COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges AtLee, Chaney and Frucci Argued at Fredericksburg, Virginia
MALACHI MONTGOMERY BIRCH, S/K/A MALACHI MONTGOMERY-BURCH MEMORANDUM OPINION* BY v. Record No. 0246-24-4 JUDGE RICHARD Y. ATLEE, JR. JUNE 24, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Kathleen M. Uston, Judge
Meghan Shapiro, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Pursuant to a deferred disposition agreement, Malachi Montgomery-Burch pled no contest
in general district court to petit larceny in violation of Code § 18.2-96. Upon the joint request of
Montgomery-Burch and the Commonwealth, the district court deferred judgment pursuant to Code
§ 19.2-298.02. Subsequently, the district court found that Montgomery-Burch had failed to comply
with the terms and conditions of the deferred judgment agreement and convicted him of the original
offense. Montgomery-Burch appealed to the circuit court, which dismissed his appeal, finding that
he had waived his appeal both expressly and by operation of Code § 19.2-298.02.
Montgomery-Burch now appeals that dismissal to this Court. Because we hold that
Montgomery-Burch expressly waived his appeal by entering into the deferred disposition
agreement, we affirm the circuit court’s decision.
* This opinion is not designated for publication. See Code § 17.1-413(A). I. Background
Montgomery-Burch was charged with misdemeanor shoplifting. He then entered into a
written deferred disposition agreement with the Commonwealth under Code § 19.2-298.02. Under
that agreement, Montgomery-Burch agreed to plead no contest and fulfill certain conditions,
including the condition that he “[c]omplete a shoplifting prevention course.” In exchange, the
Commonwealth agreed to dismiss the case and not prosecute Montgomery-Burch further for the
offense if he fulfilled the conditions. Montgomery-Burch acknowledged that, if he failed to comply
with the terms of the agreement, he would “be found guilty in accordance with [his] plea.”1
The agreement also contained the following terms:
5) I understand that, when charged with a crime, the Constitution guarantees me the following rights:
a. the right to a speedy and public trial, with a lawyer to help me at all stages of the proceedings, and on appeal a jury of seven persons which must unanimously agree that I am guilty beyond a reasonable doubt before I can be convicted;
....
e. the right to appellate review of the decision of this Court in the event I am convicted[.]
6) I understand that by entering this agreement I knowingly, intelligently and voluntarily waive all of the rights enumerated above.
Montgomery-Burch, his trial counsel, and the Commonwealth signed the agreement. The district
court accepted the agreement, and where the judge endorsed the agreement, the document stated,
1 The agreement also required Montgomery-Burch to “complete the terms and conditions of this agreement prior to the review date” and provided “that [he] was not entitled to a continuance to complete the terms and conditions.” -2- “[h]aving advised the defendant that this agreement involves a waiver of his or her right to appeal, I
approve this agreement.”
On September 29, 2023, the district court conducted the review required by the agreement.
Montgomery-Burch did not appear, and the district court continued the case to October 3, 2023. As
of October 3, Montgomery-Burch had not completed the shoplifting prevention course, and the
district court continued the case to November 13, 2023. At that time, Montgomery-Burch still had
not completed the course, and the district court continued the case a final time to December 15,
2023, for “compliance or conviction.” When Montgomery-Burch still did not complete the
requirements of the deferred disposition agreement, the district court convicted him of the offense,
finding that he “did not comply.”
Montgomery-Burch appealed to the circuit court. The Commonwealth moved to dismiss
the appeal, arguing that Montgomery-Burch had waived his right to appellate review, both expressly
through the terms of the agreement and by entering a disposition under Code § 19.2-298.02, which
the Commonwealth contended was a statutory bar to an appeal of a final order of guilt. After a
hearing on the motion, the circuit court dismissed the appeal, finding that Montgomery-Burch both
explicitly waived his appeal by entering into the agreement and through Code § 19.2-298.02.
Montgomery-Burch now appeals that decision.
II. Analysis
Montgomery-Burch argues that the circuit court erred by dismissing his appeal. He
concedes that Code § 19.2-298.02 may, in some circumstances, waive an appeal of a finding of guilt
but argues that it does not waive an appeal of a finding that he violated the conditions of the
deferral. He also argues that he did not waive his right to appeal by agreement because the
agreement must be read in the context of Code § 19.2-298.02. We disagree and hold that
-3- Montgomery-Burch expressly waived his right to appeal by the express terms of the deferred
disposition agreement.2
“We have long held that a party may waive by contract any right conferred by law or
contract.” Yazdani v. Sazegar, 76 Va. App. 261, 270 (2022). “If the party being charged with
relinquishment of a right had knowledge of the right and intended to waive it, the waiver will be
enforced.” Brown v. Commonwealth, 68 Va. App. 58, 69 (2017) (quoting Griffin v.
