
concur with the Commonwealth’s observation that although Cottman frames
his PCRA petition as raising an illegal sentence claim, his arguments go to the
discretionary aspects of his sentence. (See Commonwealth’s Brief, at 7, 9);
(PCRA Petition, at Paragraph 21); see also Commonwealth v. Prisk, 13
A.3d 526, 532 (Pa. Super. 2011) (“[A]llegation of excessiveness due to
imposition of consecutive sentences implicates discretionary aspects of
sentencing.”) (citation omitted); Commonwealth v. Robinson, 931 A.2d 15,
21 (Pa. Super. 2007) (claim of vindictiveness implicates discretionary aspects
of sentence); Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005)
(claim that sentence is manifestly excessive goes to discretionary aspects of
sentencing); Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super.
1998) (en banc) (“[M]isapplication of the Sentencing Guidelines constitutes a
challenge to the discretionary aspects of sentence.”); Commonwealth v.
Cruz-Centano, 668 A.2d 536, 545 (Pa. Super. 1995), appeal denied, 676
A.2d 1195 (Pa. 1996) (claim that sentencing court failed to consider certain
mitigating factor implicates the discretionary aspects of sentence).
It is well-settled that “[c]hallenges to the discretionary aspects of
sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler,
930 A.2d 586, 593 (Pa. Super.2007), appeal denied, 944 A.2d 756 (Pa. 2008);
see also Commonwealth v. Wrecks, 934 A.2d 1287, 1288 (Pa. Super.
2007) (“Requests for relief with respect to the discretionary aspects of
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sentence are not cognizable in PCRA proceedings.”) (citation omitted). Hence,
Cottman is not entitled to any relief under the PCRA.
Furthermore, even if Cottman’s claim were cognizable, it would not
merit relief.
B.
Cottman argues that his sentence is “illegal” because it is “manifestly
excessive, outside the guidelines, not in conformity with the mandated
procedural requirements of 42 Pa.C.S. § 9721(b) and in excess of the
statutory maximum when consecutively aggregated.” (Cottman’s Brief, at 7).
He concedes that his petition is untimely. (See id. at 8);6 7
see also
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (“A PCRA petition,
including a second or subsequent one, must be filed within one year of the
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6
Cottman’s judgment of sentence became final on February 18, 2002, 90 days
after the Pennsylvania Supreme Court denied his petition for allowance of
appeal. See Sup.Ct.R. 13. Therefore, he had one year from that date to file
a petition for collateral relief unless he pleaded and proved that a timeliness
exception applied. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Accordingly,
Cottman’s current petition, filed on December 30, 2019, 17 years past the
deadline, is untimely on its face unless he pleads and proves one of the
statutory exceptions to the time-bar.
7
Cottman also maintains that the PCRA timeliness requirements do not apply
to this matter because his issue challenges the legality of his sentence. (See
Cottman’s Brief, at 15). However, it is well-settled that, “[a]lthough legality
of the sentence is always subject to review within the PCRA, claims must still
first satisfy the PCRA’s time limits or one of the exceptions thereto.”
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. Super. 1999) (citation
omitted). Moreover, as we noted above, Cottman’s claim challenges the
discretionary, not illegal, aspects of his sentence.
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date the petitioner’s judgment of sentence became final, unless he pleads and
proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1).”)
(citation and footnote omitted).
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition: (1) the petitioner’s inability to raise a
claim because of governmental interference; (2) the discovery of previously
unknown facts that would have supported a claim; and (3) a newly-recognized
constitutional right. See Jones, supra at 17. A PCRA petition invoking one
of these statutory exceptions must “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Cottman maintains that the discovery of previously unknown facts
exception to the PCRA time-bar applies to this case. (See Cottman’s Brief, at
4, 8-11, 14). Specifically, he alleges that “his recent exploration of the
institutional law library made available to him advised him that the maximum
sentence he received of 40 years was statutorily illegal.” (Id. at 11); (see
also id. at 14) (stating he discovered that his sentence was illegal “while he
was speaking with another inmate in the Institutional Law Library at the
institution in which he is currently confined.”). This claim fails.
We acknowledge that:
“[T]he presumption that information which is of public record
cannot be deemed ‘unknown’ for purposes of subsection
9545(b)(1)(ii) does not apply to pro se prisoner petitioners. …”
“Accordingly, consistent with the statutory language, in
determining whether a petitioner qualifies for the exception to the
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PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii),
the PCRA court must first determine whether ‘the facts upon which
the claim is predicated were unknown to the petitioner.’ … After
the PCRA court makes a determination as to the petitioner’s
knowledge, it should then proceed to consider whether, if the facts
were unknown to the petitioner, the facts could have been
ascertained by the exercise of due diligence, including an
assessment of the petitioner’s access to public records.”
Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) (emphasis
omitted).
Instantly, Cottman does not argue that he lacked access to the prison
law library. (See Cottman’s Brief, at 8-16). He merely states that he
discovered that his sentence was illegal when speaking to another inmate
there and that he then researched the issue. (Id. at 11, 14). He provides no
argument that he exercised either due diligence in discovering “facts” about
his sentence or why, in the nearly 20 years since his sentence was imposed,
they remained unknown until speaking with another inmate and thereafter
doing research. (See id. at 8-16).
Accordingly, even if relief under the PCRA were available to Cottman,
we agree with the PCRA court that he has failed to prove an exception to the
PCRA time-bar. See Velazquez, supra at 1149.8
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8
Even if Cottman were entitled to PCRA relief and had proved a timeliness
exception, his issue would lack merit. We discern no manifest abuse of
discretion in the court’s decision to impose consecutive sentences that
resulted in an aggregate term of not less than nine years and eight months
nor more than 40 years where the court possessed a PSI report and was aware
of all facts of the incident in which Cottman robbed an undercover police officer
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/20
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and confidential informant at gunpoint during an illegal narcotics buy. See
Commonwealth v. Austin, 66 A.3d 798, 809 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (“Sentencing is vested in the discretion of
the trial court and will not be disturbed absent a manifest abuse of that
discretion.”) (citation omitted). Hence, his issue would lack merit.
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