Wilson v. Commonwealth

Tuesday 1st

March, 2005.

Tyrone Alphonso Wilson, Appellant,

against Record No. 1229-03-1
Circuit Court Nos. CR02000742-00 through CR02000742-02
and CR02001213-00

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank,
Humphreys, Clements, Felton, Kelsey and McClanahan

On February 1, 2005 came the appellee by the Attorney General of Virginia, and filed a petition

praying that the Court set aside the judgment rendered herein on January 18, 2005, and grant a rehearing

en banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on January 18, 2005 is stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:

Deputy Clerk
 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Coleman
Argued at Chesapeake, Virginia

TYRONE ALPHONSO WILSON
MEMORANDUM OPINION * BY
v. Record No. 1229-03-1 JUDGE SAM W. COLEMAN III
JANUARY 18, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge

Allan D. Zaleski (Weisberg & Zaleski, P.C., on briefs), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief), for appellee.

Tyrone Alphonso Wilson appeals his bench trial convictions for possession of cocaine with

the intent to distribute, possession of marijuana with the intent to distribute, possession of a firearm

while in possession of a controlled substance, and possession of a firearm by a convicted felon.

Although appellant presents nine separate questions in his brief, the questions raise three distinct

issues. Specifically, he argues (1) the court improperly refused to consider any plea agreement,

(2) the trial judge improperly refused to recuse himself, and (3) the evidence was insufficient to

support his convictions. For the reasons that follow, we reverse the convictions and remand for a

new trial.

PROCEDURAL HISTORY

Appellant was arrested on December 5, 2001. He was indicted in early 2002, and his

case was set for trial on July 16, 2002. The case was scheduled to be heard by Judge Charles E.

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Poston, but on the morning of trial, Judge Poston advised that he could not hear the case due to a

medical appointment. Appellant’s case was transferred to the hearing docket of Judge

Charles D. Griffith, Jr. Although appellant had previously and repeatedly indicated he would be

tried by the court, when he appeared before Judge Griffith, appellant pled not guilty and

requested a jury trial. When questioned by Judge Griffith about the request, appellant’s counsel,

Allan Zaleski, explained appellant determined he wanted a jury trial “when the matter was

transferred” to Judge Griffith. Zaleski admitted that “whenever a lawyer counsels with his client

about whether its appropriate to try a matter with a judge or a jury, it’s important to know who

the judge is,” and that he “cannot intelligently decide [whether to request trial by judge or jury

without] know[ing] who the judge is.” Judge Griffith granted appellant’s request, continued the

case, and, concluding Zaleski was “judge shopping,” announced he would remove Zaleski from

the court-appointed counsel list.

On July 25, 2002, Judge Marc Jacobson heard appellant’s motion to suppress. Judge

Jacobson denied the motion in an August 29, 2002 opinion letter.

Appellant was arraigned before Judge Everett A. Martin, Jr. on September 6, 2002.

Zaleski announced appellant no longer wished to have a jury trial. Judge Martin expressed

“concerns” about “awarding his judge shopping,” but Judge Martin set the case for a bench trial

on September 10, 2002. Zaleski acknowledged to Judge Martin that appellant understood “this

case c[ould] go to anyone.”

On September 10 appellant appeared for the scheduled trial at which Judge Griffith was

again presiding. When the case was called Zaleski told the judge “we’re very close to a plea

agreement in this case.” Judge Griffith responded that the trial was ready to proceed. The

Commonwealth’s attorney announced that she was ready to proceed, and Zaleski acknowledged

that the defense was also ready. Thereafter, the following colloquy took place:

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 [COMMONWEALTH’S ATTORNEY]: Before the court
proceeds in this case further, it’s my understanding that [appellant]
would like to enter a plea of guilty. We don’t have a plea
agreement written out. We would ask the court to accept the plea.
It calls for a total sentence of twenty years with four to serve.

THE COURT: I’m sorry, but we’re getting ready to start a trial.
You-all have had plenty of time to negotiate. We’re not doing any
negotiations right now. We’re starting a trial.

MR. ZALESKI: You’re rejecting the agreement? I would move –

THE COURT: There is no agreement. This case is beginning
trial. You are beyond your time to negotiate a plea agreement.
We’re starting a trial today.

The Commonwealth explained “once the court hears what this is, I think Your Honor will

understand why there’s these last minute plea negotiations.” Judge Griffith conducted a brief

hearing in chambers in which the Commonwealth expressed its reasons for offering the plea

agreement. Afterwards, Judge Griffith stated “you seem to think . . . that somehow or another

you have a right to stop everything and present a plea agreement and force me to consider a plea

agreement. This trial is ready to begin. Your time for negotiating is over. It’s time to start the

trial.” The following exchange then occurred:

MR. ZALESKI: Is the court saying you will not consider any plea
agreement at this time?

THE COURT: You have no plea agreement.

MR. ZALESKI: That is the court’s position?

THE COURT: We have started a trial. It’s too late to negotiate.

MR. ZALESKI: You are stating you will not consider any plea
agreement at all?

THE COURT: I’m not going to interrupt this trial and submit a
plea agreement. That’s correct. We are ready to start the trial.

MR. ZALESKI: Your Honor, we’re going to have a lunch break.
We’re going to have - - we’re going to have certainly a break to go
to the bathroom.

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 THE COURT: Are you suggesting, Mr. Zaleski, that once a trial
begins that the court has to consider a plea agreement?

MR. ZALESKI: Yes, Your Honor. I can get the rules out. Let’s
look at it.

THE COURT: You’re saying you can stop any trial and force the
court to undertake a plea agreement if the court rejects it thereby
obviating your entire trial? I think you are wrong about that. And
we’ll just have to let you challenge that. Let’s go.

Zaleski then moved for Judge Griffith to recuse himself from the case, arguing the judge was

biased against his client. Judge Griffith refused to recuse himself. He explained that after Judge

Martin granted the request for a bench trial, Judge Griffith

approached . . . the chief judge of the court and explained to him
what had occurred and that [Judge Griffith] felt it was appropriate
that since the defendant had decided that he no longer wished a
jury trial but that had initially asked for a jury trial and on advice
of counsel specifically to avoid one of the members of this court,
that the one thing it wasn’t appropriate is for the defendant to avoid
a particular courtroom solely by asking for a jury trial.

