J-A01034-20
2020 PA Super 44
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES HENRY COBBS :
:
Appellant : No. 3339 EDA 2018
Appeal from the PCRA Order Entered October 23, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000287-1979
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED FEBRUARY 24, 2020
Appellant, James Henry Cobbs, appeals from the order of the Court of
Common Pleas of Montgomery County (trial court) that dismissed his petition
filed under the Post Conviction Relief Act (PCRA)1 as untimely. Appellant’s
PCRA petition sought relief from a sentence of life imprisonment without
parole under 18 Pa.C.S. § 2704, which imposes a mandatory life sentence for
assaults by prisoners under life sentence, based on Miller v. Alabama, 567
U.S. 460 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) and
their effect on Appellant’s prison assault conviction. Appellant was an adult
at the time of the prison assault, but was under the age of 18 when he
committed the underlying crime for which he was serving the life sentence
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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that made 18 Pa.C.S. § 2704 and a mandatory life sentence applicable to the
assault. We conclude that Appellant’s PCRA petition was not untimely, but
affirm the dismissal of the PCRA petition on the ground that it fails on the
merits.2
In 1970, when he was 17 years old, Appellant participated in a robbery
in which the victim was stabbed to death. Appellant was convicted of first-
degree murder and sentenced to life imprisonment without parole for that
crime in the Court of Common Pleas of Allegheny County (the Allegheny
County case).
On December 18, 1978, when he was 25 years old and was serving the
Allegheny County case life without parole sentence at SCI-Graterford,
Appellant stabbed another inmate in the forehead in a fight. Appellant was
convicted by a jury of assault by a life prisoner on May 31, 1979, and was
sentenced to life without parole for this crime in accordance with 18 Pa.C.S. §
2704, with that sentence concurrent to his Allegheny County case life
sentence. There was evidence at trial that the other inmate had instigated
the fight, but the evidence also showed that Appellant continued the fight and
stabbed the other inmate after the other inmate was being restrained by a
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2 We may affirm a trial court’s decision if there is a proper basis for the result
reached, even if it is different than the basis relied upon by the trial court.
Generation Mortgage Co. v. Nguyen, 138 A.3d 646, 651 n.4 (Pa. Super.
2016); In re Estate of Rood, 121 A.3d 1104, 1105 n.1 (Pa. Super. 2015).
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prison guard. Commonwealth v. Cobbs (Cobbs I), 431 A.2d 335, 337 (Pa.
Super. 1981).
Appellant appealed the assault by a life prisoner conviction and this
Court affirmed the conviction on June 19, 1981. Cobbs I, supra. The
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on June 4, 1982. 181 E.D. Allocatur Docket 1982. In 1986, Appellant
filed a petition under the former Post Conviction Hearing Act (PCHA), 42
Pa.C.S. §§ 9541-9551 (superseded), which the trial court denied. This Court
affirmed the denial of Appellant’s PCHA petition and the Pennsylvania Supreme
Court denied his petition for allowance of appeal. Commonwealth v. Cobbs,
528 A.2d 255 (Pa. Super. 1987) (unpublished memorandum), appeal
denied, 539 A.2d 810 (Pa. 1987).
Appellant filed the instant PCRA petition on August 20, 2012, 56 days
after the United States Supreme Court held in Miller that mandatory life
without parole sentences are unconstitutional where the defendant was under
the age of 18 at the time of the crime. On February 11, 2013, the trial court
issued a notice of its intent to dismiss Appellant’s petition without a hearing
as untimely. Appellant filed a pro se response to this notice arguing that the
PCRA petition was timely because it was filed within 60 days of the Miller
decision. 2013 Response to Notice of Intent to Dismiss ¶2. The trial court
took no further action on the PCRA petition at that time.
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On March 22, 2016, 57 days after the United States Supreme Court’s
decision in Montgomery v. Louisiana holding that Miller applies
retroactively, counsel entered an appearance for Appellant and filed a request
for leave to file an amended PCRA petition. The trial court granted this request
in December 2016 and an amended PCRA petition was filed on December 30,
2016. Because Appellant had filed a PCRA petition in the Allegheny County
case challenging his underlying life without parole sentence under Miller and
Montgomery v. Louisiana, the trial court ordered that this PCRA petition be
held in abeyance pending resolution of that Allegheny County case PCRA
petition. On September 19, 2017, Appellant was resentenced in the Allegheny
County case to 40 years to life for the 1970 murder that he committed when
he was 17.
