COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Coleman Argued at Alexandria, Virginia
MARK HENRY CRAIG MEMORANDUM OPINION * BY v. Record No. 2007-10-4 JUDGE SAM W. COLEMAN III NOVEMBER 1, 2011 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Burke F. McCahill, Judge
Wayne L. Kim, Assistant Public Defender, for appellant.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Pursuant to the procedure approved in North Carolina v. Alford, 400 U.S. 25 (1972),
Mark Henry Craig entered into a plea agreement acknowledging the evidence was sufficient to
find him guilty of one count of receiving or concealing stolen property in violation of Code
§ 18.2-108. The agreement contained, among other provisions, requirements pertaining to Craig
paying restitution and reparations to the victim. On appeal, Craig contends the trial court
misinterpreted Code § 19.2-305(B) 1 and abused its discretion “by requiring [him] to pay
restitution for damages not the subject of [the crime for which he was convicted].” For the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 In pertinent part, Code § 19.2-305(B) states:
A defendant placed on probation following conviction may be required to make at least partial restitution or reparation to the aggrieved party or parties for damages or loss caused by the offense for which conviction was had . . . . reasons that follow, we hold that Craig waived his right to appeal the restitution order and, thus
we affirm the trial court’s decision.
BACKGROUND
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).
That principle requires us to “‘discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.’” Kelly v. Commonwealth, 41 Va. App. 250,
254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App.
335, 348, 494 S.E.2d 859, 866 (1998)).
The Commonwealth proffered evidence, to which Craig did not object, that a storage
container owned by a construction company was forcibly opened and its contents stolen. The
value of the stolen equipment was twelve thousand dollars ($12,000). While some of the stolen
property was recovered from pawn shops, the value of the items not recovered was seven
thousand eight hundred dollars ($7,800). The amount of damage to the container was five
thousand five hundred dollars ($5,500). Following the theft, Craig was observed with at least
some of the stolen equipment in his possession. The trial court ordered Craig to pay twelve
thousand dollars ($12,000) in restitution, presumably for the value of the items not recovered and
the damage to the container.
Craig’s argument essentially is that because Code § 19.2-305(B) provides for restitution
for damages or loss caused “by the offense for which conviction was had” and because there is
no evidence linking him to the stolen items that were not recovered, he could not have been
convicted for receiving or concealing the missing property valued at seven thousand eight
hundred dollars ($7,800). Thus, he posits, the trial court lacked authority under the statute to
-2- order restitution for the loss of that property or damages to the container not related to the
receiving stolen property conviction.
ANALYSIS
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); Sluss v. Commonwealth, 14 Va. App. 601, 604, 419 S.E.2d 263, 265 (1992).
“Generally, a party may waive by contract any right conferred by law or contract. 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.” Burke v. Burke, 52 Va. App. 183, 188, 662 S.E.2d 622, 624 (2008)
(citation omitted) (holding a litigant can contractually waive her right of an appeal from a circuit
court order).
“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, 705 S.E.2d 526, 528 (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, 705 S.E.2d at 528 (quoting 7 Wayne R.
LaFave, Criminal Procedure § 27.5(c), at 75-76 (3d ed. 2007)).
In this case, the plea agreement specifically states: “I understand that by pleading guilty
that I waive my right to an appeal.” The agreement also indicates Craig understood the
constitutional guarantees he would have had if he had pled “not guilty” to the charge. Further,
the agreement notes Craig understood “that [he was] waiving these rights by pleading guilty
(Alford).” Thus, as part of the written plea agreement, Craig expressly waived his right to appeal
the restitution order.
-3- “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.’” Congdon, 57 Va. App. at 699, 705 S.E.2d at 530 (quoting Davidson v.
Commonwealth, 244 Va. 129, 132, 419 S.E.2d 656, 658 (1992)).
Appellant concedes that he “does not argue that the plea was not knowingly and
voluntarily made.” Instead, he reasons that he only waived “his right to appeal the conviction by
the court.” (Emphasis in original). He further asserts that the Commonwealth’s “contention that
the appellant by entering an agreement waives all rights to appeal the decision of a lower court
would lead to an absurd result.”
