Delp v. Commonwealth
| Decision Date | 30 June 2020 |
| Docket Number | Record No. 1539-19-3 |
| Citation | 72 Va.App. 227,843 S.E.2d 758 |
| Parties | Dustin Clinton DELP v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Hyatt B. Shirkey (Hyatt Browning Shirkey Law Firm, on brief), Roanoke, for appellant.
Maureen E. Mshar, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Beales, Russell and AtLee
OPINION BY JUDGE WESLEY G. RUSSELL, JR.
Consistent with the terms of his plea agreement, Dustin Clinton Delp pled no contest to, was convicted of, and sentenced for statutory burglary, larceny of a firearm, and possession of a firearm after previously having been convicted of a violent felony.2 As a result of these convictions, previously suspended sentences for other offenses committed by Delp were revoked and resuspended on specified conditions. Approximately four months prior to his plea and revocation hearings, Delp appeared before the trial court and requested new court-appointed counsel. The trial court denied the request. On appeal, Delp contends that "[t]he trial court erred by requiring [him] to proceed through a plea hearing and sentencing with" his court-appointed counsel because it did "not conduct[ a] sufficient and specific inquiry into [his] request for a new court-appointed attorney" before denying that request. For the reasons that follow, we conclude that Delp's plea waived any argument he may have had in this regard. Accordingly, the judgment of the trial court is affirmed.
On appeal, we view the record in the light most favorable to the Commonwealth because it was the prevailing party below. See Huguely v. Commonwealth, 63 Va. App. 92, 110, 754 S.E.2d 557 (2014).
On October 1, 2018, the grand jury for the City of Roanoke indicted Delp on four felonies and the trial court appointed an attorney to represent him. After two continuances, the matter was set to be resolved by plea agreement on March 18, 2019. On that date, Delp appeared before the trial court with his court-appointed counsel. When asked by the trial court if the parties were ready to proceed, the Commonwealth responded in the affirmative; however, Delp indicated he had changed his mind regarding the plea, requested new counsel, and asked for a jury trial.
Faced with Delp's apparent change in position, the trial court asked, "what happened with the agreement, Mr. Delp?" Delp responded by saying that, initially, his attorney had come to see him only "two or three times" since his appointment in October. Delp indicated that when he suggested taking the matter before a jury, the attorney had "basically in so many words said no." Delp further asserted that when he recently had indicated interest in a possible plea, the attorney came to visit "four times in one week[.]" Delp reiterated to the trial court that he did not want to enter the plea, wanted a jury trial on the charges, and wanted a new attorney.
After confirming that Delp wanted a jury trial, the trial court asked what witnesses Delp needed for his defense. Delp identified three people. The trial court then asked Delp to specify what his counsel had not done to Delp's satisfaction. Delp indicated that he had requested to see all of the Commonwealth's evidence against him but had not been shown it and that he wanted his counsel to "act like he [is] a lawyer."
The trial court granted Delp's request for a jury trial. In doing so, the trial court explained some of the differences between a jury trial and a bench trial or a plea agreement. Specifically, the trial court described for Delp the sentences Delp faced, that, as a result of mandatory minimums, the jury would be required to sentence him to at least eight years in prison if it found him guilty of all charges. The trial court further instructed Delp that juries, unlike judges, did not have the power to suspend sentences. The trial court also informed Delp that the jury could acquit him of all charges, resulting in no jail time.
The trial court then explained plea agreements, which it described as a "compromise[.]" The trial court noted that, in the event of a plea agreement, the prosecutor could agree to dismiss some of the charges in exchange for the agreement. Delp indicated that he understood all of this and still wanted a jury trial. A June 20, 2019 trial date ultimately was selected.
The trial court denied Delp's request for new counsel, but it attempted to address Delp's stated concerns regarding counsel. The trial court explained that, although Delp's counsel had reviewed the Commonwealth's file, which included audio and video recordings, he could not bring the file to Delp or copy everything that was in it. Rather, counsel was permitted to take notes regarding the file and could share that information with Delp. The trial court informed Delp that his counsel did not Having informed Delp of these facts, the trial court directed Delp's counsel to "follow through" on the witnesses Delp had identified and "show [Delp] his notes on what the Commonwealth's case is against" Delp. The trial court inquired if that course of action was "[o]kay" with Delp, and Delp responded in the affirmative.