Commonwealth, 65 Va. App. 714, 718 (2016)); see also Radiance Cap. Receivables Fourteen,
LLC v. Foster, 298 Va. 14, 20-21 (2019) (“A ‘waiver’ has been defined as ‘the intentional
relinquishment of a known right, with both knowledge of its existence and an intention to
relinquish it.’” (quoting Hensel Phelps Constr. Co. v. Thompson Masonry Contractor, Inc., 292
Va. 695, 702 (2016))).
“With few exceptions, most legal rights—whether common law, statutory, or
constitutional—can be waived if the requisite formalities are observed.” Congdon v.
Commonwealth, 57 Va. App. 692, 695 (2011). “[M]ost courts ‘are persuaded that because other
important constitutional rights of the defendant may be waived by plea agreement, the right to
appeal, which is not even guaranteed by the Constitution, but by statute, should also be subject to
waiver.’” Id. at 696 (quoting 7 Wayne R. LaFave, Criminal Procedure § 27.5(c), at 75-76 (3d ed.
2007)). “Virginia has long held a criminal defendant can waive ‘his appeal of right’ if the
circumstances demonstrate ‘his decision to waive his appeal was made knowingly, voluntarily, and
intelligently.’” Id. at 699 (quoting Davidson v. Commonwealth, 244 Va. 129, 132 (1992)).
“Express waivers can be made through a writing, an oral statement, or a combination of both.”
Griffin, 65 Va. App. at 719.
2 Because we hold that Montgomery-Burch expressly waived his right of appeal via the deferred disposition agreement, we do not address his statutory argument. -4- Here, the terms of the deferred disposition agreement establish that Montgomery-Burch
expressly waived his right of appeal by entering into the agreement. By endorsing the
agreement, Montgomery-Burch acknowledged that he “knowingly, intelligently and voluntarily
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges AtLee, Chaney and Frucci Argued at Fredericksburg, Virginia
MALACHI MONTGOMERY BIRCH, S/K/A MALACHI MONTGOMERY-BURCH MEMORANDUM OPINION* BY v. Record No. 0246-24-4 JUDGE RICHARD Y. ATLEE, JR. JUNE 24, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Kathleen M. Uston, Judge
Meghan Shapiro, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Pursuant to a deferred disposition agreement, Malachi Montgomery-Burch pled no contest
in general district court to petit larceny in violation of Code § 18.2-96. Upon the joint request of
Montgomery-Burch and the Commonwealth, the district court deferred judgment pursuant to Code
§ 19.2-298.02. Subsequently, the district court found that Montgomery-Burch had failed to comply
with the terms and conditions of the deferred judgment agreement and convicted him of the original
offense. Montgomery-Burch appealed to the circuit court, which dismissed his appeal, finding that
he had waived his appeal both expressly and by operation of Code § 19.2-298.02.
Montgomery-Burch now appeals that dismissal to this Court. Because we hold that
Montgomery-Burch expressly waived his appeal by entering into the deferred disposition
agreement, we affirm the circuit court’s decision.
* This opinion is not designated for publication. See Code § 17.1-413(A). I. Background
Montgomery-Burch was charged with misdemeanor shoplifting. He then entered into a
written deferred disposition agreement with the Commonwealth under Code § 19.2-298.02. Under
that agreement, Montgomery-Burch agreed to plead no contest and fulfill certain conditions,
including the condition that he “[c]omplete a shoplifting prevention course.” In exchange, the
Commonwealth agreed to dismiss the case and not prosecute Montgomery-Burch further for the
offense if he fulfilled the conditions. Montgomery-Burch acknowledged that, if he failed to comply
with the terms of the agreement, he would “be found guilty in accordance with [his] plea.”1
The agreement also contained the following terms:
5) I understand that, when charged with a crime, the Constitution guarantees me the following rights:
a. the right to a speedy and public trial, with a lawyer to help me at all stages of the proceedings, and on appeal a jury of seven persons which must unanimously agree that I am guilty beyond a reasonable doubt before I can be convicted;
....
e. the right to appellate review of the decision of this Court in the event I am convicted[.]
6) I understand that by entering this agreement I knowingly, intelligently and voluntarily waive all of the rights enumerated above.
Montgomery-Burch, his trial counsel, and the Commonwealth signed the agreement. The district
court accepted the agreement, and where the judge endorsed the agreement, the document stated,
1 The agreement also required Montgomery-Burch to “complete the terms and conditions of this agreement prior to the review date” and provided “that [he] was not entitled to a continuance to complete the terms and conditions.” -2- “[h]aving advised the defendant that this agreement involves a waiver of his or her right to appeal, I
approve this agreement.”
On September 29, 2023, the district court conducted the review required by the agreement.
Montgomery-Burch did not appear, and the district court continued the case to October 3, 2023. As
of October 3, Montgomery-Burch had not completed the shoplifting prevention course, and the
district court continued the case to November 13, 2023. At that time, Montgomery-Burch still had
not completed the course, and the district court continued the case a final time to December 15,
2023, for “compliance or conviction.” When Montgomery-Burch still did not complete the
requirements of the deferred disposition agreement, the district court convicted him of the offense,
finding that he “did not comply.”
