COMMONWEALTH OF PENNSYLVANIA v. SEAN DONAHUE
J-A04032-23, J-A04036-23, J-A04040-23, J-A04042-23
IN THE SUPERIOR COURT OF PENNSYLVANIA
March 9, 2023
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
No. 1876 MDA 2018
Appeal from the Order Entered November 1, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003501-2012
COMMONWEALTH OF PENNSYLVANIA v. SEAN DONAHUE, Appellant
No. 1647 MDA 2019
Appeal from the Order Entered September 24, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003501-2012
COMMONWEALTH OF PENNSYLVANIA v. SEAN DONAHUE, Appellant
No. 566 MDA 2021
Appeal from the Order Entered April 5, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003501-2012
COMMONWEALTH OF PENNSYLVANIA v. SEAN DONAHUE, Appellant
No. 743 MDA 2022
Appeal from the Order Entered February 9, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003501-2012
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM PER CURIAM: FILED MARCH 09, 2023
We address together these four appeals, taken by serial pro se filer Sean Donahue (Appellant), from orders entered between 2018 and 2022 at the same criminal docket in the Luzerne County Court of Common Pleas.1
Appellant seeks relief after a jury found him guilty of one count of terroristic threats,2 on July 10, 2017, and the court imposed a sentence of 120 days to 23 months’ imprisonment on September 18, 2017. At Docket No. 1876 MDA 2018, contemporaneous with the appeal, counsel for Appellant, Mary Deady, Esquire, seeks permission to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).3 Based on the following, we grant counsel‘s petition to withdraw and affirm the court‘s order. At the remaining dockets, Docket Nos. 1647 MDA 2019, 566 MDA 2021, 743 MDA 2022, we affirm the orders denying Appellant‘s multiple petitions for writ of coram nobis and Post Conviction Relief Act (PCRA)4 relief, on the ground he is no longer serving his sentence.5 Appellant has also filed four applications for relief6 with this Court at Docket Nos. 1647 MDA 2019 and 743 MDA 2022; we deny all of them.
I. 2017 Trial, Judgment of Sentence, & Subsequent Proceedings
The underlying charges arose from Appellant‘s sending, in August of 2012, an email message to the Luzerne County District Attorney, threatening to “essentially engage in a gun fight with police officers[ ] if the District Attorney does not do as he desires[, and stating] people will be killed if he does not get the actions that he demands.” Commonwealth v. Donahue, 1949 MDA 2017 (unpub. memo. at 1-2) (Pa. Super. Aug. 22, 2018) (direct appeal), appeal denied, 753 MAL 2018 (Pa. Apr. 23, 2019), cert. denied, 19-5808 (U.S. Oct. 15, 2019). Appellant continued to send additional e-mails to the District Attorney, which contained “threats of violence towards government employees and police officers.” Id.
The Commonwealth charged Appellant with terroristic threats and harassment. Subsequently, Appellant filed a writ of habeas corpus to dismiss the charges. On October 28, 2013, the trial court dismissed the charges, to which the Commonwealth filed an appeal. A panel of this Court affirmed the dismissal of the harassment charge, but reversed the dismissal of the terroristic threats charge, and remanded the matter to the trial court for further proceedings. See Commonwealth v. Donahue, 2184 MDA 2013 (Pa. Super. May 19, 2015) (unpub. memo. at 8-19), appeal denied, 660 MAL 2015 (Pa. Dec. 22, 2015).
As noted above, on July 10, 2017, a jury found Appellant guilty of terroristic threats. On September 18, 2017, the trial court sentenced him to a term of 120 days to 23 months’ imprisonment, with 280 days credit for time served, and he was immediately paroled. See Donahue, 1949 MDA 2017 (unpub. memo. at 6). Thereafter, Matthew P. Kelly, Esquire, was appointed as Appellant‘s conflict counsel. Appellant filed a post-sentence motion, which the court denied on December 7, 2017. Appellant filed a direct appeal, and Attorney Kelly filed a petition to withdraw as counsel and an accompanying brief pursuant to Anders. This Court affirmed the judgment of sentence on August 22, 2018, and granted Attorney Kelly‘s motion to withdraw. Donahue, 1949 MDA 2017.
Appellant filed a petition for reargument, which was denied on October 17, 2018. The Pennsylvania Supreme Court denied Appellant‘s petition for allowance of appeal on April 23, 2019, and the United States Supreme Court denied his petition for writ of certiorari on October 15, 2019.
