Com. v. Glenn, C. ( 2023 )

J-S01037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER DALE GLENN :
:
Appellant : No. 534 WDA 2022
Appeal from the Judgment of Sentence Entered April 6, 2022
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000329-2022
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: May 16, 2023
Christopher Dale Glenn appeals from the judgment of sentence imposed
following him pleading guilty to possessing a firearm as a prohibited person
and receiving stolen property.1 For these offenses, Glenn was aggregately
sentenced to five to ten years of imprisonment.2 On appeal, Glenn’s counsel
contends that there are no non-frivolous issues to raise on his behalf and has
correspondingly filed a petition to withdraw from representation and an
Anders brief. See Anders v. California, 386 U.S. 738 (1967);
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
1See 18 Pa.C.S. § 6105(a), (a.1)(1.1) (first-degree felony) and 18 Pa.C.S. §
3925(a), respectively.
2 In addition to this term of imprisonment, appearing to originate as a
negotiated plea agreement, see Plea Hearing, 4/6/22, at 3-9, Glenn was
sentenced to a consecutive “period of reentry supervision of 12 months[.]” 61
Pa.C.S. § 6137.2(b).
J-S01037-23
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After reviewing the
record, both through the lens of the Anders brief and independently, we
affirm Glenn’s judgment of sentence and additionally grant counsel’s petition
to withdraw.
Although somewhat difficult to discern given the sparse record, Glenn
admitted to having illegally possessed a firearm and stolen vehicle while in
Beaver County, Pennsylvania, on February 16, 2022. See Plea Hearing,
4/6/22, at 11-14. According to the affidavit of probable cause, police officers
were called to Anthony Gilbert’s house after Gilbert informed them that Glenn
had refused to leave his residence. See Affidavit of Probable Cause, 2/16/22,
at 1. Gilbert also conveyed that Glenn had brandished a firearm. See id.Following his arrest, police confirmed that, in addition to being the subject of
multiple extradition requests, Glenn had been convicted of several prior felony
offenses. See id., at 2.
Corresponding with both a written and oral plea colloquy, Glenn pleaded
guilty to the two above-named crimes and was sentenced on April 6, 2022.
While still represented by counsel, Glenn filed a pro se, hand-written motion
to withdraw his guilty plea, which was dated April 8, 2022, date-stamped by
the United States Postal Service on April 18, 2022, and filed in the lower court
on April 19, 2022.
Glenn filed a counseled notice of appeal from his judgment of sentence
on May 3, 2022. Instead of filing a concise statement of errors complained of
on appeal, Glenn’s counsel submitted, in a filing dated May 17, 2022, a
-2-
J-S01037-23
statement of intent to file an Anders/Santiago brief, pursuant to Pa.R.A.P.
1925(c)(4). Independently, Glenn, pro se, filed his own concise statement of
errors complained of on appeal in a document dated May 19, 2022, and filed
May 25, 2022. In his pro se concise statement, Glenn asserts that he received
ineffective assistance of counsel. In addition, Glenn avers that he was not
guilty of receiving stolen property, and as to the firearms offense, he had a
valid necessity defense.3
Prior to our substantive consideration of identified or latent appellate
issues, we must first consider counsel’s petition to withdraw. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation
omitted). The submission of an Anders brief demonstrates counsel’s belief
that the current appeal is frivolous. Accordingly, to withdraw from
representation, counsel must avail himself or herself of a well-defined set of
procedures. Specifically, counsel is required to:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous;
(2) file a brief referring to any issues that might arguably support
____________________________________________
3 As the record reflects that he was represented by counsel at both junctures,
Glenn’s pro se filings, i.e., the motion to withdraw his guilty plea and his
statement of errors complained of on appeal, are legal nullities, “having no
legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.
2007) (citation omitted); see also Commonwealth v. Ali, 10 A.3d 282, 293
(Pa. 2010) (“[A]ppellant was represented by counsel on appeal, so his pro se
Rule 1925(b) statement was a legal nullity.”) (citation omitted). Neither
Glenn’s counsel (by way of adoption or amendment) nor the lower court acted
on Glenn’s filings.
-3-
J-S01037-23
the appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise him of
his right to retain new counsel, proceed pro se, or raise any
additional points [counsel] deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted).
