Clauson v. Com.

• Decision Date: 09 March 1999
• Docket Number: Record No. 0758-98-1.
• Citation: 29 Va. App. 282,511 S.E.2d 449
• Parties: Matthew J. CLAUSON, s/k/a Matthew James Clausen v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

511 S.E.2d 449

29 Va. App. 282

Matthew J. CLAUSON, s/k/a Matthew James Clausen v. COMMONWEALTH of Virginia.

Record No. 0758-98-1.

Court of Appeals of Virginia, Norfolk.

March 9, 1999.

James Amery Thurman (Thurman & Thurman, on brief), Virginia Beach, for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BRAY, J., and OVERTON,¹ Senior Judge.

FITZPATRICK, Chief Judge.

Matthew James Clausen (appellant) entered pleas of guilty to two counts of robbery, in violation of Code § 18.2-58, and two counts of use of a firearm in the commission of robbery, in violation of Code § 18.2-53.1. Appellant also entered a plea of nolo contendere to one count of conspiracy to commit robbery, in violation of Code § 18.2-22. On appeal, he argues that his plea of nolo contendere did not constitute a waiver of his right to appeal the conspiracy charge.² For the following reasons, we dismiss the appeal.

I.

On August 18, 1997, five felony warrants were issued charging appellant with two counts of robbery, two counts of use of a firearm in the commission of robbery and one count of conspiracy to commit robbery. Appellant waived his right to a preliminary hearing on the charges, and the grand jury returned indictments on each of the five felonies.

The parties entered a stipulation of facts and on November 25, 1997, appellant pled guilty to both robbery counts and one of the firearm charges. He received ten years on each robbery count. The court ordered the terms to be served concurrently. He also received three years on the firearm charge, which was to be served consecutive to the robbery terms. The remaining two charges, conspiracy to commit robbery and use of a firearm in the commission of robbery, were continued.

On February 10, 1998, appellant moved to dismiss the conspiracy charge, arguing that Code § 18.2-23.1³ bars conviction when the accused has been convicted of the substantive offense. By letter opinion dated February 11, 1998, the trial court denied appellant's motion.

On March 2, 1998, pursuant to a plea agreement with the Commonwealth, appellant entered a plea of nolo contendere to the conspiracy charge and a plea of guilty to the remaining firearm charge. The agreement, which included appellant's prior guilty pleas made on November 25, 1997, provided the following:

1. That the defendant stands indicted in this Court for the following offenses: Conspiracy to Commit Robbery, Robbery (Two Counts), and Use of Firearm in the Commission of Robbery (Two Counts) in violation of section(s) 18.2-22, 18.2-58, and 18.2-53.1.

2. That the defendant agrees to plead guilty to the same charges enumerated above (except that the defendant will plead nolo contendre [sic] to the Conspiracy charge), in violation of the same Code sections enumerated above.

3. That the Attorney for the Commonwealth and the Attorney for the defendant agree that the following sentence is the appropriate disposition in this case: The defendant shall be sentenced to serve ten years in the Virginia Department of Corrections on the Conspiracy and Robbery charges. Those sentences shall run concurrently to each other and consecutively to the sentences imposed on the firearm charges. The defendant shall be sentenced to serve three years on the first Use of a Firearm charge, and to serve five years on the second Use of a Firearm charge. Those sentences shall run consecutively to each other and to the sentences on the Robbery and Conspiracy charges....

4. That this plea agreement is the total agreement between the parties and there have been no other inducements, threats, promises, or coercion of any kind imposed upon the defendant by the Attorney for the Commonwealth or any agent of the Commonwealth.

(Emphasis added).

The trial court accepted the plea agreement after an extended colloquy with appellant, which included the following:

Q. Do you fully understand the charges against you?

A. Yes.

Q. Have you discussed the charges and their elements with your lawyer, Mr. Thurman?

A. Yes, I have.

Q. Have you had enough time to discuss with Mr. Thurman any possible defenses you may have to these charges?

A. Yes, sir.

Q. Have you discussed with your lawyer whether you should plead guilty or not guilty?

A. Yes.

Q. After speaking with your lawyer, did you decide for yourself that you should plead guilty and nolo contendere?

A. Yes.

* * * * * *

Q. Do you understand by pleading guilty that you may waive any right to appeal the decision of this court?

A. Yes.⁴

Following this colloquy, the trial court convicted appellant of both counts and sentenced appellant in accordance with the agreement.

II.

Appellant contends that by entering a plea of nolo contendere, he did not waive his right to appeal the trial court's denial of his pretrial motion to dismiss the conspiracy charge. He argues that a plea of nolo contendere should be distinguished from a guilty plea for the purpose of determining a waiver of his right to appeal. This argument presents an issue of first impression for this Court.