In the interim, Appellant filed a pro se motion for stay of sentence on October 9, 2018, “so that he will still be able to file a PCRA Petition and so that [he] will not be time barred.” Appellant‘s Motion for Stay of Sentence, 10/9/18, at 1. On October 31, 2018, the trial court held a hearing on the motion. Appellant and Attorney Kelly were both present at the proceeding. Attorney Kelly stated that his appearance was due to “a procedural quagmire[,]” because while he had been granted the motion to withdraw as to Appellant‘s direct appeal, he was “still counsel of record” as to Appellant‘s “pending appeal for return of property[.]” N.T., 10/31/18, at 3-4.7 For purposes of these appeals, and as will be discussed supra, it appears Attorney Kelly was also considered counsel of record in relation to Appellant‘s motion for stay of sentence. See id. at 19 (“THE COURT: But you‘re not representing him because you‘re out of the case. [Attorney Kelly]: I‘m back in, Judge.“).
The following day, the trial court entered an order, denying Appellant‘s motion for the following reasons:
- A serious question exists as to whether we have jurisdiction to even consider this motion in light of the fact that [Appellant] has a petition for allowance of appeal pending before the [Pennsylvania] Supreme Court from the denial of his direct appeal.
- While it might be a difficult decision for him, [Appellant] does have the ability to preserve his PCRA rights by withdrawing his motion for allowance of appeal to the Supreme Court and filing a PCRA petition prior to November [21], 2018, which all counsel seem to agree is the max[imum] date of his existing sentence.
Order of Court, 11/1/2018, at 1-2 (unpaginated). Appellant appealed from the trial court‘s order, which is currently docketed before this panel at No. 1876 MDA 2018.
Since then, Appellant has filed copious petitions advancing various grievances. The remaining three appeals (Docket Nos. 1647 MDA 2018, 566 MDA 2021, 743 MDA 2022) are taken from orders, entered between August 2019 and February 2022, denying relief as to Appellant‘s multiple petitions for writ of coram nobis. Appellant‘s numerous appeals have resulted in the transmittal, back and forth, of the certified record between the trial court and this Court. This Court directed that his related appeals be listed consecutively, and they are now before this merits panel.8
Upon informal inquiry by this panel, the trial court provided a letter from the Luzerne County Department of Probation Services (DPS), explaining that Appellant completed serving his supervision (or sentence) on November 21, 2018.9 See Letter from Briana Cantwell, Luzerne County Department of Probation Services, 1/26/23.
II. 1876 MDA 2018 November 1, 2018, Denial of Motion for Stay of Sentence, Anders Brief, & Counsel‘s Motion to Withdraw
As mentioned, Appellant filed a pro se notice of appeal regarding the trial court‘s November 1, 2018, order denying his motion to stay of his sentence. He then filed a pro se application for the appointment of new counsel which this Court denied without prejudice to seek relief in the trial court. See Order, 12/21/18. On January 10, 2019, Attorney Kelly filed an Anders brief and an application to withdraw as counsel. On January 30, 2019, this Court issued a rule to show cause (RTSC) why the appeal should not be quashed as interlocutory. See Order, 1/30/19.
Appellant filed a pro se response to the RTSC, which was forwarded to Attorney Kelly. See Jette10 Letter Sent to Counsel, 2/4/19. On February 8, 2019, Attorney Kelly also filed a response to the RTSC, which merely stated: “[A]ppellant alleges that said Order is a final Order of Court and that this matter is ripe for disposition.” See Attorney Kelly‘s Response to Rule to Show Cause, 2/8/19.
During this time, on December 31, 2018, Appellant filed a pro se request for the appointment of new counsel in the trial court. The trial court entered an order on February 5, 2019, in response to Appellant‘s request, which removed Attorney Kelly and appointed Attorney Deady to represent Appellant. In light of the trial court‘s February 5th order, this Court denied Attorney Kelly‘s petition to withdraw as counsel as moot. See Order, 2/15/19. On March 5, 2019, we directed Attorney Deady to enter her appearance in this Court, to respond to the RTSC, and to advise the Court whether she intends to rely on the Anders brief filed by Attorney Kelly or file a new brief. See Order, 3/5/19.
