Com. v. Glenn, D., Jr. ( 2022 )

J-S16014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID EDWARD GLENN, JR. :
:
Appellant : No. 1558 MDA 2021
Appeal from the PCRA Order Entered November 15, 2021
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001704-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: SEPTEMBER 27, 2022
David Edward Glenn, Jr. appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A.
§§ 9541-9546. Glenn argues that his counsel was ineffective for failing to file
a motion to suppress evidence which resulted in an unknowingly entered plea.
We vacate and remand for a hearing.
The following factual background is taken from the recitation of facts
provided by the Commonwealth at Glenn’s plea hearing. On January 31, 2018,
Officer Christopher Collare, a member of the Cumberland County Drug Task
Force, conducted a traffic stop of a vehicle. The driver of the vehicle was a
confidential informant for the Carlisle Police Department, and Glenn was
asleep in the backseat. The informant informed Officer Collare that Glenn was
* Retired Senior Judge assigned to the Superior Court.
J-S16014-22
in possession of narcotics and a firearm. However, Collare found the heroin in
the informant’s purse and the firearm on the floor of the vehicle. Officer
Collare directed the informant to plant the heroin and firearm on Glenn. He
subsequently informed the Pennsylvania State Police (“PSP”) that Glenn was
in the car and possessed “a handgun and narcotics.” Affidavit of Probable
Cause, filed 1/31/18. Thereafter, the PSP searched the car, which was stopped
at a service plaza. They found a gun on the floor of the car next to Glenn, and
heroin on the seat next to Glenn. After processing Glenn, the PSP found
cocaine in Glenn’s sock. The police arrested Glenn, and the Commonwealth
charged him with possession with intent to deliver cocaine, persons not to
possess firearms, and firearms not to be carried without a license.
On March 7, 2019, Glenn entered a plea of nolo contendere to
possession with intent to deliver cocaine. The Commonwealth withdrew the
remaining charges. The trial court immediately sentenced Glenn to three to
six years in prison. Glenn did not file a direct appeal.
On February 26, 2020, Glenn, pro se, filed a timely PCRA petition. In
the petition, he argued that counsel was ineffective for failing to advise him
on possible grounds to suppress evidence based upon Office Collare’s
conduct,1 and therefore, his plea was unknowing. The PCRA court appointed
1 In January 2020, Officer Collare was indicted for using informants to plant
drugs on individuals, which led to arrests, and allowing the informants to keep
money and/or narcotics from controlled buys and exchanging favors with the
informant for sexual favors. See U.S. v. Collare, Crim. No. 1:20-CR-00017,
-2-
J-S16014-22
Glenn counsel, and counsel subsequently filed an amended petition, raising
substantially the same issue. Ultimately, the PCRA court dismissed Glenn’s
petition without holding an evidentiary hearing. This timely appeal followed.
On appeal, Glenn raises a single question for our review: “Whether the
PCRA court abused its discretion in not holding an evidentiary hearing
regarding [Glenn’s] attempt to withdraw his nolo contend[e]re plea pursuant
to the post-conviction relief act?” Brief for Appellant at 4 (unnumbered, some
capitalization omitted).
We have a well settled standard of review regarding a court’s dismissal
of a PCRA petition: “We must examine whether the record supports the PCRA
court’s determination, and whether the PCRA court’s determination is free of
legal error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Commonwealth v. Franklin,
990 A.2d 795, 797 (Pa. Super. 2010) (citation omitted). Further, “[t]here is
no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA
court can determine from the record that no genuine issues of material fact
exist, then a hearing is not necessary.” Commonwealth v. Maddrey, 205
A.3d 323, 328 (Pa. Super. 2019) (citation omitted).
Glenn claims that the “trial court abused its discretion in not granting
an evidentiary hearing regarding [his] attempt to withdraw his nolo
2020 WL 2735356 (M.D. Pa. May 26, 2020), reconsideration granted on other
grounds, U.S. v. Collare, 2020 WL 3402401 (M.D. Pa. June 19, 2020).
-3-
J-S16014-22
contend[e]re plea pursuant to the post-conviction relief act.” Brief for
Appellant at 13 (unnumbered). Glenn contends that counsel’s ineffectiveness
caused him to enter an unknowing plea. See id. at 14. He asserts the PSP’s
search and seizure was illegal because the search was premised on planted
evidence. See id. at 14, 17. Therefore, Glenn argues that his counsel was
ineffective because he did not advise Glenn on the possibility of filing a motion
to suppress the evidence gained from the search. See id. at 14, 16-17. For
this reason, Glenn seeks a PCRA evidentiary hearing. See id. at 15, 19.
