Ferguson v. Commonwealth

• Decision Date: 25 February 2020
• Docket Number: Record No. 0060-19-3
• Citation: 71 Va.App. 546,838 S.E.2d 75
• Parties: Michael Dwayne FERGUSON v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 546

838 S.E.2d 75

Michael Dwayne FERGUSON

v.COMMONWEALTH of Virginia

Record No. 0060-19-3

Court of Appeals of Virginia, Lexington.

FEBRUARY 25, 2020

Michael A. Nicholas (Daniel, Medley & Kirby, P.C., on brief), Danville, for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Beales and Athey

OPINION BY JUDGE RANDOLPH A. BEALES

Appellant Michael Dwayne Ferguson pled guilty to committing incest by having sexual intercourse with his eighteen-year-old stepdaughter in violation of Code § 18.2-366. With the consent of the Commonwealth and the approval of the circuit court, he conditioned his guilty plea on his right to appeal the conviction on the sole basis that the circuit court erred "when it refused to find that Virginia Code § 18.2-366 is unconstitutional when it criminalizes sexual relations between adults not related by blood."

I. BACKGROUND

Ferguson was indicted on the charge of unlawfully having sexual intercourse with his stepdaughter, "C.M.," who at the time was eighteen, in violation of Code § 18.2-366.¹

Ferguson filed a motion to dismiss the indictment on the basis that the statute was unconstitutional "when applied to sexual relations between adults not related by blood."² The motion requested a hearing on the matter. The Commonwealth filed a written response to the motion requesting that it be denied and alleging that Ferguson began having oral sex with his wife’s daughter, C.M., when C.M. was sixteen years old and living in Campbell County. It alleged that Ferguson intimidated C.M. by threatening to kill her mother, her brother, and her grandfather if she did not comply with his demands and that when C.M. turned seventeen, Ferguson also began demanding sexual intercourse with C.M. The Commonwealth’s response also alleged that Ferguson forced himself on C.M. numerous times while the family lived in Campbell County, in the City of Danville, and in Pittsylvania County and that after C.M. turned eighteen, Ferguson got her pregnant. Results of a paternity test filed with the Danville Juvenile and Domestic Relations District Court concluded that the probability of Ferguson being the father of C.M.’s child was 99.99%. The Commonwealth’s response also alleged that the incestuous sexual relationship between Ferguson and C.M. caused C.M. and her mother to become estranged and caused C.M.’s mother to file for a divorce from Ferguson.³

At a hearing on Ferguson’s motion to dismiss, Ferguson’s sole argument for dismissing the indictment was that Code § 18.2-366 was unconstitutional as applied to Ferguson because it "criminalizes constitutionally protected sexual activity, specifically when that sexual activity is between adults where no allegation is contained in the indictment that there was force or lack of consent." He argued that the trial court should rely on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), to find that his sexual relationship with his eighteen-year-old stepdaughter was constitutionally protected. In response, the Commonwealth argued that the relationships discussed in Lawrence and in Martin are distinguishable because this case involves "a relationship where consent was not easily refused." The trial court denied Ferguson’s motion to dismiss, finding that Code § 18.2-366 is constitutional.

After the motion was denied, Ferguson, through his counsel, stated his intention to make a conditional guilty plea, and the Commonwealth informed the trial court of its consent to his doing so. Ferguson’s counsel stated, "And for the record, the specified pretrial ruling is the one we just did this morning, the motion to dismiss the indictment on constitutional grounds." The trial judge then engaged in a plea colloquy with Ferguson to ensure that his plea was being entered intelligently, knowingly, and voluntarily. As part of this colloquy, the trial judge asked, "And is that your understanding, that you’re entering your guilty plea, and I’ll go through everything, waiving all except your right to challenge the motion on the, motion to dismiss the indictment that the Court just ruled on the constitutionality?" Ferguson responded, "Yes, ma’am." Later in the colloquy, Ferguson again affirmed that he understood that he was waiving his right, "except for the motion to dismiss, to appeal this Court’s decision." The trial judge concluded that Ferguson’s guilty plea, conditioned only on his right to appeal the trial court’s ruling that the statute is constitutional as applied to him, was made intelligently, knowingly, and voluntarily.

