COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Malveaux, Raphael and Frucci Argued by videoconference
MATTHEW HAMDEN COOK MEMORANDUM OPINION* BY v. Record No. 0499-23-4 JUDGE MARY BENNETT MALVEAUX JANUARY 28, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David Bernhard, Judge1,2
Thomas F. Koerner, Jr., for appellant.
Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General; Francis A. Frio, Senior Assistant Attorney General, on brief), for appellee.
Pursuant to a plea agreement, Matthew Hamden Cook (“appellant”) was convicted by the
circuit court of second-degree murder, in violation of Code § 18.2-32. He appeals from the
circuit court’s sentencing order, contending that the court erred by imposing a term of suspended
incarceration outside the provisions of the plea agreement, except for that required by Code
§ 19.2-295.2(A). For the following reasons, we affirm the circuit court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Judge Daniel E. Ortiz briefly participated in this case in the circuit court. Subsequently elected to this Court, Judge Ortiz did not participate in the consideration or resolution of this appeal. 2 Judge David Bernhard presided over the proceedings below. Now a member of this Court, Judge Bernhard took no part in this decision. BACKGROUND
On appeal, we recite the evidence in the “‘light most favorable’ to the Commonwealth,
the prevailing party in the trial court.” Miner v. Commonwealth, 80 Va. App. 414, 417 n.2
(2024) (quoting Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)). Doing so “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 to be
drawn therefrom.’” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting Commonwealth
v. Perkins, 295 Va. 323, 324 (2018)).
Appellant was indicted for murder in the death of his fiancée. Under the terms of a written
plea agreement, he agreed to plead no contest to “Murder in the Second Degree (Virginia Code
§ 18.2-32)” and “to serve an active period of incarceration of twenty-one (21) years.” Paragraph 9
of the plea agreement stated that
The following plea agreement is the full and complete agreement between me, my attorney, and the Commonwealth’s Attorney:
The defendant agrees to enter a plea of guilty to Murder in the Second Degree . . . , as charged in Count I of the indictment, and agrees to serve an active period of incarceration of twenty-one (21) years.
Paragraph 11 of the agreement stated, “I understand that the [c]ourt may accept or reject the
agreement and may defer its decision as to the acceptance or rejection until there has been an
opportunity to consider a pre-sentence report and other evidence.”
During the plea hearing, the Commonwealth’s attorney told the circuit court that appellant
had agreed to enter a “plea to second degree murder with twenty-one years active to serve.” When
the court asked about the terms of the agreement, the Commonwealth explained that “[t]he parties
simply agree[d] to [appellant’s] active time of twenty-one years” but that they “didn’t negotiate any
post-release supervision,” because that issue was “statutory,” “not something [the Commonwealth
-2- would] agree upon,” and “up to the [j]udge.” In response to the circuit court’s question whether
“there’s no suspended time,” or if suspended time was “left to the [c]ourt,” the Commonwealth
reiterated that “[a]ll of that’s left to the [c]ourt. His active time is all that we agreed to.”
Appellant told the circuit court that if it was “willing to suspend some time, [he was] willing
to accept that time as probation.” The Commonwealth, however, clarified that “the agreement is
twenty-one years active . . . [n]ot to suspend the twenty-one years,” and the parties were currently
addressing “anything hanging over his head after the fact.” Appellant did not object to the
Commonwealth’s characterization of the agreement.
The following exchange then occurred between the circuit court, the Commonwealth, and
appellant’s standby counsel3:
THE COURT: [S]o the [c]ourt, under this agreement, as I understand it, the [c]ourt could give you--I’m not saying I would do that, but I’m just--the [c]ourt could give you forty years, suspend nineteen years of it, you have twenty-one years to serve, and then the [c]ourt can determine the period for which that suspended sentence is suspended. Be suspended for--but it would have to be suspended for at least six months before--which would then excuse post-release supervision.
Am I correct there? That if he’s--
THE COMMONWEALTH: That’s my understanding, Your Honor.
THE COURT: Is that--[standby counsel], is that your understanding?
STANDBY COUNSEL: I think so, Judge.
Standby counsel then explained that, while appellant “did not want any post-release
supervision,” it was his understanding that “the agreement is just for twenty-one years, and then
3 Appellant appeared pro se, with appointed standby counsel, at his plea and sentencing hearings. -3- [the circuit court] statutorily will give [appellant] whatever else to serve.” The circuit court
explained that “one way or the other there has to be some supervision.”
