Nicol v. Commonwealth
| Docket Number | 1281-22-1 |
| Decision Date | 22 August 2023 |
| Parties | KALEB S. NICOL v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Michael A. Gaten Judge
(Charles E. Haden, on brief), for appellant.
(Jason S. Miyares, Attorney General; Angelique Rogers, Assistant Attorney General, on brief), for appellee.
Present: Judges AtLee, Causey and Callins, J.
Following his guilty pleas under North Carolina v. Alford, 400 U.S. 25 (1970), the trial court convicted Kaleb S. Nicol of voluntary manslaughter and shooting in the commission of a felony. The trial court sentenced him to 15 years' incarceration with 5 years suspended. On appeal, Nicol challenges the validity of his Alford pleas and argues that the trial court abused its discretion in its imposition of sentence. After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND[1]
In October 2019, a grand jury indicted Nicol for second-degree murder, use of a firearm in the commission of a felony, three counts of maliciously shooting into an occupied dwelling conspiracy to commit murder, and shooting in the commission of a felony. In exchange for Nicol's Alford pleas to an amended indictment of voluntary manslaughter and shooting in the commission of a felony,[2] the Commonwealth agreed to nolle prosequi the remaining indictments.
The trial court conducted a plea colloquy with Nicol including confirming that Nicol had discussed the charges and possible defenses with his attorney and that he fully understood the elements the Commonwealth was required to prove,[3] that he understood his right to plead not guilty and to be tried by a jury, and that, other than the charges the Commonwealth would nolle prosequi, no one had induced his pleas by threat or promise. Nicol also confirmed that he had sufficient time to discuss his case with counsel and did not require any additional time before entering his pleas. Nicol acknowledged that he was "entering these Alford pleas freely and voluntarily."
Nicol's counsel proffered his version of events, to help bolster the record that he was entering "an Alford plea and not just a straight plea." Counsel repeatedly attacked the credibility of the Commonwealth's evidence and suggested that another individual-one of Nicol's friends-was the shooter. Significantly, Nicol's counsel represented that he had discussed with Nicol "all the pros and cons" and that he could not "give guarantees to anyone" because the Commonwealth "ha[d] a case" and Nicol's counsel did not "know what a jury would do."
After the proffers, the trial court resumed the plea colloquy with Nicol. Nicol confirmed that he was entering his Alford pleas "because of the evidence" the Commonwealth had proffered, and-although he disagreed with some of the evidence-he acknowledged his understanding that if a judge or jury "believed the Commonwealth's version," he could be convicted. Nicol also acknowledged that his counsel had advised him of the statutory minimum and maximum punishments for the offenses, and of the fact that the trial court was not required to follow the sentencing guidelines. Nicol confirmed that he was "entirely satisfied with the services" of his counsel and understood all of the trial court's questions; he declined the opportunity to ask questions of the court. The trial court found that Nicol's Alford pleas were made "knowingly, intelligently, and voluntarily." Based on the pleas and the proffered evidence, the trial court convicted Nicol of voluntary manslaughter and shooting in the commission of a felony.
In his sentencing memorandum, Nicol asked for a sentence "near" the low end of the adjusted guidelines range of "[n]o [i]ncarceration" based on his plea and "expression of [r]emorse."[4]Nicol allocated 20 pages of his memo to attacking the credibility of certain witnesses, including his friends present at the shooting. Nicol also signaled that he acted in self-defense, claiming that the victim "and his friends were the aggressors." Finally, Nicol attached to the memorandum numerous letters of support.
At sentencing, the prosecutor acknowledged that the Commonwealth's witnesses would "have issues in front of a jury." Nevertheless, the Commonwealth contended that the statutory maximum sentence of 15 years' imprisonment was appropriate under all the circumstances of the case.
In response to Nicol's continued challenge to the credibility of the Commonwealth's evidence, the trial court noted to Nicol that his Alford pleas had the same legal effect as guilty pleas. The trial judge explained that if he doubted the credibility of the evidence, "the proper thing" to do would have been to "vacate the Alford plea[s]" rather than give Nicol "a really light sentence."[5]Nicol asked the trial court to keep its sentence in the "area" of probation.
