Present: All the Justices
WILLIAM DONALD BOTTOMS
OPINION BY
v. Record No. 092498 JUSTICE LAWRENCE L. KOONTZ, JR.
January 13, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the circuit court
erred in failing to permit William D. Bottoms to withdraw a
guilty plea to two counts of construction fraud. 1 Bottoms
contends that the court abused its discretion by applying an
incorrect standard to determine whether he should be permitted
to withdraw his plea pursuant to Code § 19.2-296.
BACKGROUND
On May 14, 2007, the Dinwiddie County Grand Jury indicted
Bottoms for two counts of construction fraud in violation of
1
Bottoms was also indicted for felony failure to appear
in violation of Code § 19.2-128. Although the plea agreement
Bottoms entered into with the Commonwealth required him to
plead guilty to all three offenses, in addressing whether
Bottoms would be permitted to withdraw his plea the parties
limited their arguments to the two charges of construction
fraud. Bottoms did not assert that he could offer any defense
to the charge of failure to appear, nor was there any proffer
of evidence supporting that charge by the Commonwealth. On
appeal, neither Bottoms nor the Commonwealth addresses whether
Bottoms should be permitted to withdraw the guilty plea to the
failure to appear offense, though Bottoms does request that
all his convictions be vacated. We conclude that, as the plea
agreement required Bottoms to plead guilty to all three
offenses, his motion to withdraw that plea, if proper, would
permit him to withdraw the plea in its entirety.
Code § 18.2-200.1. On January 10, 2008, Bottoms was arraigned
on these indictments in the Circuit Court of Dinwiddie County.
At the outset of the hearing, the Commonwealth advised the
circuit court that there was “a plea agreement in th[is]
case.” Bottoms then entered a plea of guilty to each charge,
and the court acknowledged that the “plea agreement has been
offered for [the court] to consider.”
The circuit court conducted a guilty plea colloquy in
which Bottoms stated that he understood the charges against
him, though the specific elements of the offense of
construction fraud were not recited at that time. Bottoms
stated that he had committed the offenses for which he was
charged, and that he was in fact guilty of these offenses.
Bottoms further stated that he had consulted with his attorney
for “[a]bout two or three hours” and that he had determined to
plead guilty based upon his “conference with her.”
After a discussion with the Commonwealth concerning the
range of sentencing for the offenses, the circuit court
indicated that the plea agreement required that Bottoms be
released on bond pending the preparation of the presentence
report, ostensibly so that he could attempt to arrange for
restitution to the victims, but it contained no recommendation
concerning sentencing. The court then continued with the
guilty plea colloquy, asking Bottoms if he understood that the
2
court would be able to impose any sentence within the
available statutory range for the offenses. Bottoms stated
that he understood this and further understood that by
pleading guilty he was waiving his right of appeal. Bottoms
stated that he did not “have a mental or physical disorder,”
was not presently taking any medications, and that he felt
“alright.” He further stated that he was entering his plea
voluntarily and that he was satisfied with his attorney’s
services.
The Commonwealth then proffered the evidence it would
have adduced in support of the construction fraud offenses.
That proffer showed that Bottoms had entered into two separate
contracts to renovate a home and a church in Dinwiddie County.
With regard to the home renovation, the proffered evidence was
that Bottoms had undertaken the work but performed it poorly,
and as a result the homeowner was “out” $1,642. With regard
to the church renovation, the proffered evidence was that
Bottoms had begun work on the project by purchasing materials
and hiring laborers, but before the project was complete the
building inspector determined that Bottoms did not have the
proper class of contractor’s license to perform work of that
scale and that the work done to that point did not meet the
requirements of the building code. A qualified contractor was
hired to supervise the work, but Bottoms “disappeared from the
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job.” At the conclusion of the hearing, the circuit court
found Bottoms “guilty . . . pursuant to the plea agreement.”
The court ordered the preparation of a presentence report and
continued the case for sentencing.
During the continuance, Bottoms retained new counsel who
filed a motion on May 15, 2008 seeking to permit Bottoms to
withdraw his guilty plea pursuant to Code § 19.2-296. In that
motion, Bottoms contended that on the date of the plea hearing
he was suffering from depression and had been prescribed
medication for that condition. Bottoms further contended that
he had not received this medication while he was being held in
jail and that “[t]he failure to receive this medication may
have inhibited [him] from fully understanding and
comprehending the proceedings.”
