COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia
DAVID WAYNE ALLEN
OPINION BY
v. Record No. 1506-97-3 JUDGE JERE M. H. WILLIS, JR.
JULY 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Robert P. Doherty, Jr.
Terry N. Grimes (King, Fulghum, Snead,
Nixon & Grimes, P.C., on brief), for
appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of unauthorized use of a motor
vehicle, David Wayne Allen contends that the trial court erred in
failing to determine that his plea of no contest was voluntarily,
intelligently and knowingly made. Because Allen did not preserve
this issue for appeal, we will not consider it as a basis for
reversal and affirm the judgment of the trial court. See Rule
5A:18.
I.
Allen and several others entered the property of CFE
Equipment, Inc., trading as Valley Industrial Trucks, in Salem
and drove several forklifts off the premises. Allen was indicted
for unauthorized use of a motor vehicle in violation of Code
§ 18.2-102.
Prior to trial, Allen pleaded not guilty. Upon questioning
by the trial court, Allen acknowledged that he understood the
charge against him, that he had discussed the charge with his
attorney, that he was entirely satisfied with his attorney's
services, and that he entered his plea freely and voluntarily.
Informed by the trial court of his right to trial by jury, Allen
knowingly and voluntarily waived that right. The record reflects
the concurrence of the Commonwealth's attorney and the court.
At trial, Allen cross-examined witnesses for the
Commonwealth, moved to strike the evidence, presented witnesses,
and testified in his own behalf. On direct examination by his
attorney, Allen admitted his participation in the unauthorized
use of the forklifts. His attorney then asked him whether he was
going to plead guilty to the charge. Allen replied, "yes." The
trial court ruled that Allen could change his plea and asked him
whether he wanted to change his plea to guilty. Allen replied
that he wanted to change his plea to no contest. The trial court
accepted that change of plea.
After hearing all of the evidence, the trial court found
Allen guilty of unauthorized use of a motor vehicle. It
sentenced him to serve four years in the state penitentiary, with
all but eighteen months of that term suspended. See Code
§ 18.2-102.
II.
In a proceeding free of jurisdictional defects, no appeal
lies from a punishment fixed by law and imposed upon a defendant
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who has entered a voluntary and intelligent plea of guilty. 1
Dowell v. Commonwealth, 12 Va. App. 1145, 1148, 408 S.E.2d 263,
265 (1991), aff'd on reh'g en banc, 14 Va. App. 58, 414 S.E.2d
440 (1992). Allen alleges no jurisdictional defect, concedes
that his sentence complied with the statute under which he was
charged, and admits that the evidence "was more than sufficient
to sustain the conviction." 2 However, he complains of his
sentence and contends that the trial court erred by accepting his
plea of no contest without first having determined that the plea
was entered voluntarily, intelligently and knowingly.
Rule 5A:18 precludes our consideration of a ruling of the
trial court "as a basis for reversal" unless an objection and the
grounds therefor were stated contemporaneously with the ruling.
1
"A plea of nolo contendere [or no contest] is neither 'a
confession of guilt' nor a 'declaration of innocence equivalent
to a plea of not guilty.' . . . 'Nonetheless, by entering [the]
plea . . ., the defendant "implies a confession . . . of the
truth of the charge . . . [and] agrees that the court may
consider him guilty" for the purposes of imposing judgment and
sentence.'" Jefferson v. Commonwealth, ___ Va. App. ___, ___,
___ S.E.2d ___, ___ (1998) (citations omitted). For purposes of
this appeal, we shall consider the plea of nolo contendere, or no
contest, as equivalent to a plea of guilty.
2
The evidence, viewed in the light most favorable to the
Commonwealth, Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987), proves that Allen drove a forklift
without the consent of the absent owner and intended to deprive
the owner of possession of the forklift temporarily. See Code
§ 18.2-102. While Allen denied driving the forklift, he admitted
to acting as a lookout. Code § 18.2-102 provides that: "Any
person who assists in, or is a party or accessory to, or an
accomplice in, any such unauthorized taking, driving or using
shall be subject to the same punishment as if he were the
principal offender."
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While he admits that he did not object to the trial court's
acceptance of his plea, either during or after trial, Allen
argues that we should consider his contention under the "ends of
justice" exception to the operation of Rule 5A:18.
The "ends of justice" exception to Rule 5A:18 permits our
consideration on appeal of a question not properly presented to
the trial court "when the record affirmatively shows that a
miscarriage of justice has occurred, not when it merely shows
that a miscarriage might have occurred." Mounce v. Commonwealth,
4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987) (emphasis in
original). Thus, we must review the record to determine whether
a miscarriage of justice has occurred.
A.
Allen contends that the trial court failed to determine that
his amended plea was entered voluntarily, intelligently and
knowingly, and, thus, deprived him of liberty without due process
of law. We disagree.
