Velazquez v. Commonwealth

• Decision Date: 27 October 2016
• Docket Number: Record No. 150849
• Citation: 791 S.E.2d 556
• Parties: German Cortes Velazquez v. Commonwealth of Virginia
• Court: Virginia Supreme Court

791 S.E.2d 556

German Cortes Velazquez

v.Commonwealth of Virginia

Record No. 150849

Supreme Court of Virginia.

October 27, 2016

Dana R. Cormier, Staunton, for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY CHIEF JUSTICE DONALD W. LEMONS

In this appeal, we consider whether the Court of Appeals erred in holding that the trial court lacked jurisdiction to consider a defendant's motion to withdraw his guilty plea and whether, in an alternative holding by the trial court, it abused its discretion by denying the motion on its merits.

I. Facts and Proceedings

On October 30, 2014, in the Circuit Court of the City of Staunton (“trial court”), German Cortes Velazquez (“Velazquez”) pleaded guilty to the charge of computer solicitation of a child in violation of Code § 18.2–374.3

. During the October 30 hearing, Velazquez, who spoke limited English, was aided by a Spanish interpreter and represented by counsel. Upon conferring with his attorney, Velazquez signed a guilty plea questionnaire and a written plea agreement. After a thorough plea colloquy, in which Velazquez was fully advised of his rights, the trial court accepted his guilty plea pursuant to the plea agreement. The court advised Velazquez that he would be sentenced to 15 years' imprisonment with 10 years suspended. Velazquez had also been indicted on a charge of attempted indecent liberties with a minor in violation of Code § 18.2–370. In consideration of his guilty plea to the charge of computer solicitation, the Commonwealth agreed to nolle prosequi the charge of attempted indecent liberties.

Shortly after he entered his guilty plea, Velazquez submitted a pro se notice of appeal in the form of a handwritten letter to the trial court. The letter was dated November 4, 2014, and stated:

Dear Mr. Thomas Roberts, Clerk

I have notified my attorney Michael J. Hallahan as of today that I do wish to appeal my conviction in the Staunton Circuit Court on October 30th, 2014 and its sentence of 5 years.

I am appealing because I am Hispanic and there is a language barrier that I did have an interpreter for, however they (my attorney and interpreter) both spoke very fast and I feel I was forced to sign a plea deal out of fear and anxiety derived from this problem.

I did not understand I was signing a plea bargain for five years.

Please note my intentions to appeal.

Thank you (gracias).

German C.V.

On November 17, 2014, the trial court entered an order sentencing Velazquez in accordance with the plea agreement. Because of Velazquez' pro se filing, on November 18, 2014, the trial court appointed new counsel to represent Velazquez on appeal. Shortly thereafter, on November 25, 2014, Velazquez' new attorney simultaneously filed a notice of appeal and a Motion to Withdraw Guilty Plea pursuant to Code § 19.2–296

. In a December 3, 2014 filing, the Commonwealth opposed the withdrawal motion, arguing that Velazquez made his guilty plea “freely, voluntarily and intelligently with an understanding of the nature of the charge and an awareness of the consequences.” The Commonwealth further argued that Velazquez “had the benefit of a certified interpreter through all the proceedings” and that “a withdrawal of the plea would be prejudicial to the Commonwealth.” On December 5, 2014, the trial court heard argument on Velazquez' motion to withdraw his guilty plea. At the beginning of the hearing, Velazquez' attorney explained:

I wanted the Court to understand ... that the reason that this motion came after the Notice of Appeal was to preserve [Velazquez'] appeal rights. And I've learned of his ... desire to withdraw his plea subsequent to my appointment, so that's why we are here today. [T]he only evidence I will put on today will be ... testimony from Mr. Velazquez.

Velazquez then testified that he had only five minutes to review the plea agreement with his first attorney. He stated that he became confused because his first attorney and the translator each spoke quickly and that he was trying to “tend to both of them at the same time.” Velazquez also said that he “really wanted to go to trial” even though he could face a significantly greater period of incarceration. On cross-examination the Commonwealth attempted to show that Velazquez fully understood the consequences of the plea agreement at the time he entered his plea. Velazquez responded, “I don't have a good memory” and “I was afraid and confused.”