On June 25, 2008, the circuit court convened a hearing to
receive the presentence report and evidence concerning
sentencing. At the outset of the hearing, Bottoms’ counsel
indicated that he was not ready to proceed because of the
pending motion to withdraw the guilty plea. Although the
mental health counselor from the jail was present and
available to testify, counsel maintained that another witness,
the psychiatrist who had treated Bottoms while he was in jail,
was not present. Counsel maintained that the testimony of the
psychiatrist was necessary to establish that Bottoms had not
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received his medication prior to the plea hearing and how that
would have affected Bottoms’ mental state. Bottoms’ counsel
asserted that Bottoms had complained while in jail of “memory
issues, memory loss,” and that the court should receive
evidence from the psychiatrist to determine whether this would
have affected Bottoms’ ability to enter a plea. The court,
after reviewing the motion, responded that it did not need to
hear from any witnesses because Bottoms had stated
affirmatively during the guilty plea colloquy that he was not
taking any medications and was not suffering from any mental
or physical disability.
Bottoms’ counsel then asserted that “after subsequent
research I think that Mr. Bottoms has some very real
defenses.” The circuit court observed, “Maybe he has all
kinds of defenses, but he waives those when he comes to court
and announces ready and pleads guilty.” Counsel responded
that the procedure under Code § 19.2-296 permitted a defendant
to withdraw a guilty plea prior to sentencing if he avers that
he has substantial defenses. Counsel further contended that
the evidence proffered at the plea hearing demonstrated that
Bottoms lacked the necessary intent to defraud because he had
actually undertaken to perform the contracts, but had only
failed to perform that work properly or had not obtained the
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proper permits and license requiring him to stop work until a
qualified contractor could oversee the work.
The Commonwealth opposed the motion to withdraw the
guilty plea, contending that Bottoms had already received the
benefit of the plea agreement in that he had been allowed to
post bond pending sentencing, but that he had failed to make
restitution during the time the case had been continued. The
Commonwealth further contended that Bottoms’ responses during
the guilty plea colloquy had been “clear[,] concise[, and] not
confused.” Bottoms’ counsel responded that the plea agreement
had not really provided any benefit as it did not provide for
any agreed or recommended sentence. He further reiterated his
position that there were “real defenses” to the charges
because the evidence would show a lack of intent to defraud.
The circuit court overruled the motion to withdraw the
guilty plea, finding that Bottoms had failed to establish “any
good cause.” The court opined that in its view “[t]his is
just a case where the defendant has changed his mind and wants
to back pedal and undo that which has been done.” However,
the court agreed to continue the sentencing hearing, stating
that it would permit Bottoms “to have the psychiatrist . . .
testify about what is wrong with him and why it should
mitigate the punishment.”
6
On August 5, 2008, Bottoms filed a motion to reconsider
the ruling denying the motion to withdraw the guilty plea.
Bottoms contended that at the time he entered his plea he was
suffering from “major depression” and had not been provided
with medication to treat that condition by jail officials. He
further contended that it had been reported to jail officials
that Bottoms also required “bipolar medication.” Bottoms
contended that “[t]he failure to receive his proper medication
prior to [the plea hearing] inhibited [him] from fully
understanding and comprehending the proceedings.”
In the motion for reconsideration, Bottoms further
contended that “there was no factual basis for the [circuit
c]ourt to accept the guilty plea[].” Bottoms contended that
the proffer of evidence by the Commonwealth showed that he
lacked the requisite intent to defraud at the time he entered
into the two renovation contracts and received advance payment
for the purchase of supplies and labor. Relying upon Justus
v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007),
Bottoms contended that he had satisfied the criteria for being
permitted to withdraw his guilty plea under Code § 19.2-296.
At a hearing on September 4, 2008, Bottoms’ counsel
indicated that he was prepared to go forward with sentencing,
but asked the circuit court first to rule on the motion for
reconsideration. Because the court was unaware that the
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motion for reconsideration had been filed, the case was
continued. On October 10, 2008, the court issued an opinion
letter addressing the motion for reconsideration. Therein,
the court stated that based upon Bottoms’ responses during the
guilty plea colloquy “[t]he record reveals a knowing and
voluntary guilty plea with knowledge of the consequences.”
