Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia

JASON K. JONES, S/K/A
JASON KHALID JONES
OPINION BY
v. Record No. 2642-97-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 20, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge

William B. Moffitt (Henry W. Asbill; Asbill,
Junkin & Moffitt, on briefs), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Jason Jones ("appellant") was convicted, upon entry of

Alford guilty pleas, of two counts of robbery and of the use of

a firearm while committing those robberies. On appeal,

appellant contends the trial court erred in failing to grant his

motion to withdraw his Alford pleas, claiming they were not

voluntarily and intelligently made. He specifically contends:

(1) he entered the pleas under an honest mistake of material

fact as to the character of the evidence against him, and (2)

his pleas were the product of undue influence based on his

mental state and certain external pressures on him at the time.

Appellant further contends the Commonwealth proffered a

materially false factual basis in support of his Alford pleas,

which led the court to erroneously accept the pleas and find him
guilty. Alternatively, appellant argues the Commonwealth's

proffer, even if accurate, does not support the entry of an

Alford plea because it was based on the statement of an

accomplice who gave "materially different" accounts of events.

Finally, appellant argues that due process considerations

required the trial court to permit withdrawal of his pleas.

Finding no error, we affirm.

I.

BACKGROUND

A. Factual Background

We state the relevant facts in the light most favorable to

the Commonwealth. See McGee v. Commonwealth, 25 Va. App. 193,

196, 487 S.E.2d 259, 260 (1997). On the evening of October 11,

1996, Sherri Herren drove to the Carlyle Grand Restaurant to

celebrate her birthday with some friends. When the restaurant

closed at around 1:00 a.m., Thomas Flatt and Shannon Harman

walked Herren to her car, a Lexus, which was parked in a

well-lit parking lot behind the establishment. As the trio

approached Herren's car, Herren heard a voice behind her say,

"Get on the ground." Herren turned around and saw two men. The

one who spoke wore a ski mask and dark clothing and pointed a

small handgun at Herren.

After repeating his order, Herren and her companions

dropped to the ground. The robbers took Flatt's wallet and

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Harman's purse and drove away in Herren's car, which contained

her purse and other personal items. None of the victims could

identify the robbers.

On October 15, 1996, officers of the Arlington County

Police Department stopped appellant and Christopher Surratt for

an unrelated traffic offense. Surratt, who was driving a car

belonging to appellant's mother, attempted to flee when the

police asked him for identification. Officers subsequently

discovered items taken during the aforementioned robberies in

Surratt's possession and the key to Herren's Lexus in the

passenger-side door pocket of the car Surratt was driving.

During a subsequent police interview, Surratt implicated

appellant in the robberies, identifying him as the gunman.

On the same day, police executed a warrant to search

appellant's townhouse. During the search, police recovered a

number of items taken during the robberies, including bank

records in the name of Thomas Flatt, Flatt's driver's license, a

Blockbuster video card in the name of Kathleen Flatt, Herren's

operator's license, an Exxon credit card in the name of J.L.

Herren Associates, 1 and a Keegan Theater business card in

Herren's name.

1
Herren's husband owns a business called J.L. Herren
Associates.

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 B. Procedural Background

Appellant was indicted on multiple charges for his

participation in the aforementioned robberies. On March 20,

1997, pursuant to a plea agreement, appellant entered an Alford

plea to two counts of robbery and one count of using a firearm

in the commission of a felony. In exchange for his plea, the

Commonwealth nolle prossed another count of robbery, carjacking,

and a charge of carrying a concealed weapon. Appellant's plea

agreement provides in pertinent part:

5. I do not admit that I committed the
crimes to which I am pleading guilty.
However, I have talked to my attorney about
what might happen if I went to trial and I
have decided it is in my interest to accept
the prosecutor's offer, to enter into this
agreement.

* * * * * * *

8. I understand that I have a right to
plead "Not Guilty" to the charge against me,
but I want to give up that right and plead
guilty instead. I also understand that when
I give up the right to plead "Not Guilty" I
am also giving up other rights guaranteed to
me by the Constitution of the United States
. . . . In particular, I understand that by
pleading guilty I give up:

A. The right to a speedy and
public trial by a jury . . . ;

* * * * * * *

C. The right to see and hear all
witnesses against me and the right
to cross-examine those witnesses;
. . . .

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 * * * * * * *

17. I still claim innocence but I freely
and voluntarily plead guilty to the crimes
described in paragraph 3, above, because I
have decided it is in my interest to do so.