As established in Santiago, our Supreme Court further refined the
Anders requirements, necessitating that counsel:
(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.
978 A.2d at 361. Substantial compliance with these enumerated requirements
is legally sufficient. See Commonwealth v. Redmond, 273 A.3d 1247, 1252
(Pa. Super. 2022) (citation omitted). If counsel has adhered to Anders and
its progeny, this Court must thereafter “conduct a simple review of the record
to ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
Our review of counsel’s submissions compels a conclusion that there has
been minimal compliance with Anders. Counsel’s petition to withdraw as
-4-
J-S01037-23
counsel merely cross references the Anders brief and does not evidence any
kind of conscientious examination of the record. See Petition to Withdraw as
Counsel, filed 10/7/22, at 2.4 Moreover, the Anders brief simply states that
counsel “reviewed the transcript of [Glenn’s] plea and sentencing. [Counsel]
has reviewed the lower court file and the client case file.” Anders Brief, at 9.
As to the brief’s other contents, counsel cursorily highlights the limited
appellate claims one may raise after accepting a guilty plea and summarily
concludes that there are no meritorious issues present. In its entirety, this
section, which serves to demonstrate the frivolousness of the present appeal,
spans approximately one page in length. In addition, the “facts” section of the
Anders brief solely discusses the procedural history of this case (with some
____________________________________________
4 Counsel filed this more recent petition with an appended “notice of rights”
letter directed to Glenn after being ordered by this Court to do so, having only
filed an Anders brief and single-page petition to withdraw in the first instance.
Notwithstanding that original omission, counsel’s most recent submission
signals that Glenn received all relevant filings and information. In the “notice
of rights” letter, Glenn is apprised that he may retain new counsel, proceed
pro se, or raise any additional issues before this Court. As such, counsel has
satisfied that corresponding Anders requirement.
Instead of filing a response to the Anders brief, Glenn filed a pro se motion
for appointment of appellate counsel, which, like his pro se concise statement,
also appears to assert claims of ineffective assistance of counsel. As best can
be discerned, such contentions appear to be exclusively germane to a Post
Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S. § 9543(a)(2)(ii); see
also Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (stating,
generally, that ineffective assistance claims are to be deferred to PCRA review
unless: (1) the trial court addresses a claim of ineffectiveness that is apparent
from the record and meritorious; or (2) the defendant knowingly and
expressly waives his right to to seek PCRA review). Glenn’s filing was denied
by this Court per curiam.
-5-
J-S01037-23
overview of Glenn’s plea colloquy) and does not contain a single fact
underpinning Glenn’s crimes.
Although we do not condone counsel’s marginal effort in outlining and
analyzing legal or factual issues that may be present in this appeal, our review
of this case has not been materially hampered. Accordingly, we find that
counsel has nominally complied with Anders, and we therefore proceed to
review the substantive claims addressed in counsel’s brief.
In short, the Anders brief concludes that there are no presentable
issues to argue before this Court. Specifically, Counsel indicates that there
was nothing jurisdictionally infirm as to the trial court’s acceptance of Glenn’s
guilty plea nor was there any evidence that the court imposed an illegal
sentence. Moreover, counsel avers that Glenn’s guilty plea, both in its oral and
written form, was constitutionally and procedurally valid.
“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. Reichle,
589 A.2d 1140, 1141 (Pa. Super. 1991) (citations omitted).5
____________________________________________
5 Under certain circumstances, a defendant that has taken a guilty plea would
not be precluded from challenging the discretionary aspects of his sentence,
therefore providing another potential avenue for relief on appeal. However,
here, Glenn pleaded guilty to, and received the benefit of, an agreement that
specified particular penalties. As such, this negotiated agreement forecloses
review of the discretionary aspects of his sentence. See Commonwealth v.
Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009).
-6-
J-S01037-23
As to jurisdiction, “[t]he complaint and criminal information both recite
the situs of the offense as occurring in Beaver County, Pennsylvania.” Anders
Brief, at 9; see also Plea Hearing, 4/6/22, at 11 (outlining the court’s inquiry
into whether Glenn was present in Beaver County when he committed his
crimes). “[E]ach court of common pleas within this Commonwealth possesses
the same subject matter jurisdiction to resolve cases arising under the
Pennsylvania Crimes Code[.]” Commonwealth v. Bethea, 828 A.2d 1066,
1075 (Pa. 2003). Much like counsel, we see no jurisdictional basis for Glenn
to contest his guilty plea.
