Jones v. Com., Record No. 2642-97-4.

• Decision Date: 20 April 1999
• Docket Number: Record No. 2642-97-4.
• Citation: 29 Va. App. 503,513 S.E.2d 431
• Parties: Jason K. JONES, s/k/a Jason Khalid Jones v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

513 S.E.2d 431

29 Va. App. 503

Jason K. JONES, s/k/a Jason Khalid Jones v. COMMONWEALTH of Virginia.

Record No. 2642-97-4.

Court of Appeals of Virginia, Alexandria.

April 20, 1999.

William B. Moffitt (Henry W. Asbill; Asbill, Junkin & Moffitt, on briefs), Washington, DC, for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: ANNUNZIATA and BUMGARDNER, JJ., and HODGES, Senior Judge.

ANNUNZIATA, Judge.

Jason Jones ("appellant") was convicted, upon entry of Alford guilty pleas, of two counts of robbery and of the use of a firearm while committing those robberies. On appeal, appellant contends the trial court erred in failing to grant his motion to withdraw his Alford pleas, claiming they were not voluntarily and intelligently made. He specifically contends: (1) he entered the pleas under an honest mistake of material fact as to the character of the evidence against him, and (2) his pleas were the product of undue influence based on his mental state and certain external pressures on him at the time. Appellant further contends the Commonwealth proffered a materially false factual basis in support of his Alford pleas, which led the court to erroneously accept the pleas and find him guilty. Alternatively, appellant argues the Commonwealth's proffer, even if accurate, does not support the entry of an Alford plea because it was based on the statement of an accomplice who gave "materially different" accounts of events. Finally, appellant argues that due process considerations required the trial court to permit withdrawal of his pleas. Finding no error, we affirm.

I. BACKGROUND

A. Factual Background

We state the relevant facts in the light most favorable to the Commonwealth. See McGee v. Commonwealth, 25 Va.App. 193, 196, 487 S.E.2d 259, 260 (1997). On the evening of October 11, 1996, Sherri Herren drove to the Carlyle Grand Restaurant to celebrate her birthday with some friends. When the restaurant closed at around 1:00 a.m., Thomas Flatt and Shannon Harman walked Herren to her car, a Lexus, which was parked in a well-lit parking lot behind the establishment. As the trio approached Herren's car, Herren heard a voice behind her say, "Get on the ground." Herren turned around and saw two men. The one who spoke wore a ski mask and dark clothing and pointed a small handgun at Herren.

After repeating his order, Herren and her companions dropped to the ground. The robbers took Flatt's wallet and Harman's purse and drove away in Herren's car, which contained her purse and other personal items. None of the victims could identify the robbers.

On October 15, 1996, officers of the Arlington County Police Department stopped appellant and Christopher Surratt for an unrelated traffic offense. Surratt, who was driving a car belonging to appellant's mother, attempted to flee when the police asked him for identification. Officers subsequently discovered items taken during the aforementioned robberies in Surratt's possession and the key to Herren's Lexus in the passengerside door pocket of the car Surratt was driving. During a subsequent police interview, Surratt implicated appellant in the robberies, identifying him as the gunman.

On the same day, police executed a warrant to search appellant's townhouse. During the search, police recovered a number of items taken during the robberies, including bank records in the name of Thomas Flatt, Flatt's driver's license, a Blockbuster video card in the name of Kathleen Flatt, Herren's operator's license, an Exxon credit card in the name of J.L. Herren Associates,¹ and a Keegan Theater business card in Herren's name.

B. Procedural Background

Appellant was indicted on multiple charges for his participation in the aforementioned robberies. On March 20, 1997, pursuant to a plea agreement, appellant entered an Alford plea to two counts of robbery and one count of using a firearm in the commission of a felony. In exchange for his plea, the Commonwealth nolle prossed another count of robbery, carjacking, and a charge of carrying a concealed weapon. Appellant's plea agreement provides in pertinent part:

5. I do not admit that I committed the crimes to which I am pleading guilty. However, I have talked to my attorney about what might happen if I went to trial and I have decided it is in my interest to accept the prosecutor's offer, to enter into this agreement.