Before accepting the three pleas, the trial court

questioned appellant regarding his agreement to plead guilty.

In pertinent part, the court had the following dialogue with

appellant:

THE COURT: I[t] says in Paragraph Three
that you are pleading guilty to two
robberies and one use of a firearm.
Following that in Five it says you do not
admit committing the crimes. Tell me why
you are pleading guilty if you do not admit
committing the crimes?

[APPELLANT]: Because I feel if I went to
trial there is enough evidence to convict me
and I don't want to take that chance of
being convicted by a jury.

THE COURT: In Paragraph Eighteen it says
there is no agreement as to sentence. You
know on the robbery charges you could get
life on each one of the two and the use of a
firearm you get three years. You understand
each of those sentences.

[APPELLANT]: Yes, I do.

THE COURT: You're worried that a jury might
convict you and then the jury would impose
sentence.

[APPELLANT]: Yes.

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The court subsequently found appellant "freely, voluntarily and

intelligently, with the aid of good counsel, entered pleas of

guilty" and accepted his three pleas.

The Commonwealth proffered a set of facts in support of

appellant's guilty pleas. The court asked appellant whether the

Commonwealth's proffered evidence was the evidence he would

expect to hear at trial and whether the evidence raised concerns

in his mind that he would be convicted by a jury. Appellant

replied in the affirmative to both questions. Appellant's

counsel, Jeffrey Kleger, also indicated that he believed the

Commonwealth's proffered evidence would be admitted against

appellant at a trial.

The court found appellant guilty of two robberies and of

using a firearm in the commission of a felony and scheduled

sentencing for June 6, 1997. On June 2, 1997, appellant, with

the assistance of new counsel, filed a Motion to Withdraw Guilty

Pleas with the court. The court's denial of this motion is the

subject of this appeal.

II.

WITHDRAWAL OF GUILTY PLEAS

A. Principles Regarding Guilty Pleas and the Alford Plea

A guilty plea normally consists of both a waiver of

constitutional rights and an admission of guilt.

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 Ordinarily, a judgment of conviction resting
on a plea of guilty is justified by the
defendant's admission that he committed the
crime charged against him and his consent
that judgment be entered without a trial of
any kind. The plea usually subsumes both
elements . . . even though there is no
separate, express admission by the defendant
that he committed the particular acts
claimed to constitute the crime charged in
the indictment.

North Carolina v. Alford, 400 U.S. 25, 32 (1970). Virginia law

likewise establishes that a plea of guilty ordinarily subsumes

an admission of guilt. Kibert v. Commonwealth, 216 Va. 660,

665, 222 S.E.2d 790, 793 (1976) ("'[G]enerally no evidence of

guilt is required in order to proceed to judgment [upon a plea

of guilty], for [the] accused has himself supplied the necessary

proof . . . .'" (quoting Hobson v. Youell, 177 Va. 906, 912-13,

15 S.E.2d 76, 78 (1941))).

Among the constitutional rights waived by a guilty plea are

the privilege against compulsory self-incrimination, the right

to trial by jury, and the right to confront one's accusers. See

Boykin v. Alabama, 395 U.S. 238, 243 (1969); Dowell v.

Commonwealth, 12 Va. App. 1145, 1148-49, 408 S.E.2d 263, 265

(1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).

In order to ensure these rights are adequately protected, the

trial court must determine whether a defendant's decision to

waive them by pleading guilty "represents a voluntary and

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intelligent choice among the alternative courses of action open

to the defendant." Alford, 400 U.S. at 31.

An admission of guilt, however, is "not a constitutional

requisite to the imposition of criminal penalty." Id. at 37;

Smith v. Commonwealth, 27 Va. App. 357, 361-62, 499 S.E.2d 11,

13 (1998). Courts may find that an accused has voluntarily and

intelligently entered a guilty plea even though he or she

alleges innocence. Id. ("An individual accused of crime may

voluntarily, knowingly, and understandingly consent to the

imposition of a prison sentence even if he is unwilling or

unable to admit his participation in the acts constituting the

crime."). Such a plea is known as an Alford plea.