However, it is well established that a voluntary and intelligent guilty plea by an accused
is “‘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.’” Dowell v. Commonwealth, 12 Va. App. 1145,
1148, 408 S.E.2d 263, 265 (1991) (quoting Savino v. Commonwealth, 239 Va. 534, 539, 391
S.E.2d 276, 278 (1990)), aff’d on reh’g en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Coleman Argued at Alexandria, Virginia
MARK HENRY CRAIG MEMORANDUM OPINION * BY v. Record No. 2007-10-4 JUDGE SAM W. COLEMAN III NOVEMBER 1, 2011 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Burke F. McCahill, Judge
Wayne L. Kim, Assistant Public Defender, for appellant.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Pursuant to the procedure approved in North Carolina v. Alford, 400 U.S. 25 (1972),
Mark Henry Craig entered into a plea agreement acknowledging the evidence was sufficient to
find him guilty of one count of receiving or concealing stolen property in violation of Code
§ 18.2-108. The agreement contained, among other provisions, requirements pertaining to Craig
paying restitution and reparations to the victim. On appeal, Craig contends the trial court
misinterpreted Code § 19.2-305(B) 1 and abused its discretion “by requiring [him] to pay
restitution for damages not the subject of [the crime for which he was convicted].” For the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 In pertinent part, Code § 19.2-305(B) states:
A defendant placed on probation following conviction may be required to make at least partial restitution or reparation to the aggrieved party or parties for damages or loss caused by the offense for which conviction was had . . . . reasons that follow, we hold that Craig waived his right to appeal the restitution order and, thus
we affirm the trial court’s decision.
BACKGROUND
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).
That principle requires us to “‘discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.’” Kelly v. Commonwealth, 41 Va. App. 250,
254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App.
335, 348, 494 S.E.2d 859, 866 (1998)).
The Commonwealth proffered evidence, to which Craig did not object, that a storage
container owned by a construction company was forcibly opened and its contents stolen. The
value of the stolen equipment was twelve thousand dollars ($12,000). While some of the stolen
property was recovered from pawn shops, the value of the items not recovered was seven
thousand eight hundred dollars ($7,800). The amount of damage to the container was five
thousand five hundred dollars ($5,500). Following the theft, Craig was observed with at least
some of the stolen equipment in his possession. The trial court ordered Craig to pay twelve
thousand dollars ($12,000) in restitution, presumably for the value of the items not recovered and
the damage to the container.
Craig’s argument essentially is that because Code § 19.2-305(B) provides for restitution
for damages or loss caused “by the offense for which conviction was had” and because there is
no evidence linking him to the stolen items that were not recovered, he could not have been
convicted for receiving or concealing the missing property valued at seven thousand eight
hundred dollars ($7,800). Thus, he posits, the trial court lacked authority under the statute to
-2- order restitution for the loss of that property or damages to the container not related to the
receiving stolen property conviction.
ANALYSIS
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); Sluss v. Commonwealth, 14 Va. App. 601, 604, 419 S.E.2d 263, 265 (1992).
“Generally, a party may waive by contract any right conferred by law or contract. 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.” Burke v. Burke, 52 Va. App. 183, 188, 662 S.E.2d 622, 624 (2008)
(citation omitted) (holding a litigant can contractually waive her right of an appeal from a circuit
court order).
“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, 705 S.E.2d 526, 528 (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, 705 S.E.2d at 528 (quoting 7 Wayne R.
LaFave, Criminal Procedure § 27.5(c), at 75-76 (3d ed. 2007)).
In this case, the plea agreement specifically states: “I understand that by pleading guilty
that I waive my right to an appeal.” The agreement also indicates Craig understood the
constitutional guarantees he would have had if he had pled “not guilty” to the charge. Further,
the agreement notes Craig understood “that [he was] waiving these rights by pleading guilty
(Alford).” Thus, as part of the written plea agreement, Craig expressly waived his right to appeal
the restitution order.
-3- “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.’” Congdon, 57 Va. App. at 699, 705 S.E.2d at 530 (quoting Davidson v.
Commonwealth, 244 Va. 129, 132, 419 S.E.2d 656, 658 (1992)).
Appellant concedes that he “does not argue that the plea was not knowingly and
voluntarily made.” Instead, he reasons that he only waived “his right to appeal the conviction by
the court.” (Emphasis in original). He further asserts that the Commonwealth’s “contention that
the appellant by entering an agreement waives all rights to appeal the decision of a lower court
would lead to an absurd result.”