* * * * * *

8. 1 understand that I have a right to plead "Not Guilty" to the charge against me, but I want to give up that right and plead guilty instead. I also understand that when I give up the right to plead "Not Guilty" I am also giving up other rights guaranteed to me by the Constitution of the United States.... In particular, I understand that by pleading guilty I give up:

A. The right to a speedy and public trial by a jury ...;

* * * * * *

C. The right to see and hear all witnesses against me and the right to cross-examine those witnesses; ....

* * * * * *

17. I still claim innocence but I freely and voluntarily plead guilty to the crimes described in paragraph 3, above, because I have decided it is in my interest to do so.

Before accepting the three pleas, the trial court questioned appellant regarding his agreement to plead guilty. In pertinent part, the court had the following dialogue with appellant:

THE COURT: I[t] says in Paragraph Three that you are pleading guilty to two robberies and one use of a firearm. Following that in Five it says you do not admit committing the crimes. Tell me why you are pleading guilty if you do not admit committing the crimes?

[APPELLANT]: Because I feel if I went to trial there is enough evidence to convict me and I don't want to take that chance of being convicted by a jury.

THE COURT: In Paragraph Eighteen it says there is no agreement as to sentence. You know on the robbery charges you could get life on each one of the two and the use of a firearm you get three years. You understand each of those sentences.

[APPELLANT]: Yes, I do.

THE COURT: You're worried that a jury might convict you and then the jury would impose sentence.

[APPELLANT]: Yes.

The court subsequently found appellant "freely, voluntarily and intelligently, with the aid of good counsel, entered pleas of guilty" and accepted his three pleas.

The Commonwealth proffered a set of facts in support of appellant's guilty pleas. The court asked appellant whether the Commonwealth's proffered evidence was the evidence he would expect to hear at trial and whether the evidence raised concerns in his mind that he would be convicted by a jury. Appellant replied in the affirmative to both questions. Appellant's counsel, Jeffrey Kleger, also indicated that he believed. the Commonwealth's proffered evidence would be admitted against appellant at a trial.

The court found appellant guilty of two robberies and of using a firearm in the commission of a felony and scheduled sentencing for June 6, 1997. On June 2, 1997, appellant, with the assistance of new counsel, filed a Motion to Withdraw Guilty Pleas with the court. The court's denial of this motion is the subject of this appeal.

II. WITHDRAWAL OF GUILTY PLEAS

A. Principles Regarding Guilty Pleas and the Alford Plea

A guilty plea normally consists of both a waiver of constitutional rights and an admission of guilt.

Ordinarily, a judgment of conviction resting on a plea of guilty is justified by the defendant's admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind. The plea usually subsumes both elements even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment.

North Carolina v. Alford, 400 U.S. 25, 32, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Virginia law likewise establishes that a plea of guilty ordinarily subsumes an admission of guilt. Kibert v. Commonwealth, 216 Va. 660, 665, 222 S.E.2d 790, 793 (1976) (" 1G]enerally no evidence of guilt is required in order to proceed to judgment [upon a plea of guilty], for [the] accused has himself supplied the necessary proof. " (quoting Hobson v. Youell, 177 Va. 906, 912-13, 15 S.E.2d 76, 78 (1941))).

Among the constitutional rights waived by a guilty plea are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Dowell v. Commonwealth, 12 Va.App. 1145, 1148-49, 408 S.E.2d 263, 265 (1991), aff'd en banc, 14 Va.App. 58, 414 S.E.2d 440 (1992). In order to ensure these rights are adequately protected, the trial court must determine whether a defendant's decision to waive them by pleading guilty "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Alford, 400 U.S. at 31, 91 S.Ct, 160.

An admission of, guilt, however, is "not a constitutional requisite to the imposition of criminal penalty." Id. at 37, 91 S.Ct. 160; Smith v. Commonwealth, 27 Va.App. 357, 361-62, 499 S.E.2d 11, 13 (1998). Courts may find that an accused has voluntarily and intelligently entered a guilty plea even though he or she alleges innocence. Id. ("An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts `constituting the crime."). Such a plea is known as an Alford plea.

Although Virginia does not ordinarily require the introduction of evidence to sustain a conviction based upon a plea of guilty,² in order to ensure that a defendant has pled guilty freely and intelligently, the trial court should not accept an Alford plea unless it finds that a factual basis supporting guilt exists. Alford, 400 U.S. at 38 11. 10, 91 S.Ct. 160 ("Because of the importance of protecting the...