Williams v. Commonwealth Of Va.

• Decision Date: 28 September 2010
• Docket Number: No. 3096-08-1,01 August 3096
• Parties: RENA SUZANNE WILLIAMS v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

RENA SUZANNE WILLIAMS

v.COMMONWEALTH OF VIRGINIA

No. 3096-08-1

Court Of Appeals Of Virginia

Dated: September 28, 2010

Robert E. Kowalsky, Jr., for appellant.

Richard B. Smith, Special Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

Present: Judges Kelsey, McClanahan and Haley

Argued at Chesapeake, Virginia

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

Bruce H. Kushner, Judge

MEMORANDUM OPINION^*

JAMES W. HALEY, JUDGE

I.

Rena S. Williams ("Williams") appeals her conviction for robbery in violation of Code § 18.2-58. Both questions presented concern the legal implications of her prior conviction for conspiracy to commit the same robbery pursuant to a plea agreement with the Commonwealth. Williams argues that the trial court erred in denying her pre-trial motion to dismiss the extant robbery indictment for two reasons: (1) that by obtaining a new indictment for robbery, the Commonwealth violated the terms of the earlier guilty plea agreement in the conspiracy case; and (2) that the new robbery indictment violated the constitutional prohibition against multiple punishments for the same offense, as guaranteed by the Fifth Amendment's Double Jeopardy Clause.

II.Facts

On August 6, 2002, a City of Chesapeake grand jury indicted Williams for a May 19, 2002 robbery. One Anthony Powell was, likewise, indicted for the same robbery.

Pursuant to a plea agreement, the Commonwealth amended the indicted crime of robbery to conspiracy to commit robbery. Williams did not object to the amendment.¹ Williams entered a plea of guilty to the amended charge on March 3, 2003. The written plea agreement, signed by Williams, her attorney, and the attorney for the Commonwealth includes the following pertinent language:

(1) That the defendant stands indicted in this Court for one felony, to wit: Robbery in violation of Virginia Code Section 18.2-58.

(2) The defendant agrees to plead guilty to: Conspiracy to Commit Robbery in violation of Virginia Code Section 18.2-22.

(3) That the Attorney for the Commonwealth agrees that the following is the appropriate disposition of this case:

The defendant will be sentenced to five years in the Virginia State Penitentiary. All of that sentence will be suspended based upon the following conditions.

(I) Defendant will be placed on supervised probation for an indeterminate period.

(II) Defendant must cooperate fully with the prosecution of her co-defendant, Anthony Powell, to the satisfaction of the Assistant Commonwealth's Attorney.

(III) Defendant must pay restitution of $467.99 to [victim]. Defendant will be jointly and severally liable for the entire amount with Anthony Powell.

(IV) Defendant must pay the costs of these proceedings.

(4) That this plea agreement is the total agreement between the parties and there have been no other inducements, promises, threats or coercion of any kind imposed upon the defendant or suggested to the defendant by the Attorney for the Commonwealth or any agent of the Commonwealth.

In this opinion, we shall refer to numbered paragraph (4) of the plea agreement as the "merger" or "integration" clause.

The final sentencing order, entered on March 14, 2003, imposes a suspended five-year prison sentence, upon conditions. Those conditions included supervised probation and compliance with all rules and conditions set by the probation officer, good behavior, payment of restitution and court costs, and the following: "The defendant shall cooperate fully with the prosecution of her co-defendant, Anthony Powell, to the satisfaction of the Assistant Commonwealth's Attorney."

On April 6, 2004, Williams was indicted for the robbery that was the subject of the 2003 plea agreement-the conviction from which Williams filed the instant appeal. The Commonwealth sought the indictment because Williams had failed to cooperate in the prosecution of Anthony Powell, in violation of the terms of the plea agreement.

On December 7, 2005, a capias was issued for Williams' arrest, based upon a November 29, 2005 probation violation report. That report alleged violations of absconding (to North Carolina in March 2005) and failure to pay restitution. The report did not include any allegation that Williams had not cooperated in the prosecution of Anthony Powell.

On June 19, 2008, Williams appeared before the circuit court for the probation violation. Two court-appointed attorneys were with her. One of them (Stephen J. Burgess) had been appointed to defend Williams in the probation violation case. The other (Allan D. Zaleski) had been appointed to defend her against a new indictment on the original robbery charge. The Commonwealth was represented by David J. Whitted.

