Present: All the Justices
NICHOLAS EVERETTE WRIGHT
v. Record No. 062527 OPINION BY JUSTICE CYNTHIA D. KINSER
January 11, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The issue in this appeal concerns whether a circuit
court, after accepting a plea agreement of the type
specified in Rule 3A:8(c)(1)(C), can nevertheless impose a
term of suspended incarceration and a term of post-release
supervision pursuant to Code §§ 18.2-10(g) and 19.2-
295.2(A) when such terms are not mentioned in the plea
agreement. Because general principles of contract law
apply to plea agreements and the law in effect when a
contract is made becomes a part of the contract as though
incorporated therein, we will affirm the judgment of the
Court of Appeals of Virginia holding that such additional
terms can be imposed.
A grand jury indicted Nicholas Everette Wright for the
willful, deliberate, and premeditated killing of Bruce
Nelson, Jr., during the commission of robbery in violation
of Code § 18.2-31(4).1 Before trial, Wright entered into an
1
A violation of Code § 18.2-31(4) constitutes capital
murder and is punishable by death, imprisonment for life,
“Agreed Disposition” with the Commonwealth pursuant to Rule
3A:8(c)(1)(C).2 In relevant part, the plea agreement
provided: (1) the Commonwealth would amend the indictment
to charge first degree murder instead of capital murder;
(2) Wright would plead guilty to the charge of first degree
murder and be sentenced to imprisonment for life; and (3)
Wright would acknowledge violation of the terms of his
probation in three unrelated felony convictions for which
he received three five-year concurrent, suspended sentences
and be sentenced to five years imprisonment to run
consecutive to any other sentence imposed on him.
Upon determining that Wright voluntarily and
intelligently entered a plea of guilty to the charge of
first degree murder and after hearing a proffer of the
evidence, the Circuit Court of Rockingham County accepted
the guilty plea as well as the plea agreement. The court
concluded that the plea agreement was “an appropriate
disposition in this matter.” The circuit court found
Wright guilty of first degree murder in violation of Code
§ 18.2-32 and, in accordance with the terms of the plea
or imprisonment for life and a fine of not more than
$100,000. Code § 18.2-10(a).
2
Under Rule 3A:8(c)(1)(C), a defendant and the
Commonwealth may enter into a plea agreement in which the
Commonwealth “[a]gree[s] that a specific sentence is the
appropriate disposition of the case.”
2
agreement, sentenced Wright to life imprisonment.3 Pursuant
to the requirements of Code §§ 18.2-10(g) and 19.2-
295.2(A), the circuit court also imposed an additional
sentence of three years imprisonment but suspended that
sentence, imposing three years of post-release supervision.
Wright subsequently moved the circuit court for
clarification of its sentencing order. In that motion,
Wright asserted that the additional three-year term of
suspended incarceration and post-release supervision
constituted an addition to or revision of the plea
agreement that was improper and not within the circuit
court’s authority under Rule 3A:8(c)(1)(C). Wright asked
the circuit court to enter a sentencing order consistent
with the terms of the plea agreement. After hearing
argument on Wright’s motion, the circuit court determined
that, in this case, the additional period of suspended
incarceration and post-release supervision was statutorily
mandated and thereby included in the plea agreement even
though it was otherwise silent on the subject. Thus, the
court concluded that it had not altered the terms of the
parties’ plea agreement and denied Wright’s motion.
3
The circuit court also revoked the five-year
concurrent, suspended sentences in the other three prior
felony convictions and directed that the five-year sentence
run consecutive to Wright’s life sentence.
3
The Court of Appeals of Virginia affirmed the judgment
of the circuit court. Wright v. Commonwealth, 49 Va. App.
58, 636 S.E.2d 489 (2006). The Court of Appeals held that
the basic rules of contract law apply to plea agreements
and that “ ‘the law in force on the date a contract is
formed determines the rights of its parties.’ ” Id. at 62,
636 S.E.2d at 491 (quoting Esparza v. Commonwealth, 29 Va.
App. 600, 606, 513 S.E.2d 885, 888 (1999)). Because Code
§§ 18.2-10(g) and 19.2-295.2(A) were both “in effect at the
time the plea agreement was formed,” the Court of Appeals
concluded “the plea agreement necessarily included the
suspended sentence and post-release supervision as a matter
of law.” Wright, 49 Va. App. at 62, 636 S.E.2d at 491. To
hold otherwise, according to the Court of Appeals, would
“require trial judges to disregard the mandatory provisions
of the statutes when imposing sentence pursuant to a plea
and create an anomaly in our sentencing procedures.”
Wright, 49 Va. App. at 64, 636 S.E.2d at 492.
The sole issue now before this Court is whether a
circuit court, after accepting a plea agreement of the type
specified in Rule 3A:8(c)(1)(C), can then impose an
additional period of suspended incarceration and post-
release supervision pursuant to Code §§ 18.2-10(g) and
19.2-295.2(A) when such terms were not included in the plea
4
agreement.4 This question presents a matter of statutory
interpretation and is subject to de novo review by this
Court. See Washington v. Commonwealth, 272 Va. 449, 455,
634 S.E.2d 310, 313 (2006).
Wright contends that the circuit court erred by
imposing the additional term of suspended incarceration and
post-release supervision. According to Wright, the circuit
court in effect rejected the plea agreement but failed to
afford Wright the opportunity to exercise his rights
provided in Rule 3A:8(c)(4), specifically, to withdraw his
guilty plea and choose to have his case heard by another
trial judge, or to maintain his guilty plea and face the
possibility of a less favorable disposition than the one
provided in the plea agreement. Thus, Wright contends that
he is entitled to be sentenced in accordance with the terms
of his plea agreement with the Commonwealth or to have the
opportunity to exercise his rights under Rule 3A:8(c)(4).
