Sandy v. Commonwealth

Tuesday 24th

February, 1998.

Christopher Sandy, s/k/a
Christopher E. Sandy, Appellant,

against Record No. 2458-95-2
Circuit Court Nos. 95-30 and 95-42 through
95-47

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, * Judges Baker, Benton, Coleman,
Moon,** Willis, Elder, Annunziata and Overton

Gordon A. Wilkins (Wilkins & Davison, on
brief), for appellant.

Thomas D. Bagwell, Senior Assistant Attorney
General (Richard Cullen, Attorney General,
on briefs), for appellee.

On June 10, 1997, a panel of this Court held that the

Commonwealth had breached the terms of a plea agreement on which the

defendant had relied to his detriment by "fully answer[ing] any

questions which were posed to him by [the Commonwealth's Attorney]."
See Sandy v. Commonwealth, 25 Va. App. 1, 486 S.E.2d 102 (1997).

Based on that holding, the panel reversed the defendant's seven felony

convictions and remanded the case to the trial court, with

instructions requiring the Commonwealth to specifically perform its

promises in the plea agreement, which were to move to amend certain
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as
chief judge.
**
Chief Judge Moon retired from the Court prior to the rendition
and release of this order and did not participate in the decision.
charges, drop others, and recommend sentences on the amended charges.

We granted a rehearing en banc from the panel's decision and stayed

the mandate. Upon rehearing en banc, the stay of this Court's

June 10, 1997 mandate is lifted and we reverse the trial court for the

reasons set forth in the panel decision, which we adopt, see id., and

we vacate the conviction orders and remand the case to the trial

court.

To the extent the panel opinion may not have explicitly set

forth the procedure for the trial court to follow on remand, we

provide the following direction: On remand, the Commonwealth's

Attorney shall make a good faith motion in accordance with the terms

of the plea agreement to amend seven of the thirty-two felony charges

to petit larceny, to dismiss or nolle prosequi the remaining charges,
and, subject to the trial judge's acceptance of the Commonwealth's

motions and the defendant's election to plead guilty thereto, to

recommend fines of no more than $500 and concurrent six-month jail

terms for each petit larceny conviction. On remand, a trial judge

other than the judge who previously heard the case and held the

agreement to be "invalid" shall be designated to consider whether to

accept or reject the Commonwealth's motions, unless the parties agree

otherwise. See Rule 3A:8(c)(4).

"There is, of course, no absolute right to have a guilty

plea accepted. A court may reject a plea in the exercise of sound

judicial discretion." Santobello v. New York, 404 U.S. 257, 262

(1971). See Sandy, 25 Va. App. at 12 n.2, 486 S.E.2d at 108 n.2; Rule

3A:8(c)(2); Holler v. Commonwealth, 220 Va. 961, 968, 265 S.E.2d 715,

719 (1980). If, on remand, the trial court conditionally accepts the

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Commonwealth's Attorney's recommendations to amend and nolle prosequi

the various charges, the defendant shall be arraigned and afforded the

opportunity to plead thereto, with the defendant being informed that

the trial court is not required to accept the Commonwealth's

recommendation for $500 fines and concurrent six-month jail sentences.

See Rule 3A:8(c)(1)(B). In the event the trial court rejects the

Commonwealth's Attorney's motions to amend and nolle prosequi the

charges pursuant to the plea agreement or the defendant elects to

plead not guilty, the Commonwealth shall retry the defendant, if it be

so advised, and shall do so before a judge other than the one who may

have rejected the plea agreement, unless the parties agree otherwise

as provided by Rule 3A:8(c).
Chief Judge Fitzpatrick and Judge Baker dissent from the

majority holding and would affirm the trial court's ruling that on the

record "there was no agreement between the Commonwealth and the

defendant that should be enforced."

This order shall be published and certified to the trial

court.

A Copy,

Teste:

Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia

CHRISTOPHER SANDY, S/K/A
CHRISTOPHER E. SANDY
OPINION BY
v. Record No. 2458-95-2 JUDGE MARVIN F. COLE
JUNE 10, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Joseph E. Spruill, Jr., Judge
Gordon A. Wilkins (Wilkins & Davison, on
brief), for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Thomas D. Bagwell, Senior Assistant Attorney
General, on brief), for appellee.