Appellant reiterated his request that the circuit court “suspend time off” his 21-year active
sentence. The circuit court stated it could not do that “[i]f it’s not your agreement.” The court
told appellant that if it accepted the plea agreement, it would “carry out” the 21-year “active time
agreement,” but as to “suspended time, or . . . post-release supervision, the [c]ourt would order a
presentence report, we would come back in about six weeks or so, and then you can advocate
your view as to what that period should be.” The court advised appellant that by statute it was
required to impose a minimum of six months’ supervision, either by suspending part of his
sentence “at least . . . for six months” or by imposing a “period of post-release supervision.”
After speaking with standby counsel, appellant acknowledged that the Commonwealth
told him the parties “couldn’t put the probation thing on [sic] the agreement. . . . So, we don’t
have to worry about it. . . . I’ll argue that in a couple weeks.” The circuit court asked appellant
whether he still “want[ed] to go forward with” the plea agreement, “with the understanding that
obviously this issue of supervision w[ould] be decided at a subsequent hearing[.]” Appellant
replied affirmatively.
The circuit court then conducted a plea colloquy. When discussing the rights appellant
was giving up, the court noted that “[t]his does not restrict at all your ability to make arguments
on this issue of suspended time, post release supervision . . . you obviously may make argument
on that, and present whatever you think is appropriate within the bounds of the law.” The court
asked appellant whether he understood “that by pleading no conte[s]t . . . the only thing for the
[c]ourt . . . to decide is one, whether it accepts the plea agreement, and two, the issue of
supervision after [he] serve[d his] sentence.” Appellant replied, “[c]orrect.”
-4- The circuit court found that appellant’s plea was “knowingly, voluntarily, and intelligently
tendered” and convicted him of second-degree murder. The circuit court stated that it would “bind
[it]self to . . .
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Malveaux, Raphael and Frucci Argued by videoconference
MATTHEW HAMDEN COOK MEMORANDUM OPINION* BY v. Record No. 0499-23-4 JUDGE MARY BENNETT MALVEAUX JANUARY 28, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David Bernhard, Judge1,2
Thomas F. Koerner, Jr., for appellant.
Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General; Francis A. Frio, Senior Assistant Attorney General, on brief), for appellee.
Pursuant to a plea agreement, Matthew Hamden Cook (“appellant”) was convicted by the
circuit court of second-degree murder, in violation of Code § 18.2-32. He appeals from the
circuit court’s sentencing order, contending that the court erred by imposing a term of suspended
incarceration outside the provisions of the plea agreement, except for that required by Code
§ 19.2-295.2(A). For the following reasons, we affirm the circuit court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Judge Daniel E. Ortiz briefly participated in this case in the circuit court. Subsequently elected to this Court, Judge Ortiz did not participate in the consideration or resolution of this appeal. 2 Judge David Bernhard presided over the proceedings below. Now a member of this Court, Judge Bernhard took no part in this decision. BACKGROUND
On appeal, we recite the evidence in the “‘light most favorable’ to the Commonwealth,
the prevailing party in the trial court.” Miner v. Commonwealth, 80 Va. App. 414, 417 n.2
(2024) (quoting Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)). Doing so “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 to be
drawn therefrom.’” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting Commonwealth
v. Perkins, 295 Va. 323, 324 (2018)).
Appellant was indicted for murder in the death of his fiancée. Under the terms of a written
plea agreement, he agreed to plead no contest to “Murder in the Second Degree (Virginia Code
§ 18.2-32)” and “to serve an active period of incarceration of twenty-one (21) years.” Paragraph 9
of the plea agreement stated that
The following plea agreement is the full and complete agreement between me, my attorney, and the Commonwealth’s Attorney:
The defendant agrees to enter a plea of guilty to Murder in the Second Degree . . . , as charged in Count I of the indictment, and agrees to serve an active period of incarceration of twenty-one (21) years.
Paragraph 11 of the agreement stated, “I understand that the [c]ourt may accept or reject the
agreement and may defer its decision as to the acceptance or rejection until there has been an
opportunity to consider a pre-sentence report and other evidence.”
During the plea hearing, the Commonwealth’s attorney told the circuit court that appellant
had agreed to enter a “plea to second degree murder with twenty-one years active to serve.” When
the court asked about the terms of the agreement, the Commonwealth explained that “[t]he parties
simply agree[d] to [appellant’s] active time of twenty-one years” but that they “didn’t negotiate any
post-release supervision,” because that issue was “statutory,” “not something [the Commonwealth
-2- would] agree upon,” and “up to the [j]udge.” In response to the circuit court’s question whether
“there’s no suspended time,” or if suspended time was “left to the [c]ourt,” the Commonwealth
reiterated that “[a]ll of that’s left to the [c]ourt. His active time is all that we agreed to.”