Although Virginia does not ordinarily require the

introduction of evidence to sustain a conviction based upon a

plea of guilty, 2 in order to ensure that a defendant has pled

guilty freely and intelligently, the trial court should not

accept an Alford plea unless it finds that a factual basis

supporting guilt exists. Alford, 400 U.S. at 38 n.10 ("Because

of the importance of protecting the innocent and of insuring

that guilty pleas are a product of free and intelligent choice,

2
See Kibert, 216 Va. at 665, 222 S.E.2d at 793. See also
Boykin, 395 U.S. at 243 ("[A guilty plea] is itself a
conviction; nothing remains but to give judgment and determine
punishment."); Peyton v. King, 210 Va. 194, 196, 169 S.E.2d 569,
571 (1969) (holding that a voluntary and intelligent plea of
guilty is a self-supplied conviction).

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. . . pleas coupled with claims of innocence should not be

accepted unless there is a factual basis for the plea . . . .").

B. Withdrawal of Guilty Pleas in Virginia

Code § 19.2-296 allows a defendant to withdraw a guilty

plea before sentence is imposed. "'Whether or not an accused

should be allowed to withdraw a plea of guilty for the purpose

of submitting a not guilty plea is a matter that rests within

the sound discretion of the trial court and is to be determined

by the facts and circumstances of each case.'" Hoverter v.

Commonwealth, 23 Va. App. 454, 464, 477 S.E.2d 771, 775 (1996)

(quoting Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d

872, 873 (1949)). 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. See id. at 465, 477

S.E.2d at 776.

Rule 3A:8(b) provides that "[a] circuit court shall not

accept a plea of guilty . . . without first determining that the

plea is made voluntarily with an understanding of the nature of

the charge and the consequences of the plea." As such, a motion

to withdraw a plea should be granted "if it appears from the

surrounding circumstances that the plea of guilty was submitted

in good faith under an honest mistake of material fact or facts,

or if it was induced by fraud, coercion or undue influence and

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would not otherwise have been made." Hoverter, 23 Va. App. at

464, 477 S.E.2d at 775 (quoting Parris, 189 Va. at 324, 52

S.E.2d at 873). Determining whether a court erred in declining

to allow withdrawal of a guilty plea "requires an examination of

the circumstances confronting [the] accused immediately prior to

and at the time he [or she] pleaded to the charge." Parris, 189

Va. at 322, 52 S.E.2d at 872.

In this case, appellant does not allege purposeful

misrepresentation or nondisclosure of evidence by the

Commonwealth. Instead, appellant contends the trial court

should have allowed him to withdraw his guilty pleas because:

(1) personal circumstances exerted undue influence on his

ability to enter an intelligent and voluntary plea, (2) he made

an honest mistake of material fact as to the nature of the

evidence against him, and (3) the Commonwealth made an

inaccurate proffer of facts leading the trial court to conclude

erroneously that there was a sufficient factual basis for his

Alford pleas. Appellant's contentions are not supported by the

record.

1. Alleged Undue Influence

Prior to accepting appellant's pleas, the trial court

thoroughly examined appellant concerning his decision to plead

guilty. The court specifically asked appellant why, if he

believed in his innocence, he was pleading guilty to the instant

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charges, which carried the potential of multiple life sentences.

Appellant stated he did not want to risk being convicted by a

jury.

Upon appellant's motion to withdraw his Alford pleas, the

trial court held a hearing on June 6, 1997. Jeffrey Kleger,

appellant's counsel prior to the motion to withdraw, testified

to having multiple discussions with appellant regarding whether

he should plead guilty or go to trial on the instant

indictments. 3 Kleger knew appellant was taking anti-depressant

medication at the time but testified appellant participated in

their discussions, appeared to be alert, and seemed to

understand his plea options notwithstanding the medication.

Dr. Susan Fiester, a forensic psychiatrist, testified that

appellant suffered from "unipolar depression, which is a

straightforward depressed mood," when he pled guilty to the

3
Kleger stated in pertinent part, "I explained to him the
various options. I gave him my appraisal of the case strengths
and weaknesses. And I made my recommendation. And I ultimately
left it to him as to what he wanted to do." Kleger later
elaborated:

I told him that he had the option of going
to trial and testifying, he had the option
of going to trial and not testifying, he had
the option of pleading guilty before a judge
with a recommendation from the prosecutor,
he had the option of pleading guilty without
a recommendation from the prosecutor, and he
had the right to deny his guilt and enter an
Alford plea.