The Commonwealth proffered the following as a summary of the evidence in the case:

Your Honor, the Commonwealth’s case alleges that between January 1st, 2017 and March 1st, 2017, in Pittsylvania County, the defendant had sexual relations with his step-daughter, C.M., when, while they lived in Pittsylvania County. The Commonwealth states that on September 9th, 2012, Mr. Ferguson married C.M.’s mother Kathy Yates (Phonetic), and that at the time C.M. was a juvenile and they lived in Campbell County. Later they moved into Pittsylvania County where they continued to reside during the timeframe alleged in the indictment, and during that time an ongoing sexual relationship took place between the two of them and a child was born from that relationship. We would submit to the Court a copy of a court order determining parentage and ask that it be sealed.

The Commonwealth offered as an exhibit a court order determining that Ferguson is the father of C.M.’s child. This appeal followed.

II. ANALYSIS

On appeal, Ferguson assigned error to the same issue as the one upon which he conditioned his guilty plea. His assignment of error states, "The Circuit Court of Pittsylvania County erred when it refused to find that Virginia Code § 18.2-366 is unconstitutional when it criminalizes sexual relations between adults not related by blood." Before oral argument in this case, however, this Court alerted the parties to be prepared to respond to questions about the language of Code § 18.2-366 and whether that statute criminalizes sexual intercourse generally between stepparents and stepchildren – or only sexual intercourse between stepparents and minor stepchildren.⁴

At oral argument before this Court, Ferguson stated for the very first time that the statute did not apply to him while the Commonwealth disagreed, stating that it did indeed apply to him. Nevertheless, this Court is prohibited from reaching the merits of this statutory interpretation issue for two reasons. First, Ferguson’s guilty plea was conditioned on his right to appeal the trial court’s decision on the sole grounds that the statute was unconstitutional because it did criminalize his relationship with his eighteen-year-old stepdaughter. Second, Ferguson did not ever argue below or on brief on appeal – or even assign error to the trial court’s implicit decision – that Code § 18.2-366 prohibits sexual intercourse between a stepparent and an adult stepchild, such as the recently turned eighteen-year-old C.M. in this case.

Conditional Guilty Plea Subject Only to the Statute’s Unconstitutionality

Code § 19.2-254 states,

With the approval of the court and the consent of the Commonwealth, a defendant may enter a conditional plea of guilty in a misdemeanor or felony case in circuit court, reserving the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Under Code § 19.2-254, the only issue that the defendant may appeal after entering a conditional guilty plea is the issue that he specified in the trial court as the issue he intends to appeal – and to which the Commonwealth and the trial court give their consent and approval. The defendant waives his right to appeal any non-jurisdictional issue other than any issue specified and agreed upon as part of his conditional guilty plea. See Brown v. Commonwealth, 68 Va. App. 58, 70-71, 802 S.E.2d 197 (2017) (holding appellant waived right to appeal alleged Sixth Amendment violation as part of his conditional guilty plea where he did not specify that ground in his plea agreement, and he did not obtain the permission of the Commonwealth and the trial court to that condition of the guilty plea); see also Johnson v. Commonwealth, 38 Va. App. 137, 143-44, 562 S.E.2d 341 (2002) (recognizing that when a defendant pleads guilty, he waives all non-jurisdictional defenses unless the trial court and Commonwealth agree that defendant may appeal a specific issue); Davis v. Commonwealth, No. 0215-15-3, 2016 WL 1741608, at *2 (Va. Ct. App. May 3, 2016) ("Because appellant entered a conditional guilty plea, his basis for appeal is limited to ‘a review of the adverse determination of any specified pretrial motion.’ " (quoting Code § 19.2-254 )).

When Ferguson entered a conditional guilty plea, his counsel told the trial court that "the specified pretrial ruling [under Code § 19.2-254 ] is the one we just did this morning, the motion to dismiss the indictment on constitutional grounds." The Commonwealth consented to Ferguson’s taking the guilty plea conditioned on his right to appeal solely on the grounds that, while the statute applied to Ferguson, the statute was nevertheless unconstitutional – and on no other grounds. The trial court approved the conditional guilty plea based on this agreed-upon condition. During the plea colloquy, the trial court confirmed with Ferguson that he understood that he was "waiving all except [his] right to challenge the ... motion to dismiss the indictment that the Court just ruled on the constitutionality." Indeed, it was a guilty plea, from which a defendant, of course, cannot appeal, unless there is a conditional guilty plea. Johnson, 38 Va. App. at 143, 562 S.E.2d 341....