On October 4, 2017, the trial court issued an order granting Appellant
leave to file a further amended PCRA petition and Appellant filed a second
amended PCRA petition and supporting brief on November 17, 2017. In this
second amended PCRA petition and supporting brief, Appellant asserted that
Miller, Montgomery v. Louisiana and the September 2017 Allegheny
County case resentencing eliminated his status as a life prisoner under 18
Pa.C.S. § 2704, and that the PCRA petition was timely under 42 Pa.C.S. §
9545(b)(1)(iii) because it was filed within 60 days after the Miller decision
and was pending when Montgomery v. Louisiana made Miller retroactive
and when Appellant’s underlying life without parole sentence in the Allegheny
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County case was set aside. Second Amended PCRA Petition & Brief ¶¶15-17,
22-24, 27-31, & pp. 6-8. The Commonwealth moved to dismiss the PCRA
petition and the trial court on October 5, 2018, issued a notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition without a hearing
on the ground that it was untimely. Appellant timely responded to the
Pa.R.Crim.P. 907 notice making arguments similar to those in the second
amended PCRA petition and supporting brief. 2018 Response to Notice of
Intent to Dismiss ¶¶4, 13-15, 20-22, 25-27, 31, & pp. 5-9. On October 23,
2018, the trial court dismissed the PCRA petition as untimely. This timely
appeal followed.
Appellant presents the following single issue for our review:
Did the lower court err in denying James Cobbs relief under
Pennsylvania's Post-Conviction Relief Act where James timely
challenged his unconstitutional conviction and sentence of
“Assault by Life Prisoner” that resulted in a mandatory life
sentence, where a newly-recognized constitutional right was
retroactively applied to James and nullified the life sentence on
which the conviction and life without parole sentence was
predicated and where James took every reasonable measure to
pursue his claim in a timely fashion?
Appellant’s Brief at 2.
As a threshold matter, we must address whether the PCRA petition at
issue in this appeal was timely filed. We conclude that it was.
The PCRA provides that “[a]ny petition under this subchapter, including
a second or subsequent petition, shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be
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filed beyond the one-year time period only if the convicted defendant pleads
and proves one of the following three exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
Id. At the time of all events relevant to this PCRA petition, Section 9545(b)(2)
required that a PCRA petition invoking an exception “be filed within 60 days
of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2)
(in effect January 16, 1996 to December 23, 2018).3 The PCRA’s time limit is
mandatory and jurisdictional, and a court may not ignore it and reach the
merits of the PCRA petition, even where the convicted defendant claims that
his sentence is unconstitutional and illegal. Commonwealth v. Fahy, 737
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3 In 2018, Section 9545(b)(2) was amended to provide that a PCRA petition
invoking an exception “shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2); Act of October 24,
2018, P.L. 894, No. 146, § 2. The Act amending Section 9545(b)(2) provided
that the one-year period applies only to timeliness exception claims arising on
or after December 24, 2017. Act of October 24, 2018, P.L. 894, No. 146, §§
3, 4. The events on which Appellant claims timeliness exceptions are the 2012
Miller decision, the 2016 Montgomery v. Louisiana decision and Appellant’s
September 2017 Allegheny County case resentencing. Because all of these
occurred prior to December 2017, the 60-day rather than the one-year period
applies here.
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A.2d 214, 223 (Pa. 1999); Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.
Super. 2018); Commonwealth v. Woods, 179 A.3d 37, 43 (Pa. Super.
2017).
Appellant’s judgment of sentence became final on September 2, 1982,
upon the expiration of the ninety-day period to seek review with the United
States Supreme Court after the denial of his petition for allowance of appeal.
42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. This PCRA petition, filed over 29
years later, is untimely unless one of the three Section 9545(b)(1) timeliness
exceptions applies. Appellant pled in his PCRA petition and argues in this
Court that the PCRA petition is timely under Section 9545(b)(1)(iii)’s
exception for newly recognized constitutional rights. We agree.
The timeliness exception for newly recognized constitutional rights
applies only where the defendant is entitled to relief under the holding of a
United States or Pennsylvania Supreme Court decision. 42 Pa.C.S. §
9545(b)(1)(iii); Commonwealth v. Lee, 206 A.3d 1, 9-11 (Pa. Super. 2019)
(en banc); Commonwealth v. Furgess, 149 A.3d 90, 93-94 (Pa. Super.