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instant offenses. Dr. Fiester found that appellant manifested

many of the symptoms of such a depression, including a

"depressed mood, inability to take pleasure in things,

difficulty with [sleeping]," feelings of worthlessness, and

blaming himself for things beyond his responsibility. According

to Fiester, appellant's condition "would have made him more

vulnerable to -- to taking [a guilty plea] even if he felt he

were innocent." Dr. Fiester also testified that appellant's

personal circumstances pressured him into pleading guilty in

order to resolve the charges as quickly as possible. 4 Given such

pressures, Dr. Fiester opined that appellant's pleas were "very

much a result of other people's influence." Dr. Fiester

admitted, however, she was "not saying that appellant wasn't

capable of understanding what he was doing," but only that

appellant was not functioning at a "normal nondepressed level of

function."

Noting that appellant's evidence failed to establish

appellant's lack of capacity to make decisions freely and

intelligently, the trial court rejected appellant's claim that

4
According to Dr. Fiester, these circumstances included
appellant's perception that he was a failure, appellant's desire
to avoid creating additional conflict between his divorced
parents, and the fact that his attorney was a family friend.
Fiester testified, "I think those were all factors that led him
to in part try to get a resolution to this matter, feel some
pressure to get a resolution to the matter as quickly as
possible without going on to really fight it."

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the undue influence of his depression and personal circumstances

induced him to enter his Alford pleas. 5 We conclude the court's

ruling was not plainly wrong or without evidence to support it.

See Hoverter, 23 Va. App. at 465, 477 S.E.2d at 776.

When determining whether the existence of undue influence

is sufficient to merit the withdrawal of a defendant's guilty

plea, we focus on whether that influence negated the defendant's

ability to enter his or her plea freely and voluntarily. In

Parris, the Supreme Court of Virginia endorsed the following

statement of the circumstances under which a trial court should

allow a plea of guilty to be withdrawn and substituted for one

of not guilty:

The plea of guilty to a serious criminal
charge should be freely and voluntarily
made, and entered by the accused, without a
semblance of coercion and without fear or
duress of any kind, and the accused should
be permitted to withdraw a plea of guilty
entered unadvisedly when application
therefor is duly made in good faith and
sustained by proofs, and a proper offer is
made to go to trial on a plea of not guilty.

Parris, 189 Va. at 325-26, 52 S.E.2d at 874 (quoting Percival W.

Viesselman, Abbott's Criminal Trial Practice § 118 (4th ed.

1939)).

5
The court stated in pertinent part, "nobody has told me the
defendant's actual perception of facts, actual perception of
expected evidence, actual reliance on any particular statement by
counsel, or actual surrender to the coercive powers of family or
counsel."

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 In this case, Kleger's testimony regarding appellant's

participation in their discussions and appellant's understanding

of his plea alternatives, the terms of appellant's plea

agreement, and the court's questioning of appellant at the plea

hearing support the court's finding that appellant had not

"surrender[ed] to the coercive powers of family or counsel."

Further, although opining that appellant's pleas were the result

of other people's influence, Dr. Fiester could not conclude that

"appellant wasn't capable of understanding what he was doing."

To the extent that Fiester's testimony supported a finding of

undue influence, the trial court's finding as to the weight to

be given this evidence is entitled to deference, particularly in

light of the court's examination of appellant at the time it

accepted his pleas. See Hoverter, 23 Va. App. at 465, 477

S.E.2d at 776. Thus, the evidence supports the conclusion that

appellant entered his pleas freely and voluntarily.

2. Alleged Mistake of Material Fact

We also reject appellant's contention that he acted under a

mistake of fact at the time he entered his guilty pleas.

Appellant bases this claim on certain inconsistencies between

the statement Surratt initially gave to police and testimony

Surratt gave at his subsequent plea hearing.

In his initial statement to the police, Surratt stated that

he and appellant had robbed three people of personal items, that

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appellant used a pellet gun to effectuate the robbery, that they

stole a Lexus belonging to one of the victims, and that he drove

the Lexus to appellant's townhouse where they disposed of the

fruits of their crime. Surratt only implicated appellant and

did not state that anyone else had participated in the robbery.

Although police found the key to Herren's Lexus in the car

Surratt was driving, Surratt could not explain how the key came

to be there. According to Surratt, he left the key in the

Lexus' ignition after parking it near appellant's house on the

night of the robbery. Surratt suggested appellant, who was with

Surratt at the time officers stopped him and whose mother owned

the car Surratt was driving, might have returned to the Lexus

and taken the key later.

