COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia
REZENE MEHART ZIGTA, S/K/A
REZENE MEHRT ZIGTA
OPINION BY
v. Record No. 0145-01-4 JUDGE G. STEVEN AGEE
APRIL 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Thomas W. Farquhar (Peter L. Sissman, on
briefs), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Rezene Mehart Zigta (Zigta) was convicted in the Arlington
County Circuit Court of rape, in violation of Code § 18.2-61,
pursuant to an Alford 1 guilty plea. He was sentenced to serve a
fifteen-year term of imprisonment. On appeal he contends the
trial court erred by refusing to allow him to withdraw his plea
prior to sentencing. For the following reasons, we affirm the
decision of the trial court.
1
The so-called "Alford plea" takes its name from North
Carolina v. Alford, 420 U.S. 25 (1970). An Alford guilty plea
is one where the defendant refuses to admit guilt, or even
protests his innocence, but, nonetheless, wants to enter a
guilty plea. The Supreme Court ruled that an admission of guilt
is not a constitutional requisite to the imposition of a
criminal penalty.
I. BACKGROUND
Zigta, an Eritrean citizen, was indicted for the rape of a
six-year-old child. He originally pleaded "not guilty," but
withdrew his plea prior to trial and entered an Alford plea of
guilty. Before entering the Alford plea, Zigta signed a Plea
Agreement Memorandum, which advised him of the consequences of
his plea. Zigta acknowledged in the memorandum that he
understood the elements of the charges against him, that he would
be waiving any objections to the Commonwealth's evidence, that he
was giving up his right to have a speedy trial, the right to a
jury trial, the right to confront witnesses and the rights to
compel evidence, to remain silent, to appeal, to refuse to
testify and to require the Commonwealth to prove its case against
him beyond a reasonable doubt. Zigta reviewed the memorandum
with his attorney and an interpreter.
Although Zigta spoke some English, the trial court used an
interpreter. 2 Through the interpreter, the trial court
extensively inquired of Zigta about his understanding of what it
meant to plead guilty, the rights he would waive and the sentence
that could be imposed. Zigta acknowledged that he had read and
understood the Plea Agreement Memorandum, that he had ample time
to discuss his case with counsel, and that he
2
Zigta raised no claim at trial or on appeal alleging
inability, by reason of his limited knowledge of the English
language, to understand and comprehend the proceedings.
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understood what it meant to enter an Alford plea. The trial
court found that Zigta's plea was freely, intelligently and
voluntarily given, and it accepted his plea. The trial court did
not inform Zigta of any possible immigration consequences of his
plea. The case was set for sentencing at a later date.
Prior to sentencing, Zigta filed a motion to withdraw his
guilty plea. He contended his plea was not knowingly,
intelligently and voluntarily made because "[h]e, an Eritrean in
this country under political asylum did not understand the
immigration consequences (deportation to his home country where
he faces persecution)." The trial court denied the motion,
finding it was not obligated to inform Zigta about the
deportation consequences of his conviction.
II. ANALYSIS
On appeal, Zigta contends the trial court erred in denying
his motion to withdraw his guilty plea and presents a question of
first impression in the Commonwealth. Zigta contends that
because his plea was made without specific instruction by the
trial court as to the possible immigration consequences, his plea
was not knowingly and voluntarily made. He avers the Due Process
Clauses of the United States and Virginia Constitutions and Rule
3A:8(b) of the Rules of the Supreme Court of Virginia do not
permit the acceptance of a guilty plea and waiver of rights in
that circumstance. Accordingly, he contends the trial court
abused its discretion by refusing to allow him to withdraw his
plea. We disagree and affirm the trial court's decision to deny
Zigta's motion to withdraw his plea.
A. STANDARD OF REVIEW
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"Code § 19.2-296 allows a defendant to withdraw a guilty
plea before sentence is imposed." Jones v. Commonwealth, 29 Va.
App. 503, 511, 513 S.E.2d 431, 435 (1999). "Whether a defendant
should be permitted to withdraw a guilty plea rests within the
sound discretion of the trial court to be determined based on the
facts and circumstances of each case." Hall v. Commonwealth, 30
Va. App. 74, 79, 515 S.E.2d 343, 346 (1999). "The court's
finding as to the credibility of witnesses and the weight of the
evidence in support of a motion to withdraw a guilty plea will
not be disturbed unless plainly wrong or without evidence to
support it." Jones, 29 Va. App. at 512, 513 S.E.2d at 435.
"As in other cases of discretionary
power, no general rule can be laid down as to
when a defendant will be permitted to
withdraw his plea. The decision in each case
must depend to a great extent on the
particular attendant circumstances."
Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874
(1949) (quoting 14 Am. Jur. 2d Criminal Law § 287 (1938)).
Determining whether the trial court erred in declining to
allow a withdrawal of a guilty plea "requires an examination of
the circumstances confronting [the] accused immediately prior to
and at the time he pleaded to the charge." Id. at 322, 52 S.E.2d
at 872.
B. CONSTITUTIONAL REQUIREMENTS FOR ACCEPTANCE OF A PLEA
The United States Constitution provides an individual with
several rights upon being accused of a crime, which apply to
those accused in state courts by reason of the Fourteenth
Amendment. "First, is the privilege against compulsory self-
incrimination guaranteed by the Fifth Amendment . . . . Second,
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is the right to trial by jury. Third, is the right to confront
one's accusers." Boykin v. Alabama, 395 U.S. 238, 243 (1969)
(internal citations omitted). In order to ensure that these and
other constitutional rights are adequately protected, the trial
court is required to determine whether a defendant's decision to
waive them by pleading guilty "represents a voluntary and
intelligent choice among the alternative courses of action open
to the defendant." North Carolina v. Alford, 400 U.S. 25, 31
(1970).
It is clear from the record that the trial court inquired,
employing an interpreter, as to Zigta's knowledge of these
rights, and his voluntary, intelligent decision to waive them.
In addition, the trial court extensively examined Zigta as to
whether he understood the elements of the charges against him,
that he would be waiving any objections of the Commonwealth's
evidence, and that he was giving up his rights to have a speedy
trial, to have a jury trial, to confront witnesses, to compel
evidence, to remain silent, to appeal, to refuse to testify and
to require the Commonwealth to prove its case against him beyond
a reasonable doubt. Zigta informed the trial court that he
understood his rights and the consequences of his plea. The
trial court specifically found Zigta's plea was "freely,
voluntarily and intelligently" made and that competent counsel
ably represented him. Zigta's guilty plea was, therefore,
knowingly and voluntarily entered.
The trial court's determination is not rendered
constitutionally infirm by Zigta's contention that he was not
aware of the immigration consequences of his guilty plea. A
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trial court is not required to discuss every nuance of the law
regarding a defendant's plea in order to render a guilty plea
voluntary and knowing. The collateral consequences of pleading
guilty are numerous, with some consequences being more direct
than others. Regardless, collateral consequences are irrelevant
to the determination of whether a guilty plea was entered
voluntarily and knowingly. A defendant need not be advised of
the collateral consequences of a guilty plea unless otherwise
mandated. See Bell v. State of North Carolina, 576 F.2d 564 (4th
Cir. 1978); Cuthrell v. Director, 475 F.2d 1364 (4th Cir. 1973).
There is no such mandate in Virginia as to immigration matters.
The fact that deportation may result from a conviction is a
collateral consequence of a guilty plea. See United States v.
Amador-Leal, 276 F.3d 511 (9th Cir. 2002); United States v.
Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Yearwood,
863 F.3d 6 (4th Cir. 1988). 3 Deportation is a collateral
3
See also United States v. Osiemi, 980 F.2d 344 (5th Cir.
1993); Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992); United
States v. Montoya, 891 F.2d 1273 (7th Cir. 1989); United States
v. Romero-Vilca, 850 F.2d 177 (3d Cir. 1988); Downs-Morgan v.
United States, 765 F.2d 1534 (11th Cir. 1985); Fruchtman v.
Kenton, 531 F.2d 946 (9th Cir. 1976); Robinson v. State, 730
So.2d 252 (Ala. Crim. App. 1998); State v. Vera, 766 P.2d 110
(Ariz. Ct. App. 1988); People v. Pozo, 746 P.2d 523 (Colo.
1987); Orellanes v. State, 790 So.2d 613 (Fl. App. 2001);
Michigan v. Davidovich, 618 N.W.2d 579 (Mich. 2000); Alanis v.
State, 583 N.W.2d 573 (Minn. 1998); State v. Clark, 926 S.W.2d
22 (Mo. 1996); Barajas v. Nevada, 991 P.2d 474 (Nev. 1999);
State v. Chung, 510 A.2d 72 (N.J. App. 1986); People v. Ford,
657 N.E.2d 265 (N.Y. 1995); North Dakota v. Abdullahi, 607
N.W.2d 561 (N.D. 2000); Commonwealth v. Frometa, 555 A.2d 92
(Pa. 1989); State v. Desir, 766 A.2d 374 (R.I. 2001); State v.
Jimenez, 987 S.W.2d 886 (Tex. 1999); State v. Rodriguez, 585
N.W.2d 701 (Wis. App. 1998); see also, Collateral Consequences
of Guilty Pleas in the Federal Criminal Justice System, 16
Harvard C.R.C.L.L.Rev. 157 (1981).