Judge Griffith further announced he was willing and able to impartially hear appellant’s case.

ANALYSIS

I.

The procedure governing plea agreements is set forth in Rule 3A:8(c). In pertinent part,

the Rule provides:

(c) Plea Agreement Procedure. -

(1) The attorney for the Commonwealth and the attorney
for the defendant or the defendant when acting pro se may engage
in discussions with a view toward reaching an agreement that,
upon entry by the defendant of a plea of guilty, or a plea of nolo
contendere, to a charged offense, or to a lesser or related offense,
the attorney for the Commonwealth will do any of the following:

(A) Move for nolle prosequi or dismissal of other charges;

(B) Make a recommendation, or agree not to oppose the
defendant’s request, for a particular sentence, with the

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 understanding that such recommendation or request shall not be
binding on the court;

(C) Agree that a specific sentence is the appropriate
disposition of the case.

In any such discussions under this Rule, the court shall not
participate.

(2) If 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. The court shall
require the disclosure of the agreement in open court or, upon a
showing of good cause, in camera, at the time the plea is offered.
If the agreement is of the type specified in subdivision (c)(1)(A) or
(C), the court may accept or reject the agreement, or may defer its
decision as to the acceptance or rejection until there has been an
opportunity to consider a presentence report. If the agreement is of
the type specified in subdivision (c)(1)(B), the court shall advise
the defendant that, if the court does not accept the recommendation
or request, the defendant nevertheless has no right to withdraw his
plea, unless the Commonwealth fails to perform its part of the
agreement. In that event, the defendant shall have the right to
withdraw his plea.

* * * * * * *

(4) If the agreement is of the type specified in subdivision
(c)(1)(A) or (C) and if the court rejects the plea agreement, the
court shall inform the parties of this fact, and advise the defendant
personally in open court or, on a showing of good cause, in
camera, that the court will not accept the plea agreement.
Thereupon, neither party shall be bound by the plea agreement.
The defendant shall have the right to withdraw his plea of guilty or
plea of nolo contendere and the court shall advise the defendant
that, if he does not withdraw his plea, the disposition of the case
may be less favorable to him than that contemplated by the plea
agreement; and the court shall further advise the defendant that, if
he chooses to withdraw his plea of guilty or of nolo contendere, his
case will be heard by another judge, unless the parties agree
otherwise.

(Emphasis added.) The parties informed the court that they had reached an agreement,

specifying that the agreement “call[ed] for a total sentence of twenty years with four to serve.”

The Commonwealth’s attorney “ask[ed] the court to accept the plea” but acknowledged they did

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not “have a plea agreement written out.” The trial judge announced that “[t]here is no

agreement,” that he would not consider any plea agreement, that it was “too late to negotiate,”

and that he was “not going to interrupt this trial and submit a plea agreement.”

Although Rule 3A:8(c) indicates a plea agreement “shall, in every felony case, be

reduced to writing,” we have held that a defendant’s “substantial rights were not implicated by

the fact that the plea agreement was not in writing or disclosed in open court.” Hairston v.

Commonwealth, 16 Va. App. 941, 945, 434 S.E.2d 350, 352-53 (1993). “The purpose of Rule

3A:8(c)(2), a procedural rule, is to ensure that plea agreements are fully disclosed to both the

trial court and the defendant.” Id. at 945, 434 S.E.2d at 353. The fact that a plea agreement had

not yet been reduced to writing did not prevent the parties from having reached an understanding

as to the terms and conditions of an agreement, which the Commonwealth’s attorney indicated

they had done. Rule 3A:8(c)(2) expressly provides that a plea agreement exists when the parties

have reached an agreement as to whether the Commonwealth’s attorney will make a sentence

recommendation, or specific sentence, or move for a nolle prosequi or dismissal of other charges

as provided in subsection (c)(1)(A), (B), or (C) and thereafter “it shall . . . be reduced to

writing . . . .” Thus, under the Rule a plea agreement exists when the parties have reached an

agreement the terms of which comport with either subsection (A), (B), or (C) of the Rule. The

record shows that the complete terms of the plea agreement had been reached and were orally

presented to the trial court. Accordingly, the court erroneously concluded there was no plea

agreement.

Likewise, we find no support for the court’s conclusion that appellant was barred from

presenting an agreement to the court and entering a guilty plea because the trial had already

begun. While acknowledging that a plea of guilty is separate and distinct from a plea agreement,

we note, “[t]he fact that the trial has begun has no effect on a defendant’s constitutional right to

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plead guilty.” Graham v. Commonwealth, 11 Va. App. 133, 141, 397 S.E.2d 270, 274 (1990).

Similarly, while not suggesting a defendant has a constitutional right to present a plea agreement,

we find no bar to presenting a plea agreement after a trial has commenced. The

Commonwealth’s concern, expressed on appeal for the first time, that presenting a plea

agreement after a trial has begun “might constitute [an] attempt” to force a judge to be removed

from a case, is misplaced. The court need entertain only agreements that have been “reached by

the parties.” Therefore, a defendant in a criminal trial is unable to unilaterally force the court to

consider a plea agreement, and require a judge to remove him or herself from the case in the

event that judge rejected the agreement. Only if the defendant and the Commonwealth, as in this

case, have reached an agreement, must the trial court consider it. See Rule 3A:8.

We hold the trial court erred by refusing to consider the proffered agreement, or any

agreement predicated upon a guilty plea that the parties had reached prior to the court reaching a

verdict. Although Judge Griffith had a legitimate concern about “judge shopping,” Rule 3A:8

requires a trial judge to consider a plea agreement reached by the Commonwealth’s Attorney and

a defendant prior to the commencement of trial. Under Rule 3A:8 the court has the right and

discretion to reject the terms or recommendations in a plea agreement, however, the court does

not have the right to not consider an agreement reached between the parties or to treat an

agreement as though none existed. Judge Griffith’s concerns about “judge shopping” are a

consequence of the jurisdictions’ policy assigning judges and not a problem arising due to Rule

3A:8.

II.

Appellant asserts “the trial judge should have recused himself because of perceived bias.”

He contends the trial judge “was biased as to his trial counsel.”

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 Canon 3(C)(a) of the Canons of Judicial Conduct provides that “[a] judge shall disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.”

