J-S61005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

DANIEL KING WARREN,

                          Appellant                  No. 750 EDA 2018


            Appeal from the PCRA Order Entered February 9, 2018
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0000388-1998


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 06, 2018

       Appellant, Daniel King Warren, appeals pro se from the post-conviction

court’s February 9, 2018 order denying his “Petition for Writ of Habeas Corpus

Ad Subjiciendum,” which the court treated as an untimely petition under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

       The facts of Appellant’s underlying conviction are not necessary to our

disposition of his present appeal. In regard to the procedural history of his

case, Appellant pled guilty to burglary on October 9, 1998, and was sentenced

to a term of 10 to 20 years’ imprisonment on December 28, 1999. Appellant

filed a direct appeal, but he discontinued it on February 16, 1999. Thus, on

that   date,   Appellant’s   judgment   of   sentence   became    final.   See

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)
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(declaring that a judgment of sentence becomes final for PCRA purposes when

an appeal is discontinued); 42 Pa.C.S. § 9545(b)(3).

       Over the ensuing years, Appellant filed two PCRA petitions, both of

which were denied.        Then, on February 13, 2017, Appellant filed a pro se

“Petition for Writ of Habeas Corpus Ad Subjiciendum,” which the court treated

as a PCRA petition. The court denied that petition by order issued April 3,

2017. On May 8, 2017, Appellant filed a timely notice of appeal.1

       While that appeal was pending, Appellant filed, on January 9, 2018, a

second, pro se “Petition for Writ of Habeas Corpus Ad Subjiciendum,” which

underlies his present appeal.           Therein, he challenged the legality of a

mandatory-minimum sentence imposed in his case pursuant to 42 Pa.C.S. §

9714 (Sentences for second and subsequent offenses). Appellant alleged that

this mandatory-minimum sentence is illegal under Alleyne v. United States,

133 S.Ct. 2151, 2163 (2013) (holding that “facts that increase mandatory

minimum sentences must be submitted to the jury” and found beyond a

reasonable doubt). The PCRA court again treated Appellant’s petition for writ

of habeas corpus as a PCRA petition, and the court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss it without a hearing. Appellant filed a pro se

response, but on February 9, 2018, the PCRA court entered an order

____________________________________________


1 That appeal was assigned docket number 1470 EDA 2017. Our decision in
that appeal, in which we affirmed the PCRA court’s order denying Appellant’s
petition, was filed on October 15, 2018. See Commonwealth v. Warren,
No. 1470 EDA 2017, unpublished memorandum (Pa. Super. filed Oct. 15,
2018).

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dismissing his petition. Appellant filed a timely, pro se notice of appeal, and

he also timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.

       Herein, Appellant presents two issues for our review:

       A. Did the [PCRA] court err when it reviewed [A]ppellant’s habeas
          corpus petition under the strictures of the PCRA[,] conflicting
          with the Court’s decision in Commonwealth v. Price, 876
          A.2d 988 ([P]a. Super. 2005)[,] appeal denied, 897 A.2d 1184
          (Pa. 2006)[,] cert. denied, [549 U.S. 902] (2006)?

       B. If treated as a PCRA petition, must [A]ppellant’s classification
          as a high risk dangerous offender be submitted to a jury and
          found beyond a reasonable doubt in violation of constitutional
          substantive due process rights and must be given retroactive
          effect on collateral review regardless of when [A]ppellant’s
          sentence became final?

Appellant’s Brief at 2-3.

       Appellant first claims that the PCRA court erred by treating his petition

for writ of habeas corpus as a PCRA petition. In his petition for writ of habeas

corpus, Appellant contended that the imposition of a mandatory-minimum

sentence under the version of section 9714 in effect at the time of his

sentencing violated Alleyne. Specifically, section 9714 did not require a jury

to find, beyond a reasonable doubt, the fact that triggered application of that

mandatory sentence, i.e., that Appellant was a “high risk dangerous

offender.”2 Appellant argues that this claim is similar to the issue addressed

____________________________________________


2 At the time Appellant was sentenced, section 9714 required a mandatory
minimum sentence of 10 years’ incarceration for any person who “had
previously been convicted of a crime of violence and has not rebutted the



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in Price, where we concluded that a challenge to the sufficiency of the

evidence to support the defendant’s designation as a Sexually Violent Predator

was not cognizable under the PCRA. See Price, 876 A.2d at 994.