Code § 19.2-254 provides that the accused in a criminal proceeding "may plead not guilty, guilty, or nolo contendere" upon arraignment for the offense "on which he will be tried." Code § 19.2-254.⁵ A plea of guilty constitutes a "self-supplied conviction." Allen v. Commonwealth, 27 Va.App. 726, 730, 501 S.E.2d 441, 443 (1998). On the other hand, a plea of nolo contendere is neither "a confession of guilt" nor a "declaration of innocence equivalent to a plea of not guilty." Commonwealth v. Jackson, 255 Va. 552, 555, 499 S.E.2d 276, 278 (1998). "It allows an accused, thinking it best ... not to submit to trial, but unwilling to confess the truth of the charge, [and] ... plead guilty, to throw[ ] himself on the mercy of the court... without confessing or denying ... guilt." Jefferson v. Commonwealth, 27 Va.App. 477, 484-85, 500 S.E.2d 219, 223 (1998) (internal quotations and citations omitted). "Nonetheless, by entering [the] plea ..., the defendant implies a confession ... of the truth of the charge ... [and] agrees that the court may consider him guilty for the purpose of imposing judgment and sentence." Id. at 485, 500 S.E.2d at 223 (internal quotations and citations omitted).

"Although it is said that a plea of nolo contendere means literally `I do not contest it,' and `is a mere statement of unwillingness to contest and no more,' it does admit `every essential element of the offense [that is] well pleaded in the charge.'" Lott v. United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961) (citations omitted). "Hence, it is tantamount to `an admission of guilt for the purposes of the case,' and `nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record.'" Id. (citations omitted).

"When an accused enters a voluntary and intelligent plea of guilty to an offense, he waives all defenses except those jurisdictional." Savino v. Commonwealth, 239 Va. 534, 538, 391 S.E.2d 276, 278 (1990) (emphasis added).

"[A] voluntary and intelligent plea of guilty by an accused is, in reality, a self-supplied conviction authorizing imposition of the punishment fixed by law. It is a waiver of all defenses other than those jurisdictional, effective as such not only in the lower court but as well in this court. Where a conviction is rendered upon such a plea and the punishment fixed by law is in fact imposed in a proceeding free of jurisdictional defect, there is nothing to appeal. To take any other view would give recognition to an empty right and permit frivolous appeals for the mere sake of delay."

Id. at 539, 391 S.E.2d at 278 (quoting Peyton v. King, 210 Va. 194, 196-97, 169 S.E.2d 569, 571 (1969)).

Additionally, "[o]ne who voluntarily and intelligently pleads guilty waives important constitutional rights, including his right to trial by jury, his right against self-incrimination, his right to demand that the Commonwealth prove its case beyond a reasonable doubt, and his right to object to illegally obtained evidence." Allen, 27 Va.App. at 730-31, 501 S.E.2d at 443.

In the instant case, appellant concedes that when an accused enters a plea of guilty, the accused waives his or her right to appeal non-jurisdictional issues. However, appellant argues that by entering a plea of nolo contendere to the conspiracy charge, he effectively preserved his right to appeal the trial court's decision denying his motion to dismiss. We disagree.

We have on prior occasions held that a plea of nolo contendere carries with it some of the same consequences as a plea of guilty. In Jefferson, we held that the pleas of guilty and nolo contendere are treated "alike in the context of a motion to withdraw" a plea under Code § 19.2-296. Jefferson, 27 Va.App. at 485, 500 S.E.2d at 223. In Allen, we held that "the plea of nolo contendere, or no contest, [was] equivalent to a plea of guilty" for purposes of determining whether the plea was entered voluntarily, intelligently and knowingly. Allen, 27 Va.App. at 729 n. 1, 501 S.E.2d at 443 n. 1. See also Smith v. Commonwealth, 27 Va.App. 357, 363, 499 S.E.2d 11, 14 (1998) (holding that "a trial court may consider a defendant's lack of remorse at sentencing, even when the defendant has chosen to enter an Alford [or nolo contendere ] plea").

While we have not expressly addressed this precise issue, several of our sister states have found no distinction between a plea of guilty and nolo contendere for the purpose of determining a waiver of the right to appeal. For example, in State v. Arnsberg, 27 Ariz. App. 205, 553 P.2d 238 (1976), the Court of Appeals of Arizona held that when a defendant enters a plea of no contest, he or she waives all non-jurisdictional defenses preceding the entry of the plea. See id. at 240. In Arnsberg, the defendant pled no contest to one...