The requirement of this Canon is clear; a judge must diligently
avoid not only impropriety but a reasonable appearance of
impropriety as well. Exactly when a judge’s impartiality might
reasonably be called into question is a determination to be made by
that judge in the exercise of his or her sound discretion.

Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 (1996). Moreover,

“[j]udges are presumed to be aware of the provisions of Canon 3.” Id. “[W]hether a trial judge

should recuse himself or herself is measured by whether he or she harbors ‘such bias or prejudice

as would deny the defendant a fair trial,’ and is a matter left to the reasonable discretion of the

trial court.” Welsh v. Commonwealth, 14 Va. App. 300, 315, 416 S.E.2d 451, 459-60 (1992)

(citations omitted).

Although the trial judge expressed his displeasure for Zaleski’s perceived attempts at

“judge shopping,” the judge stated on the record, “I don’t hold any ill will towards [Zaleski] for

it. I don’t think it’s appropriate, and I took necessary action and that’s done and that’s

history . . . .” Judge Griffith further explained: “I’m going to be fair. I can guarantee it. It has

nothing to do with any personalities or anything . . . .” The record reveals Judge Griffith

considered the issue presented. We find no abuse of discretion in his decision not to recuse

himself on the basis of perceived bias. See Commonwealth v. Jackson, 267 Va. 226, 229, 590

S.E.2d 518, 520 (2004) (holding that “[i]n the absence of proof of actual bias, recusal is properly

within the discretion of the trial judge”); Davis v. Commonwealth, 21 Va. App. 587, 590-91, 466

S.E.2d 741, 742-43 (1996) (trial judge’s discretion to determine whether “impartiality might

reasonably be questioned”) (citing Canon 3(C) of the Canons of Judicial Conduct).

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 III.

Appellant contends the evidence at trial was insufficient to prove he possessed cocaine or

marijuana, or that he was a convicted felon.

Because we find grounds to reverse the case on the basis of [the
court’s failure to consider any plea agreement] and remand the
case for a new trial, we address [appellant’s] claim that the
Commonwealth failed to present sufficient evidence [to support his
conviction]. If the evidence adduced at trial was insufficient to
convict [appellant], he is entitled to an acquittal [on that charge]; if
he is so entitled, a remand for retrial would violate the
Constitution’s prohibition against double jeopardy.

Parsons v. Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812 (2000). “[A] full

sufficiency analysis is required to satisfy the mandate of the Double Jeopardy Clause of the

federal Constitution.” Id. (citing Burks v. United States, 437 U.S. 1 (1978)); see Timbers v.

Commonwealth, 28 Va. App. 187, 202, 503 S.E.2d 233, 240 (1998).

When sufficiency of the evidence is challenged on appeal, the judgment of the trial court

is presumed correct. See Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387

(1991). We consider the evidence in the light most favorable to the Commonwealth, discarding

all evidence offered by the accused that conflicts with that of the Commonwealth, and grant to

the Commonwealth all inferences reasonably deducible from the evidence. See Norman v.

Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986).

So viewed, the evidence proved that on December 5, 2001, the police executed a search

warrant at 324 San Antonio Boulevard, Apartment B, in the City of Norfolk. Investigator N.

Gardner entered the residence and encountered appellant and others. He observed appellant

lying on the kitchen floor and told appellant to place his hands where the officer could see them.

Appellant complied and announced that he had a gun. The police secured the weapon, a Ruger

.45 caliber pistol. Investigator Payne searched appellant and found keys, a holster, and $1,755 in

currency on his person.
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 Detective M. Joseph screened the cars in the residence’s driveway with a narcotics dog.

The dog alerted at a late model silver Cadillac. Inside the car the police found narcotics. The

dog also alerted at another vehicle in the driveway. Inside that car, Joseph found money and

marijuana. The dog then alerted on a third vehicle outside the residence, a burgundy van.

Joseph found cocaine in the van secreted behind a door panel. A further search of the van

revealed another hidden compartment. A device in the back of the van operated the secret

compartments. The police found a Ruger .45 caliber magazine containing rounds inside the van.

In the residence, the police recovered a bag containing cocaine and a nine-millimeter

loaded pistol in close proximity to each other on the living room floor. The kitchen contained six

bags holding smaller bags of marijuana in a cabinet above the stove. Other cabinets contained

packaging paraphernalia including small baggies, some with corners cut off, and scales with

cocaine residue. A large bag in a bedroom closet contained seven bails of green leafy material.

The house was sparsely furnished with only two couches, a television and a deflated air

mattress. No clothes or personal effects were in the residence, and the kitchen was devoid of

food or cooking implements with the exception of a cast iron skillet. Investigator D. Barber,

during his expert testimony, indicated such skillets are commonly used to “cook” cocaine,

creating crack cocaine. Barber also testified the amount of cash appellant carried was consistent

with drug distribution. Furthermore, the quantity of cocaine and marijuana located at the scene

was inconsistent with personal use. The cocaine recovered from the van had a street value of

$350,000. The cocaine found in the house and the cocaine found in the van had similar

unusually high purity levels.

The green substance in the bedroom was imitation marijuana. Barber stated that dealers

of drugs sometimes sell fake narcotics.

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 One of the keys appellant carried opened the van from which the cocaine had been

recovered. Appellant was the only person present at the house in possession of keys to that

vehicle. The magazine in the van matched the pistol appellant carried.

Possession Of Drugs

Appellant argues the Commonwealth failed to establish he possessed the drugs located in

the house or in the van.

“The Commonwealth may prove possession of a controlled substance by showing either

actual or constructive possession.” Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d

901, 904 (1998).

To support a conviction based upon constructive possession, “the
Commonwealth must point to evidence of acts, statements, or
conduct of the accused or other facts or circumstances which tend
to show that the defendant was aware of both the presence and
character of the substance and that it was subject to his dominion
and control.”

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citation omitted). “The

Commonwealth is not required to prove that there is no possibility that someone else may have

planted, discarded, abandoned or placed the drugs . . . .” Brown v. Commonwealth, 15 Va. App.

1, 10, 421 S.E.2d 877, 883 (1992) (en banc). “Although mere proximity to the contraband is

insufficient to establish possession, it is a factor that may be considered in determining whether a

defendant possessed the contraband. Ownership or occupancy of the premises on which the

contraband was found is likewise a circumstance probative of possession.” Archer v.

Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997). “Moreover, ‘the possession

need not be exclusive. The defendant may share [drugs] with one or more.’” Barlow, 26

Va. App. at 429, 494 S.E.2d at 905 (quoting Ritter v. Commonwealth, 210 Va. 732, 741, 173

S.E.2d 799, 805-06 (1970)).

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 Here, the evidence disclosed more than occupancy of the premises. It showed that the

cocaine in the living room was in plain view. Appellant was present in the residence when the

officers entered. See Gillis v. Commonwealth, 215 Va. 298, 208 S.E.2d 768 (1974). The

residence contained little furniture and no food or cooking implements and appeared to be used

primarily for the packaging and distribution of drugs. Barber testified the residence was very

small. The police located a surveillance system in the kitchen along with a large quantity of

marijuana. Appellant possessed a weapon and a large amount of cash at the time the police

entered the residence. Appellant was the only member of the group who carried a key to the van

containing the large amount of cocaine similar to the cocaine located in the residence. An

ammunition magazine which fit the gun appellant carried was also in the van. Based upon the

circumstances disclosed by the evidence, the trial court was justified in inferring that appellant

had dominion and control of the contraband located in the house and in the van and was,

therefore, in constructive possession of it.

Prior Felony Conviction

The Commonwealth introduced a prior certified transfer order from the City of

Portsmouth indicating that appellant had been convicted for burglary and that sentencing

proceedings were to be transferred to the Norfolk Juvenile and Domestic Relations District

Court. The Commonwealth also introduced the sentencing order from that court describing the

sentence imposed for a burglary conviction. The records were certified and authenticated by the

Norfolk Juvenile and Domestic Relations District Court. Appellant asserts the documents failed

to establish he was a convicted felon.

The Norfolk court’s attestation proclaims that each document is “a true copy of a record

in the above-named court . . . .” The documents certified were part of the record of the Norfolk

court and therefore within the knowledge of that court, as required by Code § 8.01-391.

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Appellant’s hearsay objection is without merit, and the trial court properly admitted the

documents.

Furthermore, the records, although not containing a conviction order, demonstrate

appellant was convicted of a felony in the Portsmouth court. The transfer order recites that

appellant was “th[at] day found guilty” of violating Code § 18.2-89, a felony. Similarly, the

corresponding record from the Norfolk court lists the disposition of the burglary charge. The

documents, viewed together, provided the court with a sufficient basis for concluding appellant

was a convicted felon.

Thus, the court had sufficient evidence to conclude that appellant was a convicted felon

and that he possessed the contraband. The court’s conclusion was not plainly wrong.

For the reasons stated in this opinion, we reverse the convictions and remand for a new

trial if the Commonwealth be so advised. 1

Reversed and remanded

1
As to whether a new trial might violate the Constitution’s Double Jeopardy Clause, see
Parsons, 32 Va. App. at 581, 529 S.E.2d at 812.

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Benton, J., concurring, in part, and dissenting, in part.

I concur in the parts of the opinion styled PROCEDURAL HISTORY and ANALYSIS

(I). I agree that the trial judge erred by refusing to consider the proffered plea agreement and

that, for this reason, Wilson’s case ordinarily should be remanded under Rule 3A:8. I would also

hold, however, that the trial judge should have granted Wilson’s motion that the judge recuse

himself from presiding over the trial. In addition, because I believe the evidence was insufficient

to prove that Wilson constructively possessed the drugs seized, I would reverse the convictions

and dismiss the indictments concerning the drugs.

I.

On July 16, 2002, when this case was set for trial, the clerk called the case and asked

Wilson whether he wanted a trial by jury or a bench trial. Wilson said he wanted a jury trial.

The trial judge noted that a jury could not be secured that day, said he would arraign Wilson, and

ruled the trial would begin the following day. As the clerk began the arraignment, the trial judge

interrupted and said Wilson’s attorney had “caused this problem.” He then announced that he

was “going to relieve [Wilson’s attorney] . . . from [his] responsibilities in this case.” When he

learned that the attorney was not court appointed but retained, he ruled: “I am removing you

from the court appointed list, effectively immediately . . . . I am not going to have a

court-appointed lawyer who practices that way in this court building.” He then continued the

case noting that “the defendant’s constitutional right to a jury trial overrides any shenanigans that

the attorney may participate in.” In denying Wilson’s later motion that he recuse himself from

the trial, the judge said that he did not “hold any ill will toward [Wilson’s attorney]” and that he

was “going to be fair.”

“A judge shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.” Canon 3(C) of the Canons of Judicial Conduct. “The requirement of

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this Canon is clear; a judge must diligently avoid not only impropriety but a reasonable

appearance of impropriety as well.” Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d

741, 743 (1996).

I would hold the trial judge’s actions would convey to a reasonable person a belief he

would not receive a fair trial. The judge ruled in the presence of Wilson that the attorney had

used “shenanigans” when advising Wilson of his constitutional right to seek a jury trial. We held

however, in Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618 (1997), a case that arose

from this same circuit court, that a trial judge may not rely upon a scheduling order for

determining waiver of a jury trial when the record does not show that the defendant had

manifested by some deliberate action an election to forego his right to a jury trial. Id. at 640-41,

484 S.E.2d at 620-21. See also Robinson v. Commonwealth, 36 Va. App. 1, 548 S.E.2d 227

(2001); Herbert v. Commonwealth, 33 Va. App. 506, 534 S.E.2d 369 (2000). As punishment for

the attorney’s advice to Wilson to invoke his right to a jury trial, the trial judge sought to remove

the attorney from his representation of Wilson and, when that could not be achieved, removed

the attorney from the list of eligible court-appointed attorneys. Later, the judge made an

affirmative effort to solicit the re-assignment of this case to his courtroom so that he could

conduct the trial.

As indicated in the majority opinion, the trial judge later refused to accept a plea

agreement as requested by Wilson and the Commonwealth. The record further establishes that

the sentence imposed on Wilson exceeded the sentencing guidelines and exceeded the sentences

imposed upon the lessee of the apartment (where the marijuana was hidden) and the owner of the

van (where the cocaine was hidden), both of whom were arrested in the residence. Although

Wilson represents on brief that his sentence exceeded those of all the defendants, the sentences

of the others are not disclosed on the record.

