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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,1five counts of aggravated indecent 

assault,2and 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).
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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 Super. 2011) (unpublished 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 
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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)
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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.
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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 
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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 
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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