2016). Arguments that a decision of the United States or Pennsylvania
Supreme Court must be extended to apply to other types of cases do not
satisfy the requirements of Section 9545(b)(1)(iii) of the PCRA. Lee, 206
A.3d at 9-11; Commonwealth v. Montgomery, 181 A.3d 359, 366-67 (Pa.
Super. 2018) (en banc); Furgess, 149 A.3d at 94; Commonwealth v.
Lawson, 90 A.3d 1, 6-8 (Pa. Super. 2014).
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Here, the United States Supreme Court recognized a new constitutional
right in Miller, that mandatory life imprisonment without parole is
unconstitutional for crimes committed when the defendant was under the age
of 18, and held that right retroactive in Montgomery v. Louisiana. That
right applied to Appellant without extension beyond the Supreme Court’s
holdings and his Allegheny County case life imprisonment without parole
sentence was therefore set aside based on Miller and Montgomery v.
Louisiana. Because Appellant is challenging his assault by a life prisoner
conviction on the ground that Miller and Montgomery v. Louisiana
invalidated a predicate on which that conviction necessarily depended,4 he is
not seeking to extend these decisions to a new class of defendants or cases,
but is raising an issue that arises based on the alleged direct effect of the
newly recognized and retroactive constitutional right on his conviction. We
therefore conclude that Appellant’s PCRA petition is based on “a constitutional
right that was recognized by the Supreme Court of the United States … after
the time period provided in this section [that] has been held by that court to
apply retroactively.” Because Appellant filed this PCRA petition within 60 days
of the United States Supreme Court’s decision in Miller and it remained
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4 If, in contrast, Appellant were asserting an argument that it is
unconstitutional to consider his conviction as a juvenile as a basis for a life
without parole sentence for his prison assault as an adult, that would be an
extension of Miller and Montgomery v. Louisiana that cannot be raised
under 9545(b)(1)(iii). Lawson, 90 A.3d at 6-8.
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pending when Montgomery v. Louisiana was decided and when he was
resentenced under those decisions, it was timely filed.
The fact that Appellant’s PCRA petition was timely filed does not,
however, require the conclusion that the unconstitutionality of his life without
parole murder sentence under Miller and Montgomery v. Louisiana
invalidates his conviction under 18 Pa.C.S. § 2704 for an assault committed
more than 30 years before that murder sentence was set aside. Whether
Miller and Montgomery v. Louisiana affect Appellant’s assault by a life
prisoner conviction turns on two issues: 1) whether a subsequent vacating of
the underlying life sentence affects the validity of an assault by a life prisoner
conviction for an assault that occurred while the life sentence was in effect;
and if so, 2) whether Appellant’s current sentence of 40 years to life
constitutes a sentence of “life imprisonment” under 18 Pa.C.S. § 2704.
Section 2704 provides, and provided at the time of Appellant’s prison
assault and conviction for that assault,
Every person who has been sentenced to death or life
imprisonment in any penal institution located in this
Commonwealth, and whose sentence has not been commuted,
who commits an aggravated assault with a deadly weapon or
instrument upon another, or by any means of force likely to
produce serious bodily injury, is guilty of a crime, the penalty for
which shall be the same as the penalty for murder of the second
degree.
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18 Pa.C.S. § 2704.5 The penalty for murder of the second degree is life
imprisonment without parole. 18 Pa.C.S. § 1102(b). The mandatory life
sentence imposed by Section 2704 has been upheld as constitutional by this
Court. Commonwealth v. Dessus, 396 A.2d 1254, 1257 (Pa. Super. 1978);
Commonwealth v. Bryant, 361 A.2d 350, 351-52 (Pa. Super. 1976). The
purpose of Section 2704 is to deter prisoners already serving life sentences
from committing assaults in prison. Dessus, 396 A.2d at 1257; Bryant, 361
A.2d at 352.
Although no appellate decisions have addressed the issue of the effect
of unconstitutionality or other subsequent invalidation of the underlying life
sentence on a conviction for assault by a life prisoner,6 both the language of
Section 2704 and its deterrent purpose strongly support the conclusion that it
is the existence and status of the life sentence at the time of the assault that
is an element of the crime and that subsequent invalidation of that sentence
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5 Section 2704 was amended in 1998 to add language including intentional
exposure to infected bodily fluids in this offense, but no change was made in
the applicable language quoted above.
