Com. v. Donahue, K.

• Court: Superior Court of Pennsylvania
• Decided: October 31, 2023
• Docket: 1557 MDA 2022
• Status: Unpublished

Opinion

J-S19038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KELLY BRYAN DONAHUE : : Appellant : No. 1557 MDA 2022

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 BY SULLIVAN, J.: FILED: OCTOBER 31, 2023

Kelly Bryan Donahue (“Donahue”) appeals pro se from the order

dismissing his first petition filed pursuant to the Post Conviction Relief Act1

(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 ____________________________________________

1 42 Pa.C.S.A. §§ 9541–9546. J-S19038-23

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

____________________________________________

2 Donahue erroneously filed his notice of appeal in this Court on October 3,

2022. Due to a breakdown in this Court’s process, this Court did not forward the notice of appeal to the PCRA court, as required by Pa.R.A.P. 905(a)(4), until November 2, 2022. See Pa.R.A.P. 905(a)(4) (permitting transmission of a notice of appeal that was originally filed in an incorrect office). Because (Footnote Continued Next Page)

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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[?] ____________________________________________

Donahue filed the pro se document in this Court within 30 days of the PCRA court’s order, we deem this appeal timely filed.

3 Likewise, in its brief, the Commonwealth, in its single page of argument, erroneously contends Donahue failed to file a timely notice of appeal. See Commonwealth’s Brief at 4. The Commonwealth devotes two sentences to addressing the merits of Donahue’s claims. See id.

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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

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(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).

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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

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(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 December 20, 2012. Subchapter I applies to those whose offenses were completed prior to that date.

Commonwealth v. Santana, 266 A.3d 528, 530 n.7 (Pa. 2021).

The Commonwealth charged Donahue with failing to comply with

Subchapter I registration requirements in violation of Crimes Code Section

4915.2(a)(1). See 18 Pa.C.S.A. § 4915.2(a)(1); see also 42 Pa.C.S.A.

§ 9799.55. At the time Donahue failed to register, Subchapter I imposed a

lifetime registration requirement on

(2) Individuals convicted:

(i)(A) in this Commonwealth of the following offenses, if committed on or after April 22, 1996, but before December 20, 2012:

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18 Pa.C.S.[A.] § 3121 (relating to rape);

****

(B) in this Commonwealth of offenses set forth in clause (A) who were required to register with the Pennsylvania State Police under a former sexual offender registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired; or

(3) Sexually violent predators.

42 Pa.C.S.A. § 9799.55(b)(2)(i)(A), (B), and (b)(3).

Subchapter I expressly states:

This subchapter shall apply to individuals who were:

(1) convicted of a sexually violent offense committed on or after April 22, 1996, but before December 20, 2012, whose period of registration with the Pennsylvania State Police, as described in section 9799.55 (relating to registration), has not expired; or

(2) required to register with the Pennsylvania State Police under a former sexual offender registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired.

42 Pa.C.S.A. § 9799.52.

Subchapter I was not void in 2019 when the Commonwealth charged

Donahue. This Court stated, “our Supreme Court held that Subchapter I of

[Act 29] is nonpunitive and does not violate the constitutional prohibition

against ex post facto laws.” Commonwealth v. Lippincott, 273 A.3d 1157,

1163 (Pa. Super. 2022) (en banc) (citations omitted).

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Donahue does not dispute his 2002 conviction of rape occurred “on or

after April 22, 1996, but before December 20, 2012.” See Commonwealth

v. Donahue, 1790 WDA 2008 (Pa. Super. 2009) (unpublished memorandum

at 1). As a result of that conviction, following a January 2003 hearing, the

trial court designated Donahue an SVP. See id. at 2. As an SVP, Donahue is

a lifetime registrant. See id. Thus, Donahue’s registration period had not

expired at the time of Subchapter I’s enactment, or when Donahue failed to

register in 2019. See 42 Pa.C.S.A. § 9799.52. Because Subchapter I’s

registration requirements applied to Donahue, his claim the trial court lacked

subject matter jurisdiction because it charged him under a law that was

subsequently declared void does not merit relief. See id.; see also

Lippincott, 273 A.3d 1163.

Donahue also avers the trial court lacked subject matter jurisdiction

because the affidavit of probable cause was signed by a police officer and not

the witnesses to his failure to register. See Donahue’s Brief at 13-14.

However, Donahue does not point to any Pennsylvania law which supports his

contention that the affidavit of probable cause must be signed by a witness

rather than a law enforcement officer. See id. at 13-14. This Court will not

act as counsel and will not develop arguments for an appellant. See

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007); Bombar

v. West American Insurance Company, 932 A.2d 78, 94 (Pa. Super.

2007). This undeveloped claim merits no relief.

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For the reasons discussed above, Donahue’s claim the trial court lacked

subject matter jurisdiction over his failure to register case lacks any legal or

factual support and does not merit relief.