       Appellant’s argument is wholly unconvincing. The claim he asserted in

his petition for writ of habeas corpus and the issue addressed in Price are

clearly distinct. In Price, we addressed a sufficiency-of-the-evidence claim,

whereas here, Appellant challenges the legality of his sentence.       Both our

Supreme Court, and this Court, have consistently treated a claim that Alleyne

renders illegal a petitioner’s mandatory-minimum sentence as cognizable

under the PCRA. See, e.g., Commonwealth v. Washington, 142 A.3d 810

(Pa. 2016); Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).

Thus, Price is inapplicable, and under Washington and Miller, the PCRA

court correctly deemed Appellant’s writ of habeas corpus as a PCRA petition.

       We also conclude that the PCRA court correctly denied Appellant’s PCRA

petition for two additional reasons. First, Appellant filed his present petition

during the pendency of his appeal from the denial of his prior petition. An en

banc panel of this Court recently explained that:

       In Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000),
       our Supreme Court held that “a subsequent PCRA petition cannot
       be filed until the resolution of review of the pending PCRA petition
____________________________________________


presumption of a high risk dangerous offender….” 42 Pa.C.S. § 9714(a)(1)
(effective December 10, 1995, through July 9, 2000). The determination of
whether the defendant had presented “clear and convincing evidence” to rebut
the presumption that he was a “high risk dangerous offender” was made by
the trial court following a hearing. 42 Pa.C.S. § 9714(c) (effective December
10, 1995, through July 9, 2000).

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      by the highest state court in which review is sought, or upon the
      expiration of the time for seeking such review.” Id. at 588. Our
      Supreme Court reasoned that “[a] second appeal cannot be taken
      when another proceeding of the same type is already pending.”
      Id. (citation omitted).

      Where a petitioner attempts to raise a subsequent, independent
      claim for relief during the pendency of an earlier PCRA petition,
      his or her “only option is to raise it within a second PCRA petition
      filed within [60] days of the date of the order that finally resolves
      the [pending] PCRA petition[.]” Commonwealth v. Steele, 599
      Pa. 341, 961 A.2d 786, 808–809 (2008).

Commonwealth v. Montgomery, 181 A.3d 359, 363 (Pa. Super. 2018) (en

banc), appeal denied, 190 A.3d 1134 (Pa. 2018).         Thus, the PCRA court’s

denial of Appellant’s current petition was proper, given that he filed it during

the pendency of his appeal from the denial of his earlier petition.

      Second, the court properly denied Appellant’s petition because it was

untimely and the court lacked jurisdiction to consider the merits of his claims.

See Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001)

(“Given the fact that the PCRA’s timeliness requirements are mandatory and

jurisdictional in nature, no court may properly disregard or alter them in order

to reach the merits of the claims raised in a PCRA petition that is filed in an

untimely manner.”). Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the


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           date the judgment becomes final, unless the petition alleges
           and the petitioner proves that:

                (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).          Any petition attempting to invoke 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).

        Here, Appellant’s judgment of sentence became final in February of

1999, and thus, his petition filed in January of 2018 is patently untimely.

Consequently, Appellant must prove that he meets one of the exceptions to

the timeliness requirements set forth in 42 Pa.C.S. § 9545(b). Appellant’s

claim    that    Alleyne     invalidates    his   mandatory-minimum       sentence   is

presumably an effort to satisfy the ‘new constitutional right’ exception of

section 9545(b)(1)(iii). In Commonwealth v. Abul-Salaam, 812 A.2d 487

(Pa. 2002), our Supreme Court stated:

        Subsection (iii) of Section 9545 [(b)(1)] has two requirements.
        First, it provides that the right asserted is a constitutional right
        that was recognized by the Supreme Court of the United States or
        this court after the time provided in this section. Second, it
        provides that the right “has been held” by “that court” to apply

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      retroactively. Thus, a petitioner must prove that there is a “new”
      constitutional right and that the right “has been held” by that court
      to apply retroactively. The language “has been held” is in the past
      tense. These words mean that the action has already occurred,
      i.e., “that court” has already held the new constitutional right to
      be retroactive to cases on collateral review. By employing the past
      tense in writing this provision, the legislature clearly intended that
      the right was already recognized at the time the petition was filed.

Id. at 501.

      Here, our Supreme Court has expressly declared that Alleyne does not

apply retroactively.     See Washington, 142 A.3d at 820 (“We hold that

Alleyne does not apply retroactively to cases pending on collateral

review….”).     Additionally, the United States Supreme Court has not held

otherwise.    Consequently, Appellant cannot rely on Alleyne to meet the

timeliness exception of section 9545(b)(1)(iii), and the court properly denied

his untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/18




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