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 I would hold that these circumstances establish that the trial judge abused his discretion

in denying Wilson’s motion that the judge recuse himself.

II.

The evidence did not prove that Wilson actually possessed any of the marijuana or

cocaine.

To support a conviction based upon constructive possession, “the
Commonwealth must point to evidence of acts, statements, or
conduct of the accused or other facts or circumstances which tend
to show that the defendant was aware of both the presence and
character of the substance and that it was subject to his dominion
and control.” . . . Mere proximity to a controlled drug is not
sufficient to establish dominion and control.

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citation omitted).

“[W]here, as here, a conviction is based on circumstantial evidence, ‘all necessary circumstances

proved must be consistent with guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.’” Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d

783, 784 (1983) (citation omitted). Proof of suspicious circumstances, “no matter how strong, is

insufficient to sustain a criminal conviction.” Stover v. Commonwealth, 222 Va. 618, 624, 283

S.E.2d 194, 197 (1981) (citing Thomas v. Commonwealth, 187 Va. 265, 271-72, 46 S.E.2d 388,

391 (1948)).

I agree that the circumstances Wilson was in were suspicious. He was seized in an

apartment that contained marijuana and cocaine. Wilson had a large amount of cash and a

weapon. Wilson had in his possession the key to a van that concealed $350,000 worth of cocaine

and that contained a Ruger .45-caliber magazine, which fit the weapon Wilson had in his

possession. While these suspicious circumstances were not trifles, the Commonwealth failed to

prove, beyond mere suspicions, that Wilson was aware of the cocaine in the van (a vehicle that

he did not own or occupy), that he was aware of the marijuana located in a closed kitchen cabinet

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(in an apartment he did not own or lease), and that he exercised the kind of dominion or control,

commensurate with possession, over any of the marijuana or cocaine.

To sustain convictions for constructive possession, the Supreme Court and we have

required much more compelling evidence than the circumstance here. “The evidence must go

further than create a mere suspicion or probability of guilt. There must be credible evidence to

arrive at a conclusion of guilt beyond a reasonable doubt.” Rich v. Commonwealth, 198 Va.

445, 452, 94 S.E.2d 549, 554 (1956). Thus, for constructive possession, the evidence must be

sufficient to prove beyond a reasonable doubt that the defendant was both aware of the presence

and character of the substance and that he exercised dominion and control over the substance

commensurate with actual possession. See e.g., Drew, 230 Va. at 474, 338 S.E.2d at 846

(holding that the evidence was insufficient to prove constructive possession by the defendant

where it established, at most, that he resided at the residence and was near the residence the night

the cocaine was seized from it); Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739,

740 (1984) (proving that drugs were found secreted in the defendant’s house was insufficient to

prove he constructively possessed the drugs); McNair v. Commonwealth, 31 Va. App. 76, 86,

521 S.E.2d 303, 308 (1999) (holding that “‘[s]uspicious circumstances, including proximity to a

controlled drug, are insufficient to support a conviction [for constructive possession]’”); Nelson

v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d 627, 628 (1994) (arresting the defendant in

a motel room registered to another was insufficient to prove he knew that cocaine was on the

premises or that he exercised any control over the cocaine, where “[c]ocaine was secreted in a

toothbrush holder in the [motel] bathroom, and a small amount was found on the carpet under the

bed”); Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992) (holding

that ownership or occupancy of a vehicle where drugs were located was insufficient to establish

constructive possession); Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432

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(1986) (holding that evidence was suspicious, but insufficient to establish constructive

possession, when drugs were found in a hotel room registered to defendant and defendant was

not seen in proximity to drugs).

This concern for a conviction based on suspicion is reflected in the statutory admonition

that neither proximity to nor a proprietary interest in the premises containing the illegal

substance is sufficient to convict -- proof of “ownership or occupancy of premises or vehicle

upon or in which a controlled substance was found shall not create a presumption that such

person either knowingly or intentionally possessed such controlled substance.” Code § 18.2-250.

Notably, both factors were absent with regard to the cocaine found in the van. Wilson was

neither the owner or occupant of the van nor was he in the proximity of the van during the

seizure. Wilson was in the apartment, and the van was parked some distance away. The trial

judge erred in concluding, even in the absence of these factors, that Wilson constructively

possessed the drugs in the van.

As a comparison to our cases demonstrates, the circumstances do not establish Wilson’s

guilt beyond a reasonable doubt. For example, in Burchette, the defendant owned the vehicle,

where police found his wallet, cell phone, pager, and bills in his name, in addition to marijuana

packaged for distribution. Unlike in this case, where the cocaine was elaborately hidden in the

vehicle, some of the marijuana discovered in Burchette’s vehicle was in plain view. 15 Va. App.

at 435, 425 S.E.2d at 83. The police also observed Burchette walking by the vehicle, which was

parked in front of his home, shortly before he drove away in another vehicle. Id. We held that

the evidence amounted to mere suspicion only, and we reasoned that because the Commonwealth

failed to negate the reasonable inference that someone other than Burchette had used the car and

placed the marijuana there, the evidence failed to support the conviction. Id. at 439, 425 S.E.2d

at 86.

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 Wilson’s possession of the key, coupled with the officer’s discovery of the magazine in

the van, does not establish Wilson’s awareness of the cocaine concealed in hidden

compartments. Wilson did not own the van. Indeed, no evidence proved he had been inside the

van. The Supreme Court has also held that possession of a key to a location where drugs are

located is not sufficient to establish either awareness or dominion and control. See Clodfelter v.

Commonwealth, 218 Va. 619, 238 S.E.2d 820 (1977). This is true even when the defendant was

the sole occupant of the place at issue. Id. at 621, 238 S.E.2d at 821. In Clodfelter, the

defendant, like Wilson, had the key to the place where drugs were located (in Clodfelter’s case, a

hotel room). Id. Unlike Wilson, who had the key but was not the owner, Clodfelter was the only

registered guest in that hotel room and was, thus, both owner and occupant. Despite this more

compelling evidence, the Supreme Court reversed his conviction, finding that “while the

evidence created a strong suspicion of guilt, it fell short of proving possession beyond a

reasonable doubt.” Id. at 623, 238 S.E.2d at 822. The Court made the following pertinent

observations about the suspicious circumstances:

Distilled to its basic elements, the evidence, and reasonable
inferences therefrom, show that Clodfelter rented the hotel room
and that he had deposited some of his personal effects there. The
evidence also shows that Clodfelter, when questioned by the
police, gave a false identity. Certainly this evidence creates a
strong suspicion of guilt, but it falls short of showing beyond a
reasonable doubt that the drugs found in the hotel room were ever
actually or constructively possessed by Clodfelter with an
awareness of their character.

