COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
TOBY STEPHENS, S/K/A TOBY DANE STEPHENS MEMORANDUM OPINION * v. Record Nos. 1312-96-1 and BY JUDGE WILLIAM H. HODGES 1313-96-1 OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Lydia C. Taylor, Judge
Charles E. Jenkins, II (Brahm & Jenkins, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Richard Cullen, Attorney General; Monica S. McElyea, Assistant Attorney General, on brief), for appellee.
Toby Dane Stephens, appellant, contends that the trial judge
abused her discretion in denying his post-sentence motion to
withdraw his guilty pleas. For the reasons that follow, we
affirm his convictions.
I. BACKGROUND
Appellant was charged with three crimes occurring on
February 14, 1995. Those crimes included malicious wounding,
shooting into an occupied dwelling, and using a firearm in the
commission of a felony. On February 26, 1996, appellant and his
court-appointed attorney, Robert Bohannon, appeared before Judge
Poston. Appellant entered Alford pleas to malicious wounding and * Pursuant to Code § 17-116.010 this opinion is not designated for publication. shooting into an occupied dwelling. The parties presented Judge
Poston with a plea agreement indicating that "the sentence for
these charges shall run concurrently with" sentences from other
pending charges. It was agreed that Judge Taylor would sentence
appellant on these convictions and other pending charges in one
proceeding.
On March 4, 1996, appellant appeared before Judge Taylor on
charges of first degree murder, malicious wounding, conspiracy to
commit murder, and two counts of using a firearm. These crimes
occurred February 18, 1995. Court-appointed counsel, Robert M.
Smith, III, represented appellant on those charges. 1 Appellant
entered Alford pleas to the murder, malicious wounding, and
firearm charges. The parties presented a plea agreement to Judge
Taylor under which the Commonwealth agreed to nolle prosequi the
conspiracy charge in exchange for guilty pleas to the murder,
malicious wounding, and firearm charges. Also, the agreement
stated that, "active incarceration shall not exceed fifty-five
(55) years."
On April 26, 1996, Judge Taylor sentenced appellant to a
total of forty-five years active incarceration on all charges.
Following sentencing, appellant moved to withdraw his guilty
1 Bohannon initially represented appellant on both sets of charges, however, after he withdrew from the murder case due to a conflict of interest, the trial judge appointed Smith. In addition, appellant's grandmother retained C. Lydon Harrell, Jr., to assist appellant's family and the two court-appointed attorneys.
2 pleas. On June 6, 1996, following an evidentiary hearing, Judge
Taylor denied the motion. These appeals followed.
II. THE LAW
A motion to withdraw a plea of guilty or nolo
contendre may be made only before sentence is
imposed or imposition of a sentence is
suspended; but to correct manifest injustice,
the court within twenty-one days after entry
of a final order may set aside the judgment
of conviction and permit the defendant to
withdraw his plea. Code § 19.2-296 (emphasis added).
Post-sentence motions to withdraw a guilty plea "involve
judicial discretion." Holler v. Commonwealth, 220 Va. 961, 967,
265 S.E.2d 715, 719 (1980). See also Lilly v. Commonwealth, 218
Va. 960, 965, 243 S.E.2d 208, 211 (1978) (applying federal
standard, explaining that post-sentence motions under Code
§ 19.2-296 require application of "'[t]he more severe [manifest
injustice] standard to avoid motions for withdrawal based on
disappointment in the terms of the sentence'") (quoting Paradiso v. United States, 482 F.2d 409, 416 (3rd Cir. 1973)). But see
Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874
(1949) (explaining that case law requires liberal allowance to
withdraw pleas before sentencing as long as there is some basis
for believing that the defendant is, in fact, innocent or that
3 ends of justice will be subserved).
III. ANALYSIS
In his appeal, Stephens raises no claim that his Alford
pleas were entered involuntarily or that he entered them under
fear, duress, coercion, fraud, or official misrepresentation.
There is also no claim that appellant misunderstood the effect of
the pleas. Appellant's claim is that he mistakenly agreed to the
plea agreement because he was led to believe by one or more of
his attorneys that he would not receive as lengthy a sentence as 2 he actually did receive from the trial court. As a result,
appellant claims that the sentence he received was a "shocking
departure" from what his attorneys advised him he could receive.
The real question in this case, therefore, is whether, in the
exercise of sound judicial discretion, the trial court should
have granted the motion to withdraw to correct some manifest
injustice resulting from the circumstances concerning the entry
of the pleas and presentation of the plea agreement.