Pursuant to a plea agreement, Surratt subsequently pled

guilty to carjacking, use of a firearm in the commission of a

felony, and three counts of robbery. At his plea hearing on

February 25, 1997, Surratt testified that Juwan Clark, his

roommate, drove appellant and him to the Carlyle Grand

Restaurant, that he and appellant robbed the victims, that

appellant used a small handgun during the robbery, that he drove

one of the victim's Lexus to appellant's house, that they

divided the proceeds of the robbery at appellant's house, and

that appellant kept the keys to the stolen Lexus. Surratt

testified he had not previously mentioned Clark's involvement in

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the robberies when questioned by police because he "didn't see

no reason to. I didn't think there was no need to." 6

It is undisputed that Surratt's statements were

inconsistent in some respects and, although relatively minor in

nature, could have provided appellant with an opportunity to

attack Surratt's credibility at a future trial. 7 It is equally

clear, however, that counsel informed appellant of the

inconsistencies in Surratt's statements, apprised him of his

opportunity to attack Surratt's credibility, and discussed his

plea alternatives on multiple occasions. At the time Kleger

represented appellant, Kleger was aware of Surratt's testimony

at his plea hearing and of the inconsistencies that existed

between the testimony and Surratt's initial police interview.

After appellant moved to withdraw his pleas with the assistance

of new counsel, Kleger testified that he fully discussed methods

of attacking Surratt's credibility with appellant prior to the

entry of appellant's pleas. As previously established,

6
Indeed, according to Herren's account, only two robbers
effectuated the robberies.
7
Comparing Surratt's statements, the following discrepancies
exist: (1) Surratt initially stated that he left the keys to
the stolen Lexus in the ignition and later stated at his plea
hearing that appellant kept the keys to the Lexus, (2) Surratt
failed to implicate a second accomplice, Juwan Clark, in his
initial statement to police, and (3) Surratt did not mention at
his plea hearing that the gun appellant brandished during the
robberies was a pellet gun.

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appellant participated in these discussions with counsel and

appeared alert. Thus, the record fails to support appellant's

argument that he entered his pleas based on a mistake of

material fact.

Further, as evidenced by the terms of his plea agreement,

appellant waived his right to confront and cross-examine Surratt

upon deciding that guilty pleas were in his best interest.

Appellant knew about the inconsistencies in Surratt's statements

and was advised by counsel of his right to confront and

cross-examine the witnesses against him. Armed with this

knowledge, appellant nevertheless stated in his plea agreement

that, in pleading guilty, he understood that he relinquished his

right to confront the witnesses against him. See Allen v.

Commonwealth, 27 Va. App. 726, 730-31, 501 S.E.2d 441, 443

(1998) (stating that one who voluntarily and intelligently

pleads guilty waives the constitutional right to confront his or

her accusers).

Based on the foregoing, we find the trial court did not

abuse its discretion in rejecting appellant's arguments that his

pleas were the product of a mistake of material fact or undue

influence.

3. Alleged Proffer of Materially False Facts

Appellant further contends the trial court should have

granted his motion to withdraw his guilty pleas because the

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Commonwealth proffered an inaccurate set of supporting facts at

his plea hearing. See Alford, 400 U.S. at 38 n.10 (stating

that, in order to insure a plea has been intelligently made, a

court should not accept a guilty plea when accompanied by a

claim of innocence unless there is a factual basis for the

plea). Appellant argues, "The materially false proffer resulted

in the trial court's misperception of the factual basis for the

Alford pleas, thereby invalidating those pleas." This argument

is unsupported by the evidence and by the events at appellant's

plea hearing.

The parties agree the transcription of the Commonwealth's

proffer in the record inaccurately sets forth the facts of this

case. Indeed, the proffer transcribed in the record is

inconsistent with the testimony adduced at appellant's

preliminary hearing and with the statements made by Surratt in

the following respects: (1) the transcription states that

appellant, rather than Surratt, attempted to flee from police

when asked for identification; (2) the transcription states that

appellant, rather than Surratt, told police of the location of

the Lexus and presence of stolen items in appellant's bedroom;

and (3) the transcription states that the victims were able to

positively identify appellant. The parties do not agree,

however, on whether the transcription in the record portrays

what the Commonwealth actually proffered to the trial court.

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 At the June 6, 1997 hearing on appellant's motion to

withdraw, the Commonwealth contended, as it does on appeal, that

it proffered an accurate set of facts, but that the court

reporter inaccurately transcribed its proffer into the record.

To this end, the Commonwealth presented two witnesses who

testified the transcription did not accurately depict the

Commonwealth's proffer at appellant's plea hearing.

Andrew Parker, the prosecutor at appellant's plea hearing,

denied making the factual proffer transcribed in the record.