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Franklin, 990 A.2d at 797 (citation omitted).
A criminal defendant has the right to effective counsel during a
plea process as well as during trial. The law does not require that
[the defendant] be pleased with the outcome of his decision to
enter a plea of [nolo contendere]. Instead, the defendant must
show that counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea. The voluntariness of the plea
depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases. Therefore,
allegations of ineffectiveness in connection with the entry of a
[nolo contendere] plea will serve as a basis for relief only if the
ineffectiveness caused [the defendant] to enter an involuntary or
unknowing plea.
-4-
J-S16014-22
Our law is clear that, to be valid, a [nolo contendere] plea must
be knowingly, voluntarily and intelligently entered. There is no
absolute right to withdraw a [nolo contendere] plea, and the
decision as to whether to allow a defendant to do so is a matter
within the sound discretion of the trial court. To withdraw a plea
after sentencing, a defendant must make a showing of prejudice
amounting to “manifest injustice.” A plea rises to the level of
manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently. A defendant’s disappointment in
the sentence imposed does not constitute “manifest injustice.”
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008) (citations
omitted).2 Additionally, “[i]n determining whether a [nolo contendere] plea
was entered knowingly and voluntarily, ... a court is free to consider the
totality of the circumstances surrounding the plea.” Id. (citation omitted)
(ellipsis in original).
During the plea colloquy, Glenn acknowledged that he could read, write,
and understand English. See N.T., Guilty Plea Hearing, 3/7/19, at 2-3. Glenn
stated that he understood the nature of the charge — possession with intent
to deliver cocaine — and agreed to plead nolo contendere. See id. at 3. Glenn
also understood and accepted the factual basis of the underlying charge. See
id. at 6. Moreover, Glenn understood the maximum possible sentence as well
as the sentencing guidelines. See id. at 3, 6.
Additionally, Glenn acknowledged that he was giving up his right to a
jury trial where he would have been represented by counsel. See id. at 3.
Likewise, Glenn understood that by entering a plea, he was foregoing his right
2The legal effect of a plea of nolo contendere is the same as a guilty plea.
See Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa. Super. 2002).
-5-
J-S16014-22
to be presumed innocent until proven guilty, and it was the Commonwealth’s
sole burden to prove his guilt beyond a reasonable doubt. See id. at 3-4.
Glenn also understood that he had the right to remain silent, which the jury
was prohibited from holding against him. See id. Furthermore, Glenn
acknowledged that by pleading nolo contendere, he was limiting his appellate
rights to the jurisdiction of the court, the legality of his sentence, and the
voluntariness of his plea. See id. at 4, 5-6.
Glenn also affirmed that no one forced, coerced, or threatened him into
his pleading. See id. at 6. Glenn clearly and explicitly stated that he entered
this plea knowingly and voluntarily because it was in his best interest. See id.
Most importantly, Glenn conceded that he had discussed his plea with
his attorney. See id. at 6. He agreed that despite his awareness that the
heroin had been planted on him, it was in his best interest to plead no contest
to the charge of possession of cocaine with intent to deliver. See id. However,
he was not specifically questioned on whether he discussed the possibility of
suppressing all the evidence from the search. Ultimately, the trial court
accepted the plea. See id. at 6-7. We further observe that Glenn has
consistently maintained that he did not knowingly possess either the heroin
or the firearm, see id., at 5; see also PCRA Petition, 2/26/2020, at attached
memorandum 4.
We therefore turn to whether he presented sufficient allegations to
justify a hearing on his claim of ineffective assistance of plea counsel. While
-6-
J-S16014-22
Glenn’s petitions and brief are hardly models of specificity and clarity, the only
evidence relevant to his claims is the cocaine found in his shoe, as it is the
only crime to which he pled. We note that Glenn has not explicitly asserted
that the cocaine was planted on him. This, however, is not immediately fatal
to his claim. The operative legal question is whether there is arguable merit
to the contention that he could have had the cocaine suppressed.