Christopher Sandy (defendant) was indicted on thirty-two

charges of issuing fraudulent grain receipts in violation of Code

§ 3.1-722.28. Defendant entered into a plea agreement with the

Commonwealth's Attorney. The trial court declared the plea

agreement invalid. On appeal, the defendant contends (1) a

contractual relationship existed between the Commonwealth and the

defendant; (2) the Commonwealth's Attorney could not unilaterally

withdraw her acceptance of the plea agreement; and (3) assuming

the Commonwealth breached its agreement, defendant is entitled to

specific performance of the agreement. We hold that the

Commonwealth breached the plea agreement and reverse.

The defendant and the Commonwealth's Attorney entered into a

plea agreement on March 31, 1995, in accordance with Rule
3A:8(c). It provided that the Commonwealth's Attorney was

"desirous of securing information from Sandy relating to

activities in Westmoreland County of which Sandy has

knowledge . . . ." The agreement stated that Sandy was willing

to provide such information by meeting with and fully answering

any questions posed to him by the Commonwealth's Attorney. The

time and number of the meetings were specified. The agreement

provided that after the meetings, if the Commonwealth's Attorney

was reasonably satisfied that the information was full and

complete, she would amend seven of the indictments involving

Kermit Thomas to indictments for petit larceny and she would move

the court to "nol pros" or dismiss all of the other indictments.

Further, the agreement stated that the Commonwealth's Attorney

would recommend to the court that Sandy be fined no more than

$500 on each of the seven indictments for which he would be

convicted and be sentenced to concurrent six month jail terms on

each charge.
On June 5, 1995, several days before the trial was scheduled

to commence, the Commonwealth's Attorney advised defense counsel

that she thought the defendant had breached the plea agreement by

untruthfully furnishing information to her and that she was not

going to honor the agreement. For this reason, the trial was

postponed.

During the summer months, the parties continued their

negotiations in order to resolve the difficulties, but without

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success. On September 8, 1995, the defendant filed a petition

alleging that the Commonwealth's Attorney unilaterally breached

the plea agreement by refusing to honor it. He asked that the

court specifically enforce the plea agreement.

The procedure for plea agreements is set forth in Rule

3A:8(c). It provides that the defendant, his or her attorney,

and the Commonwealth's attorney may enter into a plea agreement

regarding the disposition of the charges. Pursuant to Rule

3A:8(c)(1), a Commonwealth's attorney may engage in discussions

with a view toward reaching an agreement that, upon entry by the

defendant of a plea of guilty to a charged offense, or to a

lesser or related offense, the Commonwealth's attorney may do any

of the following:
(A) Move for nolle prosequi or dismissal of
other charges;
(B) Make a recommendation, or agree not to
oppose the defendant's request, for a
particular sentence, with the understanding
that such recommendation or request shall not
be binding on the court;
(C) Agree that a specific sentence is the
appropriate disposition of the case.

After a plea agreement is reached by the parties in felony cases,

it must be reduced to writing, signed, and presented to the

court. Rule 3A:8(c)(2). The court may accept or reject such an

agreement when it is presented in open court. Id.; see Wolfe v.

Commonwealth, 1 Va. App. 498, 339 S.E.2d 913 (1986). The Rule

specifically provides that the trial court shall not participate

in any plea agreement discussions between the parties. Rule

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3A:8(c)(1).

The United States Supreme Court has discussed plea

agreements:
This phase of the process of criminal
justice, and the adjudicative element
inherent in accepting a plea of guilty, must
be attended by safeguards to insure the
defendant what is reasonably due in the
circumstances. Those circumstances will
vary, but a constant factor is that when a
plea rests in any significant degree on a
promise or agreement of the prosecutor, so
that it can be said to be part of the
inducement or consideration, such promise
must be fulfilled.

Santobello v. New York, 404 U.S. 257, 262 (1971).

In United States v. Harvey, 791 F.2d 294, 300 (4th Cir.