Id. at 624, 238 S.E.2d at 822. As Burchette and Clodfelter demonstrate, Wilson’s possession of

the key to the van, and the presence of the magazine inside the van, do not establish beyond a

reasonable doubt that Wilson was aware of the cocaine or that he exercised any measure of

dominion and control over the hidden cocaine.

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 In addition to this failure of proof, the Commonwealth also failed to disprove reasonable

hypotheses that flowed from the evidence that were “inconsistent with guilt.” Despite extensive

surveillance, the police did not testify about when or how Wilson arrived at the apartment,

whether he drove the van, or for what purpose he was at the apartment. Because the cocaine was

elaborately concealed in a hidden compartment, where it was discovered only after a drug

sniffing dog alerted and an extensive search occurred, the evidence left entirely within the realm

of reasonable possibility that the owner of the van, Javone McCantz, who was also seized during

the raid at the apartment, alone possessed the cocaine and alone knew of its existence. The

evidence does not negate the reasonable hypothesis that Wilson had the key for a purpose

unrelated to the cocaine. No evidence even negated the inference that, if Wilson had driven the

van, he had done so without being aware of the hidden cocaine. Indeed, no evidence proved

Wilson had been in the van. Like Clodfelter and Burchette, the discovery of the .45-caliber

Ruger magazine at most suggests that Wilson may have been in the van at some point in the past.

We do not know when, because the Commonwealth’s evidence failed to prove this critical fact.

The evidence was similarly lacking that Wilson was aware of the presence of the

marijuana in the kitchen cabinet or that he exercised any measure of dominion and control over

it. Police seized the marijuana from a closed kitchen cabinet. The only fact that was proved to

suggest Wilson was aware of the marijuana was his mere presence in the apartment. The trial

judge was not privileged to assume from this fact that Wilson knew of the presence of the

marijuana. As the Supreme Court held in Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d

177 (1972), it is impermissible for a fact finder to infer awareness and control of drugs simply

because a suspect is present at a location where drugs were found. In Huvar, the defendant was

arrested in the bathroom of an apartment; drugs were scattered in plain view in other rooms, the

apartment smelled of marijuana, and the defendant appeared to have been using drugs. 212 Va.

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at 668, 187 S.E.2d at 177-78. Despite the “suspicious circumstances,” the Court held that the

defendant did not have constructive possession of the drugs.

It is the theory of the Commonwealth that the police interrupted
a “pot party.” One could reasonably reach this conclusion from the
evidence. However, the mere presence of defendant at the party is
not sufficient to convict him of actual or constructive possession of
the drugs that were found there. It was not his apartment. Those
present were not shown to have been his guests or there at his
invitation. None of the prescription containers in which some of
the drugs were found bore his name on their labels. He made no
statement, committed no act and indulged in no conduct from
which the inference could be fairly drawn that he possessed or
controlled the drugs which the police found.

Id. at 668, 187 S.E.2d at 178.

Similarly, in Drew, the Supreme Court reversed a conviction for constructive possession

where a search of a residence revealed the defendant’s checkbook, bank statement, telephone

bill, driver’s license, vehicle registration, credit union voucher, and a large amount of cocaine

and drug paraphernalia. Each documentary item listed the residence as the defendant’s address.

In addition the evidence proved the police saw the defendant standing near the residence. 230

Va. at 472, 338 S.E.2d at 845. Despite these suspicious circumstances, the Supreme Court held

the evidence was insufficient to establish constructive possession: “At most, the evidence

establishes that [the defendant] resided at . . . and . . . was near the residence the night the

cocaine was seized. This is insufficient to prove constructive possession by the defendant.” Id.

at 474, 338 S.E.2d at 846.

In comparison to both Huvar and Drew, the evidence against Wilson was weaker still.

He was not the lessee or the owner. The lessee was actually present in the apartment with

Wilson and other people. The marijuana was not in plain view; it was hidden in the kitchen

cabinet. The evidence failed to draw any connection, beyond speculation, between Wilson’s

money and the marijuana. The Commonwealth simply failed to provide evidence which tended

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to prove Wilson was aware of the presence of marijuana, beyond the suspicious circumstances.

And this proof is required beyond a reasonable doubt to establish his guilt.

Similarly, Wilson was not in proximity of the hardball of cocaine when the police entered

the apartment. He was in the kitchen; the hardball of cocaine was in the living room; the

hardball of cocaine did not have his fingerprints. Moreover, unlike in Huvar, where the odor of

marijuana was prevalent and drugs were scattered about, the presence of this one item of

cocaine, which was in plain view but in a room where Wilson was not, certainly cannot provide

the basis for the fact finder to conclude Wilson was aware of the presence and character of a

single hardball of cocaine.

The essence of constructive possession for drugs is control, which must be proven

beyond a reasonable doubt. If the Supreme Court and we could not conclude that the defendants

in Burchette, Huvar, Behrens, and other cases constructively possessed drugs, we cannot sustain

Wilson’s conviction on weaker evidence. Our case law has been clear on the law of constructive

possession and has guarded against “ad hoc judicial judgments against those often identified by

chance discovery, and prosecuted by official whimsy.” Charles H. Whitebread and Ronald

Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev.

751, 751 (May 1972). This record contains no “evidence of acts, statements, or conduct of the

accused or other facts or circumstances which tend to show that the defendant was aware of both

the presence and character of the substance and that it was subject to his dominion and control.”

Powers, 227 Va. at 476, 316 S.E.2d at 740. In short, the evidence in this case is consistent with

Wilson present at the apartment as a visitor; it failed to prove he possessed any of the drugs.

For these reasons, I would hold that the evidence was insufficient to support the drug

related convictions. Thus, I would reverse the convictions and dismiss all indictments except

possession of a firearm by a felon.

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Humphreys, J., concurring, in part, and dissenting, in part.