Parker testified that he used a prepared statement of facts,

introduced as Commonwealth's Exhibit A, to make his proffer and

that he read the statement nearly verbatim at the plea hearing.

Exhibit A and the transcription of the proffer at appellant's

plea hearing are similar in most respects. The exhibit,

however, does not contain the above-noted inaccuracies in the

transcription and is otherwise in accord with the facts

contained in the record as a whole.

Jeffrey Kleger also testified that portions of the proffer

transcribed in the record were not "a fair and accurate

transcription by the court reporter of what transpired in this

courtroom." Kleger testified the prosecutor gave him a copy of

Exhibit A prior to appellant's hearing and the prosecutor

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proffered this statement verbatim after Jones entered his Alford

pleas. 8

In addressing appellant's motion to withdraw, the court

agreed there were inaccuracies in the transcription. As to the

Commonwealth's purported proffer that appellant led police to

the stolen Lexus and stolen items in his bedroom, the court

stated, "I have no memory at all of this defendant ever claiming

anything but that he wasn't guilty." The court also noted the

record inaccurately reported a question it purportedly asked

appellant after the Commonwealth gave its proffer. According to

the record, the court asked appellant, "Do you believe they

could get that in evidence?" The court noted it would not have

asked this question as the question is inconsistent with the

court's standard procedure in Alford plea situations. While the

court did not explicitly decide the question, the record

supports the conclusion that it implicitly determined the

transcription did not accurately reflect the factual basis in

support of appellant's guilt as proffered by the Commonwealth.

We further note that, in response to the court's

questioning at appellant's plea hearing, both appellant and

Kleger confirmed the factual accuracy of the Commonwealth's

8
Kleger stated, "The paper that I'm holding in my hand
labeled Commonwealth's Exhibit A without question was read by Mr.
Parker into the record when [the judge] requested the
Commonwealth's proffer of facts."

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proffer. Immediately after the Commonwealth proffered its

evidence, Kleger stated he believed such evidence could be

admitted at trial. Appellant similarly stated the

Commonwealth's proffer was the evidence he expected to hear at

his trial.

According to the Code of Virginia, "[t]he transcript in any

case certified by the reporter or other individual designated to

report and record [a] trial shall be deemed prima facie a

correct statement of the evidence and incidents of trial." Code

§ 19.2-165. Notwithstanding the presumption of accuracy

afforded by the Code, we find the evidence is sufficient to

conclude the record inaccurately represents the Commonwealth's

proffer and to further conclude the Commonwealth proffered a

factual basis in support of appellant's Alford pleas that

accurately reflects the facts of this case. Thus, we find no

error in the trial court's denial of appellant's motion to

withdraw his pleas.

Appellant also contends the Commonwealth's proffer was

"materially false" because it was based on Surratt's statements

and that Surratt had given "materially different" versions of

events. We find no merit in this argument.

Although Surratt's two statements contain some

inconsistencies, they are insignificant. In substance, both

statements incriminate appellant in the commission of several

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robberies and in the use of a firearm during those robberies.

Both statements establish that appellant and Surratt robbed

three people of personal items, that appellant used a handgun to

effectuate the robberies, that the robbers drove away in a Lexus

belonging to one of the victims, and that the robbers drove to

appellant's house where they divided up the fruits of their

robbery. Moreover, during argument on the motion to withdraw,

appellant's counsel conceded that Surratt could not have been

disqualified as a matter of law from testifying, agreeing with

the court that Surratt's inconsistent statements "would always

be a credibility question and a question of fact" for the trier

of fact to resolve. Thus, the trial court properly rejected

appellant's argument that the differences between Surratt's

statements required the court to allow withdrawal of his Alford

pleas.

III. DUE PROCESS ARGUMENT

Appellant also argues constitutional due process requires

the withdrawal of his pleas. This argument was not properly

preserved for our consideration on appeal. Appellant did not

allege a violation of due process rights before the trial court

and he is barred from raising the issue here. See Rule 5A:18;

Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416

(1994); Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d

897, 900 (1992). Finding no justification to invoke the ends of

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justice exception to Rule 5A:18, we decline to apply the

exception to the Rule’s general bar and to address appellant’s

argument for the first time on appeal.

For the foregoing reasons, we find no error in the trial

court's conviction of appellant based on his Alford pleas. The

evidence supports the conclusion the court heard an accurate

factual basis for appellant's pleas and properly determined that

appellant entered his pleas voluntarily and intelligently.

Affirmed.

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