At the conclusion of Velazquez' testimony but before the parties presented their arguments, the trial court raised a concern regarding its jurisdiction to consider the motion:

Mr. Velazquez filed on his own behalf with the Court on November 10th [which] the Court treated as a Notice of Appeal. You also, Mr. Cormier, on ... December the—let me see, November 25th filed a Notice of Appeal. My understanding that that [sic]—by filing a Notice of Appeal, perfects the appeal, that's what you need to perfect an appeal to the Virginia Court of Appeals.

Once an appeal is perfected, the jurisdiction of the Appellate Court on the subject matter of the parties attaches and the Trial Court has no power to render any further decisions affecting the parties or the subject matter of the case until it's remanded, so how can, even if I were to find that there is a manifest injustice here, ... it appears to me from my review of the record and the law in Virginia, that I'm powerless to do anything.

That—this case is now with the Court of Appeals and probably was [ ] when he filed his Notice of Appeal and certainly is now that he—you on his behalf has filed another Notice of Appeal? Once that—once that notice and once the appeal is perfected, the case is before the Court of Appeals. And in this case, when he filed his notice or his letter, a transcript was prepared, counsel was appointed for him for that appeal and this case is now—the jurisdiction of this case is before the Virginia Court of Appeals and no longer does this Court have any power to do anything.

Velazquez' counsel responded by admitting he had not anticipated an objection on jurisdictional grounds and that “I can't articulate an argument ... off the top of my head without having research on that.” The trial court then asked for the Commonwealth's position on the question of jurisdiction. The Commonwealth's Attorney responded:

I think that under the manifest injustice ... there could be issues raised on that that would allow the Court to still retain jurisdiction potentially even with the filing of appeal....

[B]ut I think if the Court determines that you did have jurisdiction, that the validity of the plea agreement, particularly the colloquy that the Court engaged in, I think it would be difficult to ask the Court in this posture... to make a ruling on that. That's a ruling for the ... Appellate Court.

The trial court then permitted a ten-minute recess so that Velazquez' attorney could quickly research the jurisdictional issue. Velazquez' attorney returned and argued that the trial court had not yet lost jurisdiction over his client's case:

I briefly I want to address the jurisdictional argument... on the record. ... I believe that the Court is correct when it says that a Notice of Appeal would confer jurisdiction onto the Court of Appeals..., however, I do not necessarily agree that that would divest a Circuit Court of any concurrent jurisdiction....

I don't believe there's any statutory ... prohibition that says this Court lost jurisdiction and I think with respect to a motion of this nature, the Court would have at least concurrent jurisdiction with the Court of Appeals.

Velazquez' counsel then cited Ghameshlouy v. Commonwealth , 279 Va. 379, 689 S.E.2d 698 (2010)

, for the proposition that a notice of appeal was merely a ministerial act “that did not necessarily deprive any other courts of jurisdiction.”

Despite this argument, the trial court concluded that it lacked jurisdiction, and alternatively, that Velazquez did not prove “manifest injustice” to withdraw his guilty plea. The trial court held that “the law is clear that once an appeal is perfected,” the appellate court obtains jurisdiction over the case.

[Thereafter] the trial court has no power to render any further decision affecting the parties in the cause until it is remanded back for further action. So I don't believe that the Court has jurisdiction to enter an order allowing Mr. Velazquez to withdraw his guilty plea, but even if the Court did have jurisdiction, the record does not reflect any manifest injustice in this case.

In addressing whether Velazquez showed “manifest injustice” pursuant to Code § 19.2–296

, the trial court concluded:

There was never any question that he was confused, that he did not understand the nature of the proceedings, [or] the ... ramifications of what he was doing [,] and in fact there are—there is indication that the questions [were] asked to him slowly[;] that ... there were ... breaks in the questions [and] that ... they weren't asked all at one time so that the interpreter could... have an opportunity, because some of the questions are very lengthy, to advise him fully[. A]t no time did he indicate he did not understand except for one occasion which we gave him an opportunity to then ask the question and clarify. [H]e said he answered all the questions truthfully—[, and] the record reflect[s] that there is nothing to indicate that he did not understand what was going on. ...

Accordingly, on December 12, 2014, the court entered an order denying Velazquez' motion to withdraw his guilty plea on the basis that the court “no longer has jurisdiction over the matter” and for the additional reason that “no manifest injustice occurred in this case.”

Velazquez noted his objection and filed his petition for appeal with the Court of Appeals. In an unpublished per curiam order entered on May 20, 2015, the Court of Appeals denied Velazquez' appeal, holding that “the trial court concluded...