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consequence of the criminal conviction because it arises through
the efforts of an arm of government over which the trial court
has no control and which is not part of the underlying criminal
proceeding. The immigration consequences of Zigta's criminal
conviction remain subject to the discretion of entities other
than the trial court. As such, we cannot find that the trial
court's failure to advise him on immigration rules affected his
substantial rights as to the crime for which he was charged and,
thus, the voluntariness of his plea.
Our decision is consistent with those cases previously cited
from other jurisdictions. For example, in Gonzalez, the
defendant, a native of Cuba, pled guilty to mail fraud. Prior to
sentencing, he moved to withdraw his plea pursuant to Rule 32(e)
of the Federal Rules of Criminal Procedure, the equivalent to our
Code § 19.2-296, arguing he had not been informed of adverse
immigration consequences until after the plea was made. The
district court denied the motion. On appeal, the First Circuit
Court of Appeals affirmed the decision of the district court,
holding "deportation is only a collateral concomitant to criminal
conviction." 202 F.3d at 25.
What renders the plea's immigration effects
"collateral" is not that they arise
"virtually by operation of law," but the fact
that deportation is "not the sentence of the
court which accepts the plea but of another
agency over which the trial judge has no
control and for which he has no
responsibility." . . . However
"automatically" [the defendant's] deportation
– or administrative detention —might follow
from his conviction, it remains beyond the
control and responsibility of the district
court in which that conviction was entered
and it thus remains a collateral consequence
thereof.
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Id. at 27 (internal citations omitted).
[B]ecause deportation is a collateral
consequence of a guilty plea, district courts
are not obliged to grant plea withdrawal
motions filed by defendants who realize,
post-plea, the immigration implications of
their conviction.
Id. at 28.
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C. RULE 3A:8(b) REQUIREMENTS FOR ACCEPTANCE OF A PLEA
We also find no merit to Zigta's contention that Rule
3A:8(b) requires a reversal of the trial court's denial of the
motion.
Rule 3A:8 provides, in pertinent part, that a trial court
shall not accept a plea of guilty or nolo
contendere without first determining that the
plea is made voluntarily with an
understanding of the nature of the charge and
the consequences of the plea.
Rule 3A:8(b). The rule restates the due process requirements of
Boykin. James v. Commonwealth, 18 Va. App. 746, 750, 446 S.E.2d
900, 903 (1994). As such, the rule simply requires that prior to
accepting a defendant's plea, the trial court must determine if
the defendant is aware of his constitutional rights, the nature
of the charges against him, and whether the plea is intelligently
and voluntarily made, all of which must appear on the record.
Sisk v. Commonwealth, 3 Va. App. 459, 463, 350 S.E.2d 676, 679
(1986) (citing Boykin, 395 U.S. 238; Rule 3A:8(b), Forms 6 and
7). 4
The record in the case at bar clearly demonstrates that the
trial court advised Zigta that the plea of guilty was a waiver of
all of his rights incident to trial and inquired of him as to
4
Rule 3A:8(b) is similar to Rule 11 of the Federal Rules of
Criminal Procedure, which also does not place a duty upon the
trial court to advise a defendant of collateral consequences in
order for the plea to be entered knowingly and voluntarily. See
Gonzales, 202 F.3d 20.
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his understanding of the plea in regards to these rights. The
trial court was not required to advise Zigta on any other
potential consequences. Neither Rule 3A:8(b) nor any statute or
case law in Virginia requires a trial court to inform a defendant
of any collateral consequences that may arise upon the entry of a
guilty plea. The immigration implications of a guilty plea are a
collateral consequence.
Zigta's citation to cases in other jurisdictions where trial
courts have been held to have a duty to advise immigrants of
potential deportation consequences is unpersuasive because those
jurisdictions have explicitly established a duty by rule or
5
statute. Virginia has no such requirement.
The record reflects Zigta knowingly and voluntarily waived
his constitutional rights before the trial court accepted his
guilty plea, as required by Boykin and Rule 3A:8(b). Thus, the
trial court did not abuse its discretion in denying Zigta's
motion to withdraw his plea of guilty on the basis that it was
unknowing and involuntary, simply because he was not advised of
the immigration consequences of his plea. We affirm the decision
of the trial court.
Affirmed.
5
See, e.g., Con. General Statutes § 54-1j(a); Florida Rule
of Criminal Procedure 3.172(c)(8); Maryland Rule 4-242(e);
Washington RCW 10.40.200(2); Wis. Stat. § 971.08(1)(c).
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