On the question of whether the court imposed an illegal sentence,
Glenn’s firearm conviction was graded as a first-degree felony, see 18 Pa.C.S.
§ 6105(a.1)(1.1), and the receiving stolen property charge was determined
to be a third-degree felony, see 18 Pa.C.S. § 3903(a.1) (specifying
automobiles). As to the former crime, Glenn admitted that he “had been
convicted of an offense that prohibited [him] from otherwise having or
possessing a firearm.” Plea Hearing, 4/6/22, at 12; 18 Pa.C.S. § 6105(b).
The court imposed a five-to-ten-year term of incarceration at the former
offense and a concurrent three-and-a-half-to-seven-year term at the latter
conviction. The maximum sentence for a first-degree felony is twenty years
of incarceration, see 18 Pa.C.S. § 1103(1), and seven years of incarceration
for a third-degree felony, id., at § 1103(3). In accordance with these statutory
precepts, the court did not exceed its authority in imposing either of Glenn’s
-7-
J-S01037-23
discrete sentences. See Commonwealth v. Berry, 887 A.2d 479, 483 (Pa.
Super. 2005) (citations omitted).
Regarding the sufficiency of Glenn’s guilty plea, “[a] defendant wishing
to challenge the voluntariness of a guilty plea on direct appeal must either
object during the plea colloquy or file a motion to withdraw the plea within ten
days of sentencing. Failure to employ either measure results in waiver.”
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013)
(citations omitted). There is no evidence that Glenn objected to his guilty plea
during the colloquy and, as stated supra, Glenn’s filing of a pro se motion to
withdraw was a legal nullity.6
Even if a plea-related claim was not waived, the record establishes
Glenn’s knowing acquiesce to the plea’s contents. Under Pennsylvania Rule of
Criminal Procedure Rule 590, a voluntary and knowing guilty plea must
contain a colloquy that, at a minimum, ascertains the following:
1. Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2. Is there a factual basis for the plea?
3. Does the defendant understand that he or she has the right to
trial by jury?
4. Does the defendant understand that he or she is presumed
innocent until found guilty?
5. Is the defendant aware of the permissible range of sentences
____________________________________________
6We reiterate, but express no opinion on, Glenn’s ability to subsequently seek
PCRA relief as it relates to his desire to having his guilty plea withdrawn.
-8-
J-S01037-23
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?
Pa.R.Crim.P. 590, Comment.
In utilizing these interrogatories as guideposts, there was sufficient
exploration into all six. The court explicitly delved into the elements of the two
pleaded-to crimes and Glenn’s factual involvement in having committed those
crimes. See Plea Hearing, 4/6/22, at 6-8. The court repeatedly confirmed
Glenn’s understanding of the crimes’ elements and his illicit actions. See, e.g.,
id., at 8. In addition, Glenn stated that he understood his “right to a jury
trial[.]” Id., at 5. Glenn also acknowledged the presumption that he was
innocent until proven guilty. See id., at 5-6. Furthermore, Glenn indicated
that he was aware of the maximum and minimum sentences that he could
face. See Guilty Plea Colloquy, at 3. And, finally, Glenn conveyed that he
understood that his agreement with the Commonwealth “is not binding on the
[c]ourt unless or until [it] decide[s] to accept it[.] Plea Hearing, 4/6/22, at 5.
We emphasize that most, if not all, of these six inquiries are reflected,
in some way, in both written and oral form. Additionally, Glenn responded
“yes” to the questions of whether he had ample opportunity to consult with
his attorney prior to entering the plea and whether he was satisfied with his
attorney’s representation. See Guilty Plea Colloquy, at 4. Therefore, we find
that Glenn was fully apprised of his rights had he chosen to proceed to trial
-9-
J-S01037-23
and fully assented to the plea agreement that was presently before him.
As required by Anders, we have independently reviewed the record to
determine whether any other non-frivolous issues exist. We, however, have
found no other legally viable claim for Glenn to have pursued in this direct
appeal.
With no other non-frivolous issues apparent and having analyzed the
entire contents of the Anders brief, we grant counsel's petition to withdraw
and affirm Glenn’s judgment of sentence.
Petition to withdraw from representation granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2023
- 10 -