Milton v. Commonwealth
| Decision Date | 09 October 2012 |
| Docket Number | Record No. 1925-11-1 |
| Court | Virginia Court of Appeals |
| Parties | JENNIFER SHERRICE MILTON v. COMMONWEALTH OF VIRGINIA |
UNPIBLISHED
Present: Judges Kelsey, McCullough and Senior Judge Clements
Argued at Chesapeake, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Oksana V. LaBounty, Assistant Public Defender, for appellant.
Victoria Johnson, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General; Katherine Quinlan Adelfio,
Assistant Attorney General, on brief), for appellee.
Jennifer Sherrice Milton was convicted, upon a guilty plea, of attempted petit larceny, third or subsequent offense in violation of Code §§ 18.2-96 and 18.2-104.1 Milton argues the trial court erred in denying her post-sentencing motion to withdraw her guilty plea. Milton asserts that at the time she entered her guilty plea she was unaware she was pleading guilty to a felony and she believed the charge would be taken under advisement. Finding no error in the trial court's judgment, we affirm Milton's conviction.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as necessary to the parties' understanding of the disposition of this appeal.
According to the stipulation of facts signed by Milton, on August 1, 2009, a loss prevention officer at a grocery store saw Milton conceal items in a handbag. At the checkout, Milton paid for items in a cart, but she failed to pay for the items she concealed in her handbag and the loss prevention officer detained Milton. Officer D. Boyd investigated, and Milton told Boyd that she stole the items because she did not have money to pay for them. Milton's two prior convictions for petit larceny were admitted into evidence at the guilty plea hearing. The trial court noted that the stipulated facts were sufficient to find Milton guilty and her guilty plea was entered freely, voluntarily, and intelligently. Prior to the trial court finding Milton guilty, defense counsel asked the trial court to take the matter under advisement until the pre-sentence report was completed because there were "certain circumstances" she wanted to present concerning "what was going on in [Milton's] life at the time of the offense." The trial court again found that the facts were sufficient to find Milton guilty, but since it was not a final order until sentencing it would listen to what defense counsel had to say. The trial court entered an order of conviction on October 22, 2009, and continued the case for sentencing. Thereafter, the case was continued several times in recognition that Hernandez v. Commonwealth, 55 Va. App. 190, 284 S.E.2d 845 (2009), rev'd, 281 Va. 222, 707 S.E.2d 273 (2011), was pending in the Supreme Court of Virginia.
On September 19, 2011, the trial court held the sentencing hearing and Milton testified it was difficult to support herself and three children and she took the items from the grocery store because she did not have money to pay for them. Defense counsel asked the trial court to reduce the felony indictment to a misdemeanor. During allocution, Milton stated, The trial court responded that Milton's statement showed she would have kept committing misdemeanors. The trial court stated that it did not have the authority to "undo" the earlier finding of guilt and sentenced Milton to five years, with fouryears and nine months suspended and entered the final sentencing order on September 20, 2011. On September 26, 2011, appellant filed a notice of appeal. On October 7, 2011, Milton filed a motion to withdraw her guilty plea, and the trial court held a hearing on the motion on October 11, 2011, which was within twenty-one days of the final sentencing order.
At the October 11, 2011 hearing, Milton testified she did not understand at the time she entered the plea that it would result in a felony conviction and she thought the matter would be taken under advisement. During cross-examination, Milton agreed that when she pled guilty, she told the trial court she understood the maximum punishment for the offense was five years in prison. At the conclusion of the hearing, the trial court noted that the arrest warrant stated "warrant arrest felony" on the top, that Milton was familiar with the system due to her prior petit larceny convictions, that she understood the maximum punishment was five years, and that she waived the preliminary hearing for the "felony" charge. The trial court reviewed the stipulation of facts and noted Milton admitted she stole the items, she signed the stipulation of facts, and she did not present an...
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