In his remaining three issues, Donahue contends he received ineffective

assistance of counsel. See Donahue’s Brief at 14-28. For a PCRA petitioner

to obtain relief on an ineffectiveness claim, he must establish:

(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) he suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Counsel is presumed to have rendered effective assistance. Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must establish all the [ineffective assistance test] prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations

Donahue’s first two claims of ineffective assistance of counsel concern

his preliminary hearing and his subsequent pro se appeal of the denial of a

motion to dismiss. See Donahue’s Brief at 15-24. Specifically, Donahue

complains preliminary hearing counsel was ineffective for failing to object to

the Commonwealth’s use of hearsay testimony to establish a prima facie case

in violation of the Pennsylvania Supreme Court’s decision in Commonwealth

v. McClelland, 233 A.3d 717 (Pa. 2020) (holding hearsay evidence alone is

insufficient to establish a prima facie case at a preliminary hearing). See id.

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at 15-18. Donahue further argues subsequent counsel4 was ineffective for

failing to file a brief in an interlocutory appeal Donahue filed from the denial

of his pro se motion to dismiss, and for failing to file counseled petitions for

writs of habeas corpus relying on McClelland. See id. at 20-24.

Donahue cannot receive relief under the McClelland decision because

Donahue’s guilty plea cured any defect in his preliminary hearing. In

Commonwealth. v. Rivera, 255 A.3d 497 (Pa. Super. 2021), reversed on

unrelated grounds by Commonwealth v. Rivera, 296 A.3d 1141 (Pa.

2023), the Superior Court refused to apply McClelland where the defendant

had been convicted and the complained-of defect in his preliminary hearing

had been cured at trial. The Court reasoned, “[o]nce [an] appellant has gone

to trial and been found guilty of the crime, any defect in the preliminary

hearing is rendered immaterial[.]” Id. at 504 (citation omitted). Moreover,

our Supreme Court has stated, “once a defendant . . . has been found guilty

of the crime or crimes charged, any defect in the preliminary hearing is

4 The Office of the Public Defender of Dauphin County represented Donahue

at the preliminary hearing but withdrew from the case at Donahue’s request in November 2020. See Rule 907 Notice, 8/10/22, at 1. While proceeding pro se in November 2020, Donahue filed a motion to dismiss challenging the finding the Commonwealth had met its burden of proving a prima facie case. See id. The trial court denied the motion in December 2020 and Donahue filed a notice of appeal in late January 2021. See id. at 2. The trial court appointed Attorney Hoover to represent Donahue in March 2021. See id. According to Donahue, Attorney Hoover refused to file a brief in the pro se appeal because he determined the appeal was not timely filed. See Donahue’s Brief at 20. This Court dismissed the appeal for failure to file a brief. See Rule 907 Notice, 8/10/22, at 2.

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rendered immaterial.” Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa.

2013) (citation omitted). Thus, because Donahue pleaded guilty, rendering

any defect in the preliminary hearing “immaterial,” he cannot show actual

prejudice. See id. Therefore, his claims of ineffective assistance of counsel

with respect to his preliminary hearing and the appeal of the denial of his

motion to dismiss based on McClelland do not merit relief. See Treiber, 121

A.3d at 445.

Donahue’s final allegation is that plea counsel was ineffective for failing

to object to an allegedly defective plea colloquy. See Donahue’s Brief at 5,

25-28. Donahue complains the colloquy was defective because the trial court

directed that his sentence in this case be served consecutively to any other

sentence, rather than concurrently, which Donahue maintains was agreed to

by the parties. See id.

“A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citation omitted). Further, “[a]llegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a

basis for relief only if the ineffectiveness caused the defendant to enter an

involuntary or unknowing plea.” Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002) (citation omitted). Also, “[w]here the defendant

enters his plea on the advice of counsel, the voluntariness of the plea depends

upon whether counsel’s advice was within the range of competence demanded

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of attorneys in criminal cases.” Id. (internal quotation marks and citations

omitted). Where a defendant has pleaded guilty, to satisfy the prejudice

requirement of the ineffectiveness test, he must show “there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Rathfon, 899 A.2d at 370 (citation

This Court has held where the record clearly shows the trial court

conducted a thorough plea colloquy and the defendant understood his rights

and the nature of the charges against him, the plea is voluntary. See

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). In

examining whether the defendant understood the nature and consequences

of his plea, we look to the totality of the circumstances surrounding the plea.

See id. At a minimum, the trial court must inquire into the following six areas:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has a right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until he is found guilty?

(5) Is the defendant aware of the permissible ranges of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

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Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment.

Defense counsel or the attorney for the Commonwealth, as permitted

by the court, may conduct this examination. See Pa.R.Crim.P. 590,

Comment. Moreover, the examination may consist of both a written colloquy

the defendant read, completed, and signed, and made a part of the record;

and an on-the-record oral examination. See id.