On March 15, 2019, Attorney Deady filed a response to the RTSC, stating that pursuant to Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), Appellant was entitled to unitary review of both his direct appeal and PCRA issues as he met the exception of a short sentence, and therefore, a claim that Attorney Kelly was ineffective had arguable merit, but did not satisfy the remaining requirements for obtaining ineffective assistance of counsel relief.11
See Appellant‘s Response as to Why Appeal Should Not Be Quashed, 3/15/19, at 4-5. Specifically, Attorney Deady stated that: (1) the record was not developed enough and, therefore, did not support the claim that counsel lacked a reasonable strategic basis for his actions; (2) she was not aware of any law or rule of appellate procedure that would provide for simultaneous jurisdiction over the issue of judgment of sentence at both the trial court and appellate level; and (3) Appellant was no longer serving his sentence and, consequently, there would be no point to staying his sentence. Id. at 5-6. Attorney Deady stated that she would rely on prior counsel‘s Anders brief and “would concur that this appeal should be quashed as interlocutory.” Id. at 6. The following day, Appellant filed a pro se answer to Attorney Deady‘s reply. On April 3, 2019, this Court discharged the RTSC and referred the issue to the merits panel. The matter went dormant until October 8, 2021, when this Court directed Attorney Deady to file a separate petition to withdraw as counsel — because we had denied Attorney Kelly‘s withdrawal motion as moot — and Attorney Deady complied on October 8, 2021.12 The matter is now properly before us.
Appellant presents, via counsel‘s Anders brief, the following issue for our review:
- Whether trial court has jurisdiction and authority to consider Appellant‘s Motion for Stay of Sentence[?]
Anders Brief at 1.
When, as here, Attorney Deady files a petition to withdraw and accompanying Anders brief, we must first examine the request to withdraw before addressing any of the substantive issues raised on appeal. Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to withdraw from representation on appeal must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court‘s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Pursuant to Santiago, an Anders brief must also:
(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel‘s conclusion that the appeal is frivolous; and (4) state counsel‘s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Id., quoting Santiago, 978 A.2d at 361.
In the present case, both Attorney Kelly and Attorney Deady filed petitions for leave to withdraw on January 10, 2019 and October 8, 2021, respectively.13 In Attorney Deady‘s petition, she averred she reviewed the record and determined “this appeal is wholly frivolous and that no meritorious issues exist.” Attorney Deady‘s Petition to Withdraw as Counsel, 10/8/21, at 1 (unpaginated). While Attorney Deady‘s petition did not include a copy of any letter to Appellant advising him of his appellate rights, we presume he received the document because he filed a response to it on October 19, 2021. See Appellant‘s Response to Incorrect Claims Made by [Attorney] Deady in her October 8, 2021 Application to Withdraw, 10/19/21. Moreover, Attorney Kelly had sent a letter to Appellant, advising him of his right to proceed with newly retained counsel or pro se, and to raise any additional points deemed worthy for this Court‘s attention. See Attorney Kelly‘s Letter to Appellant, 1/9/19 at 1 (unpaginated); see also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
The Anders brief raises the “stay of sentence” challenge, as well as counsel‘s reasons why the issues would be wholly frivolous. See Anders Brief at 6-8. Appellant filed a pro se response to the brief on February 28, 2019, and on March 16, 2019, after Attorney Deady indicated that she would rely on Attorney Kelly‘s brief. Accordingly, we determine Attorney Deady has complied with the technical requirements of Anders and Santiago. See Cartrette, 83 A.3d at 1032.
We now review the issue presented in the Anders brief and conduct an independent review of the record to discern if there are non-frivolous issues. See Commonwealth v. Ziegler, 112 A.3d 656, 660 (Pa. Super. 2015). We conclude there are none.
Appellant claims that the trial court erred by denying his motion for stay of sentence. See Anders Brief at 6. Appellant sought the stay of sentence because: (1) his time for filing a PCRA petition was limited since his sentence was to expire approximately one month later; (2) his direct appeal was still ongoing but he wanted the opportunity to file a PCRA petition; (3) there were “many issues that were deemed by the trial court to be matters that must wait, until after the [d]irect [a]ppeal is complete and the PCRA phase of the case is initiated, [which] could have actually been simultaneously considered during the [d]irect [a]ppeal process.” Appellant‘s Motion for Stay of Sentence, 10/9/18, at 1-2.
A review of the record reveals that at the October 2018 hearing on the matter, both counsel for Appellant and the Commonwealth indicated there were two appellate matters pending — the petition for allowance of appeal before the Pennsylvania Supreme Court as to the denial of Appellant‘s direct appeal as well as an appeal before this Court relating to Appellant‘s motion for a return of property. N.T., 10/31/18, at 4, 6. Furthermore, the parties and the court acknowledged Appellant‘s sentence would be completed in mid-November 2018. Id. at 10. Moreover, Attorney Kelly indicated that Appellant “could withdraw his appeal and deal with the PCRA. I‘ve seen that happen all the time. Because you can‘t address the PCRA while there‘s an appeal pending. . . . That‘s the only way to do it, I think.” Id. at 7.