1986), a leading case from the Fourth Circuit 1 , the court stated:
In the process of determining whether
disputed plea agreements have been formed or
performed, courts have necessarily drawn on
the most relevant body of developed rules and
principles of private law, those pertaining
to the formation and interpretation of
commercial contracts. But the courts have
recognized that those rules have to be
applied to plea agreements with two things in
mind which may require their tempering in
particular cases. First, the defendant's
underlying "contract" right is
constitutionally based and therefore reflects
concerns that differ fundamentally from and
run wider than those of commercial contract
law. See Mabry v. Johnson, 467 U.S. [504] at
509 [(1984),] (broken government promise that
induced guilty plea implicates due process
clause because it impairs voluntariness and
intelligence of plea). Second, with respect
to federal prosecutions, the courts' concerns
1
Fed. R. Crim. P. 11(e) is substantially identical to Rule
3A:8(c). See Holler v. Commonwealth, 220 Va. 961, 968, 265
S.E.2d 715, 719 (1980).

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 run even wider than protection of the
defendant's individual constitutional
rights--to concerns for "honor of the
government, public confidence in the fair
administration of justice, and the effective
administration of justice in a federal scheme
of government." United States v. Carter, 454
F.2d 426, 428 (4th Cir. 1972).

See also United States v. Dixon, 998 F.2d 228 (4th Cir. 1993);

United States v. Garcia, 956 F.2d 41 (4th Cir. 1992); United

States v. Conner, 930 F.2d 1073 (4th Cir.), cert. denied, 502

U.S. 958 (1991).
The Virginia Supreme Court has discussed plea agreements and

said:
[A] plea bargain agreement was made and
defendant, who had complied with the
agreement, was entitled to have the agreement
strictly complied with by the prosecutor
until the sentencing process was completed.
Any deviation from the agreement by the
prosecutor, whether inadvertent or not,
should not have been countenanced. Here the
defendant promptly elected to withdraw his
guilty plea entered pursuant to the agreement
and he should have been permitted to do so.

Johnson v. Commonwealth, 214 Va. 515, 518, 201 S.E.2d 594, 596

(1974) (footnote omitted). See also Lilly v. Commonwealth, 218

Va. 960, 963, 243 S.E.2d 208, 210 (1978) (where the prosecutor

fails to honor any terms of the plea agreement, a defendant has a

right to withdraw a guilty plea); Jones v. Commonwealth, 217 Va.

248, 257, 227 S.E.2d 701, 707 (1976) (defendant entitled to

specific performance where Commonwealth breached plea agreement);

Jordan v. Commonwealth, 217 Va. 57, 59, 225 S.E.2d 661, 663

(1976) ("The word of the Commonwealth has been given in this

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case, and it cannot be abridged, revoked or diluted. The

integrity of the Commonwealth itself must be upheld." Specific

performance of the plea agreement was decreed.); Calvillo v.

Commonwealth, 19 Va. App. 433, 435, 452 S.E.2d 363, 364 (1994)

(Commonwealth required to honor agreement and dismiss charge when

defendant committed no further violations within a year);

Commonwealth v. Sluss, 14 Va. App. 601, 604, 419 S.E.2d 263, 265

(1992) (plea agreements are contractual in nature and subject to

principles of contract law).
The petition for specific performance was scheduled for

hearing on September 18, 1995. The defendant called as his only

witness on the plea agreement issue Gordon A. Wilkins, who was

his attorney during the plea agreement negotiations. The

Commonwealth did not put on any evidence.

Wilkins testified that he, Sandy and the Commonwealth's

Attorney engaged in discussions with a view toward reaching a

plea agreement. An agreement was reached, reduced to writing,

and signed by the parties.

Under the agreement, the defendant was required to provide

certain information to the Commonwealth's Attorney specified in

the agreement. Wilkins testified that Sandy was questioned on

four occasions by the Commonwealth's Attorney or her

representative and that he truthfully answered all questions

propounded to him.

According to Wilkins' testimony, the last meeting was held

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on May 25, 1995. That afternoon, he asked the Commonwealth's

Attorney whether Sandy had complied with the agreement and

reasonably satisfied her that the information furnished was full

and complete. Her answer was that she was leaning toward it, had

not made up her mind, and wanted a little more time.

Wilkins contacted the Commonwealth's Attorney the next

afternoon. On this occasion, she stated that she was

"reluctantly going along with the plea agreement." Memorial Day

weekend intervened. The next business day, May 30, 1995, the

Commonwealth's Attorney went to Wilkins' office and told him that

she had rethought the situation and she was not going to go

through with the plea agreement.
On May 31, 1995, Wilkins went to the Commonwealth's

Attorney's office and expressed his concern about her repudiation

of the agreement when the trial was scheduled on June 8, 1995,

and stated to her that he "couldn't allow that to happen."

