COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
DAVID TODD UNDERWOOD
MEMORANDUM OPINION * BY
v. Record No. 0872-98-3 JUDGE ROBERT P. FRANK
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge
(Mark W. Claytor, on brief), for appellant.
Appellant submitting on brief.
Thomas D. Bagwell, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
David Todd Underwood (appellant) appeals his November 23,
1998 conviction of driving while under the influence. On appeal,
he contends that: 1) the record does not reflect a knowing and
voluntary waiver of his constitutional rights preliminary to a
guilty plea as required by Boykin v. Alabama, 395 U.S. 238 (1969),
and Rule 3A:8(b); 2) due process requires a hearing to determine
"manifest injustice" raised in his motion to withdraw his plea of
guilty; and 3) it is manifestly unjust to require his guilty plea
to stand. We find that appellant procedurally defaulted issues
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
one and two, and we reject his argument on issue three. We,
therefore, affirm his conviction.
I. BACKGROUND
At his trial on November 23, 1998, appellant pled guilty to
driving while under the influence and was sentenced. Appellant
was represented by counsel at the trial. Appellant affirmatively
answered the trial court's query as to whether he understood that
the guilty plea would result in a waiver of all of his rights
incident to trial and would result in his conviction. The
Commonwealth's attorney summarized the facts of the case, and
appellant did not object. The trial court found appellant guilty
and stated that appellant was a habitual offender. The trial
court gave appellant the opportunity to make a statement before
sentencing, and appellant declined to do so.
On December 11, 1998, appellant, represented by new counsel,
filed a motion to withdraw the plea of guilty. The trial court
heard the motion on December 14, 1998, within twenty-one days of
the entry of the final order. Appellant argued that his plea was
not knowing and voluntary because his trial counsel was confused
and misled appellant. The trial court accepted a proffer of the
appellant's evidence and then denied the motion.
II. ANALYSIS
Appellant argues that the record does not reflect a knowing
and voluntary waiver of his constitutional rights preliminary to
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a guilty plea as required by Boykin v. Alabama, 395 U.S. 238
(1969), and Rule 3A:8(b).
Rule 5A:18 states, in part:
No ruling of the trial court or the
Virginia Workers' Compensation Commission
will be considered as a basis for reversal
unless the objection was stated together
with the grounds therefor at the time of the
ruling, except for good cause shown or to
enable the Court of Appeals to attain the
ends of justice.
We find that appellant is procedurally barred from raising
this issue on appeal pursuant to Rule 5A:18. Appellant did not
raise this issue before the trial court, and, therefore, we do
not address it.
Appellant argues that due process requires a hearing to
determine "manifest injustice" raised in his motion to withdraw
his plea of guilty. At the hearing on the motion to withdraw
the plea of guilty on December 14, 1998, the trial judge
indicated that he would not grant a hearing on the motion.
Appellant's counsel proffered evidence to support the motion but
did not object to the trial court's ruling. Further, appellant
did not argue that due process requires a hearing to determine
"manifest injustice." Accordingly, under Rule 5A:18,
appellant's appeal on this issue is procedurally barred.
Code § 19.2-296 states:
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
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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.
On appeal, we review whether the trial court abused its
discretion in its decision to deny a motion to withdraw a plea
of guilty to correct manifest injustice. See Lilly v.
Commonwealth, 218 Va. 960, 963, 243 S.E.2d 208, 210-11 (1978).
In this case, appellant was sentenced on November 23, 1998.
He filed his motion to withdraw his plea of guilty on December
11, 1998. The motion was heard by the trial court on December
14, 1998, within twenty-one days of entry of the final order.
Therefore, under Code § 19.2-296, the trial court only could
grant appellant's motion to withdraw his plea of guilty to
correct manifest injustice.
In Lilly, the Supreme Court of Virginia held that in
determining whether a trial court abused its discretion in
denying a motion to withdraw a plea of guilty, an appellate
court should "consider not only what the trial court may have
told, or failed to tell, the defendant before accepting his plea
but also the events that occurred after acceptance of the plea
and before sentencing." Id. at 963, 243 S.E.2d at 211.
In this case, it is clear that the trial court did not
abuse its discretion in denying appellant's motion to withdraw
his plea of guilty for manifest injustice. Appellant argues
that his plea was not voluntary because he was misled by his
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confused trial counsel. Appellant argues that trial counsel did
not inform him that, by pleading guilty, he was forfeiting all
rights associated with the legality of the stop and he would
qualify as a habitual offender.
The record clearly demonstrates that the trial court
advised appellant that the plea of guilty was a waiver of all of
his rights incident to trial and that the only issue before the
court was appellant's sentence. The trial court, upon finding
appellant guilty, stated, "[H]e's an habitual offender clearly."
Finally, the trial court gave appellant the opportunity to make
a statement before he was sentenced. Appellant did not make a
statement or ask any questions of the trial court.
Based on the record, we find that the trial judge did not
abuse his discretion in denying the motion to withdraw the plea
of guilty for manifest injustice. Therefore, appellant's
conviction is affirmed.
Affirmed.
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