We do not agree.
4
We emphasize that the plea agreement at issue was
silent with regard to the requirements set forth in Code
§§ 18.2-10(g) and 19.2-295.2(A). We do not decide today
whether a circuit court would have to reject a plea
agreement containing an agreed disposition that directly
conflicted with particular mandated statutory requirements
such as the ones before us, those relating to the taking of
a defendant’s blood, saliva or tissue for DNA analysis, see
Code § 19.2-310.2, or those imposing certain minimum
5
For felony offenses committed after July 1, 2000, for
which the punishment includes an active term of
incarceration in a correctional facility, except in cases
when a circuit court orders a suspended term of confinement
of at least six months, the provisions of Code § 18.2-10(g)
require a circuit court to “impose an additional term of
not less than six months nor more than three years, which
shall be suspended conditioned upon successful completion
of a period of post-release supervision pursuant to [Code]
§ 19.2-295.2.” Similarly, for that same class of offenses,
the provisions of Code § 19.2-295.2(A) direct a circuit
court to “impose a term of post[-]release supervision of
not less than six months nor more than three years.” The
provisions of these two statutes are mandatory. Alston v.
Commonwealth, 274 Va. 759, 769-70, 652 S.E.2d 456, 462
(2007). They comprise part of the maximum term of
incarceration permitted by statute and are added to the
term that can otherwise be imposed upon a convicted felon.
See id. at 770, 652 S.E.2d at 462 (citing Williams v.
Commonwealth, 270 Va. 580, 584, 621 S.E.2d 98, 100 (2005)).
Nothing in the statutes suggests that their terms are not
applicable when, as in this case, a defendant enters into a
sentences, see, e.g., Code §§ 18.2-12.1, -53.1, -57, and –
255(A).
6
plea agreement that fails to address the mandatory
requirements.
To the contrary, the provisions of both Code sections
constituted a part of Wright’s plea agreement as though
they were incorporated therein. In Paul v. Paul, 214 Va.
651, 203 S.E.2d 123 (1974), we stated that “[t]he law
effective when the contract is made is as much a part of
the contract as if incorporated therein.” Id. at 653, 203
S.E.2d at 125; accord Buchanan v. Doe, 246 Va. 67, 72, 431
S.E.2d 289, 292 (1993); Marriott v. Harris, 235 Va. 199,
215, 368 S.E.2d 225, 233 (1988); Harbour Gate Owners’
Ass’n, Inc. v. Berg, 232 Va. 98, 105, 348 S.E.2d 252, 257
(1986); Maxey v. American Cas. Co., 180 Va. 285, 290, 23
S.E.2d 221, 223 (1942); Esparza, 29 Va. App. at 606, 513
S.E.2d at 888. As the Court of Appeals held, this
principle of contract law applies to plea agreements.
Wright, 49 Va. App. at 62, 636 S.E.2d at 491 (citing
Esparza, 29 Va. App. at 606, 513 S.E.2d at 888); see also
United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.
1985) (“[P]lea bargains are subject to contract law
principles insofar as their application will insure the
7
defendant what is reasonably due him.”) (citations
omitted).5
Thus, the Court of Appeals did not err by holding that
“the plea agreement necessarily included the suspended
sentence and post-release supervision as a matter of law.”
Wright, 49 Va. App. at 62, 636 S.E.2d at 491. The circuit
court’s imposition of the three-year term of suspended
incarceration and post-release supervision did not alter or
modify the terms of the parties’ plea agreement. Contrary
to Wright’s argument, the circuit court did not implicitly
reject the plea agreement but, instead, sentenced Wright in
accordance with the terms of the plea agreement. Wright
therefore was not entitled to an opportunity to exercise
the rights afforded under Rule 3A:8(c)(4) when a circuit
5
Numerous courts in other jurisdictions have applied
contract principles to plea agreements. See e.g., United
States v. Cimino, 381 F.3d 124, 127 (2d Cir. 2004); United
States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994); United
States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979);
State v. Crockett, 877 P.2d 1077, 1079 (Nev. 1994); State
v. Bethel, 854 N.E.2d 150, 166 (Ohio 2006); In re
Palodichuk, 589 P.2d 269, 271 (Wash. Ct. App. 1978). But
see United States v. Peveler, 359 F.3d 369, 375 (6th Cir.
2004) (stating that although general principles of contract
law apply to plea agreements, “‘[a] guilty plea, however,
involves the waiver of at least three constitutional rights
by a defendant . . . [and,] therefore, the analogy of a
plea agreement to a traditional contract is not complete or
precise, and the application of ordinary contract law
principles to a plea agreement is not always
appropriate.’ ”) (citing United States v. Skidmore, 998
8
court rejects a plea agreement of the type specified in
Rule 3A:8(c)(1)(C).
For these reasons, we will affirm the judgment of the
Court of Appeals.
Affirmed.
F.2d 372, 375 (6th Cir. 1993) (citing United States v.
Olesen, 920 F.2d 538, 541 (8th Cir. 1990))).
9