Montgomery-Burch appealed to the circuit court. The Commonwealth moved to dismiss
the appeal, arguing that Montgomery-Burch had waived his right to appellate review, both expressly
through the terms of the agreement and by entering a disposition under Code § 19.2-298.02, which
the Commonwealth contended was a statutory bar to an appeal of a final order of guilt. After a
hearing on the motion, the circuit court dismissed the appeal, finding that Montgomery-Burch both
explicitly waived his appeal by entering into the agreement and through Code § 19.2-298.02.
Montgomery-Burch now appeals that decision.
II. Analysis
Montgomery-Burch argues that the circuit court erred by dismissing his appeal. He
concedes that Code § 19.2-298.02 may, in some circumstances, waive an appeal of a finding of guilt
but argues that it does not waive an appeal of a finding that he violated the conditions of the
deferral. He also argues that he did not waive his right to appeal by agreement because the
agreement must be read in the context of Code § 19.2-298.02. We disagree and hold that
-3- Montgomery-Burch expressly waived his right to appeal by the express terms of the deferred
disposition agreement.2
“We have long held that a party may waive by contract any right conferred by law or
contract.” Yazdani v. Sazegar, 76 Va. App. 261, 270 (2022). “If the party being charged with
relinquishment of a right had knowledge of the right and intended to waive it, the waiver will be
enforced.” Brown v. Commonwealth, 68 Va. App. 58, 69 (2017) (quoting Griffin v.
Commonwealth, 65 Va. App. 714, 718 (2016)); see also Radiance Cap. Receivables Fourteen,
LLC v. Foster, 298 Va. 14, 20-21 (2019) (“A ‘waiver’ has been defined as ‘the intentional
relinquishment of a known right, with both knowledge of its existence and an intention to
relinquish it.’” (quoting Hensel Phelps Constr. Co. v. Thompson Masonry Contractor, Inc., 292
Va. 695, 702 (2016))).
“With few exceptions, most legal rights—whether common law, statutory, or
constitutional—can be waived if the requisite formalities are observed.” Congdon v.
Commonwealth, 57 Va. App. 692, 695 (2011). “[M]ost courts ‘are persuaded that because other
important constitutional rights of the defendant may be waived by plea agreement, the right to
appeal, which is not even guaranteed by the Constitution, but by statute, should also be subject to
waiver.’” Id. at 696 (quoting 7 Wayne R. LaFave, Criminal Procedure § 27.5(c), at 75-76 (3d ed.
2007)). “Virginia has long held a criminal defendant can waive ‘his appeal of right’ if the
circumstances demonstrate ‘his decision to waive his appeal was made knowingly, voluntarily, and
intelligently.’” Id. at 699 (quoting Davidson v. Commonwealth, 244 Va. 129, 132 (1992)).
“Express waivers can be made through a writing, an oral statement, or a combination of both.”
Griffin, 65 Va. App. at 719.
2 Because we hold that Montgomery-Burch expressly waived his right of appeal via the deferred disposition agreement, we do not address his statutory argument. -4- Here, the terms of the deferred disposition agreement establish that Montgomery-Burch
expressly waived his right of appeal by entering into the agreement. By endorsing the
agreement, Montgomery-Burch acknowledged that he “knowingly, intelligently and voluntarily
waive[d] all of the rights enumerated” in the agreement, including “on appeal a jury of seven
persons” and “the right to appellate review of the decision of [the district c]ourt in the event [he
was] convicted.” He also confirmed that his “attorney ha[d] explained to [him] the conditions”
of the agreement and that “[n]o one connected with the State, such as the police, the
Commonwealth’s Attorney or any other official, ha[d] in many manner threatened . . . or forced
[him] to enter” the agreement. Further, the district court confirmed that it had advised
Montgomery-Burch that the “agreement involve[d] a waiver of his . . . right to appeal.”
Montgomery-Burch was present in the court and does not dispute that he entered into the
agreement knowingly, intelligently, and voluntarily.
Nonetheless, Montgomery-Burch argues that he only waived his right to appeal the
finding of guilt and did not waive his right to appeal a finding that he violated the conditions of
his deferred disposition agreement. But the language of the agreement provides that he waived
“the right to appellate review of the decision of [the district court] in the event [he was]
convicted.” That language is broad and encompasses the right to appellate review generally.
Montgomery-Burch was advised, both in writing and by the district court, that he was waiving
his right to appeal, and upon that basis, the district court accepted the agreement. See Congdon,
57 Va. App. at 699 (finding that a juvenile that entered a plea agreement waived his right of
appeal where under the agreement, he “WAIVES, or gives up” his right to appeal a final
decision). Accordingly, Montgomery-Burch expressly waived his right to appeal the decision of
the district court when he entered into the deferred disposition agreement.
-5- III. Conclusion
For these reasons, we hold that Montgomery-Burch expressly waived his right to appeal.
Accordingly, the circuit court did not err in dismissing the appeal, and we affirm.
Affirmed.
-6-