Hall v. Com., Record No. 1761-98-3.

• Decision Date: 15 June 1999
• Docket Number: Record No. 1761-98-3.
• Citation: 30 Va. App. 74,515 S.E.2d 343
• Parties: Jamie Michael HALL v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

515 S.E.2d 343

30 Va. App. 74

Jamie Michael HALL v. COMMONWEALTH of Virginia.

Record No. 1761-98-3.

Court of Appeals of Virginia, Salem.

June 15, 1999.

Anthony E. Collins (Collins & Collins, on brief), Wise, for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and LEMONS, JJ.

COLEMAN, Judge.

Jamie Michael Hall was indicted for the murder of Timothy Matthew Earls, the attempted murder of Danny Culbertson, and two counts of use of a firearm in the commission of a felony. In accordance with a plea agreement, Hall entered guilty pleas under the authority of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to first-degree murder, attempted second-degree murder, and one firearm count. In exchange, the Commonwealth agreed to dismiss the second firearm charge, to reduce the attempt charge to attempted second degree murder, and to recommend that the attempted murder sentence run concurrently with the murder sentence. The court accepted the pleas. Three months later, Hall moved to withdraw his pleas based on evidence he discovered during the sentencing hearing which he asserts was different from what he had previously understood the Commonwealth's evidence to be. The trial court denied Hall's motion, and Hall appeals that denial. Finding no error, we affirm the trial court's decision.

BACKGROUND

Hall shot and killed Earls early in the morning after a night of drinking with acquaintances, including Earls and Culbertson. After a series of quarrelsome telephone calls, Hall, Culbertson, and Earls agreed to meet on the road near Earls' home. Hall arrived at 2:00 a.m., and the three drove in Hall's truck to a remote location known as the "Nettle Patch."

At the Nettle Patch, they argued about women. Hall exited the truck, produced a rifle, and fired twice into the air. Shortly thereafter, Hall shot Earls in the face. Hall, rifle in hand, then chased Culbertson around the truck. As Culbertson fled into the woods, Hall screamed that Culbertson would have to watch Earls die.

The indictment alleged that when Culbertson was about twenty-five yards away, Hall fired a fourth shot that, although intended for Culbertson, missed. Hall then approached Earls and fired a fifth shot directly into Earls' temple. Hall drove away only to return approximately twenty minutes later. Unable to find Culbertson, he drove off.

Before accepting Hall's Alford pleas, the trial court questioned Hall to determine whether he entered the guilty pleas freely, voluntarily, and knowingly. Hall stated that he had sufficiently discussed the matter with his attorney, that he understood the elements of the crimes charged, and that he understood the differences between first-degree murder, second-degree murder, and voluntary manslaughter. Hall stated that he was entering the pleas to avoid the unpredictable risks of prosecution. Hall acknowledged his understanding that he was waiving his right to a jury trial, his right to remain silent, his right to require the Commonwealth to prove all the elements of the charged crimes, his right to cross-examine and confront witnesses, and his right to appeal the convictions. Hall further stated that no one had threatened or coerced him into entering the pleas. The trial judge explained the maximum sentence for each offense. Hall indicated that it was his decision to plead guilty and that he was satisfied with the services of his attorney.

For the purposes of that hearing, Hall stipulated to the facts in the indictment without conceding that the facts were true. The defense attorney stated that insofar as he was aware, the Commonwealth fully complied with the trial court's discovery orders. Finally, Hall agreed that if the evidence were presented on pleas of not guilty, and believed beyond a reasonable doubt by the fact finder, the evidence would be sufficient to establish his guilt on the indictments.

During the sentencing hearing, Culbertson, the only eyewitness to the crime, testified that although he heard the fourth shot while he was fleeing into the woods, he did not see Hall point the weapon in his direction. He also stated that he was not sure if he heard a fifth shot.

The police recovered three expended shell casings near Earls' body and two from Hall's truck — one from the "bug screen" on the hood of the truck and one on the floorboard.

Hall testified that he accidentally fired the shots that killed Earls. Hall presented expert testimony to show that due to alcohol impairment, his actions only amounted to manslaughter. Noting the peculiarity of pleading guilty to murder, then presenting evidence of manslaughter, the trial judge asked Hall whether he was asking to withdraw his pleas.

Shortly thereafter, Hall moved to withdraw the guilty pleas, contending that during the sentencing hearing, he became aware of several defenses to the charges. Hall argued that he had pled guilty under the mistaken belief that Culbertson would testify that he saw Hall point the gun in his direction. Culbertson, who was the only eyewitness, had refused Hall's request for a pretrial interview. Because the indictment charged that Hall aimed the weapon at Culbertson, Hall claims to have erroneously assumed that Culbertson would testify that he saw Hall aim the weapon in his direction. The trial court denied the motion.

ANALYSIS

On appeal, Hall argues that he was entitled to withdraw his guilty pleas during the sentencing hearing because he had not entered the pleas voluntarily, knowingly, and intelligently and because he made the decision to plead guilty without the effective assistance of counsel.

Whether a defendant should be permitted to withdraw a guilty plea rests within the sound discretion of the trial court to be determined based on the facts and circumstances of each case. See Parris v, Commonwealth, 189 Va. 321, 324-25, 52 S.E.2d 872, 873-74 (1949); Hoverter v. Commonwealth, 23 Va.App. 454, 463-64, 477 S.E.2d 771, 775 (1996).

No fixed or definite rule applicable to and determinative of all cases can be laid down. However, the motion should not be denied, if timely made, and if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fact or facts, or if it was induced by fraud, coercion or undue influence and would not otherwise have been made.

Parris, 189 Va. at 324, 52 S.E.2d at 873. Generally, a trial court should permit withdrawal of a guilty plea whenever permitting withdrawal of the guilty plea will promote the ends of justice.

"The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty. Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the

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