Carlisle Rawles Zimmer v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 27, 2001
• Docket: 2623002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Agee Argued at Richmond, Virginia

CARLISLE RAWLES ZIMMER MEMORANDUM OPINION * BY v. Record No. 2623-00-2 JUDGE LARRY G. ELDER DECEMBER 27, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge

Jason P. Livingston (J. Thompson Cravens & Associates, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Carlisle Rawles Zimmer (appellant) appeals from his

convictions for taking indecent liberties with children pursuant

to Code § 18.2-370, aggravated sexual battery pursuant to Code

§ 18.2-67.3, and solicitation to commit forcible sodomy pursuant

to Code §§ 18.2-29 and 18.2-67.1. On appeal, he contends the

trial court erroneously denied his motion to suppress statements

he made during a custodial interrogation which occurred before

he was Mirandized. The Commonwealth contends he waived his

right to challenge the trial court's suppression ruling on

appeal when he entered a guilty plea pursuant to North Carolina

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

We hold appellant's entry of an Alford plea constituted a waiver

of his right to appeal all non-jursidictional defects, and we

dismiss the appeal.

In Virginia, "[a]n accused may plead not guilty, guilty or

nolo contendere." Code § 19.2-254. The right of an accused to

enter a nolo contendere plea, "a plea of guilty without an

express admission of guilt[,] was firmly established in North

Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162

(1970)." Smith v. Commonwealth, 27 Va. App. 357, 361, 499

S.E.2d 11, 13 (1998).

Code § 19.2-254 also permits an accused charged with a

felony, "[w]ith the approval of the court and the consent of the

Commonwealth," to enter a conditional plea of guilty which

preserves the right of the accused to "appeal . . . the adverse

determination of any specified pretrial motion." Code

§ 19.2-254. However, an ordinary guilty plea which is voluntary

and intelligent constitutes "'a waiver of all defenses other

than those jurisdictional . . . . Where a conviction is

rendered upon such a plea and the punishment fixed by law is in

fact imposed in a proceeding free of jurisdictional defect,

there is nothing to appeal.'" Savino v. Commonwealth, 239 Va.

534, 539, 391 S.E.2d 276, 278 (1990) (citation omitted). Thus,

a guilty plea waives all preceding non-jurisdictional defects,

including constitutional claims, Terry v. Commonwealth, 30 Va.

- 2 - App. 192, 197, 516 S.E.2d 233, 235-36 (1999) (en banc), and an

Alford plea "'ha[s] the same preclusive effect as a guilty

plea'" for purposes of appeal, Perry v. Commonwealth, 33 Va.

App. 410, 412, 533 S.E.2d 651, 652-53 (2000) (quoting Cortese v.

Black, 838 F. Supp. 485, 492 (D. Colo. 1993)); see Clauson v.

Commonwealth, 29 Va. App. 282, 294, 511 S.E.2d 449, 455 (1999).

Here, during an extended colloquy between appellant and the

trial court, appellant expressly acknowledged that by entering

pleas of guilty, he "[gave] up both [his] right to be tried by a

jury, as well as [his] right to appeal the decision of [the

trial] court." The court concluded, "after questioning," that

appellant's Alford pleas were "made knowingly, intelligently,

and voluntarily after advice from competent counsel," and it

convicted appellant of the charged offenses. In this appeal,

appellant does not contend that he entered his Alford pleas

involuntarily or unintelligently or that he misunderstood the

effect of his pleas.

Thus, by knowingly, intelligently and voluntarily entering

the Alford pleas, appellant waived his right to appeal the

denial of the motion to suppress his statement, and we dismiss

this appeal.

Appeal dismissed.

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