Appellant told the circuit court that if it was “willing to suspend some time, [he was] willing
to accept that time as probation.” The Commonwealth, however, clarified that “the agreement is
twenty-one years active . . . [n]ot to suspend the twenty-one years,” and the parties were currently
addressing “anything hanging over his head after the fact.” Appellant did not object to the
Commonwealth’s characterization of the agreement.
The following exchange then occurred between the circuit court, the Commonwealth, and
appellant’s standby counsel3:
THE COURT: [S]o the [c]ourt, under this agreement, as I understand it, the [c]ourt could give you--I’m not saying I would do that, but I’m just--the [c]ourt could give you forty years, suspend nineteen years of it, you have twenty-one years to serve, and then the [c]ourt can determine the period for which that suspended sentence is suspended. Be suspended for--but it would have to be suspended for at least six months before--which would then excuse post-release supervision.
Am I correct there? That if he’s--
THE COMMONWEALTH: That’s my understanding, Your Honor.
THE COURT: Is that--[standby counsel], is that your understanding?
STANDBY COUNSEL: I think so, Judge.
Standby counsel then explained that, while appellant “did not want any post-release
supervision,” it was his understanding that “the agreement is just for twenty-one years, and then
3 Appellant appeared pro se, with appointed standby counsel, at his plea and sentencing hearings. -3- [the circuit court] statutorily will give [appellant] whatever else to serve.” The circuit court
explained that “one way or the other there has to be some supervision.”
Appellant reiterated his request that the circuit court “suspend time off” his 21-year active
sentence. The circuit court stated it could not do that “[i]f it’s not your agreement.” The court
told appellant that if it accepted the plea agreement, it would “carry out” the 21-year “active time
agreement,” but as to “suspended time, or . . . post-release supervision, the [c]ourt would order a
presentence report, we would come back in about six weeks or so, and then you can advocate
your view as to what that period should be.” The court advised appellant that by statute it was
required to impose a minimum of six months’ supervision, either by suspending part of his
sentence “at least . . . for six months” or by imposing a “period of post-release supervision.”
After speaking with standby counsel, appellant acknowledged that the Commonwealth
told him the parties “couldn’t put the probation thing on [sic] the agreement. . . . So, we don’t
have to worry about it. . . . I’ll argue that in a couple weeks.” The circuit court asked appellant
whether he still “want[ed] to go forward with” the plea agreement, “with the understanding that
obviously this issue of supervision w[ould] be decided at a subsequent hearing[.]” Appellant
replied affirmatively.
The circuit court then conducted a plea colloquy. When discussing the rights appellant
was giving up, the court noted that “[t]his does not restrict at all your ability to make arguments
on this issue of suspended time, post release supervision . . . you obviously may make argument
on that, and present whatever you think is appropriate within the bounds of the law.” The court
asked appellant whether he understood “that by pleading no conte[s]t . . . the only thing for the
[c]ourt . . . to decide is one, whether it accepts the plea agreement, and two, the issue of
supervision after [he] serve[d his] sentence.” Appellant replied, “[c]orrect.”
-4- The circuit court found that appellant’s plea was “knowingly, voluntarily, and intelligently
tendered” and convicted him of second-degree murder. The circuit court stated that it would “bind
[it]self to . . . the agreement reached between the Commonwealth and [appellant],” ordered a pre-
sentence report, and continued the matter for sentencing, at which it would “consider[] the issue of
suspended time.”
At the sentencing hearing, the circuit court noted that it was “obviously governed by the
prior agreement of the parties, which called for the imposition of a 21-year sentence. There was no
agreement on suspended time or other terms.” The circuit court then stated that it had “previously
accepted the agreement, and so it’s the judgment of this [c]ourt as follows. [Appellant] is sentenced
to 40 years, 19 years of which will be suspended for 10 years of good behavior. The first three of
those years will be subject to supervised probation.” The circuit court also imposed conditions
including mental health counseling and evaluation, substance abuse evaluation, drug testing, and
cognitive behavioral therapy. Appellant did not object to the court’s ruling.4 The circuit court
subsequently entered a sentencing order reflecting the ruling.
Appellant subsequently moved to modify the sentence, alleging that the sentencing order
“deviates from the term[s] of the plea agreement,” and requesting that the circuit court “modify the
sentencing order to reflect the actual agreement between the parties.” In his motion, appellant noted
that “the agreement is silent as to any term of suspended sentence or conditions of probation.”
