Pubdate: Tue, 05 Feb 2013
Source: Meadville Tribune, The  (PA)
Copyright: 2013 The Meadville Tribune
Contact:  http://www.meadvilletribune.com/
Details: http://www.mapinc.org/media/4671
Author: Keith Gushard

REJECTED BY STATE'S HIGH COURT, POT GROWER SENTENCED

Marking the end of a case that had been appealed all the way up to the
Pennsylvania Supreme Court, a Meadville-area man has been sentenced in
the Crawford County Court of Common Pleas to a total of five years in
state prison for running a marijuana growing operation in his thencity
home in June 2009.

John Mark Donahue, 58, of 10246 Perry Highway, Meadville, was
sentenced Monday by Judge John Spataro on a total of two counts each
of possession with intent to deliver a controlled substance and
possession of a controlled substance; and one count of possession of
drug paraphernalia. Tuesday's sentencing came after Donahue's appeal
for a new trial was denied without comment by the Pennsylvania Supreme
Court in December 2012. Donahue had claimed that a confidential
informant who illegally broke into Donahue's home provided evidence
that led to Donahue's arrest. As a result, Donahue claimed that the
evidence should not have been used in court.

On Tuesday, Donahue was given a state mandatory five-year sentence and
a $50,000 fine by Spataro for one of the possession with intent to
deliver a controlled substance charges because more than 50 marijuana
plants were involved.

Spataro ordered Donahue to serve a one-to five-year sentence on the
other possession with intent to deliver charge; and sixto 12-month
sentences each on the two possession of a controlled substance charges
and the possession of drug paraphernalia charge. He also was ordered
to pay court costs and an additional $500 in fines.

All the sentences will run concurrently with credit for 18 days in
jail.

In June 2009, Meadville police seized 166 marijuana plants and other
drugs from an indoor growing operation inside Donahue's then-home on
Kearney Street.

Donahue and a co-defendant Constance Johnson, then 29, were charged in
the case, but charges against Johnson were later dropped by the
Crawford County District Attorney's Office. The DA's office filed the
motion to drop its case against Johnson following Donahue's trial
rather than reveal the name of the confidential informant who supplied
the information that led to the arrests of Donahue and Johnson.

In a county court trial before Spataro in January 2010, a jury found
Donahue guilty of the five charges, but also acquitted him of a charge
of possession with intent to deliver cocaine.

After the trial ended a series of appeals began spanning more than two
years by both David Ridge, Donahue's defense attorney, and the
Crawford County District Attorney's Office.

The conviction was appealed to Spataro after it was learned the police
department's confidential informant in the case illegally broke into
Donahue's home prior to his arrest. That information came to light
before Donahue's original sentencing date in 2010 in an interview
between a detective Donahue had hired and the confidential informant,
according to court records.

Donahue argued that because of the break-in, the evidence the
confidential informant gave police to prepare an arrest affidavit was
illegal.

On July 27, 2010, Spataro issued a ruling ordering both a new trial
for Donahue and that all evidence obtained from the search warrant in
the case be suppressed.

But, on Aug. 13, 2010, the DA's office appealed Spataro's ruling to
Pennsylvania Superior Court saying the trial court had erred in
applying case law in granting a new trial and suppressing evidence.

On June 21, 2011, Superior Court ruled the confidential informant "was
not acting as an instrument or agent of the Commonwealth when he broke
into Donahue's residence. Moreover, the circumstances of this case do
not support a conclusion that Officer (Brian) Joseph initiated,
ratified, acquiesced to, encouraged or supported" the informant's
illegal entry into Donahue's home.

The Superior Court ruled "the trial court erred in deciding that
Officer Joseph improperly relied on the information" that was obtained
illegally by the informant.

"Nothing in the record suggests that Officer Joseph should have
questioned the reliability" of the information, Superior Court ruled.

The Superior Court found the record showed that in 2008 the informant
approached the officer for two reasons - to help himself if the
informant ever got into trouble; and to "clean up some of the drug
activity that he was aware of so that Meadville would become a better
place for his daughter to be raised."

The Superior Court noted drug activity by Donahue didn't come to
Officer Joseph's attention until the informant stepped forward.

Based on the record, Superior Court found that Spataro's opinion that
Officer Joseph should have suspected the reliability of the
informant's information "is untenable."

The Superior Court found the informant had provided reliable
information to Officer Joseph in the past; the informant and Officer
Joseph had a friendly relationship; and it was the informant's own
efforts that brought Donahue to Officer Joseph's attention.

The Superior Court found previous case law in suppressing evidence was
misapplied in Donahue's case which "resulted in its erroneous
conclusion that Appellant (Donahue) was entitled to a new trial
without the evidence."

Donahue then appealed the case to the Pennsylvania Supreme Court, but
it denied the appeal without comment on Dec. 12, 2012.
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