During the March 4, 1996 hearing, Judge Taylor thoroughly
questioned appellant to assure herself that he was entering his
pleas knowingly, freely, and voluntarily. The trial judge
carefully explained the consequences and ramifications of 2 To the extent that appellant characterizes his argument as an ineffective assistance of counsel claim, we are precluded from hearing such claims. Claims of ineffective assistance of counsel may no longer be raised on direct appeal. Code § 19.2-317.1, which allowed direct appeal of such claims under certain circumstances, was repealed in 1990. 1990 Va. Acts, c. 74. See also Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983).
4 pleading guilty, she reviewed the evidence against him, and
explained the maximum sentence that she could impose under the
agreement. Following this colloquy, appellant assured the trial
judge that the decision was, indeed, his, and that he was
satisfied with his attorneys.
Appellant admits that he was aware of the fifty-five year
cap on active incarceration contained in the plea agreement and
that he received "very sound advice" from Smith. He contends,
however, that this advice was substantially in conflict with that
offered by Harrell. Smith testified that he and Bohannon discussed the
advantages of having one presentence report and sentencing event
under the plea agreement. Smith admitted telling appellant that
he could expect to receive a twenty-five to thirty year sentence.
However, he also testified that he advised appellant that the
decision would be up to the judge and that the limit of active
incarceration in the plea agreement was fifty-five years.
Harrell testified that he did not recall advising appellant
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
TOBY STEPHENS, S/K/A TOBY DANE STEPHENS MEMORANDUM OPINION * v. Record Nos. 1312-96-1 and BY JUDGE WILLIAM H. HODGES 1313-96-1 OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Lydia C. Taylor, Judge
Charles E. Jenkins, II (Brahm & Jenkins, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Richard Cullen, Attorney General; Monica S. McElyea, Assistant Attorney General, on brief), for appellee.
Toby Dane Stephens, appellant, contends that the trial judge
abused her discretion in denying his post-sentence motion to
withdraw his guilty pleas. For the reasons that follow, we
affirm his convictions.
I. BACKGROUND
Appellant was charged with three crimes occurring on
February 14, 1995. Those crimes included malicious wounding,
shooting into an occupied dwelling, and using a firearm in the
commission of a felony. On February 26, 1996, appellant and his
court-appointed attorney, Robert Bohannon, appeared before Judge
Poston. Appellant entered Alford pleas to malicious wounding and * Pursuant to Code § 17-116.010 this opinion is not designated for publication. shooting into an occupied dwelling. The parties presented Judge
Poston with a plea agreement indicating that "the sentence for
these charges shall run concurrently with" sentences from other
pending charges. It was agreed that Judge Taylor would sentence
appellant on these convictions and other pending charges in one
proceeding.
On March 4, 1996, appellant appeared before Judge Taylor on
charges of first degree murder, malicious wounding, conspiracy to
commit murder, and two counts of using a firearm. These crimes
occurred February 18, 1995. Court-appointed counsel, Robert M.
Smith, III, represented appellant on those charges. 1 Appellant
entered Alford pleas to the murder, malicious wounding, and
firearm charges. The parties presented a plea agreement to Judge
Taylor under which the Commonwealth agreed to nolle prosequi the
conspiracy charge in exchange for guilty pleas to the murder,
malicious wounding, and firearm charges. Also, the agreement
stated that, "active incarceration shall not exceed fifty-five
(55) years."
On April 26, 1996, Judge Taylor sentenced appellant to a
total of forty-five years active incarceration on all charges.
Following sentencing, appellant moved to withdraw his guilty
1 Bohannon initially represented appellant on both sets of charges, however, after he withdrew from the murder case due to a conflict of interest, the trial judge appointed Smith. In addition, appellant's grandmother retained C. Lydon Harrell, Jr., to assist appellant's family and the two court-appointed attorneys.
2 pleas. On June 6, 1996, following an evidentiary hearing, Judge
Taylor denied the motion. These appeals followed.
II. THE LAW
A motion to withdraw a plea of guilty or nolo
contendre may be made only before sentence is
imposed or imposition of a sentence is
suspended; but to correct manifest injustice,
the court within twenty-one days after entry
of a final order may set aside the judgment
of conviction and permit the defendant to
withdraw his plea. Code § 19.2-296 (emphasis added).