According to Wilkins' testimony, the Commonwealth's Attorney

suggested that at the trial on June 8, 1995, they go through with

the agreement in its original form, that the case be continued to

August, and she make her recommendations at that time. This

deviation was agreed to. However, on June 5, 1995, Wilkins

received a letter from the Commonwealth's Attorney dated May 31,

1995, the same date they agreed upon the modification, which

stated:
This is to confirm that in consideration of
Mr. Sandy's frankness in discussions with me
and the police regarding short-weighting and

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 other matters, his willingness to agree to a
continuance of this matter, and various
mitigating circumstances, if he will plead
guilty as agreed in our contract of March 31,
1995, I agree to recommend the amendments,
penalties and orders of nolle prosequi as set
forth in the agreement. The case will be
continued from June 8 to the first court date
in August available to both attorneys. . . .

Obviously, if it becomes apparent that Mr.
Sandy has told substantial and actual lies
regarding any matter, the agreement would
have been breached and be void. Mr. Sandy
knows (as you and I cannot) whether that is
the case.

Wilkins testified that he was "nonplussed" upon receipt of

that letter because it did not accurately represent what was said

between them on May 31, 1995. The second paragraph of the letter

indicated that the investigation would continue. He had

understood from her that the investigation had been completed and

that she was satisfied with it.

Wilkins testified that he received another faxed letter

dated June 5, 1995, from the Commonwealth's Attorney. The letter

stated that she had received information that "verifies that

Christopher actually lied to me," although the letter did not

specify what the lies were or who had verified them. The letter

concluded with the statement, "I cannot abide by the agreement."

The facts disclosed in Wilkins' testimony are not in

dispute. The Commonwealth did not call a single witness to

refute his testimony. Further, the Commonwealth did not put on

any evidence to prove that Sandy lied or that he was anything but

truthful in the information that he gave at the four sessions.

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The Commonwealth's Attorney in argument before the trial court

stated that "the defendant breached the agreement by not being

truthful." However, no testimony in the record supports this

allegation.

At the conclusion of the evidence and argument of counsel,

the trial court found:
Let's cut through this, the Court makes
some findings here. The Court finds that
there was no agreement between the
Commonwealth and the defendant that should be
enforced by this Court. The Court finds that
the Commonwealth's Attorney had not accepted
this, that she had tentatively accepted it.
There certainly isn't anything that I find,
shown to me this [sic] proposed, and I
emphasize the word proposed plea agreement,
that said that she was bound to accept this
orally at any particular time.
Now, she did indicate that she was
accepting it according to the testimony, but
I don't think that's any plea agreement until
the plea agreement is accepted by the court.
Now, there may be an agreement between the
parties before that, but I don't find that in
this case that there was such an agreement.

The trial court denied the defendant's motion to require the

Commonwealth to specifically perform the plea agreement. Later

in September, a jury trial was held. The defendant pled not

guilty to all charges, and was convicted upon seven felony

charges.

We hold that the trial court abused its discretion when it

declined to grant the defendant's petition for specific

performance of the plea agreement.
The decision whether to grant specific

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 performance of a contract is a matter
submitted to the sound discretion of the
trial court. Griscom v. Childress, 183 Va.
42, 47, 31 S.E.2d 309, 312 (1944). Specific
performance is an equitable remedy, which may
be considered by the trial court where the
remedy at law is inadequate and the nature of
the contract is such that specific
enforcement of it will not result in great
practical difficulties. Thompson v.
Commonwealth, 197 Va. 208, 212-13, 89 S.E.2d
64, 67 (1955). Although the granting of
specific performance is not a matter of
absolute right,

[w]hen the contract sought to be
enforced . . . has been proven by
competent and satisfactory
evidence, and there is nothing to
indicate that its enforcement would
be inequitable to a defendant, but
will work injury and damage to the
other party if it should be
refused, in the absence of fraud,
misapprehension, or mistake, relief
will be granted by specific
enforcement.

Haythe v. May, 223 Va. 359, 361, 288 S.E.2d
487, 488 (1982).

Chattin v. Chattin, 245 Va. 302, 306-07, 427 S.E.2d 347, 350

(1993).