Appellant‘s argument fails for several reasons. First, pursuant to
Indeed, as Attorney Kelly pointed out at the hearing, Appellant could have withdrawn his direct appeal and then filed a PCRA petition, thereby, preserving and protecting his purported PCRA claims. He has presented no law to support his contention that he may proceed on both a direct appeal and a PCRA review simultaneously.14
Second, when a defendant completes a sentence, he is no longer subject to any direct criminal or civil consequences thereto, and thus any challenge to the sentence is incapable of review and moot. See Commonwealth v. Schmohl, 975 A.2d 1144, 1149 (Pa. Super. 2009); Commonwealth v. King, 786 A.2d 993, 996-97 (Pa. Super. 2001). As stated above, the Luzerne County DPS confirmed that Appellant completed his sentence in November of 2018. Accordingly, we deem Appellant‘s present appeal is moot. See id. Moreover, our independent review of the record reveals no non-frivolous issues to be raised on appeal. See Ziegler, 112 A.3d at 660.
In sum, we agree with Attorney Deady that Appellant‘s desired issue is frivolous, and conclude the record reveals no other potential, non-frivolous issue for appeal at Docket No. 1876 MDA 2018. Accordingly, we grant Attorney Deady‘s petition to withdraw from representation and affirm the November 1, 2018, order denying his motion for stay of sentence.
III. 1647 MDA 2019, 566 MDA 2021, & 743 MDA 2022
For ease of discussion, we review Appellant‘s ensuing filings in chronological order. All of them were filed after he had filed the above appeal, 1876 MDA 2018, and after he completed his sentence.
A. PCRA Standard of Review & Eligibility for Relief
We first note: “Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court‘s determination and whether its decision is free of legal error.” Commonwealth v. Beatty, 207 A.3d 957, 960-61 (Pa. Super. 2019).
The PCRA “shall be the sole means of obtaining collateral relief and encompasses all other common law . . . remedies . . . including . . . coram nobis.”
“To be eligible for [PCRA] relief[,] the petitioner must plead and prove by a preponderance of the evidence” they are “currently serving a sentence of imprisonment, probation or parole for the crime[.]”
Pennsylvania law makes clear the trial court has no jurisdiction to consider a subsequent PCRA petition while an appeal from the denial of the petitioner‘s prior PCRA petition in the same case is still pending on appeal. A petitioner must choose either to appeal from the order denying his prior PCRA petition or to file a new PCRA petition; the petitioner cannot do both, . . . because “prevailing law requires that the subsequent petition must give way to a pending appeal from the order denying a prior petition.”
If the petitioner pursues the pending appeal, then the PCRA court is required . . . to dismiss any subsequent PCRA petitions filed while that appeal is pending.
Beatty, 207 A.3d at 961 (citations omitted & paragraph break added).
B. 1647 MDA 2019 September 24, 2019, Order Denying Petition for Writ of Coram Nobis
On August 26, 2019, Appellant filed a pro se document entitled: “I. Addendum to Transcription of October 3, 2012 Preliminary Hearing Transcript; II. Petition for Writ of Coram Nobis (New Transcript); III. Petition for Writ of Habeas Corpus (New Transcript).” Appellant raised the issue of “after-discovered evidence,” and sought relief under
At this juncture, we note that Appellant filed his petition while his direct appeal was still pending before the United States Supreme Court, which did not deny his petition for writ of certiorari until October of 2019. Based on this procedural detail, it appears the trial court, in its subsequent opinion, however, suggested: “A remand is necessary to vacate [its] September 24, 2019, [o]rder denying [Appellant]‘s [p]etition for [w]rit of [c]oram [n]obis and reconsider [his] [p]etition . . . as a [p]etition under the [PCRA].” Trial Ct. Op., 8/27/20, at 3 (unpaginated). The court further noted: “All of [Appellant]‘s claims are cognizable under the PCRA as they seek relief from his judgment of sentence after it became final and involve claims that should be brought in a PCRA petition.” Id. at 4 (unpaginated).16
We conclude that no relief is due.
First, regardless of Appellant‘s titling his filing as a petition for writ of coram nobis, the claims presented were cognizable under the PCRA, and thus “the PCRA [was] the only method of obtaining” the requested review. See
[T]he Pennsylvania Supreme Court has held that, to be eligible for relief under the PCRA, the petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime.”
42 Pa.C.S. § 9543(a)(1)(i) . As soon as his sentence is completed, the petitioner becomes ineligible for relief, regardless of whether he was serving his sentence when he filed the petition. In addition, this court determined in Commonwealth v. Fisher, 703 A.2d 714 (Pa. Super. 1997), that the PCRA precludes relief for those petitioners whose sentences have expired, regardless of the collateral consequences of their sentence.
Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa. Super. 2006).
Accordingly, we discern that a remand is not necessary as the trial court did not err in its denial of PCRA relief.17
Second, it appears Appellant was represented by counsel during this time,18 and therefore, the denial of relief was also proper under our long-standing policy precluding hybrid representation. The Pennsylvania Supreme Court has explained:
[A] defendant in a criminal case may not confuse and overburden the courts by filing his own pro se briefs at the same time his counsel is filing briefs for him
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[This] rationale . . . applies equally to PCRA proceedings[.] We will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represent those defendants. . . .
Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999). See also Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper response to any pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion.“).19
Again, we reiterate that Appellant completed serving his sentence as of November 2018 — approximately ten months before he filed this petition. Accordingly, Appellant is not entitled to relief, and the court properly denied Appellant‘s August 26, 2019, petition.
At this Superior Court docket, on February 6, 2023, Appellant filed with this Court an application for relief. He attached a copy of his August 26th petition “with the intent of making it easier for [this] Court to identify the underlying petition in the original record.” See Application for Relief, 2/6/23, at 1. As this Court located the petition in the certified record, despite Appellant‘s voluminous filings, we deny this application as moot.
C. 566 MDA 2021 April 5, 2021, Order Denying Petition for Writ of Coram Nobis
On March 16, 2021, Appellant filed a document entitled “Petitions for Writ of Coram Nobis, Habeas Corpus, Equitable Relief and Attachments.” The trial court denied this petition on April 5, 2021, stating it was without jurisdiction to consider the petition “as the appeal in this case was still pending before the Superior Court of Pennsylvania.” Order, 4/5/21.
We conclude Appellant was not entitled to relief on the March 16, 2021, PCRA petition, because he had completed serving his sentence and an appeal from the denial of a prior PCRA petition was pending. See
Furthermore, we note that Appellant‘s March 16th PCRA petition appears to be untimely. “The PCRA‘s time restrictions are jurisdictional in nature, and a court may not entertain untimely PCRA petitions.” Commonwealth v. Burton, 158 A.3d 618, 627 (Pa. 2017). Here, Appellant‘s judgment of sentence became final on October 15, 2019, when the United States Supreme Court denied his petition for writ of certiorari. See
D. 743 MDA 2022 February 9, 2022, Order Denying Petition for Writ of Coram Nobis
On February 2, 2022, Appellant filed a document entitled “Petition for Writ of Coram Nobis, Habeas & Equitable Relief & Application for Relief.” In this petition, he alleges that the email that he sent to the District Attorney, which led to his underlying conviction, qualifies as “free speech” and there were “inaccuracies within the four corners of the charging documents [which gave] rise to a legitimate material challenge to the content within the four corners of the charging documents.” Appellant‘s Petition for Writ of Coram Nobis, 2/2/22, at 3-4. The trial court denied this petition seven days later, again stating it was without jurisdiction to consider the petition “as the appeal in this case was still pending before the Superior Court of Pennsylvania.” Order, 2/9/22.
Akin to the appeal at Docket No. 566, the trial court‘s denial of relief was proper because there was a pending appeal pertaining to a prior PCRA petition. See Beatty, 207 A.3d at 961. We also affirm the order on the ground Appellant was no longer serving his sentence. See
At this Superior Court docket, Appellant has filed an application for relief, entitled “Application for Relief Per
XI. Conclusion
For the foregoing reasons, we conclude Appellant is not entitled to any relief.20
At 1876 MDA 2018, we affirm the November 1, 2018, order denying Appellant‘s motion for stay of sentence. We also grant Attorney Deady‘s petition to withdraw as counsel.
At 1647 MDA 2019, we affirm the September 24, 2019, order denying Appellant‘s petition, entitled “I. Addendum to Transcription of October 3, 2012 Preliminary Hearing Transcript; II. Petition for Writ of Coram Nobis (New Transcript); III. Petition for Writ of Habeas Corpus (New Transcript).” We also deny Appellant‘s February 6, 2023, application for relief.
At 566 MDA 2021, we affirm the April 5, 2021, order denying Appellant‘s petition entitled “Petitions for Writ of Coram Nobis, Habeas Corpus, Equitable Relief and Attachments.”
At 743 MDA 2022, we affirm the February 9, 2022, order denying Appellant‘s petition entitled “Petition for Writ of Coram Nobis, Habeas & Equitable Relief & Application for Relief.” We also deny Appellant‘s: (1) January 22, 2023, “Application for Relief Per
Orders at all appeals affirmed. All outstanding applications for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2023