Com. v. Glenn, D., Jr.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2022
• Docket: 1558 MDA 2021
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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).

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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.

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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).

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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

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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).

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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

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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)

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(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

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