COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Fitzpatrick, Annunziata and
Overton
Argued at Richmond, Virginia
ROBERT WAYNE MANNING
v. Record No. 0681-94-2 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA APRIL 9, 1996
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF NEW KENT COUNTY
Samuel T. Powell, III, Judge
Charles E. Adkins for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General, (James S. Gilmore, III, Attorney
General, on brief), for appellee.
A panel of this Court in an unpublished memorandum opinion
reversed Robert Wayne Manning's conviction of driving a motor
vehicle after having been declared an habitual offender. Manning
v. Commonwealth, No. 0681-94-2 (Va. App., June 20, 1995). The
Court granted the Commonwealth's motion for an en banc review of
the appeal. Upon rehearing, we affirm Manning's conviction.
Manning was declared to be an habitual offender on January
12, 1982. More than ten years after entry of that order, on
September 1, 1992, Manning was arrested after driving and he
subsequently pled guilty to driving a motor vehicle after having
been declared an habitual offender. However, within twenty-one
days of his conviction, Manning, claiming that the 1982 habitual
offender order was no longer in effect based upon this Court's
opinion in Davis v. Commonwealth, 12 Va. App. 246, 402 S.E.2d 711
(1991), moved the circuit court for a new trial. He contended
that he had pled guilty to an offense which, as a matter of law,
he could not have committed.
The trial court denied the motion for a new trial. Whether
the trial court abused its discretion in denying the motion is
controlled by Code § 19.2-296 and Parris v. Commonwealth, 189 Va.
321, 52 S.E.2d 872 (1949).
Code § 19.2-296 provides:
A motion to withdraw a plea of guilty or nolo
contendere may be made only before sentence
is imposed or imposition of a sentence is
suspended; but to correct manifest injustice,
the court within twenty-one days after entry
of a final order may set aside the judgment
of conviction and permit the defendant to
withdraw his plea.
(Emphasis added).
In Parris, the Supreme Court said:
"As in other cases of discretionary power, no
general rule can be laid down as to when a
defendant will be permitted to withdraw his
plea. The decision in each case must depend
to a great extent on the particular attendant
circumstances. Generally, however, it may be
said that the withdrawal of a plea of guilty
should not be denied in any case where it is
in the least evident that the ends of justice
will be subserved by permitting not guilty to
be pleaded in its place. The least surprise
or influence causing a defendant to plead
guilty when he has any defense at all should
be sufficient grounds for permitting a change
of plea from guilty to not guilty. Leave
should ordinarily be given to withdraw a plea
of guilty if it was entered by mistake or
under a misconception of the nature of the
charge; through a misunderstanding as to its
effect; through fear, fraud, or official
misrepresentation; was made involuntarily for
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any reason; or even where it was entered
inadvisedly, if any reasonable ground is
offered for going to the jury."
Parris, 189 Va. at 325, 52 S.E.2d at 874 (emphasis added)
(quoting 14 Am. Jur. 2d. Criminal Law § 287).
Code § 46.2-357, formerly Code § 46.1-387.8, provides, in
pertinent part, that "[i]t shall be unlawful for any person to
operate any motor vehicle or self-propelled machinery or
equipment on the highways of the Commonwealth while the order of
the court prohibiting such operation remains in effect."
Manning's 1982 habitual offender order read in pertinent
part:
[Manning] be and is barred from operating a
motor vehicle on the highways of the State of
Virginia and that no license to operate a
motor vehicle in the state [shall be] issued
to [Manning] for a period of ten years (10)
from the date of this order or until the
privilege of Manning to operate a motor
vehicle in this state has been restored by
order of a court of record entered in
proceedings held in accordance with the laws
of this state.
The Davis decision was rendered a year before Manning was
stopped and convicted, and Manning's counsel was aware of the
decision. However, it was not until after Manning's plea that
counsel concluded that the Davis decision might control Manning's
case.
The habitual offender order in Davis' case read, in
pertinent part:
The Court doth ADJUDGE, ORDER, and DECREE
that said Calvin Wendell Davis is such an
"habitual offender" as is set forth in
Section 46.1-387.2 of the Code of Virginia,
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1950, as amended, and that his privilege to
operate a motor vehicle in this state is
revoked for a period of ten (10) years from
the date of this order.
Davis, 12 Va. App. at 247 n.2, 402 S.E.2d at 712 n.2.
The order in Manning's case is materially different from the
order in Davis' case. In Davis, the order specifically stated
that it was in effect for only ten years. Id. at 249, 402 S.E.2d
at 713. Unlike the order in Davis, Manning's order is not so
limited. It states that Manning is barred from operating a motor
vehicle on the highways of the State of Virginia. The order sets
no limit on the prohibition against driving. The order permits
issuance of a license to Manning after ten years, but does not
automatically restore his privilege to drive after that period.
At the time he was stopped, Manning had no license to
operate a motor vehicle, and no court had restored his privilege
to drive. Thus, under the terms of the order, the prohibition on
driving was still in effect.
Furthermore, unlike in Davis, the language in Manning's
order did not conflict with the provisions of Code §§ 46.2-355
and 46.2-356 so as to deceive Manning about whether he remained
under the driving prohibition. Indeed, Manning thought he was an
habitual offender when he was stopped and when he pled guilty.
His counsel was aware of the Davis case at the time Manning pled
guilty, but did not believe it provided a defense for Manning.
We agree with counsel's assessment of the facts and the law at
the time of Manning's guilty plea. Manning was an habitual
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offender whose order declaring him so was still in effect. Thus,
the record does not show that the plea of guilty was entered by
mistake, under a misconception, was involuntary for any reason,
or even was entered inadvisably. Parris, 189 Va. at 325, 52
S.E.2d at 874.
Accordingly, because granting the motion to withdraw would
not have corrected a manifest injustice, we hold that the trial
judge did not abuse his discretion in refusing Manning's motion
to withdraw his plea.
Affirmed.
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