Com. v. Warren, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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