COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
GARY DEAN PERRY
OPINION BY
v. Record No. 2573-99-2 JUDGE NELSON T. OVERTON
SEPTEMBER 12, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
S. Jane Chittom, Appellate Counsel (Public
Defender Commission, on briefs), for
appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
In the trial court, appellant, utilizing the procedure
approved in North Carolina v. Alford, 400 U.S. 25 (1972), entered
pleas of guilty to grand larceny and to breaking and entering.
Appellant contends that because the Commonwealth's evidence failed
to prove the structure allegedly entered was a structure
permanently affixed to realty or other structure included in Code
§§ 18.2-90 and 18.2-91, the evidence was insufficient as a matter
of law to convict him of breaking and entering pursuant to his
Alford plea. We hold that appellant waived his right to challenge
the sufficiency of the evidence. Therefore, we affirm.
The record affirmatively establishes that the trial court
fully advised appellant of his rights and extensively questioned
appellant with respect to his understanding of the consequences
of entering an Alford plea. Appellant acknowledged that he knew
he was giving up his right to a jury trial, giving up his right
to confront and cross-examine witnesses against him, and that he
was probably giving up his right to appeal any decisions made by
the trial court by entering an Alford plea. 1 Appellant agreed
that he was pleading guilty under the conditions approved in
Alford due to the evidence against him and his desire to avoid
the risk of a jury trial, although he was not admitting that he
committed the offenses. Appellant acknowledged that he was
pleading guilty freely and voluntarily after consulting with his
attorney. The Commonwealth summarized the evidence against
appellant. The trial court then accepted appellant's pleas,
finding they were freely, voluntarily, and intelligently made,
and found appellant guilty beyond a reasonable doubt of both
charges.
On appeal, appellant makes no claim that his Alford plea
was entered involuntarily or unintelligently or that it was
entered under fear, duress, coercion, fraud, or official
misrepresentation. In addition, appellant makes no claim that
he misunderstood the effect of his Alford plea. Rather,
appellant contends that the evidence was insufficient to convict
1
Appellant did not argue to the trial court and he does not
argue on appeal that he misunderstood his rights with respect to
whether he waived his right to appeal the sufficiency of the
evidence by entering an Alford plea.
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him of breaking and entering because the Commonwealth failed to
prove that the structure allegedly entered was a structure
permanently affixed to realty or other structure included in
Code §§ 18.2-90 and 18.2-91. Appellant argues that by entering
the Alford plea to breaking and entering he did not waive his
right to raise this sufficiency issue on appeal. In addition,
appellant argues that, although he did not raise this
sufficiency argument in the trial court, his appeal should not
be barred by Rule 5A:18 because the "ends of justice" exception
applies to his case.
Under an Alford plea, a defendant
maintains innocence while entering a plea of
guilty because the defendant concludes that
his interests require entry of a guilty plea
and the record before the court contains
strong evidence of actual guilt. . . .
Guilty pleas must be rooted in fact before
they may be accepted. Accordingly, courts
treat Alford pleas as having the same
preclusive effect as a guilty plea.
Cortese v. Black, 838 F. Supp. 485, 492 (D. Colo. 1993) (citing
Alford, 400 U.S. at 37). In Virginia, it is well settled that a
voluntary and intelligent guilty plea by an accused is "'a
waiver of all defenses other than those jurisdictional . . . .
Where a conviction is rendered upon such a plea and the
punishment fixed by law is in fact imposed in a proceeding free
of jurisdictional defect, there is nothing to appeal.'" Dowell
v. Commonwealth, 12 Va. App. 1145, 1148, 408 S.E.2d 263, 265
(1991) (quoting Savino v. Commonwealth, 239 Va. 534, 539, 391
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S.E.2d 276, 278 (1990)), aff'd on reh'g en banc, 14 Va. App. 58,
414 S.E.2d 440 (1992).
Thus, under the circumstances of this case, by freely and
intelligently entering an Alford plea to the breaking and
entering charge, appellant waived his right to appeal the issue
of whether the evidence was sufficient to prove beyond a
reasonable doubt that he was guilty of that charge.
For this reason, we affirm appellant's convictions.
Affirmed.
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