Wilson v. Commonwealth, Record No. 1229-03-1 (VA 1/18/2005)
| Decision Date | 18 January 2005 |
| Docket Number | Record No. 1229-03-1. |
| Parties | TYRONE ALPHONSO WILSON v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of the City of Norfolk Charles D. Griffith, Jr., Judge.
Allan D. Zaleski (Weisberg & Zaleski, P.C., on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Humphreys and Senior Judge Coleman.
Tyrone Alphonso Wilson appeals his bench trial convictions for possession of cocaine with the intent to distribute, possession of marijuana with the intent to distribute, possession of a firearm while in possession of a controlled substance, and possession of a firearm by a convicted felon. Although appellant presents nine separate questions in his brief, the questions raise three distinct issues. Specifically, he argues (1) the court improperly refused to consider any plea agreement, (2) the trial judge improperly refused to recuse himself, and (3) the evidence was insufficient to support his convictions. For the reasons that follow, we reverse the convictions and remand for a new trial.
Appellant was arrested on December 5, 2001. He was indicted in early 2002, and his case was set for trial on July 16, 2002. The case was scheduled to be heard by Judge Charles E Poston, but on the morning of trial, Judge Poston advised that he could not hear the case due to a medical appointment. Appellant's case was transferred to the hearing docket of Judge Charles D. Griffith, Jr. Although appellant had previously and repeatedly indicated he would be tried by the court, when he appeared before Judge Griffith, appellant pled not guilty and requested a jury trial. When questioned by Judge Griffith about the request, appellant's counsel, Allan Zaleski, explained appellant determined he wanted a jury trial "when the matter was transferred" to Judge Griffith. Zaleski admitted that "whenever a lawyer counsels with his client about whether its appropriate to try a matter with a judge or a jury, it's important to know who the judge is," and that he "cannot intelligently decide [whether to request trial by judge or jury without] know[ing] who the judge is." Judge Griffith granted appellant's request, continued the case, and, concluding Zaleski was "judge shopping," announced he would remove Zaleski from the court-appointed counsel list.
On July 25, 2002, Judge Marc Jacobson heard appellant's motion to suppress. Judge Jacobson denied the motion in an August 29, 2002 opinion letter.
Appellant was arraigned before Judge Everett A. Martin, Jr. on September 6, 2002. Zaleski announced appellant no longer wished to have a jury trial. Judge Martin expressed "concerns" about "awarding his judge shopping," but Judge Martin set the case for a bench trial on September 10, 2002. Zaleski acknowledged to Judge Martin that appellant understood "this case c[ould] go to anyone."
On September 10 appellant appeared for the scheduled trial at which Judge Griffith was again presiding. When the case was called Zaleski told the judge "we're very close to a plea agreement in this case." Judge Griffith responded that the trial was ready to proceed. The Commonwealth's attorney announced that she was ready to proceed, and Zaleski acknowledged that the defense was also ready. Thereafter, the following colloquy took place:
The Commonwealth explained "once the court hears what this is, I think Your Honor will understand why there's these last minute plea negotiations." Judge Griffith conducted a brief hearing in chambers in which the Commonwealth expressed its reasons for offering the plea agreement. Afterwards, Judge Griffith stated The following exchange then occurred:
Zaleski then moved for Judge Griffith to recuse himself from the case, arguing the judge was biased against his client. Judge Griffith refused to recuse himself. He explained that after Judge Martin granted the request for a bench trial, Judge Griffith
approached . . . the chief judge of the court and explained to him what had occurred and that [Judge Griffith] felt it was appropriate that since the defendant had decided that he no longer wished a jury trial but that had initially asked for a jury trial and on advice of counsel specifically to avoid one of the members of this court, that the one thing it wasn't appropriate is for the defendant to avoid a particular courtroom solely by asking for a jury trial.
Judge Griffith further announced he was willing and able to impartially hear appellant's case.
The procedure governing plea agreements is set forth in Rule 3A:8(c). In pertinent part, the Rule provides:
(c) Plea Agreement Procedure. —
(1) The attorney for the Commonwealth and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon entry by the defendant of a plea of guilty, or a plea of nolo contendere, to a charged offense, or to a lesser or related offense, the attorney for the Commonwealth will do any of the following:
(A) Move for nolle prosequi or dismissal of other charges;
(B) Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding on the court;
(C) Agree that a specific sentence is the appropriate disposition of the case.
In any such discussions under this Rule, the court shall not participate.
(2) If a plea agreement has been reached by the parties, it shall, in every felony case, be reduced to writing, signed by the attorney for the Commonwealth, the defendant, and, in every case, his attorney, if any, and presented to the court. The court shall require the disclosure of the agreement in open court or, upon a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (c)(1)(A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider a presentence report. If the agreement is of the type specified in subdivision (c)(1)(B), the court shall advise the defendant that, if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw his plea, unless the Commonwealth fails to perform its part of the agreement. In that event, the defendant shall have the right to withdraw his plea.
* * * * * * *
(4) If the agreement is of the type specified in subdivision (c)(1)(A) or (C) and if the court rejects the plea agreement, the court shall inform the parties of this fact, and advise the defendant personally in open court or, on a showing of good cause, in camera, that the court will not accept the plea agreement. Thereupon, neither party shall be bound by the plea agreement. The defendant shall have the right to withdraw his plea of guilty or plea of nolo contendere and the court shall advise the defendant that, if he does not withdraw his plea, the disposition of the case may be less favorable to him than that contemplated by the plea agreement; and the court shall further advise the defendant that, if he chooses to withdraw his plea of guilty or of nolo contendere, his case will be heard by another judge, unless the parties agree otherwise.
(Emphasis added.) The parties informed the court that they had reached an agreement, specifying that the agreement "call[ed] for a total sentence of twenty years with four to serve." The Commonwealth's attorney "ask[ed] the court to accept the plea" but acknowledged they did not "have a plea agreement written out." The trial judge announced that "[t]here is no agreement," that he would not consider any plea agreement, that it was "too late to negotiate," and that he was "not going to interrupt this trial and submit a...
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