Accordingly, the court denied the motion for reconsideration.
At a sentencing hearing on January 7, 2009, the
Commonwealth called various witnesses including the building
inspector who had directed Bottoms to stop work on the church
project that was the subject of one of the construction fraud
charges, representatives of the church, and the owner of the
home that was the subject of the other construction fraud
charge. During his examination of these witnesses, without
objection from the Commonwealth, Bottoms’ counsel elicited
testimony establishing that Bottoms had purchased materials,
hired laborers, and performed work on both projects,
completing all of the work on the home and approximately half
of the work on the church, though the witnesses maintained
that the quality of the work was unsatisfactory.
Bottoms also called Dr. Vernon Choudhary, the
psychiatrist who had treated him while he was incarcerated.
Although Dr. Choudhary had no current recollection of his
treatment of Bottoms, he was permitted to testify based upon
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his records that Bottoms had been seen by the mental health
counselor in the jail and that “it was her impression that
[Bottoms’] diagnosis was major depression.” Based upon this
report and a brief examination, Dr. Choudhary agreed that
Bottoms was “suffering depressive episodes” and prescribed an
antidepressant.
In an order dated February 4, 2009, the circuit court
sentenced Bottoms to ten years imprisonment for each of the
construction fraud offenses to run concurrently, with eight
years suspended from each concurrent sentence. Bottoms was
also required to make restitution in the amount of $26,150 and
pay $1,130 in court costs.
Bottoms subsequently filed a petition for appeal to the
Court of Appeals, contending that the circuit court erred in
denying his motion to withdraw his guilty plea. Bottoms also
maintained that the court had applied an incorrect standard by
finding that the guilty plea colloquy established that his
plea had been knowing and voluntary, thus waiving any later
claim of a defense. Bottoms contended that in applying this
standard, the court failed to follow this Court’s holding in
Justus, which required the court to weigh the defendant’s
responses in the guilty plea colloquy against the assertion
that the plea had been entered into under a misapprehension of
the nature of the proceedings, or even an assertion that the
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plea was made inadvisedly, and to permit the plea to be
withdrawn if the defendant wished to present any defense other
than one that was merely dilatory or formal in nature.
By an unpublished per curiam order dated September 9,
2009, the Court of Appeals denied Bottoms’ petition for
appeal. Without directly addressing Bottoms’ contention that
the circuit court had applied an incorrect standard in denying
his motion to withdraw his plea, the Court reasoned that
Bottoms “invited the very error of which he complains” by
failing to advise the circuit court during the guilty plea
colloquy that he was suffering from depression. Bottoms v.
Commonwealth, Record No. 0117-09-2, slip. op. at 2 (September
9, 2009). The Court concluded that by subsequently asserting
that he had not fully comprehended the nature of the plea
hearing because of his depression and the failure of the jail
personnel to provide him with medication, Bottoms was
attempting to “approbate and reprobate.” Id., slip op. at 3.
The Court of Appeals further concluded that even if
Bottoms could establish that he had been under a disability
when he entered his guilty plea, he had not established that
he could present a defense that was not merely dilatory or
formal in nature. Distinguishing Justus, where the defendant
had asserted “strong, specific arguments” in support of a
defense of legal impossibility because she had been charged
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with breaking and entering a home in which she resided, the
Court found that Bottoms’ asserted defense of a lack of
necessary intent was “vague.” 2 Id.
DISCUSSION
Code § 19.2-296 provides:
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.
Bottoms contends that the circuit court’s conclusion that
the guilty plea colloquy “reveal[ed] a knowing and voluntary
guilty plea with knowledge of the consequences” and, thus,
barred him from seeking to withdraw his plea and assert any
2
Bottoms also contended that the circuit court erred in
not granting a motion for an evidentiary hearing, made after
the court had issued the opinion letter indicating that it
would deny his motion for reconsideration, to adduce evidence
concerning his basis for seeking to withdraw his guilty plea.
The Court of Appeals held that Bottoms had not established the
need for such a hearing, as the record showed that the circuit
court had accepted his proffer of evidence and had based its
judgment thereon. Bottoms, slip op. at 3. Bottoms has
assigned error to this aspect of the Court of Appeals’
judgment. However, because Bottoms was permitted to adduce
evidence during the sentencing hearing that corresponded in
almost every respect to the proffer made in support of the
motion to withdraw his guilty plea, and this evidence permits
us to resolve the issue of whether Bottoms should have been
permitted to withdraw his guilty plea, we conclude that the
issue of whether a separate hearing was required is moot, and
we need not address it further.