However, it is well established that a voluntary and intelligent guilty plea by an accused
is “‘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.’” Dowell v. Commonwealth, 12 Va. App. 1145,
1148, 408 S.E.2d 263, 265 (1991) (quoting Savino v. Commonwealth, 239 Va. 534, 539, 391
S.E.2d 276, 278 (1990)), aff’d on reh’g en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).
Consequently, no appellant can “complain of any non-jurisdictional defects that occurred prior to
his guilty plea.” Walton v. Commonwealth, 256 Va. 85, 91, 501 S.E.2d 134, 138 (1998); Terry
v. Commonwealth, 30 Va. App. 192, 197, 516 S.E.2d 233, 235-36 (1999) (en banc). Here, Craig
agreed to pay up to $12,000 in restitution prior to entering his plea. The plea agreement
specifically announced: “I understand that the issue of restitution will be decided at sentencing.
I agree to pay any amount of restitution owed as determined by the court . . . . I understand that
restitution will be capped at $12,000 as noted in the proffer of facts.” (Emphasis added). Craig
also understood that entering his plea, he “waive[d] any right of appeal from the decision of the
court,” not merely the conviction itself. (Emphasis added).
-4- The trial court, pursuant to the plea agreement and Code § 19.2-305(B), ordered Craig to
pay $12,000 in restitution. Craig’s argument that the order requires him to pay damages not the
subject of his indictment, and is therefore illegal, is without merit. Craig was indicted for the
offense of receiving or concealing stolen property in excess of $200 in violation of Code
§ 18.2-108.
The proffered facts were that $12,000 worth of equipment stolen from the company was
“seen in the back of [Craig’s] truck” and that Craig attempted to sell the stolen items to a pawn
shop. The facts further proved that Craig and another man “sold the items to various pawn
shops” and that “[e]xternal cameras from the shops show the items in the back of Mr. Craig’s
truck as he drives into the parking lots.” At the sentencing hearing, Investigator Mark Bush
testified that a storage container was destroyed during the theft. He further explained that the
value of the stolen items that were never recovered combined with the loss incurred from the
damage to the container exceeded $13,000.
As noted above, the principle is well established that “[w]hen a conviction is based upon
a defendant’s guilty plea and the defendant receives the sentence fixed by law, ‘there is nothing
to appeal’ absent a jurisdictional defect.” Miles v. Sheriff of Va. Beach City Jail, 266 Va. 110,
114, 581 S.E.2d 191, 193 (2003) (citation omitted). Although not directly addressing this
concern, Craig’s argument appears to assert that the judge exceeded his sentencing authority,
rendering the restitution portion of his sentence invalid. As we held in Nesbit v. Commonwealth,
15 Va. App. 391, 394, 424 S.E.2d 239, 240 (1992), a sentence that is fixed outside the range
established by the legislature is a defect that renders the sentence invalid as to the excess. See
also Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510-11 (1973) (holding that
“[a] sentence in excess of one prescribed by law is not void ab initio because of the excess, but is
good insofar as the power of the court extends and is invalid only as to the excess”). Craig’s
-5- argument essentially asserts, however, that the evidence is insufficient to support the trial court’s
conclusion that his commission of the crime caused the company at least $12,000 in loss and
damages. This assertion does not rise to the level of alleging a “jurisdictional defect.” Miles,
266 Va. at 114, 581 S.E.2d at 193.
Instead, the amount of restitution to be repaid by a person convicted of a crime “is a
matter resting within the sole province of the [trial court].” McCullough v. Commonwealth, 38
Va. App. 811, 815, 568 S.E.2d 449, 451 (2002) (citing Code § 19.2-305.1(C)). The trial court’s
judgment ordering appellant to pay the victim $12,000 restitution was supported by credible
evidence. “‘The weight which should be given to evidence . . . [is a] question[] which the fact
finder must decide.’” Molina v. Commonwealth, 47 Va. App. 338, 370, 624 S.E.2d 83, 98
(2006) (quoting Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02
(1986)). Accordingly, as we find Craig validly waived his right to appeal the order of restitution
and expressly agreed to pay any amount ordered by the court within the $12,000 cap and since he
raises no cognizable jurisdictional challenge, we affirm the judgment of the trial court.
Affirmed.
-6-