COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
FRANK ERNEST MILLER, JR.
OPINION BY
v. Record No. 1513-97-4 JUDGE WILLIAM H. HODGES
JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
William E. Glover (Glover & Dahnk, on brief),
for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General;
Thomas D. Bagwell, Senior Assistant Attorney
General, on brief), for appellee.
Frank Ernest Miller (appellant) was convicted, on his
conditional plea of guilty, of four counts of forgery. He
contends on appeal that a plea agreement he made in Spotsylvania
County barred the Commonwealth's Attorney in Stafford County from
prosecuting him for any charges arising from his use of the
fictitious bank account he created using Douglas Payne's driver's
license. We disagree and affirm the convictions.
I.
By his own estimate, appellant wrote 188 checks on a false
bank account he created, using Douglas Payne's driver's license.
Appellant was charged in Spotsylvania County with forgeries and
grand larceny by false pretenses arising out of his use of the
bank account. He was charged with thirteen offenses. Appellant,
his attorney, and a Spotsylvania County prosecutor entered into a
plea agreement by which appellant agreed to plead guilty to three
counts of forgery and two counts of grand larceny by false
pretenses. Appellant, however, was responsible for restitution
to the victims of all the offenses.
Paragraph eight of the plea agreement read, in pertinent
part:
8. I understand that the Commonwealth's
Attorney has agreed to recommend to the Court
the following specific punishment as the
appropriate disposition in this case, as
follows:
A. Upon the defendant's guilty plea to the
indictments, the Commonwealth agrees not to
prosecute any further charges that may have
arisen from the use of the bank account in
Douglas Payne's name. The Commonwealth makes
no agreement to recommend a specific sentence
for these charges, but preserves the right to
argue to the court for appropriate
sentencing.
(Emphasis added.) The plea agreement was signed by appellant,
appellant's counsel, and the Assistant Commonwealth's Attorney.
The trial judge accepted the plea agreement. The final judgment
order recited, "The Assistant Attorney for the Commonwealth
agrees not to prosecute any further charges that may have arisen
from the use of the bank account in Douglas Payne's name . . . ."
Subsequently, appellant was indicted in Stafford County for
nine counts of forgery and nine counts of uttering. Each of the
charges involved the use of the Payne bank account. Prior to
trial, appellant moved to quash the indictments on the ground
that the plea agreement in Spotsylvania County barred any other
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jurisdiction in the Commonwealth from prosecuting any charge
arising from the use of the bank account.
The trial judge found that the term, "the Commonwealth," as
used in the Spotsylvania County plea agreement, was ambiguous.
Thus, he heard testimony about the agreement from the parties to
the document. The prosecutor, Donna Van Winkle, testified that
she neither intended to bind nor understood that she could bind
any jurisdiction except Spotsylvania County. She was aware that
other jurisdictions might bring charges against appellant. She
testified, however, that she did not speak to prosecutors from
any other jurisdiction about appellant's cases. No one in the
Stafford County Commonwealth's Attorney's Office had a
conversation with any prosecutor in Spotsylvania County
concerning appellant's cases.
Muriel Pitney, appellant's attorney for the Spotsylvania
cases, testified that she never discussed any other jurisdiction
with appellant. 1 Pitney testified that she showed appellant a
list of checks for which he would be responsible for paying
restitution. The checks had been written to stores in
Spotsylvania County. She did not recall appellant telling her
about checks in other jurisdictions. Pitney testified that when
the agreement was signed, she did not believe that Van Winkle was
binding any other jurisdiction.
1
Appellant waived his attorney/client privilege with respect
to the issue of the terms of the Spotsylvania County plea
agreement.
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Appellant testified that Pitney told him that the plea
agreement with Spotsylvania County also covered Stafford County
and Fredericksburg. Appellant testified that he believed once he
entered the plea agreement with Spotsylvania County, he would not
be prosecuted anywhere on checks he had written on the Payne
account.
The judge denied the motion to quash. He held that as a
matter of law, a prosecutor in one jurisdiction cannot bind "the
entire State of Virginia." The judge noted that the Spotsylvania
County plea agreement, on its face, did not permit an
interpretation that the Commonwealth's Attorney for Spotsylvania
County was binding any other jurisdiction in the Commonwealth.
Moreover, he explicitly rejected appellant's testimony as
incredible and credited Pitney's testimony regarding the plea
agreement in Spotsylvania County.
II.
Pursuant to the Constitution of Virginia, Article VII,
Section 4, and Code § 15.2-1600, the voters of each county and
city shall elect an attorney for the Commonwealth. Code
§ 15.2-1627 provides:
The attorney for the Commonwealth and
assistant attorney for the Commonwealth shall
be a part of the department of law
enforcement of the county or city in which he
is elected or appointed, and shall have the
duties and powers imposed upon him by general
law, including the duty of prosecuting all
warrants, indictments or informations
charging a felony . . . .
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The attorney for the Commonwealth, the defendant, and the
attorney for the defendant may enter into a plea agreement, which
shall, in the case of a felony, be reduced to writing. See Rule
3A:8. The government is bound to fulfill any promise it makes in
exchange for a defendant's guilty plea. See Santobello v. New
York, 404 U.S. 257, 262 (1971).
In this case, the Assistant Commonwealth's Attorney for
Spotsylvania County was part of the department of law enforcement
for that county. She could not bind another jurisdiction by a
plea agreement, without consent from that jurisdiction.
Appellant cites no authority, nor do we find any, to show that
the authority of an Assistant Commonwealth's attorney for
Spotsylvania County extends beyond that county's boundaries.
The record establishes that the prosecutor had no intention
of obligating any other jurisdiction nor did she have any belief
2
that she could. Even if she had so intended, such an agreement
would have been ultra vires 3 and not binding on the
Commonwealth's Attorney of Stafford County. See Ellis v.
Commissioner of Dept. of Mental Hyg. & Hosp., 206 Va. 194, 201,
142 S.E.2d 531, 536 (1965) (state acting in sovereign or
2
Indeed, appellant was the only party to the Spotsylvania
County plea agreement who claimed that the agreement covered
other jurisdictions.
3
"An act performed without any authority to act on subject. .
. . Ultra vires act of municipality is one which is beyond
powers conferred upon it by law." Black's Law Dictionary 1522
(6th ed. 1990).
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governmental capacity cannot be bound by unauthorized acts or
representations of its employees and agents).
The trial judge did not err in denying appellant's motion to
quash the indictments.
Accordingly, we affirm the convictions.
Affirmed.
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