Here, Appellant signed a written plea colloquy and engaged in an oral

colloquy. See Written Guilty Plea Colloquy, 8/12/21, at 1-6; N.T., 8/12/21,

at 1-8. While the record reflects Donahue stated after sentencing that he

thought his sentence in the instant matter was to be served concurrently to

any other sentence,5 there is nothing of record which supports Donahue’s

claim the parties agreed to concurrent sentences. Rather, the record

demonstrates Donahue agreed to plead guilty in return for the Commonwealth

withdrawing two of the charges against him, and the parties agreed to “a

sentence of one and a half to three years with consecutive two years of

probation.” N.T., 8/12/12, at 2. When the trial court asked if there was

anything Donahue wished to state before the judge imposed the negotiated

sentence, Donahue did not mention any alleged agreement regarding

5 During the guilty plea hearing, Donahue stated, “This was supposed to run

concurrent to the original sentence.” See N.T., 8/12/21, at 7; see also Written Plea Colloquy, 8/12/21, at 4 (in response to question regarding Donahue’s understanding that the sentence could be imposed consecutively, Donahue replied “Yes, to each other not the original[.]”).

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concurrent versus consecutive sentences but instead stated he was, “Ready

to roll.” Id. at 4.

It was not until after the trial court imposed sentence and granted

counsel’s request for time-served, that plea counsel requested that “this

sentence be made concurrent to a docket from 2002, CP-17-CR-453-2002.”6

Id. at 6. The trial court noted “this [was] not [its] normal practice[,]” then

asked if this was “part of the negotiated plea agreement?” Id. The

Commonwealth said it was not. Id. Donahue did not dispute the

Commonwealth’s comment, did not object, and did not ask to withdraw his

guilty plea. After the Commonwealth explained Donahue’s post-sentence

rights, Donahue did state, “This was supposed to run concurrent to the original

sentence.” Id. at 7. The Commonwealth disagreed, noting it was not its

“practice” to agree to concurrent sentences when the original case was not “in

front” of it. Id. at 7-8. Again, Donahue did not debate the Commonwealth’s

claim, did not object, and, most importantly, did not seek to withdraw his

guilty plea.

Donahue did not file any post-sentence motion, did not seek to withdraw

his guilty plea, and did not file a direct appeal. In his pro se PRCA petition,

while Donahue alleged his guilty plea was involuntary, he did not raise his

6 Plea counsel would not have needed to make this request if the issue of concurrent versus consecutive sentences had been negotiated as part of the plea deal.

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current claim, but rather maintained he was forced to plead guilty because of

preliminary hearing counsel’s errors. See PCRA Petition, 6/29/22, at 2 and 4.

It was not until over one year after the entry of his guilty plea, in his response

to the PCRA court’s Rule 907 notice, that Donahue first claimed counsel had

failed to object to the plea colloquy because the trial court directed his

sentence be served consecutively to any other sentence. See Response to

Rule 907 Notice, 9/7/22, at 16-17. Donahue still has not stated he wishes to

withdraw his guilty plea, or he wishes to go to trial, but instead seeks dismissal

of the charges against him. See Donahue’s Brief, at 29. Donahue has, thus,

never claimed but for counsel’s inadequate representation, he would have

elected to proceed to trial.

The statements made during a plea colloquy bind a criminal defendant.

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).

As a result, a defendant cannot assert grounds for withdrawing the plea that

contradict statements made at that time. See Commonwealth v. Stork,

737 A.2d 789, 790-91 (Pa. Super. 1999). Further, “[t]he law does not require

that appellant be pleased with the outcome of his decision to enter a plea of

guilty: ‘All that is required is that [appellant’s] decision to plead guilty be

knowingly, voluntarily and intelligently made.’” Commonwealth v. Yager,

685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (citation omitted). Here,

Donahue faced a maximum possible sentence of 20 years in prison. See

Written Guilty Plea Colloquy, 8/12/21, at 1. In his written guilty plea, the

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Commonwealth dropped two of the charges against him and agreed to a

sentence of one and one-half to three years. See N.T., 8/12/21, at 2.

Donahue’s oral and written plea colloquies covered all six of the necessary

areas. See Written Plea Colloquy, 8/12/21, at 1-6; N.T., 8/12/21, at 1-8; see

also McCauley, 797 A.2d at 922. Donahue has not shown his decision to

enter the guilty plea was unknowing, unintelligent, or involuntary or that there

was any meritorious basis for plea counsel to object to the sentence. He has

therefore failed to prove prejudice. Thus, his claim for ineffective assistance

of plea counsel lacks merit.

Accordingly, for the reasons discussed above, we affirm the PCRA court’s

dismissal of Donahue’s PCRA petition without a hearing. Further, we deny

Donahue’s petition for a writ of habeas corpus as moot.

Order affirmed. Petition denied.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 10/31/2023

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