The defendant proved all of the necessary elements to obtain

specific performance of the agreement. Significantly, the

evidence proved that a valid contract existed between the parties

and that the Commonwealth's Attorney failed to meet her

obligations. The defendant offered as an exhibit a copy of the

plea agreement entered into between the parties. The written

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agreement evinces a clear, complete and distinct meeting of the

minds between the parties that was based upon proper

consideration and characterized by mutuality of obligation and of

remedy. See 17 M.J., Specific Performance, §§ 6-24 (1994). The

contract required the defendant to meet with the Commonwealth's

Attorney and other officials at specified times and to "fully

answer any questions which are posed to him by [the

Commonwealth's Attorney]." Upon the condition that the

Commonwealth's Attorney "is reasonably satisfied that the

information provided by Sandy is full and complete," the

Commonwealth's Attorney agreed to move to amend the charges

against the defendant and to make a sentence recommendation.

After the defendant provided information to the Commonwealth's

Attorney, she indicated her satisfaction with the defendant's

information by stating that she would "go along with" both the

motion to amend the charges and the sentencing recommendation.

However, the Commonwealth's Attorney subsequently withdrew her

approval and refused to fulfill her contractual obligations.
The record also reflects that the defendant's legal remedies

are inadequate and that specific enforcement of the plea

agreement is both feasible and fair to both parties. Because the

Commonwealth's Attorney failed to comply with the agreement, the

defendant was convicted of seven felonies instead of seven

misdemeanors, and he received a sentence in excess of that set

forth in the agreement. An action at law for damages would be

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insufficient to restore the defendant to the position he occupied

before the agreement was violated because money damages cannot,

among other things, compensate the defendant for the loss of his

right to vote. See Va. Const. Art. II, § 1 (stating that

convicted felons are unqualified to vote). Moreover, vacating

the defendant's convictions and ordering the Commonwealth's

Attorney to specifically perform her obligations under the

agreement is not impractical. Any other remedy will result in

significant injury to appellant.
We disagree with the Commonwealth's argument that the

defendant was not entitled to specific performance because his

information failed to "reasonably satisf[y]" the Commonwealth's

Attorney. The Commonwealth's obligations under the agreement

were contingent on the condition subsequent that "[the

Commonwealth's Attorney] is reasonably satisfied that the

information provided by Sandy is full and complete . . . ." The

Commonwealth argues that the defendant breached this condition

because the Commonwealth's Attorney discovered that the

information given by the defendant was false. However, at the

hearing on the defendant's petition for specific performance, the

Commonwealth presented no evidence proving that the defendant had

given false information. Although "[t]here can be no specific

performance of a contract which is subject to a condition unless

the condition has been fulfilled," Cushman v. Fitz-Hugh, 199 Va.

234, 240, 98 S.E.2d 706, 709 (1957), "the government [bears] the

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'burden of establishing a breach by the defendant [of the . . .

agreement] if the agreement is to be considered unenforceable.'"

Sluss, 14 Va. App. at 606, 419 S.E.2d at 266 (citation omitted).

The Commonwealth failed to satisfy its burden.

Furthermore, we hold that the trial court's assertion that

no agreement could exist between the parties until it was

approved by the trial court was plainly wrong. Like other

contracts in Virginia, a Commonwealth's attorney is contractually

bound by an agreement with a defendant from the moment the

parties mutually assent by forming the contract. See Richardson

v. Richardson, 10 Va. App. 391, 396, 392 S.E.2d 688, 690 (1990).

Both the defendant and the Commonwealth's Attorney entered into

a valid contract on March 31, 1995, and the Commonwealth's

Attorney was bound by its terms from that point forward. 2

We therefore hold that the defendant is entitled to have his

petition for specific performance granted because the

Commonwealth breached the plea agreement. We reverse and vacate

the convictions and remand for further proceedings consistent

with this opinion.
2
The agreement, however, cannot bind the court to accept the
terms of the agreement. There is a significant difference,
however, between requiring the Commonwealth's attorney to perform
his or her obligations under the agreement and requiring the
court to act. Here, the defendant simply asks the Commonwealth's
Attorney to do what she agreed to do, namely, move to amend the
indictments as to certain charges, dismiss the remainder, and
make a specific sentencing recommendation. The court's
responsibility thereafter depends upon the terms of the
agreement. The issue of the court's responsibility is not before
us.

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 Reversed and remanded.

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