The circuit court denied the motion. In a written order, the court found that appellant “was
fully advised at the time of his plea” that although the agreement limited the court’s authority “to
impose the fixed amount of active incarceration detailed therein, the amount of any suspended
4 Before being sentenced, appellant stated that he believed was given an “unfair plea deal” and stated that his plea “might be withdrawn.” See Code § 19.2-296. Appellant did not request to withdraw his no contest plea, nor did he contend that the circuit court rejected the plea agreement under Code § 19.2-254. -5- time and probationary terms were left open and subject to final argument and decision” at the
sentencing hearing. Additionally,
[i]n full knowledge that there was no agreement on suspended time, the period of probation, nor as to probationary terms, and that such open terms would be decided on the sentencing date, [appellant] nevertheless elected to proceed with his plea under such understandings, thereby gaining the certainty that his active incarceration time would be limited to twenty-one (21) years.
This appeal followed.
ANALYSIS
Appellant contends that the circuit court “erred in imposing a sentence outside of that
provided in the plea agreement.”
Our appellate courts “have held that ‘general principles of contract law apply to [all] plea
agreements.’” Thomas v. Commonwealth, 303 Va. 188, 200 (2024) (alteration in original) (quoting
Wright v. Commonwealth, 275 Va. 77, 79 (2008)). “Interpretation of a contract is a question of law
that is reviewed de novo.” Palmer & Palmer Co. v. Waterfront Marine Constr., Inc., 276 Va. 285,
289 (2008); see also Hood v. Commonwealth, 269 Va. 176, 181 (2005).
We first note that “[t]he law effective when the contract is made is as much a part of the
contract as if incorporated therein.” Smith v. Commonwealth, 286 Va. 52, 57 (2013) (alteration in
original) (quoting Wright, 275 Va. at 81). Thus, we review the relevant statutes in effect when the
parties entered the agreement. Code § 18.2-32 provides for between 5 and 40 years of incarceration
for second-degree murder. In addition, the circuit court has statutory authority to suspend a
defendant’s sentence in whole or in part, place him on probation, and order other terms as
necessary. Code § 19.2-303. But where, as here, a defendant has been convicted of a felony and
the circuit court imposes an active term of incarceration, the trial court “shall, . . . except in cases in
which the court orders a suspended term of confinement of at least six months, impose a term of
incarceration, in addition to the active term, of not less than six months nor more than three years.” -6- Code § 19.2-295.2(A). This “additional term shall be suspended and the defendant . . . placed under
postrelease supervision” whose period “shall not be less than six months nor more than three years.”
Id.
We look next to the language of the plea agreement. “When a contract is clear and
unambiguous, it is [an appellate] court’s duty to interpret the contract, as written.” Palmer, 276 Va.
at 289. “The guiding light in the construction of a contract is the intention of the parties as
expressed by them in the words they have used, and courts are bound to say that the parties intended
what the written instrument plainly declares.” Id. (quoting W.F. Magann Corp. v. Virginia-
Carolina Elec. Works, Inc., 203 Va. 259, 264 (1962)).
Here, by the plea agreement’s express terms, appellant agreed to plead no contest to second-
degree murder and “to serve an active period of incarceration of twenty-one (21) years.” As noted
in the agreement, this was “the full and complete agreement between [appellant, his standby
counsel], and the Commonwealth’s attorney.” The plain language of the agreement did not address
a suspended sentence or post-release supervision, much less foreclose the possibility that the court
could suspend the sentence or impose post-release supervision at sentencing.
The circuit court followed the plea agreement and the relevant statutes in imposing
appellant’s sentence. The combined period of active and suspended incarceration, 40 years, fell
within the limits of Code § 18.2-32. The circuit court was also within its statutory authority to
suspend 19 years of that sentence under Code § 19.2-303, leaving the agreed-upon active term of 21
years, because even though the plea agreement did not address suspended time, Code § 19.2-303
was as much a part of the agreement as if it were expressly incorporated therein. Smith, 286 Va. at
57. Finally, as the circuit court told appellant, under Code § 19.2-295.2(A), “one way or another
there has to be some supervision,” and it accordingly made the first three years of appellant’s
suspended sentence subject to supervision. The sentence was therefore aligned with the plea
-7- agreement, which only fixed the term of active incarceration at 21 years, and was silent as to a
suspended period of incarceration or any post-release supervision.
What is more, the parties explicitly acknowledged the agreement’s silence on any
suspension and post-release supervision. The Commonwealth told the circuit court that suspended
time was “left to the [c]ourt” and post-release supervision was “statutory,” “not something [the
Commonwealth would] agree upon,” and “up to the [j]udge.” Appellant also knew the parties
“couldn’t put the probation thing on the agreement.” And when appellant asked the circuit court if
it was “willing to suspend some time,” standby counsel clarified that “the agreement [wa]s twenty-
one years active,” and the circuit court reminded appellant that “suspended time, or . . . post release
supervision” would be decided at the later sentencing hearing. Appellant acknowledged this by
saying “we don’t have to worry about it. . . . I’ll argue that in a couple weeks.”