During his allocution, Nicol read a letter he wrote to the trial court. He expressed his regret over the events of May 12, 2019, acknowledging that the shooting had "only caused pain and suffering to a lot of people." He stated that he empathized with the victim's mother's pain and that he "did not have any problems with anyone" associated with the confrontation that led to the victim's death. Being incarcerated had forced him to "wake up and realize many of the things [he] took for granted." He averred that he was not the person the Commonwealth "made [him] seem to be" and that he was committed to making the experience "a learning experience." He shared that he had read several self-help books while he was incarcerated.
In pronouncing sentence, the trial court emphasized that the issue was the "appropriate sentence for a killing" that was the consequence of "the heat of passion without malice aforethought." It would be unfair, the trial court noted, for Nicol to plead guilty to manslaughter and then "imply actual innocence" so "the sentence c[ould] go even lower." Likewise, it would be unfair for the Commonwealth to agree to an Alford plea to voluntary manslaughter and then "back-door" a murder on Nicol. The trial court further noted that it was not persuaded by "testimony about the weight of the evidence."
The trial court expressed its intent to "give value and dignity to the [victim's] life" but also "do justice for" Nicol. The trial court considered the character letters and other documents supporting Nicol. After considering all the evidence, the court found that although the sentencing guidelines "adequately consider[ed] the facts and circumstances" of the charges, they did not adequately reflect the victim's youth and "how much life [he] had left in front of him." The trial court deviated upward from the guidelines range and sentenced Nicol to ten years' incarceration for voluntary manslaughter, the maximum allowable sentence under Code § 18.2-10, and five years, all suspended, for shooting in the commission of a felony. Nicol now appeals.
Nicol contends that the trial court erred by accepting his Alford pleas because he did not enter them intelligently and voluntarily. He argues that "the record failed to establish" that he "was given notice of the elements of" the offenses or "what the Commonwealth must prove before [he] could be" convicted. He further contends that the trial court failed to inform him of the rights he was waiving by pleading guilty under Alford. Specifically, Nicol argues that the trial court did not ask whether Nicol, among other things, waived his right against self-incrimination and his right to confront his accusers. Nicol also argues that he was not "made aware of the various collateral consequences of his Alford pleas of guilty," including the loss of his rights to vote and to possess a firearm and disqualification of certain public benefits and occupational licenses. Relying on Padilla v. Kentucky, 559 U.S. 356 (2010), Nicol suggests that the trial court's failure to advise him of those collateral consequences rendered his pleas invalid.
Additionally, Nicol contends that his trial counsel's challenges to the Commonwealth's proffer at the plea colloquy, in the sentencing memorandum, and at the sentencing hearing "were inconsistent with Alford pleas and appeared to be attempts to negate or disavow" those pleas. Nicol acknowledges that he did not move to withdraw his pleas or otherwise preserve his argument for appellate review but asks that we address his argument under the "good cause" and "ends of justice" exceptions to Rule 5A:18.
"Under Rule 5A:18, no trial court's ruling will be 'a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.'" Holman v. Commonwealth, 77 Va.App. 283, 297 (2023). "Appellants generally waive their right to appeal if they do not specifically and timely state their objections." Id. "The purpose of this contemporaneous objection requirement is to allow the trial court a fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials." Id. at 298 (quoting Creamer v. Commonwealth, 64 Va.App. 185, 195 (2015)).
"On appeal, we may consider issues not raised below only if they fall into an exception to Rule 5A:18." Id. (citing Merritt v. Commonwealth, 69 Va.App. 452 459-60 (2018)). "The first exception, good cause, may be invoked only when 'an appellant did not have the opportunity to object to a ruling in the trial court.'" Id. (quoting Perry v. Commonwealth, 58 Va.App. 655, 667 (2011)). "[H]owever, when an appellant 'had the opportunity to...
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