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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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