Johnson v. Anis

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan,
and Powell, JJ., and Russell, S.J.

GENE M. JOHNSON, DIRECTOR OF
THE DEPARTMENT OF CORRECTIONS
OPINION BY
v. Record No. 111937 SENIOR JUSTICE CHARLES S. RUSSELL
September 14, 2012
ANTHONY LOUIS ANIS

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge

This appeal presents a question of the circumstances in

which a defendant in a criminal case, who has entered a guilty

plea, may be permitted to withdraw that plea and proceed to

trial on a plea of not guilty. It involves the distinction that

applies when a motion to withdraw a guilty plea is made after,

rather than before, a sentence has been imposed.

In 2006, Anthony Louis Anis entered an Alford plea of

guilty in the Circuit Court of Henrico County to an indictment

charging him with grand larceny. At the plea colloquy, the

court asked him whether he was satisfied with the services of

his attorney. Anis replied: "I think he's been about the best

attorney I probably could have had." The court found that the

plea was voluntarily and intelligently entered and found Anis

guilty. The Commonwealth recommended an active sentence

equivalent to the time Anis had spent in jail awaiting trial,

four and one-half months. Pursuant to that recommendation, the
court imposed a sentence of five years, with four years, seven

months, and fifteen days suspended.

Within the 21-day period before the sentencing order became

final, Anis informed his attorney that he wished to withdraw his

guilty plea, plead not guilty and go to trial. His attorney

later testified that he knew of no legitimate basis for

withdrawal of the plea, but that he filed a motion to withdraw

it on "ends of justice" grounds because of the shortness of the

time the case would remain in the circuit court's jurisdiction.

The court ultimately denied the motion in an order entered

March 1, 2007, and Anis did not appeal.

Approximately twenty months later, on October 24, 2008,

Anis filed a petition for habeas corpus in the circuit court.

One of the claims made by the petition was that he had been

denied the effective assistance of counsel because trial counsel

had failed to base his motion to withdraw the guilty plea on the

specific grounds of mistake, misunderstanding, fear, and

misrepresentation, causing the plea to be entered "inadvisedly

and involuntarily." The court declined to grant an evidentiary

hearing and denied the petition, citing this Court's decision in

Anderson v. Warden, 222 Va. 511, 516, 281 S.E.2d 885, 888

(1981).

Anis appealed that decision to this Court. We awarded Anis

an appeal and entered an order directing the circuit court to

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conduct an evidentiary hearing to decide Anis' claims. Anis v.

Johnson, Dir., Dep't of Corr., Record No. 092485 (April 23,

2010).

At the evidentiary hearing, Melvin Crawley testified that

he was the owner of a commercial building in Henrico County upon

which a new roof was being installed. There were three 5-ton

air conditioning units on the roof which were in good working

order. They were not to be disturbed by the roofers except to

ensure that the rubberized seals around them remained intact.

Crawley testified that his employee, George Gayles, called to

inform him that someone was dismantling the air-conditioning

units. Crawley came to the site and found Anis on the roof.

Two of the units had been "gutted" and the third was partially

dismantled. Anis told him that the "owner" had given him

permission to remove the units. When Crawley told him "I'm the

owner. I've never seen you before," Anis fled, jumping into his

truck and driving away, nearly running over Gayles in the

process. Crawley reported the event, including the truck's

license number, to the police.

When arrested, Anis told the police that some "black guy"

who was in charge of the roofing work had given him permission

to remove the air conditioning units. His trial counsel

testified that Anis had said his permission had come from "a

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Mexican with a red bandanna." Anis could furnish no name,

address, or contact information for this individual. *

Anis had two prior convictions for larceny. Trial counsel

concluded that in the absence of any witness to corroborate

Anis' account, and in view of his flight from the scene when

confronted by the owner, and his prior larceny convictions,

Anis' best choice would be an Alford plea in exchange for an

agreed sentence recommendation of "time served" and the

Commonwealth's agreement to nolle prosequi an additional charge

of felony vandalism. Anis agreed with this recommendation and

informed the court that he thought an Alford plea was his best

option.

The circuit court granted Anis a writ of habeas corpus on

his claim that trial counsel was ineffective for failing to

allege the specific grounds of mistake, fear, misunderstanding

and misrepresentation in his motion to withdraw the guilty plea.

We awarded the Commonwealth this appeal.

In granting the writ, the court relied on Justus v.

Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007), and

Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874

(1949) (" '[t]he least surprise or influence causing a defendant

*
Approximately five years after his arrest, at the
evidentiary hearing, Anis testified that the previously unnamed
man who had given him permission to remove the units was "clean-
cut," was wearing a mustache and a ball cap, and was named
"José."

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to plead guilty when he has any defense at all should be

sufficient grounds for permitting a change of a plea from guilty

to not guilty'"). The circuit court erred in applying that

rule, which applies only before a sentence has been imposed.

After sentencing, a more stringent standard has been imposed by

the General Assembly. Code § 19.2-296 provides:

Withdrawal of plea of guilty. – A motion to
withdraw a plea of guilty or nolo contendere
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.

In Justus, we expressly pointed out this distinction. 274 Va.

at 152-53, 645 S.E.2d at 287-88.

The term "manifest" is defined as being "synonymous with

open, clear, visible, unmistakable, indubitable, indisputable,

evident, and self-evident. In evidence, that which is clear and

requires no proof; that which is notorious." Black's Law

Dictionary 962 (6th ed. 1990) (emphasis added).

Anis testified at the evidentiary hearing that he had "been

getting scrap metal for extra money." The evidence was that the

scrap value of the metal removed was at least $3,000 and that

Crawley's replacement cost would be $25,000. Anis made no

denial of any facts except his claim that he had permission from

an unknown person to remove the units.

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 If the case had gone to trial, Anis' sole defense would

have been his own self-serving and uncorroborated testimony. He

would have been subject to cross-examination with regard to his

changing accounts of the person who had allegedly given him

permission, his precipitate flight from the scene when

confronted by the owner, and his two prior larceny convictions.

There was no evidence at the evidentiary hearing, or elsewhere

in the record, to support a conclusion that Anis was denied the

effective assistance of counsel or that manifest injustice

occurred.

Because the circuit court applied an inapplicable standard

in granting the writ, we will reverse the judgment appealed from

and dismiss the writ of habeas corpus.

Reversed and writ dismissed.

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