Slate v. Commonwealth
| Decision Date | 22 November 2022 |
| Docket Number | 0609-22-3 |
| Parties | DAVID ROGER SLATE v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY K. Mike Fleenor, Jr. Judge
Courtney Griffin Roberts; Roberts Law PLLC, on brief), for appellant. Appellant submitting on brief.
Jason S. Miyares, Attorney General; Stephen J. Sovinksy, Assistant Attorney General, on brief), for appellee.
Present: Senior Judges Clements, Haley and Petty
Following David Roger Slate's guilty plea, the trial court convicted him of methamphetamine possession. Slate asserts that the trial court erred by finding his plea was made freely, voluntarily, and intelligently and that the evidence was insufficient to support his conviction. He also contends that the trial court abused its discretion by attaching a Fourth Amendment waiver condition to his suspended sentence. Slate's counsel has moved for leave to withdraw. The motion to withdraw is accompanied by a brief referring to the part of the record that might arguably support this appeal. A copy of that brief has been furnished to Slate with sufficient time for him to raise any matter that he chooses. Slate has not filed a pro se supplemental opening brief.
We have reviewed the parties' pleadings, fully examined the proceedings, and determined the case to be wholly frivolous and wholly without merit as set forth below. Thus, the panel unanimously holds that oral argument is unnecessary. See Code § 17.1-403(ii)(a); Rule 5A:27(a). For the following reasons, we affirm the trial court's judgment.
On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
On March 21, 2022, Slate executed a written plea agreement whereby he entered a guilty plea[1] to methamphetamine possession in exchange for the Commonwealth's agreement to nolle prosequi two other charges. On the same date, Slate completed and signed a four-page written colloquy explaining the consequences of his plea. Slate supplied handwritten responses to thirty-five colloquy questions and placed his initials on each page.
In the written plea colloquy, Slate agreed that he had discussed with his attorney the charge and its elements, any possible defenses to the charge, and the Commonwealth's burden of proof. The written colloquy also confirmed that Slate had discussed his plea with counsel and that he had decided independently to plead guilty. Slate acknowledged in the written colloquy that his plea operated as a waiver of his right to a jury trial, his right against self-incrimination, and his right to confront and cross-examine witnesses. In the colloquy, he denied that his plea had been coerced, and he expressed satisfaction with his attorney's services. Slate acknowledged that he would receive the sentence indicated in the plea agreement if the trial court accepted it.
On March 21, 2022, Slate appeared before the trial court to enter his plea. The trial court then conducted its own colloquy with him. The trial court confirmed with Slate that he had reviewed the written plea agreement with his attorney and that it contained all the terms of his agreement. Slate agreed that he faced a maximum sentence of ten years, but if the trial court accepted the plea agreement, he would be sentenced in accordance with the plea agreement. Moreover, during his plea colloquy, Slate stated that he had discussed the charge, its elements, and any possible defenses with his attorney, that he understood the charge, and that he had decided to plead guilty because he was, in fact, guilty of the charge. He confirmed that he understood the trial court's questions, that he was entering his plea freely and voluntarily, and that he wanted the trial court to accept his plea agreement. Slate acknowledged that, if the trial court rejected the plea agreement, he could withdraw his plea and appear before a different judge. After confirming that Slate had no questions, the trial court accepted his plea and found that it was "made freely, voluntarily and intelligently with an understanding of the nature of the charge and the consequences of the plea."
After the trial court accepted Slate's plea, the Commonwealth proffered the evidence it would have presented at trial. The Commonwealth averred that Deputy Stephens saw Slate throw several objects out of the driver's window of a car as the officer attempted to perform a traffic stop in Christiansburg. When Slate pulled over, he denied throwing the objects from the vehicle. But when Deputy Stephens and another officer searched the area where Slate had thrown the objects, they found a clear plastic baggy containing a crystal-like substance, a glass bubble smoking device, and a straw. After being advised of his constitutional rights, Slate responded to further questions by stating, "[Y]ou're going to take me to jail anyways." Forensic tests determined that the crystal-like substance was methamphetamine. The forensic analysis results were entered into evidence. Slate agreed with the facts proffered and that they were sufficient to prove his guilt.
The trial court found that Slate had entered his guilty plea freely, voluntarily, and intelligently, accepted his plea, and entered a finding of guilt. In accordance with the plea agreement, the trial court sentenced Slate to three years' incarceration, suspended all but one day of the sentence for three years, and placed him on supervised probation for three years. The suspended sentence was conditioned on Slate's waiver of Fourth Amendment rights "during the period of his suspended sentence under th[e] agreement." The sentencing order also provided that Slate consented, "as a condition of any suspended sentences, probation, or post release supervision period, . . . to [the] search [of] his person, belongings, motor vehicle(s), residence, or any such property in his possession and control, for illegal drugs, contraband and weapons." Before imposing sentence, the trial court reiterated that, "in addition to the usual terms and conditions of probation, [Slate would] be waiving [his] Fourth Amendment rights during the period of probation and the period of the suspended sentence." Slate appeals.
Slate concedes that none of his arguments have been preserved for appeal. Nevertheless, he asks that we consider them under the ends of justice exception in Rule 5A:18. The Commonwealth counters that application of the ends of justice exception is not warranted because "Slate stipulated to the facts, pled guilty, and agreed to his sentence, including the Fourth Amendment waiver." Moreover, the Commonwealth maintains that Slate's guilty plea waived his right to appeal any non-jurisdictional issues. "The issue of whether a defendant has waived his right of appeal in connection with a plea proceeding 'is a matter of law[.]'" Delp v. Commonwealth, 72 Va.App. 227, 235 (2020) (quoting United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)). Accordingly, the Court applies a de novo standard of review. Id.
"No ruling of the trial court . . . will be considered as 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." Rule 5A:18. "The 'ends of justice' exception to Rule 5A:18 is 'narrow and is to be used sparingly.'" Pearce v. Commonwealth, 53 Va.App. 113, 123 (2008) (quoting Bazemore v. Commonwealth, 42 Va.App. 203, 219 (2004) (en banc)). Whether to apply the ends of justice exception involves two questions: "(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the ends of justice provision would result in a grave injustice." Commonwealth v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). "[T]o show that a miscarriage of justice has occurred, thereby invoking the ends of justice exception, the appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur." Quyen Vinh Phan Le v. Commonwealth, 65 Va.App. 66, 74 (2015) (quoting Redman v. Commonwealth, 25 Va.App. 215, 221-22 (1997)).
"The burden of establishing a manifest injustice is a heavy one and it rests with the appellant." Holt v. Commonwealth, 66 Va.App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 54 Va.App. 505,...
To continue reading
Request your trial