A plea of guilty constitutes a "self-supplied conviction."
Peyton v. Commonwealth, 210 Va. 194, 196, 169 S.E.2d 569, 571
(1969). One who voluntarily and intelligently pleads guilty
waives important constitutional rights, including his right to
trial by jury, his right against self-incrimination, his right to
confront his accusers, his right to demand that the Commonwealth
prove its case beyond a reasonable doubt, and his right to object
to illegally obtained evidence. Dowell, 12 Va. App. at 1149, 408
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S.E.2d at 265.
Addressing the constitutional implications of a guilty plea,
the Supreme Court has stated: "What is at stake for an accused
facing death or imprisonment demands the utmost solicitude of
which courts are capable in canvassing the matter with the
accused to make sure he has a full understanding of what the plea
connotes and of its consequence." Boykin v. Alabama, 395 U.S.
238, 243-44 (1969). Adherence to this standard not only avoids
convictions by unconstitutional means, such as through ignorance
or intimidation, but also "leaves a record adequate for any
review that may be later sought, and forestalls the spin-off of
collateral proceedings that seek to probe murky memories."
Boykin, 395 U.S. at 243-44 (citations and footnotes omitted).
Moreover, the presumption against the waiver of constitutional
rights forbids the relinquishment of those rights by mere
silence. Sisk v. Commonwealth, 3 Va. App. 459, 462, 350 S.E.2d
676, 678 (1986); Pittman v. Commonwealth, 10 Va. App. 693, 695,
395 S.E.2d 473, 474 (1990). Therefore, according due process to
a defendant's entry of a guilty plea requires "an affirmative
showing [on the record] that the waiver embodied in the plea of
guilty is intelligently, voluntarily and knowingly made." Graham
v. Commonwealth, 11 Va. App. 133, 139, 397 S.E.2d 270, 273-74
(1990) (citations omitted). See Rule 3A:8(b); James v.
Commonwealth, 18 Va. App. 746, 750, 446 S.E.2d 900, 902 (1994).
On the day of trial, Allen was arraigned and, in
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consultation with his attorney, pleaded not guilty. He
acknowledged that he understood the nature of the charge, had
prepared for trial, and was satisfied with his attorney. His
plea was entered freely and voluntarily. He took the stand of
his own volition and incriminated himself upon questioning by his
attorney. Thereafter, he stated that he wanted to change his
plea. When the trial court asked whether he wanted to change his
plea to guilty, Allen replied that he wanted to change his plea
to no contest.
The record of Allen's arraignment and his actions during
trial demonstrate that he entered his amended plea voluntarily,
knowingly and intelligently. Allen neither alleges nor suggests
that he was not fully apprised of the consequences of his amended
plea. He does not assert that he suffered from intimidation or
ignorance. Indeed, Allen does not contend that his amended plea
was other than knowing, intelligent and voluntary. See Simmers
v. Commonwealth, 11 Va. App. 375, 377, 398 S.E.2d 693, 694
(1990). His consultation with and questioning by his attorney
confirm this.
B.
Allen was afforded the constitutional rights afforded a
defendant who pleads not guilty. See Boykin, 395 U.S. at 243.
The requirement that a plea of guilty be made knowingly,
voluntarily and intelligently is designed to prevent a
defendant's unknowing waiver of constitutional rights. See id.
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The trial court's acceptance of Allen's mid-trial plea caused no
retrospective waiver of any trial right. To the contrary, Allen
amended his plea only after he had exercised those rights fully.
Prior to amending his plea, Allen waived his right to trial
by jury, cross-examined witnesses for the Commonwealth, and
waived his privilege against self-incrimination. Evidence of his
guilt was proven beyond a reasonable doubt, a fact that Allen
does not dispute.
C.
Rule 3A:8(b) embodies the due process requirements for
accepting a plea of guilty or nolo contendere. This rule
provides as follows: "A circuit 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."
While the better practice in this case would have been for
the trial court to inquire further of Allen and to make a written
3
finding that the amended plea was voluntary and intelligent, we
do not view that omission as productive of a miscarriage of
justice. The record plainly establishes that Allen amended his
plea knowingly, voluntarily and intelligently. Further, the
timing of the plea, a mid-trial reflection of his
3
Form 6 in the Appendix to Part 3A of the Rules of the
Supreme Court of Virginia offers suggested questions which
address the due process concerns arising from a defendant's plea
of guilty.
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self-incriminating testimony, afforded him the opportunity to
assert his trial rights fully before pleading no contest. As
Allen admits, the evidence was sufficient as a matter of law to
support his conviction, even on a plea of not guilty.
Finding no "miscarriage of justice," we decline to review
this issue as a basis for reversal for the first time on appeal.
See Rule 5A:18. The judgment of the trial court is affirmed.
Affirmed.
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