I agree with the majority’s analysis and conclusion that the trial judge was not required to

recuse himself. I also agree that the Commonwealth presented sufficient evidence to support

Wilson’s convictions for possession of cocaine, possession of marijuana, possession of a firearm

while in possession of a controlled substance, and possession of a firearm by a convicted felon.

I dissent, however, from the majority’s conclusion that the trial court improperly refused

to consider the proffered plea agreement. I agree with the majority’s implicit holding that this is

not a matter of constitutional import in that the trial court’s failure to consider a plea agreement

after the commencement of trial is not equivalent to depriving a criminal defendant of his

constitutional right to plead guilty. However, because the “plea agreement” in this case had not

been reduced to writing, I would hold that the trial judge was not required, under the plain

language of Rule 3A:8(c), to consider the plea agreement because there was, in fact, no plea

agreement for him to consider. Because the parties had not reduced the plea agreement to

writing, I would hold that the decision of whether to consider the proposed plea agreement

therefore rested in the discretion of the trial court. And, because there is no indication that the

trial judge abused his discretion, I would affirm Wilson’s convictions.

I.

Under Article I, Section 8 of the Virginia Constitution, a criminal defendant has the

constitutional right to plead guilty to the whole of an indictment. See Graham v.

Commonwealth, 11 Va. App. 133, 139, 397 S.E.2d 270, 273 (1990). 2 Also, “[t]he fact that the

2
In contrast, “[t]he United States Constitution does not confer upon a criminal defendant
an absolute right to have his guilty plea accepted by the court.” Graham, 11 Va. App. at 136,
397 S.E.2d at 272; see also Santobello v. New York, 404 U.S. 257, 262 (1971) (noting that,
because “[t]here is, of course, no absolute right to have a guilty plea accepted,” the “court may
reject a [guilty] plea in exercise of sound judicial discretion”); North Carolina v. Alford, 400
U.S. 25, 38 n.11 (1970) (“A criminal defendant does not have an absolute right under the
Constitution to have his guilty plea accepted by the court, although the States may by statute or

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trial has begun has no effect on a defendant’s constitutional right to plead guilty.” Id. at 141, 397

S.E.2d at 274. Thus, “[t]he fact that a plea is tendered mid-trial is irrelevant to the analysis

regarding a defendant’s right to enter a plea of guilty,” id., and “a defendant may [therefore]

plead guilty at any time prior to the return of the jury’s verdict concluding the guilt phase of a

bifurcated trial.” Daye v. Commonwealth, 21 Va. App. 688, 692, 467 S.E.2d 287, 289 (1996). 3

Although a criminal defendant does have a right under the Virginia Constitution to enter

an unconditional guilty plea, this right does not extend further in constitutional terms to also

encompass the right to halt a trial in progress or about to commence in order to enter a guilty

plea conditioned on the terms of an unwritten plea agreement. As noted by the United States

Supreme Court,

[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.

Mabry v. Johnson, 467 U.S. 504, 507-08 (1984). 4

As the majority recognizes, although a guilty plea is an integral part of any plea

agreement, a plea of guilty is therefore separate and distinct from a plea agreement. See United

States v. Hyde, 520 U.S. 670, 677 (1997) (interpreting the federal equivalent to Rule 3A:8 and

holding that the Ninth Circuit erred when it “equated acceptance of the guilty plea with

otherwise confer such a right.” (citation omitted)); United States v. Benson, 640 F.2d 136, 139
(8th Cir. 1981) (“[T]here is no constitutional right to plead guilty.”).
3
Notably, however, neither Graham nor Daye involved the entry of a plea agreement.
Rather, both cases dealt with a defendant’s request to change a “not guilty” plea into an
unconditional “guilty” plea. Indeed, whether a trial court is required to consider a plea
agreement subsequent to the commencement of a trial appears to be a case of first impression
within the Commonwealth.
4
In fact, Wilson’s plea agreement, as presented, had not yet been reduced to writing or
executed by the appropriate parties, and so could not even be considered an “executory”
agreement.

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acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty

plea,” explaining that a guilty plea and a plea agreement are only “‘bound up together’ in the

sense that a rejection of the agreement simultaneously frees the defendant from his commitment

to plead guilty” (emphasis added)). Accordingly, Wilson’s right to plead guilty was not

inseparable from his plea agreement. Rather, at most, Wilson’s statement that the parties had

reached a plea agreement evidenced his conditional intent to plead guilty – it did not constitute

the guilty plea itself.

Here, then, the trial court’s decision to disregard the orally proffered plea agreement did

not preclude Wilson from pleading guilty. It merely prevented him from doing so in accordance

with the terms of the agreement he had presumably reached with the Commonwealth’s attorney.

Accordingly, Wilson’s constitutional right to plead guilty was neither implicated nor violated

under the circumstances of this case.

II.

According to Rule 3A:8(c), “[t]he attorney for the Commonwealth and the attorney for

the defendant . . . may engage in discussions with a view toward reaching a[] [plea] agreement.”

And, once a plea agreement has been reached, the trial court may consider that agreement if it

has been “reduced to writing, signed by the attorney for the Commonwealth, the defendant, and

. . . his attorney, . . . and presented to the court.” Id.; see also Wolfe v. Commonwealth, 1

Va. App. 498, 499, 339 S.E.2d 913, 914 (1986) (“This rule [] requires that a plea agreement be

reduced to writing, signed by the attorney for the Commonwealth, the defendant and his

attorney, and presented in open court.”). As noted by the majority, the purpose of Rule 3A:8(c),

which is procedural rather than substantive in nature, “is to ensure that plea agreements are fully

disclosed to both the trial court and the defendant.” Hairston v. Commonwealth, 16 Va. App.

941, 945, 434 S.E.2d 350, 353 (1993).