Appellant now asks this Court to interpret the written plea agreement to add language where
he acknowledges the agreement is silent. But “[a] party may not approbate and reprobate by taking
successive positions in the course of litigation that are either inconsistent with each other or
mutually contradictory.’” Nelson v. Commonwealth, 71 Va. App. 397, 403 (2020) (alteration in
original) (quoting Rowe v. Commonwealth, 277 Va. 495, 502 (2009)). “The ‘doctrine against
approbation and reprobation’ applies both to assertions of fact and law and precludes litigants from
‘playing fast and loose’ with the courts, or ‘blowing hot and cold’ depending on their perceived self-
interests.” Id. at 403 (citations omitted) (quoting Babcock & Wilcox v. Areva, 292 Va. 165, 204-05
(2016)).
Contrary to appellant’s position on appeal, appellant affirmed—with the knowledge that the
circuit court was required to impose at least some period of suspended time or post-release
supervision, and knowing that the plea agreement addressed only the active sentence—that he
wanted to “go forward with” the plea agreement. At the plea hearing, the circuit court advised him
-8- concerning its authority to impose a greater sentence but suspend any part that exceeded the
agreed-upon 21 years, and its statutory obligation to impose post-release supervision if it did not
suspend any part of the sentence. The court explicitly warned appellant that “[o]ne way or the other
there has to be some supervision,” to which appellant responded, “[r]ight, and that’s what we’re
asking.” The circuit court outlined the exact punishment it envisioned:
under this agreement, as I understand it, the [c]ourt could give you . . . forty years, suspend nineteen years of it, you have twenty-one years to serve, and then the [c]ourt can determine the period for which that suspended sentence is suspended . . . but it would have to be suspended for at least six months before--which would then excuse post-release supervision.
The Commonwealth and appellant’s standby counsel both confirmed that this was their
understanding. Appellant then did not object when, at the sentencing hearing, the circuit court
sentenced him in accordance with the “previously accepted . . . agreement.”5 He cannot now
change course and challenge the court’s imposition of post-release supervision where he knew that
it would only be “excuse[d]” if the “suspended sentence [wa]s suspended . . . for at least six
months” and that it was not covered by the agreement and could be imposed at the sentencing
hearing. See Grier v. Commonwealth, 35 Va. App. 560, 569 (2001) (“[H]aving agreed upon the
action taken by the trial court, [defendant] should not be allowed to assume an inconsistent
5 Appellant also did not object to the circuit court’s order denying his motion to modify the sentence; we find the motion itself sufficiently alerted the circuit court and the Commonwealth to his argument to preserve that argument for our review. See Rule 5A:18; Maxwell v. Commonwealth, 287 Va. 258, 265 (2014) (noting that, for an objection to meet the requirements of Rule 5A:18, it must be made at a point in the proceeding “‘when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error’ . . . [w]hile also giving ‘the opposing party the opportunity to meet the objection at that stage of the proceeding’” (quoting Scialdone v. Commonwealth, 279 Va. 422, 437 (2010))). -9- position.” (second alteration in original) (quoting Manns v. Commonwealth, 13 Va. App. 677, 679
(1992))).6
CONCLUSION
For these reasons, the circuit court’s judgment is affirmed.
Affirmed.
6 Appellant argues, however, our Supreme Court’s decision in Wright supports his position that “the only period of suspended time and post release supervision that the [c]ircuit [c]ourt could impose was that required by . . . Code § 19.2-295.2.” In that case, our Supreme Court upheld a circuit court’s imposition of “additional terms” of suspended incarceration and post-release supervision pursuant to Code §§ 18.2-10(g) and 19.2-295(A), even those terms were not included in the plea agreement the circuit court had accepted. 275 Va. at 78-79. The Court noted that “the provisions of both Code sections constituted a part of Wright’s plea agreement as though they were incorporated therein,” so “the plea agreement necessarily included the suspended sentence and post-release supervision as a matter of law.” Id. at 81-82. Accordingly, the circuit court’s imposition of these additional terms “did not alter or modify the terms of the parties’ plea agreement.” Id. at 82. Thus, contrary to appellant’s assertion, Wright supports our conclusion that the circuit court did not err in imposing suspended time and post-release supervision here where, because the parties only agreed on appellant’s active term of incarceration, the additional terms did not alter or modify the terms of the plea agreement. - 10 -