While neither the parties nor the trial court have addressed this issue in
detail, the issue depends directly on the application of what is known as the
collective knowledge doctrine. Under this doctrine, an arresting officer may,
under most circumstances, rely on statements made by fellow officers when
effecting a seizure:
We do not, of course, question that the [arresting] police were
entitled to act on the strength of the radio bulletin. Certainly police
officers called upon to aid other officers in executing arrest
warrants are entitled to assume that the officers requesting aid
offered the magistrate the information requisite to support an
independent judicial assessment of probable cause. Where,
however, the contrary turns out to be true, an otherwise illegal
arrest cannot be insulated from challenge by the decision of the
instigating officer to rely on fellow officers to make the arrest.
Commonwealth v. Yong, 177 A.3d 876, 881 (Pa. 2018) (quoting Whiteley
v. Warden, 401 U.S. 560, 568 (1971)) (brackets in original). The doctrine
applies equally when analyzing whether police had probable cause to stop,
investigate, or search a defendant. See Commonwealth v. Hicks, 208 A.3d
916, 949 (Pa. 2019).
-7-
J-S16014-22
Here, based on the limited record before us, the PSP stopped and
searched Glenn based upon information received from Officer Collare. While
the PSP were entitled to rely on information provided by a fellow officer, Officer
Collare’s misconduct in this case “cannot be insulated from challenge” by his
use of the PSP as an intermediary. Yong, 177 A.3d at 881. It is undisputed,
at this time, that Officer Collare conveyed inaccurate information to the PSP
and further had an informant plant heroin near Glenn. The record is unclear
as to whether Officer Collare had informed the PSP that Glenn possessed
cocaine. Further, it is unclear how much the informant manipulated the
placement of the handgun. Finally, we acknowledge that the record is severely
limited on the circumstances of the PSP’s approach and search of the vehicle
where Glenn was found. However, it remains the case that if the only reason
the PSP ultimately discovered the cocaine in Glenn’s sock was the manipulated
evidence of Glenn’s possession of the handgun and heroin, it is arguable the
cocaine should have been suppressed as the fruit of the poisonous tree. See
Commonwealth v. Shabezz, 166 A.3d 278, 289 (Pa. 2017). Accordingly,
and again based solely on the limited record before us, Glenn has alleged
sufficient facts to establish a possible right to suppress the cocaine found in
his shoe.
Glenn further argues that plea counsel did not discuss this possibility
with him. We highlight that Glenn pled nolo contendere. “[A]lthough a nolo
contendere plea has the same effect as a guilty plea for purposes of sentencing
-8-
J-S16014-22
and is considered a conviction, it is not an admission of guilt.”
Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 2010) (citation
omitted). Instead, it is an admission that the Commonwealth possesses
sufficient evidence to convict the defendant of the charge. See id. While a
guilty plea is a confession that can be used in other proceedings, a nolo
contendere plea has no effect outside the present case. See id.Hence, Glenn’s plea was that the Commonwealth possessed sufficient
evidence to convict him of possession of cocaine with intent to distribute.
Obviously, the possibility of suppressing the cocaine found on his person is an
important consideration in deciding whether to plead nolo contendere to the
charge. As a result, Glenn has presented a colorable claim that plea counsel
should have discussed the issue with him before allowing Glenn to enter his
plea. These considerations also support a finding that Glenn has alleged
sufficient facts to establish he suffered prejudice from counsel’s alleged
omission.
That leaves only the question of whether plea counsel had a reasonable
strategy for not discussing a suppression motion with Glenn. As no hearing
was held on the PCRA petition, there is no evidence of record for us to review
to analyze whether counsel had a reasonable strategy for allegedly failing to
discuss the prospects of a suppression motion. Under these circumstances,
appellate courts generally resort to remand to allow for further development
of the record. See Commonwealth v. Spotz, 84 A.3d 294, 313 (Pa. 2014)
-9-
J-S16014-22
(noting that courts are not permitted to speculate as to counsel’s possible
strategies).
Accordingly, we conclude the PCRA court abused its discretion by
dismissing Glenn’s petition without a hearing. If found to be credible, Glenn’s
assertion that counsel failed to discuss a suppression motion with him before
the plea has arguable merit and could be found to have caused him prejudice.
Of course, further development of the factual record may shed new light on
even this issue, and we do not foreclose the possibility of the PCRA court
reassessing arguable merit or prejudice based on a complete record. On the
other hand, if Glenn’s assertions are proven at a hearing, and plea counsel is
further found to not have had a reasonable strategy for failing to discuss the
possibility of a suppression motion, Glenn would be entitled to relief. We
therefore vacate the PCRA court’s order and remand for a hearing on Glenn’s
claims.
Order vacated. Case remanded for a hearing consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2022
- 10 -