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 Wilson correctly points out that the terms of Rule 3A:8(c) contain no time limitations

restricting the parties’ ability to enter into plea negotiations. 5 However, by the plain terms of

Rule 3A:8(c)(2), a plea agreement in a felony case must be reduced to writing. See Rule

3A:8(c)(2) (“If a plea agreement has been reached . . . it shall, in every felony case, be reduced

to writing . . . .” (emphasis added)). If this has not occurred, then there is no plea agreement for

a court to consider within the meaning of the Rule. Cf. Commonwealth v. Sandy, 257 Va. 87,

91, 509 S.E.2d 492, 493-94 (1999) (holding that this Court “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)” because “the agreement in this case was never approved by the circuit

court as required by Rule 3A:8”). 6

5
Because there was no “plea agreement” in this case, I need not address the issue of
whether the trial court is required to consider a plea agreement that has been properly reduced to
writing, signed, and presented to the court after trial has commenced. I do note, however, that I
have found no authority supporting the majority’s bare assertion that, because there is “no bar to
presenting a plea agreement after a trial has commenced,” the trial court “must” consider that
plea agreement. It is not clear from the permissive language of Rule 3A:8, nor, prior to this case,
have we explicitly held, that a trial court is ever required to consider a plea agreement. Cf.
United States v. Stamey, 569 F.2d 805, 806 (4th Cir. 1978) (holding that the trial court did not
err when it accepted the defendant’s guilty plea without first considering the substance of a
proffered plea agreement, reasoning that the federal rules “permit[] each federal court to decide
for itself the extent to which it will permit plea negotiations,” and concluding that “[n]o court is
compelled to permit any plea negotiations at all” (internal quotations omitted)); see also United
States v. Petty, 600 F.2d 713, 713 (8th Cir. 1979) (“[A] district court is under no duty to consider
a negotiated plea agreement.”); In re Yielding, 599 F.2d 251, 252-53 (8th Cir. 1979) (denying
writ of mandamus where petitioner sought to compel the district court to consider a negotiated
plea agreement, reasoning that “the district court was under no duty to [do so]”). According to
Rule 3A:8, the parties must present finalized plea agreements to the Court, but the Rule contains
no language mandating that the plea agreement actually be taken into consideration. Rather, the
Rule indicates only that the court “may accept or reject the agreement.” Thus, even if the parties
had reached a plea agreement, the trial court’s refusal to consider that agreement did not
necessarily violate Rule 3A:8, nor was it automatically tantamount to an abuse of discretion.
6
Cf. United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (holding that the
defendant entered an unconditional rather than conditional guilty plea under Fed. R. Crim. P. 11
because “the plea was not preserved in writing, as required by Rule 11(a)(2),” reasoning that the
requirement that the agreement be in writing was intended to ensure that the government had
given its express consent to the terms of the conditional plea); United States v. Fischetti, 475 F.
Supp. 1145, 1151 (D.N.J. 1979) (where “both the government and the defendants insist that they

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 Here, Wilson freely admits that the terms of the plea agreement were not reduced to

writing. Thus, Rule 3A:8(c) is not implicated here. Rather, because the requirements of Rule

3A:8 had not been met, I would hold that the trial judge correctly found that there was no “plea

agreement” for him to consider.

Moreover, the majority erroneously concludes that “the complete terms of the plea

agreement were orally presented to the trial court.” To the contrary, the record reflects that the

only information available to the trial court was that Wilson’s counsel stated to the court that

“we’re very close to a plea agreement,” and the prosecutor responded that “we don’t have a plea

agreement written out . . . . It calls for a total sentence of twenty years with four to serve.” In

my view, these statements, taken together, fall short of representing a meeting of the minds

sufficient to evidence any sort of agreement. Moreover, the parties did not proffer any of the

other necessary specifics of a proper plea agreement: for example, whether Wilson was pleading

guilty to all or some of the charges, to one or more lesser or reduced offenses, whether he was

entering a plea of guilty or nolo contendere, or whether other charges would be dismissed,

reduced, or simply not pursued. 7 The majority’s holding, by forcing the trial courts to halt

proceedings in progress to consider an orally proffered “plea agreement” as nebulous as the one

have an agreement and wish to have it recognized,” but the plea agreement had not been placed
in writing, the court informed the parties that it would only consider written plea agreements,
noting the “importance of employing routine requirements of signed memoranda as a simple and
obvious tool to provide certainty and avoid controversy,” and further reasoning that “[i]mportant
transactions such as property contracts, deeds, mortgages and wills have long been required to be
put in writing,” and that “[a]greements in respect to pleas affecting a person’s constitutional
rights and liberty are hardly of lesser importance”).
7
This information is of crucial importance because, for example, a trial court has the
right to refuse a plea of guilty to a lesser-included offense, but is required to accept a plea of nolo
contendere to the offense charged. See Code § 19.2-254 (“The court may refuse to accept a plea
of guilty to any lesser offense included in the charge upon which the accused is arraigned, but
. . . the court shall not refuse to accept a plea of nolo contendere.”); see also Graham, 11
Va. App. at 137, 397 S.E.2d at 272 (“The only discretion given to a court by the statute is the
right to refuse a plea of guilty to any lesser offense included in the charge upon which the
accused is arraigned.”).

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at issue here, undermines the clear underlying purpose of Rule 3A:8(c) – “to ensure that plea

agreements are fully disclosed to both the trial court and the defendant.” Hairston, 16 Va. App.

at 945, 434 S.E.2d at 353 (emphasis added).

For these reasons, I disagree with the majority’s conclusion that the parties had reached a

“plea agreement” within the meaning of Rule 3A:8. Rather, because the terms of that agreement

had been neither reduced to writing nor fully presented to the trial court, I would hold that there

was no “plea agreement” for the trial court to consider.

III.

At no point prior to the verdicts did Wilson actually change his “not guilty” plea to a

“guilty” plea. Rather, on September 10, 2002, after extensive pretrial maneuvering that can only

be described as a blatant, albeit unsuccessful, attempt at “judge shopping,” Wilson merely

advised the court that the parties were “very close” to a last-minute plea agreement. Even

elevating this statement to the status of a motion to suspend the proceedings pending further

negotiations between the parties, “as a general proposition, a trial court is given discretion in

deciding whether to grant an untimely motion, taking into consideration whether the motion was

designed to impede the efficient administration of criminal justice.” Graham, 11 Va. App. at

141, 397 S.E.2d at 274. Here, in light of the defendant’s history of “judge-shopping” and the

posture of Wilson’s case on September 10, 2002, I would hold that the trial court did not abuse

its discretion when it refused to stop the trial for the purpose of entertaining the defendant’s

last-minute motion for consideration of a purported, unwritten plea agreement.

IV.

For these reasons, I would hold that the trial court did not err when it refused to consider

the orally proffered plea agreement. Because I would therefore affirm the judgment of the trial

court, I respectfully dissent from that portion of the majority’s analysis.

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