On March 26, 2019, the Commonwealth requested a capias be issued based upon Delp's alleged violation of previously suspended sentences. On June 13, 2019, the parties jointly moved to continue the June 20, 2019 trial. The basis set forth in the written motion was that Delp "intends on pleading guilty and would like to do so at the same time and date as his revocation" hearing, which had been set for July 16, 2019.
The parties entered into a written plea agreement, dated July 16, 2019. The agreement required Delp to plead "guilty or no contest" to statutory burglary, larceny of a firearm, and possession of a firearm after having previously been convicted of a violent felony and stipulated that the trial court would find him guilty of these charges. If accepted by the trial court, the agreement required the trial court to enter "[a]n order of nolle prosequi " regarding the possession of ammunition by a convicted felon charge. Among other matters, the written agreement established the sentences to be imposed, restitution to be paid, and post-release conditions. The written agreement contained no provision regarding the effect of Delp's pleas on his ability to file an appeal.
On July 16, 2019, the parties appeared before the trial court and presented the written plea agreement to the trial court. Consistent with its terms, Delp entered pleas of "no contest" to the specified charges. Before accepting the pleas or the plea agreement, the trial court conducted a colloquy with Delp.
As even Delp acknowledges, the colloquy was a standard colloquy, covering a variety of subjects. Among other things, Delp acknowledged during the colloquy that he had discussed the case with his counsel, that his counsel had reviewed with him the Commonwealth's evidence against him, that he understood that he had the right to plead not guilty, that he was entering his pleas voluntarily, that he was the person who had made the decision to enter his pleas, that he was entering his pleas "freely and voluntarily[,]" and that he was satisfied with the assistance he had been provided by counsel. Before accepting Delp's pleas, the trial court asked Delp to confirm that he understood that, by entering the pleas, Delp was giving up certain rights, including the "right to confront and challenge the testimony against you ... [, the] right against self-incrimination, and for all practical purposes ... any meaningful opportunity to appeal. " (Emphasis added). Delp unequivocally acknowledged that he was giving up these rights.
Based on Delp's responses during the colloquy, the trial court accepted the plea agreement, found Delp guilty of the offenses specified in the plea agreement, and dismissed the possession of ammunition by a convicted felon charge. In so doing, the trial court made the following findings of fact:
I find it to be true that you've been present here in open court throughout these proceedings. Your attorney has been here present with you throughout and he has capably and competently assisted you. I find it to be true that you do understand the nature and the consequences of your pleas, the rights you give up, and the maximum punishment that you face. I also find it to be true that the pleas that you entered today were done knowingly and intelligently and voluntarily.
In the same proceeding, the Commonwealth presented evidence of Delp's newly acquired convictions as violations of his probation. Delp presented evidence in mitigation, and the trial court revoked a portion of Delp's previously suspended sentences.
The trial court entered separate sentencing orders for each of the three new offenses for which Delp was convicted. In each order, the trial court recited that it had engaged in a plea colloquy with Delp and "found that [Delp] fully understood the nature and effect of his plea and of the penalties that may be imposed upon his conviction and of the waiver of trial by jury and of appeal " when he entered his pleas. (Emphasis added). At no point while the matter was within the breast of the trial court did Delp object to or otherwise contest the trial court's findings that he entered his pleas knowingly, voluntarily, and intelligently; that he had waived his right of appeal; or that his attorney's services had been "capabl[e] and competent[.]"
Twenty-two days after entry of the sentencing orders, Delp's trial counsel filed a notice of appeal regarding each of the new convictions and the revocations. The next day, he filed a motion to withdraw, seeking appointment of new counsel to handle Delp's appeal. The trial court granted that motion and appointed Delp's current counsel for purposes of appeal.
On appeal, Delp challenges the trial...
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