Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 980460 January 8, 1999
E. CHRISTOPHER SANDY
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether a criminal defendant
may enforce the terms of an agreement that he executed with a
Commonwealth's Attorney.
E. Christopher Sandy was indicted by a Westmoreland
County grand jury for 32 charges of "intentionally and
feloniously issu[ing] . . . fraudulent grain receipts" in
violation of Code § 3.1-722.28. Sandy's counsel and the
Commonwealth's Attorney, Peggy E. Garland, held plea
negotiations which culminated in the execution of an agreement
signed by Sandy, Garland, and W. R. Sanford, a representative
of the Virginia Department of Agriculture.
Pursuant to the terms of the agreement, Sandy agreed to
meet with, and answer fully any questions posed to him by the
Commonwealth's Attorney. The agreement provided that Sandy
would receive "full and complete" transactional immunity for
any and all acts related to the information that he provided
the Commonwealth's Attorney during the meetings. The
agreement also contained the following paragraphs pertinent to
this proceeding:
"3. That if after the meetings referenced in
paragraph (1), Garland is reasonably satisfied that
the information provided by Sandy is full and
complete, Garland will move the Court to amend seven
of the indictments . . . to petty larceny and that
she will move the Court to nol pros or dismiss all
of the other indictments.
"4. That Garland will recommend to the Court
that Sandy be fined Five Hundred Dollars ($500.00)
on each of the no more than seven (7) misdemeanor
charges for which he is convicted, and be sentenced
to six (6) months in jail on each such charge, to
run concurrently, all suspended on the condition
that the fines be paid."
After the agreement was signed, the Commonwealth's
Attorney and her designees had four meetings with Sandy.
After the meetings, Sandy's counsel asked the Commonwealth's
Attorney whether Sandy had complied with the terms of the
agreement. She replied that she had not "made up [her] mind."
A few days later, the Commonwealth's Attorney contacted
Sandy's counsel by telephone and told him that she was
"reluctantly going to go along with the plea agreement." The
next day, however, the Commonwealth's Attorney went to the
office of Sandy's counsel and stated that she did not intend
to honor the agreement.
Subsequently, the Commonwealth's Attorney forwarded a
letter to Sandy's counsel which stated in relevant part:
"After I last talked to you, I received information
that verifies that [Mr. Sandy] actually lied to me.
"Please remember that the idea to talk to me came
from [Mr. Sandy] in the first place, that the
assumption was that he would tell me something of
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value regarding other criminal offenses. As I've
said before, beyond the granary dealings, he
actually told me less than I told him. It was only
when I told him what I knew that he gave any
significant information. That's why I hesitated.
Now, I find that he was not even honest then.
"I cannot abide by the agreement. I know you may
want to take the issue before the court and you
certainly have that right. You need to think about
whether you want our arguments to be made in public.
I must say that I feel sorry for [Mr. Sandy]. It
appears he's trying to protect the people who have
hurt him the most."
Sandy filed a petition in the circuit court and requested
that the court enforce the agreement that the Commonwealth had
repudiated. The Commonwealth's Attorney opposed the petition.
The trial court conducted an ore tenus hearing and held that
there was no agreement between the defendant and the
Commonwealth that could be enforced by the court.
The defendant was subsequently tried by a jury and was
found guilty of intentionally and feloniously issuing
fraudulent grain receipts as charged in seven indictments and
sentenced to serve time in jail and required to pay a fine for
each conviction. The trial court entered judgments on each
conviction, and the defendant appealed the judgments to the
Court of Appeals. There, the defendant contended that he had
a contractual relationship with the Commonwealth, that the
Commonwealth's Attorney could not unilaterally withdraw her
acceptance of the agreement, and that he was entitled to
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specific performance of the agreement. A panel of the Court
of Appeals agreed with the defendant, reversed the judgments,
and ordered specific performance of the agreement. Sandy v.
Commonwealth, 25 Va. App. 1, 486 S.E.2d 102 (1997). The Court
of Appeals, upon a rehearing en banc, agreed with the panel,
Sandy v. Commonwealth, 26 Va. App. 724, 496 S.E.2d 167 (1998),
and the Commonwealth appeals.
The Commonwealth argues that the Court of Appeals erred
in holding that the Commonwealth's Attorney had breached the
agreement with the defendant. Continuing, the Commonwealth
states that the agreement is without constitutional
significance and is unenforceable because the trial court had
not approved any plea agreement. Responding, the defendant
states that even though "there is no plea agreement and . . .
one never existed," he executed a "cooperation agreement" with
the Commonwealth, he fully complied with the so-called
cooperation agreement and, hence, he is entitled to specific
performance of that agreement.
First, we hold that the Court of Appeals erred in
concluding that the defendant and the Commonwealth's Attorney
entered into a plea agreement in accordance with Rule
3A:8(c)(1)(C)(2). Sandy, 26 Va. App. at 725, 496 S.E.2d at
168. This Rule, which governs plea agreements in this
Commonwealth in criminal proceedings, states in relevant part
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that "[i]f a plea agreement has been reached by the parties,
it shall, in every felony case, be reduced to writing, signed
by the attorney for the Commonwealth, the defendant, and, in
every case, his attorney, if any, and presented to the court."
This Rule also requires that the circuit court approve the
plea agreement. The Commonwealth correctly points out, and
the defendant concedes, that the agreement in this case was
never approved by the circuit court as required by Rule 3A:8.
In Mabry v. Johnson, 467 U.S. 504 (1984), the United
States Supreme Court considered whether a defendant, who had
accepted a prosecutor's proposed plea bargain, has a
constitutional right to have that plea bargain specifically
enforced. Answering that issue in the negative, the Supreme
Court stated:
"A plea bargain standing alone is without
constitutional significance; in itself it is a mere
executory agreement which, until embodied in the
judgment of a court, does not deprive an accused of
liberty or any other constitutionally protected
interest. It is the ensuing guilty plea that
implicates the Constitution. Only after [the
defendant] pleaded guilty was he convicted, and it
is that conviction which gave rise to the
deprivation of [the defendant's] liberty at issue
here." Id. at 507-08 (footnotes omitted).
Here, just as in Mabry, the agreement at issue has no
constitutional significance because it was not embodied in the
judgment of a court.
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We hold that a Commonwealth's Attorney may withdraw from
a proposed plea agreement at any time before the actual entry
of a guilty plea by a defendant or any other change of
position by the defendant resulting in prejudice to him
because of reliance upon the agreement. See Shields v. State,
374 A.2d 816, 820 (Del.), cert. denied, 434 U.S. 893 (1977);
State v. Edwards, 279 N.W.2d 9, 11 (Iowa 1979); State v.
Collins, 265 S.E.2d 172, 176 (N.C. 1980); State v. Wheeler,
631 P.2d 376, 378-79 (Wash. 1981). Absent judicial approval
or prejudice to a criminal defendant, a proposed plea
agreement cannot be binding upon the Commonwealth because the
defendant has suffered no harm, and the defendant is free to
reject the proposed agreement before it is submitted to a
court in spite of any prejudice that the Commonwealth may have
incurred. Applying this rule, we hold that the Commonwealth's
Attorney was entitled to withdraw from the proposed plea
agreement she had executed with Sandy because the evidence of
record reveals that he was not prejudiced. When asked by the
circuit court to identify any prejudice that the defendant
suffered because of the Commonwealth's Attorney's withdrawal
from the proposed plea agreement, the defendant's counsel was
unable to do so.
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Accordingly, we will reverse the judgment of the Court of
Appeals, and we will reinstate the judgments of the circuit
court.
Reversed and final judgment.
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