Post-sentence motions to withdraw a guilty plea "involve
judicial discretion." Holler v. Commonwealth, 220 Va. 961, 967,
265 S.E.2d 715, 719 (1980). See also Lilly v. Commonwealth, 218
Va. 960, 965, 243 S.E.2d 208, 211 (1978) (applying federal
standard, explaining that post-sentence motions under Code
§ 19.2-296 require application of "'[t]he more severe [manifest
injustice] standard to avoid motions for withdrawal based on
disappointment in the terms of the sentence'") (quoting Paradiso v. United States, 482 F.2d 409, 416 (3rd Cir. 1973)). But see
Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874
(1949) (explaining that case law requires liberal allowance to
withdraw pleas before sentencing as long as there is some basis
for believing that the defendant is, in fact, innocent or that
3 ends of justice will be subserved).
III. ANALYSIS
In his appeal, Stephens raises no claim that his Alford
pleas were entered involuntarily or that he entered them under
fear, duress, coercion, fraud, or official misrepresentation.
There is also no claim that appellant misunderstood the effect of
the pleas. Appellant's claim is that he mistakenly agreed to the
plea agreement because he was led to believe by one or more of
his attorneys that he would not receive as lengthy a sentence as 2 he actually did receive from the trial court. As a result,
appellant claims that the sentence he received was a "shocking
departure" from what his attorneys advised him he could receive.
The real question in this case, therefore, is whether, in the
exercise of sound judicial discretion, the trial court should
have granted the motion to withdraw to correct some manifest
injustice resulting from the circumstances concerning the entry
of the pleas and presentation of the plea agreement.
During the March 4, 1996 hearing, Judge Taylor thoroughly
questioned appellant to assure herself that he was entering his
pleas knowingly, freely, and voluntarily. The trial judge
carefully explained the consequences and ramifications of 2 To the extent that appellant characterizes his argument as an ineffective assistance of counsel claim, we are precluded from hearing such claims. Claims of ineffective assistance of counsel may no longer be raised on direct appeal. Code § 19.2-317.1, which allowed direct appeal of such claims under certain circumstances, was repealed in 1990. 1990 Va. Acts, c. 74. See also Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983).
4 pleading guilty, she reviewed the evidence against him, and
explained the maximum sentence that she could impose under the
agreement. Following this colloquy, appellant assured the trial
judge that the decision was, indeed, his, and that he was
satisfied with his attorneys.
Appellant admits that he was aware of the fifty-five year
cap on active incarceration contained in the plea agreement and
that he received "very sound advice" from Smith. He contends,
however, that this advice was substantially in conflict with that
offered by Harrell. Smith testified that he and Bohannon discussed the
advantages of having one presentence report and sentencing event
under the plea agreement. Smith admitted telling appellant that
he could expect to receive a twenty-five to thirty year sentence.
However, he also testified that he advised appellant that the
decision would be up to the judge and that the limit of active
incarceration in the plea agreement was fifty-five years.
Harrell testified that he did not recall advising appellant
that he would likely receive a sentence ranging between eight and
fifteen years. However, if he did so, Harrell stated that he
gave that advice when he was first retained by the family, before
he was familiar with all the facts of the case, and that any
reference to specific sentences was initiated by appellant.
Harrell further testified that he told appellant that the
sentence would be entirely at the trial judge's discretion.
5 At the June 6, 1996 post-sentence hearing on the motion to
withdraw his pleas, the trial judge listened to testimony from
the attorneys, appellant, and appellant's mother. The trial
judge found the testimony of the attorneys to be credible and
rejected the testimony of appellant and his mother. The mother
recalled that Smith discussed with her and explained the
advantages of a sentencing guideline range computed for a single
sentencing event and how that range contrasted with the higher
range were appellant separately sentenced for the two unrelated
sets of crimes. As a result, the trial judge found that
appellant was fully and completely informed about the law
applicable to his case, that he received competent advice from
counsel, and that he was fully informed by his attorneys of the
possible consequences of the plea agreement. The trial judge
also found Harrell's role merely advisory as a family counselor.
It is also well established throughout the record that appellant
was aware of the possible consequences of his plea. "The weight
which should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). Reviewing the entire record and applying
a deferential standard of review to the trial judge's findings,
we are unable to say that such findings were plainly wrong.
Appellant's shocked reaction to the sentence received and
the arguments presented to the trial court and to this Court
6 amount to no more than expressions of disappointment in the
outcome of his plea agreement. See Lilly, 218 Va. at 965, 243
S.E.2d at 211. The trial judge's findings following extensive
testimonial evidence are clearly supported by the record. As a
result, we find no Code § 19.2-296 "manifest injustice" requiring
correction based on the advice given appellant regarding the
guilty pleas or the plea agreement. We, therefore, conclude that
the trial court did not abuse its discretion in denying the
appellant's motion to withdraw his guilty pleas. Accordingly,
the judgments of the trial court are affirmed. Affirmed.