Commonwealth v. Donahue

1

COMMONWEALTH OF PENNSYLVANIA v. KELLY BRYAN DONAHUE Appellant

No. 1557 MDA 2022

No. J-S19038-23

Superior Court of Pennsylvania

October 31, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered September 12, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s) CP-22-CR-0000904-2020

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Kelly Bryan Donahue ("Donahue") appeals pro se from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act^[1](PCRA). We affirm and deny Donahue's petition for a writ of habeas corpus.

The PCRA court detailed the underlying facts and procedural history:

On December 31, 2019, a criminal complaint was filed against [Donahue] alleging three (3) counts of failure to comply with registration requirements [18 Pa.C.S.A. §§ 4915.2(a)(1), (2) and (3)] and one (1) count of unsworn falsification to authorities [18 Pa.C.S.A. § 4904(b)]. A preliminary hearing was held . . . and all charges were held for disposition in [the trial c]ourt. [Donahue] was then represented by an attorney from the Dauphin County Public Defender's Office. [U]pon [Donahue's] request counsel of record filed a motion to withdraw as counsel seeking the withdrawal of the Public Defender's Office. [The trial court granted] the motion to withdraw[.]

[Donahue] filed a pro se motion to dismiss based upon his belief that a prima facie case was found at the preliminary hearing in contravention of the Pennsylvania Supreme Court's holding in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020) (hearsay evidence alone is insufficient to establish a prima facie case at a preliminary hearing[])[.] [The trial court] denied [Donahue's pro se] motion to dismiss. [Donahue] filed a notice of appeal to the Superior Court. . . . David Hoover, Esquire, was appointed as new counsel for [Donahue]. [Donahue's] appeal was dismissed for failure to file a brief.

[Donahue], pursuant to a negotiated plea agreement, pled guilty to two (2) counts of failure to comply with registration requirements. [The trial court] sentenced [Donahue] to a term of not less than one and one-half [] nor more than three [] years in a state correctional institution with two [] years of consecutive probation. [Donahue] filed neither post-sentence motions nor a direct appeal.

[Donahue] filed a [timely] pro se [PCRA petition]. [The PCRA court] issued an order appointing Kristen Weisenberger, Esquire, as PCRA Counsel. Attorney Weisenberger filed a motion to withdraw . . . pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) [(en banc)] and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

Rule 907 Notice, 8/10/22, at 1-2 (dates, footnotes, and some capitalization omitted).

The PCRA court issued notice of its intent to dismiss Donahue's PCRA petition without hearing and granted counsel's motion to withdraw. See id. at 1-5. Donahue filed a response. The PCRA court dismissed Appellant's PCRA petition. The instant, timely appeal followed.^[2] The PCRA court did not order Donahue to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925. Instead, the PCRA court issued a memorandum in lieu of opinion, incorrectly opining Donahue's appeal was untimely filed.^[3] Memorandum in Lieu of Opinion, 11/15/22, at 1-2 (unnumbered). The PCRA court noted, in the event this Court found the notice of appeal to be timely filed, its reasons for dismissing Donahue's PCRA petition could be found in the Rule 907 notice. Id. at 2 (unnumbered). Donahue subsequently filed a Rule 1925(b) statement. The PCRA court did not issue an additional opinion and has not addressed the issues raised in Donahue's pro se Rule 907 response or in his Rule 1925(b) statement.

Donahue raises the following issues on appeal:

1. [Whether the PCRA court erred in not finding the] trial court lacked [] jurisdiction to preside over [Donahue's] case[?]

2. [Whether] trial counsel was ineffective for:

A. Failing to object to the Commonwealth's use of hearsay testimony alone to establish its prima facie case [at the preliminary hearing?]

B. Abandoning [Donahue] from the onset of appointment [by] fail[ing]/refus[ing] to comply with multiple Superior Court orders to file briefs and fail[ing] to file habeas corpus petitions[?]

C. Failing to object during the oral guilty plea colloquy, as not all of the requirements of said plea colloquy were satisfied by the trial court[?]

Donahue's Brief at 5 (some capitalization omitted).

Donahue appeals from the denial of his PCRA petition. We review the PCRA court's denial of relief by "examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.

[T]he PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings. [T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011) (internal quotation marks and citations omitted).

Donahue contends that the trial court lacked subject matter jurisdiction over his case because: (1) the underlying offenses that led to his placement on the sexual offenders' registry took place in Clearfield County; (2) the Commonwealth charged him in the instant matter under a repealed law; and (3) the investigating officer, rather than any of the witnesses, signed the affidavit of probable cause. See id.

Donahue pleaded guilty in this matter. "Generally, a plea of guilty amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the guilty plea." Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). A guilty plea "constitutes a waiver of jurisdiction over the person of the defendant." Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974). However, subject matter jurisdiction cannot be waived. See id. at 272-73.

Whether a court has subject matter jurisdiction over a matter is a question of law, therefore, our standard of review is de novo. See Commonwealth v. Jones, 929 A.2d 205, 211 (Pa. 2007). There are two requirements for subject matter jurisdiction in criminal cases: 1) the competency of the court to hear the case; and 2) the provision of specific and formal notice to the defendant of the crimes charged. See id. at 210 (citation omitted). "[A]ll courts of common pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code[.]" Id. (citation omitted); see also Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002) (holding a county court of common pleas has jurisdiction over offenses which take place within its borders).

The Dauphin County Court of Common Pleas was competent to hear Donahue's case, which involved violations of the Pennsylvania Crimes Code occurring in Dauphin County, because Donahue, a sexually violent predator ("SVP"), absconded from Keystone Corrections in Dauphin County and did not notify the Pennsylvania State Police ("PSP") of his change of address. See Jones, 929 A.2d at 210; Kohler, 811 A.2d at 1050; see also N.T., 8/12/21, at 3-4; Affidavit of Probable Cause, 12/31/19, at 1-3. Further, Donahue received specific and formal notice of the charges, including the allegation the that he absconded from Keystone Corrections and failed to notify the PSP of his change of address occurred in Dauphin County, when the police filed the criminal complaint. See Criminal Complaint, 12/31/19, at 1-4. Moreover, Donahue provides no legal support for his claim. The Commonwealth was required to bring the charges in Clearfield County because the offenses which led to his placement on the sex offender registry occurred in Clearfield County. Therefore, the trial court had jurisdiction over Donahue's case. Thus, Donahue's claim that the trial court lacked subject matter jurisdiction does not merit relief.

Donahue also maintains the trial court lacked subject matter jurisdiction because he was originally determined to be an SVP and subject to lifetime registration pursuant to Megan's Law II, 42 Pa.C.S.A. §§ 9791-9799.7 (expired). See Donahue's Brief at 11-12. Donahue notes Megan's Law II was replaced by Pennsylvania's Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.42. See id. at 12. In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), the Pennsylvania Supreme Court held the retroactive application of SORNA violated the Pennsylvania Constitution. See id. 164 A.3d at 1223. Thus, Donahue argues the trial court lacked subject matter jurisdiction because the Commonwealth charged him with "a violation of [a] law that is void, unconstitutional and nonexistent as it has been repealed." Donahue's Brief at 12 (unnecessary capitalization omitted).

However Donahue ignores the fact that, in response to Muniz, the General Assembly

returned to the drawing board and redrafted SORNA into two subchapters: Subchapter H and Subchapter I. Subchapter H governs those whose offenses occurred after

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