J-S33034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE THORN
Appellant No. 3193 EDA 2014
Appeal from the PCRA Order October 23, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001652-2010
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 24, 2015
Tyrone Thorn appeals from the order of the Court of Common Pleas of
Delaware County dismissing his petition filed for habeas corpus relief, which
was subsumed by the Post-Conviction Relief Act (PCRA) 42 Pa.C.S.A. §§
9541-9546. Upon careful review, we affirm.
On September 17, 2010, a jury convicted Thorn of ten counts of
involuntary deviate sexual intercourse,1 five counts of aggravated indecent
assault,2 and five counts of indecent assault.3 The charges stemmed from
____________________________________________
1
18 Pa.C.S. § 3123(a)(7) & (b).
2
18 Pa.C.S. § 3125(a)(7).
3
18 Pa.C.S. § 3126(a)(7).
J-S33034-15
Thorn’s sexual abuse of his stepdaughter, beginning when she was age six
and continuing until age seventeen.
On February 14, 2011, Thorn was sentenced to an aggregate term of
incarceration of twenty years and three months to fifty seven years. This
Court affirmed the judgment of sentence on November 15, 2011.
Commonwealth v. Thorn, 238 A.3d 920 (Pa. Super. 2011) (unpublished
memorandum). No petition for appeal was filed to the Pennsylvania
Supreme Court.
Thorn, represented by counsel, filed a timely petition under the PCRA
on June 25, 2012. The PCRA court dismissed that petition on August 26,
2014. Thorn did not appeal that order.
On September 8, 2014, Thorn filed a second petition, pro se, for
habeas corpus relief. The court treated this petition under the PCRA, and,
on September 18, 2014, filed a notice of intent to dismiss as untimely. See
Pa.R.Crim.P. 907. Thorn filed no response, and, on October 22, 2014, the
court entered a final order dismissing the petition as untimely.
On November 7, 2014, Thorn filed an appeal to this Court. Thorn
challenges the constitutionality of the PCRA with respect regards to habeas
corpus petitions being subsumed by the PCRA. Thorn also challenges the
legality of his sentence, claiming it should be reduced to ten to twenty years’
imprisonment.
“Our review of the denial of PCRA relief is limited to determining
whether the record supports the findings of the PCRA court, and whether the
-2-
J-S33034-15
court's order is otherwise free of legal error.” Commonwealth v. Owens,
718 A.2d 330, 331 (Pa. Super. 1998). “The question of whether a petition is
timely raises a question of law. Where the petitioner raises questions of law,
our standard of review is de novo and our scope of review plenary. An
untimely petition renders this Court without jurisdiction to afford relief.”
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).4 See
____________________________________________
4
The timeliness requirements of a PCRA petition is provided, in relevant
part, as follows:
§ 9545. Jurisdiction and proceedings.
(a) Original jurisdiction. — Original jurisdiction over a
proceeding under this subchapter shall be in the court of
common pleas. No court shall have authority to entertain a
request for any form of relief in anticipation of the filing of a
petition under this subchapter.
(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 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
(Footnote Continued Next Page)
-3-
J-S33034-15
Commonwealth v. Murray, 753 A.2d 201, 202 (Pa. 2000) (applicability of
the PCRA’s timeliness requirements do not depend on nature of
constitutional violations alleged therein).
We note first that Thorn pleads none of the exceptions to the
timeliness requirements; rather, he pleads that his habeas corpus petition
should not be subsumed by the PCRA.
The PCRA provides:
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The action
established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including
habeas corpus and coram nobis. This subchapter is not
intended to limit the availability of remedies in the trial court or
on direct appeal from the judgment of sentence, to provide a
means for raising issues waived in prior proceedings or to
_______________________
(Footnote Continued)
this section and has been held by that court to apply
retroactively.
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could have
been presented.
(3) For purposes of this subchapter, a judgment becomes final
at the conclusion of direct review, including discretionary review
in the Supreme Court of the United States and the Supreme
Court of Pennsylvania, or at the expiration of time for seeking
the review.
(4) For purposes of this subchapter, “government officials” shall
not include defense counsel, whether appointed or retained.
42 Pa.C.S. § 9545.
-4-
J-S33034-15
provide relief from collateral consequences of a criminal
conviction. Except as specifically provided otherwise, all
provisions of this subchapter shall apply to capital and noncapital
cases.
42 Pa.C.S. § 9542 (emphasis added).
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. Unless the PCRA could not
provide for a potential remedy, the PCRA statute subsumes the
writ of habeas corpus. Issues that are cognizable under the
PCRA must be raised in a timely PCRA petition and cannot be
raised in a habeas corpus petition.
Taylor, 65 A.3d at 465-66.
The PCRA provides for the following potential remedies, in relevant part:
§ 9543. Eligibility for relief.
(a) General rule. — To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
***
(2) That the conviction or sentence resulted from one or
more of the following:
***
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
***
(vii) The imposition of a sentence greater than the lawful
maximum.
42 Pa.C.S. § 9543.
In Taylor, supra, the appellant filed a habeas corpus petition claiming
an illegal sentence later than one year past the date of final judgment. This
-5-
J-S33034-15
Court held that the appellant’s petition should have been treated as a PCRA
petition. Id. This Court then held that because the habeas corpus petition
was subsumed under the PCRA, the lower court was without jurisdiction to
reach the merits of the petition and it should have been dismissed as
untimely. Id.
Here, Thorn’s habeas corpus petition claiming an illegal sentence
should be treated as a PCRA petition as well. The PCRA provides potential
remedies for Thorn’s claim in the forms of the imposition of a sentence
greater than the maximum, 42 Pa.C.S. § 9543(a)(2)(vii), and the
ineffectiveness of counsel resulting in his allegedly illegal sentence, 42
Pa.C.S. § 9543(a)(2)(ii), as well as the fact that the PCRA is intended to be
the sole means of achieving post-conviction relief. Taylor, supra.
Thorn’s judgment of sentence became final on December 15, 2011,
when the time for an appeal to the Pennsylvania Supreme Court expired.
Thus, he had one year from that date, or until December 15, 2012, to file a
timely PCRA petition. See 42 Pa.C.S. § 9545(b). Thorn filed this petition,
claiming an illegal sentence, on October 22, 2014.
Following Murray, supra, Thorn’s allegations of constitutional
violations do not alter the applicability of the timeliness requirements of
Thorn’s claim. Accordingly, the PCRA court had no jurisdiction to entertain
Thorn’s petition unless he pleaded and offered to prove one of the three
statutory exceptions to the time bar. See 42 Pa.C.S. § 9545(b). Thorn
failed to do so. Therefore, because Thorn filed this petition, which is
-6-
J-S33034-15
subsumed under the PCRA, almost three years after the judgment of
sentence became final, the PCRA court was without jurisdiction to address
the merits of the petition and it was correctly dismissed as untimely.
Taylor, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2015
-7-