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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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).
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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 Super. 2011) (unpublished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




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