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defenses to the charges shows that the court misapprehended
the standard to be applied in considering a motion under Code
§ 19.2-296. He contends that the standard applied by the
court, which is the same as applied to a post-conviction
review in a habeas corpus proceeding in which ineffective
representation of counsel is asserted to establish that the
defendant did not enter a constitutionally valid guilty plea,
was found by this Court in Justus to be inapplicable to Code
§ 19.2-296 motions. Rather, Bottoms contends that the proper
standard requires the court to determine only whether, based
on the facts and circumstances of the particular case, the
motion to withdraw a guilty plea is being made in good faith
and is premised upon a reasonable basis that the defendant can
present substantive, and not merely dilatory or formal,
defenses to the charges. Justus, 274 Va. at 155-56, 645
S.E.2d at 290. We agree.
In Justus, we said that reliance upon “admissions made by
a defendant in a guilty plea and the attendant colloquy . . .
is misplaced in the context of a Code § 19.2-296 motion to
withdraw a guilty plea prior to sentencing.” Id. at 154, 645
S.E.2d at 289. This is so because “when the case remains
within the jurisdiction of the trial court to permit the
withdrawal of a guilty plea, the presumptions that would favor
the Commonwealth in a habeas proceeding,” where the plea is
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presumed to be valid and is not to be lightly set aside,
“simply do not apply.” Id. Moreover, “when a defendant files
a motion under Code § 19.2-296, he is necessarily seeking to
repudiate the admission of guilt and some, if not all, of the
admissions made in the guilty plea colloquy.” Id.
In this case, it is manifest that the circuit court’s
analysis of Bottoms’ Code § 19.2-296 motion was based upon an
improper application of the law as set out by this Court in
Justus. Similarly, the Court of Appeals’ reliance on the
concept that a party will not be permitted to “approbate and
reprobate” is misplaced in the context of a Code § 19.2-296
motion, which by its very nature requires the defendant to
repudiate the prior assertion of guilt and any attendant
admissions supporting that assertion.
Rather, as we explained in Justus,
in exercising its discretion to grant or deny a
Code § 19.2-296 motion made prior to the entry of a
final sentencing order, the trial court is to make
that determination based on the facts and
circumstances of the particular case. And,
generally, the withdrawal of a guilty plea should
not be denied in any case where it is in the least
evident that the ends of justice will be subserved
by permitting not guilty to be pleaded in its
place. Thus, the motion should be granted even if
the guilty plea was merely entered inadvisedly when
the evidence supporting the motion shows that there
is a reasonable defense to be presented to the
judge or jury trying the case.
13
Id. (internal quotation marks omitted). “Thus, ‘the
accused should be permitted to withdraw a plea of guilty
entered [i]nadvisedly when application thereof is duly
made in good faith and sustained by proofs, and a proper
offer is made to go to trial on a plea of not guilty.’ ”
Id. at 153-54, 645 S.E.2d at 288 (quoting Parris v.
Commonwealth, 189 Va. 321, 325-26, 52 S.E.2d 872, 874
(1949) (internal quotation marks omitted)).
Our decision in Justus was based upon our holding
in Parris, 189 Va. at 324, 52 S.E.2d at 873, in which we
explained that “the motion should not be denied, if timely
made, and if it appears from the surrounding circumstances
that the plea of guilty was submitted in good faith under an
honest mistake of material fact or facts, or if it was induced
by fraud, coercion or undue influence and would not otherwise
have been made.” We further explained that “ ‘[t]he least
surprise or influence causing a defendant to plead guilty when
he has any defense at all should be sufficient grounds for
permitting a change of plea from guilty to not guilty.’ ” Id.
at 325 (quoting 14 Am. Jur., Criminal Law, § 287 at 961
(1938)). Thus, a timely motion to withdraw a plea of guilty
should be granted if there is good cause to believe that “ ‘it
was entered by mistake or under a misconception of the nature
of the charge; through a misunderstanding as to its effect;
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through fear, fraud, or official misrepresentation; was made
involuntarily for any reason; or even where it was entered
inadvisedly, if any reasonable ground is offered for going to
the jury.’ ” Id. (emphasis added).