6 The only issues under Section 2704 that have been addressed by our
appellate courts, other than the constitutionality of the statute and its
purpose, are whether particular assaults satisfied the element of “an
aggravated assault with a deadly weapon or instrument upon another, or by
any means of force likely to produce serious bodily injury,” and whether
testimony of a prison records officer is sufficient proof that the defendant was
under an uncommuted life sentence. Cobbs, 431 A2d at 337; Dessus, 396
A.2d at 1261-62; Bryant, 361 A.2d at 351.
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does not negate this element. Section 2704 provides that it applies to a
defendant “who has been sentenced to … life imprisonment … and whose
sentence has not been commuted,” 18 Pa.C.S. § 2704 (emphasis added),
which refer to the defendant’s status at the time of the assault without regard
to future events. The statute does not contain any language requiring that
the life sentence be upheld by the courts or limiting its effect in the event of
a subsequent reversal, vacatur, or commutation of the underlying conviction
or sentence. Deterrence can only apply to the situation existing and known
to the defendant at the time of the assault. Indeed, the deterrent value of
the statute’s life sentence would be strongest if it applies to assaults
committed under a life sentence that was later vacated. A life sentence for
the prison assault imposes no actual additional punishment on a defendant
who remains under an earlier life without parole sentence, but does impose
an additional serious consequence if the life sentence for the prison assault
remains valid even if the underlying life sentence is vacated or reduced.
Moreover, in the analogous situation of firearms statutes that define a
crime based on the defendant’s status as having been convicted of certain
offenses, both our Supreme Court and the United States Supreme Court and
federal courts have held that the firearms conviction is not affected by a
subsequent reversal of, expungement of, or constitutional challenge to the
predicate conviction. Commonwealth v. Stanley, 446 A.2d 583, 588 n. 6
(Pa. 1982) (subsequent reversal of murder conviction on which illegal
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possession of firearms charge was based did not affect proof of illegal
possession of firearms charge because defendant was “an individual convicted
of a ‘crime of violence’ at the time he was charged with possessing the
firearm”); Lewis v. United States, 445 U.S. 55, 59-65 (1980) (fact that prior
conviction was constitutionally invalid because of denial of right to counsel
was not a defense to federal firearms charge where prior conviction had not
been set aside at time of the offense); United States v. Julian, 974 F. Supp.
809, 815-17 (M.D.Pa. 1997), aff’d without opinion, 168 F.3d 480 (3d Cir.
1998) (the subsequent setting aside of a conviction for lack of jurisdiction and
expungement of the conviction “after an arrest for possession of a firearm by
a felon does not ‘relate back’ and render the firearm possession lawful”).
Unconstitutionality of such a predicate conviction does not require the
invalidation the later conviction where the later conviction is based on the
existence of the predicate conviction, not its reliability or validity. Lewis, 445
U.S. at 65-67.
We therefore conclude that only the defendant’s sentence status at the
time of the assault is relevant to a conviction for assault by a life prisoner and
that a later reversal of the life sentence or determination that the life sentence
is unconstitutional has no effect on the validity of a conviction under Section
2704. The fact that Appellant’s underlying life without parole sentence has
now been set aside as unconstitutional does not change the fact that he was
serving such a sentence at the time that he committed the assault. It
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therefore cannot provide grounds for PCRA relief from his assault by a life
prisoner conviction. In light of our ruling on this issue, we need not determine
whether the sentence of 40 years to life that Appellant is still serving
constitutes a sentence of “life imprisonment” under 18 Pa.C.S. § 2704.
We recognize that it appears anomalous that Appellant can be released
on parole from a murder sentence and is subject to life imprisonment without
parole for a non-life-threatening assault. That, however, is a product of the
fact that Appellant was a juvenile when he committed the murder and that
the Legislature has imposed a mandatory life without parole sentence for the
prison assault that he committed as an adult. Absent an overruling of this
Court’s precedents upholding the constitutionality of the mandatory life
without parole sentence imposed by Section 2704, a claim that is neither
before this Court nor within the power of a panel of this Court, Appellant’s
assault by a life prisoner conviction and life without parole sentence for that
conviction remain valid. Appellant’s arguments concerning his rehabilitation
and the inappropriateness of life imprisonment without parole under the facts
of his case are matters that must be directed to the Board of Pardons and
Governor, not to this Court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/20
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