The following exchange occurred at the beginning of the June 19, 2008 hearing:

MR. WHITTED: Your Honor, the only indictment at this time is a violation of probation....

THE COURT: All right. What about — there was a robbery?

MR. WHITTED: Yes, that's set for trial for July 14th....

MR. ZALESKI: Judge, I'm in that case, the robbery case.

THE COURT: All right.

MR. ZALESKI: They're interconnected, and that's why I'm present with Mr. Burgess.

After acknowledging the contents of the probation violation report, Williams admitted those violations. She testified that she had been threatened by Anthony Powell and absconded to North Carolina because of those threats and her financial condition.²

During cross-examination, Whitted raised the question of Williams' agreement to testify against Powell.

MR. BURGESS: Judge, if I could, I'm going to object to questions along this line at this hearing. Judge, the probation requirements that Ms. Williams had, Judge, do not I don't believe include the requirement to testify against her co-defendant. I believe -my understanding from talking to Mr. Whitted is that in in the plea agreement -she agreed in the plea agreement to testify against her co-defendant.

MR. WHITTED: Which is in the Court's file.

MR. BURGESS: Which is in the Court's file, Judge, and that the-and there is a specific punishment or a specific sanction in the plea agreement if she does not testify against him. In the probation violation itself, this-her failure to testify has not-was not mentioned. She was-she was-she was compliant with her probation through March of '05, but I think the absconding letter was sent out in November of '05, Judge, and then she was indicted for the robbery subsequent to that time. I don't believe, Judge, that the-whether or not she testified against her co-defendant is part of this probation violation. She has been indicted for robbery, whichis the punishment or the sanction that would be placed on her if she refused to testify, and I think that is the Commonwealth's remedy as they have structured it, and I don't think it should be part of this probation violation.

* * * * * * *

THE COURT: All right. My concern, Mr. Whitted, is you made the deal with her where you accepted a plea on the conspiracy charge.

MR. WHITTED: Yes, sir.

THE COURT: And that was consummated, and the court imposed sentence. Then she reneged, and your only option at that point in time was to come back on the original robbery charge.

MR. WHITTED: Yes, sir.

THE COURT: I think this probation violation, fortunately or unfortunately, whichever the case may be, stands on its own merits, and the violation that's before us is not the reneging of her plea agreement, but has she complied with the terms of the probation.

MR. WHITTED: Well, I'm not alleging that as a violation, Your Honor. I'm just asking in the course of this violation as to how it pertains to her absconding from supervision.

THE COURT: All right. I don't think really that's the issue before the Court on-you know, you have your remedies that you have attempted to pursue on that issue, and I don't really think that's the issue before the Court, although it's some consideration. Why don't we move on?

(Emphasis added). Counsel for Williams had no comment upon the court's ruling.

During his closing argument as to sentencing, Mr. Burgess argued that his client left supervision to get herself "away from the individual who was threatening her that she has testified to, and I'm assuming that in the latter robbery charge she may testify to that more completely."

We now turn to July 14, 2008, the day scheduled for the robbery trial. Counsel for Williams (Mr. Zaleski) moved to dismiss the indictment on double jeopardy grounds, and, further, in reliance on the plea agreement:

MR. ZALESKI: I think it's very plain what the agreement is. I would think that the prosecutor would either bring new indictments [sic] for robbery or the probation violation, but not both. He's already got the probation violation in his pocket. It's already been done, and I think that should end the matter.

MR. WHITTED: Your Honor, I'm not sure why he brought that in. He was present for the probation violation, and the violation of this plea agreement was not brought forward as a violation in the probation violation. She was violated on her probation violation because she absconded and failed to obey the conditions of her probation, which included paying her restitution and making regular probation appointments. It was not alleged in her violation that she violated the plea agreement by not cooperating with the prosecution of her codefendant, and I think Mr. Zaleski would admit that that is the truth because he was present at that probation violation.

(Emphasis added).

The case was continued for briefing the issues surrounding the motion to dismiss. The trial court ultimately denied the motion. On October 6, 2008, Williams pled not guilty, was found guilty, and was, thereafter, sentenced to five years in the penitentiary with three years suspended.

This appeal followed.

III.Plea Agreement/Condition Subsequent

The law of contracts applies to plea agreements. Wright v. Commonwealth, 275 Va. 77, 80-82, 655 S.E.2d 7, 9-10 (2008); Esparza v. Commonwealth, 29 Va. App. 600, 606, 513 S.E.2d 885, 888 (1999); ...