Bottoms’ motion to withdraw the guilty plea was clearly
filed in a timely manner, over one month before his scheduled
sentencing hearing. The record in this case amply
demonstrates that Bottoms’ plea of guilty was, at the very
least, entered inadvisedly. Under the proper standard from
Justus, 274 Va. at 154, 645 S.E.2d at 289, we held that the
defendant seeking to withdraw a plea of guilty entered
inadvisedly must assert that he will be able to present a
“reasonable defense” to the trier of fact, id., while
recognizing that the trial court should not use the discretion
granted by the statute “in aid of an attempt to rely upon a
merely dilatory or formal defense.” Id. at 153, 645 S.E.2d at
288 (internal quotation marks and citations omitted). The
circuit court in this case did not consider whether Bottoms’
proffered defense was reasonable, and not “merely dilatory or
formal.” However, the Court of Appeals implicitly found that
the proffered defense was not reasonable because it was
“vague.” We disagree with this characterization of Bottoms’
proffered defense, especially in light of the testimony
received during the sentencing hearing with regard to the
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manner in which the contracts were entered into and Bottoms’
subsequent efforts to perform the renovation work on the
church and the home.
Code § 18.2-200.1 provides in pertinent part: “If any
person obtain from another an advance of money, . . . with
fraudulent intent, upon a promise to perform construction
. . . of any building or structure permanently annexed to real
property . . . and fail or refuse to perform such promise, and
also fail to substantially make good such advance, he shall be
deemed guilty of the larceny of such money.” It is well
established that to be guilty of construction fraud, the
defendant must have the intent to defraud at the time the
advance of money is received. See, e.g., Holsapple v.
Commonwealth, 266 Va. 593, 602, 587 S.E.2d 561, 566 (2003);
Klink v. Commonwealth, 12 Va. App. 815, 818-19, 407 S.E.2d 5,
7 (1991).
We recognize that a defendant may possess the requisite
intent to commit construction fraud even though he begins to
perform on the contract after receiving the advance payment,
but later abandons the work. Holsapple, 266 Va. at 601, 587
S.E.2d at 566. Such intent may even be shown where the
contract is actually completed, but the quality of the work is
so poor that the trier of fact may infer that the defendant
entered into the contract with the deliberate, fraudulent
16
intent to render inferior performance. Id. at 602, 587 S.E.2d
at 566. However, it is equally clear that where the
Commonwealth seeks to establish that the defendant had the
requisite fraudulent intent in such cases, the matter presents
a question of fact to be resolved by the judge or the jury
upon a full presentation of the evidence in a trial.
Bottoms asserted in the circuit court that he could rebut
the Commonwealth’s allegation that he was guilty of
construction fraud by showing that at the time he entered into
the contracts, he fully intended to perform the work, he fully
performed the contract for renovation of the home, and he
stopped work on the renovation of the church when it was
approximately half complete merely because it was determined
that he was not properly licensed to perform the work and was
not following the proper building code requirements. There is
nothing “vague” or merely “formal” in the asserted defense of
lack of intent to defraud. Nor does the record support that
Bottoms was dilatory in making this claim, as there is no
clear indication that at the time of the guilty plea colloquy
Bottoms actually understood the specific elements of the
offense of construction fraud. Rather, there was an
affirmative averment that he learned of the availability of
this defense only after his new counsel had performed
additional research. The asserted defense, if proven, would
17
not affirmatively establish that Bottoms was not guilty as a
matter of legal impossibility, as was the case in Justus.
However, the defense was sufficient under the circumstances of
this case to permit Bottoms to assert that he had “a
reasonable defense to be presented to the judge or jury trying
the case.” Justus, 274 Va. at 154, 645 S.E.2d at 289.
CONCLUSION
For these reasons, we hold that the circuit court erred
in not permitting Bottoms to withdraw his guilty plea in order
to have the case to go forward to trial. Accordingly, the
judgment of the Court of Appeals affirming that judgment will
be reversed. The case will be remanded to the Court of
Appeals with instruction to remand to the circuit court where
Bottoms shall be permitted to withdraw his guilty plea and the
case shall proceed to trial if the Commonwealth be so advised.
Reversed and remanded.
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