COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
JOSE BALMORIS MORENO
MEMORANDUM OPINION * BY
v. Record No. 1126-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 4, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Matthew T. Foley for appellant.
Ruth M. McKeaney, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Jose Balmoris Moreno (appellant) contends that the trial
court abused its discretion in denying his request to withdraw
Alford pleas to murder, malicious wounding, and two counts of
using a firearm in the commission of a felony. For the reasons
that follow, we affirm his convictions.
I. BACKGROUND
Appellant was charged with five offenses that occurred on
February 24, 1996. On February 3, 1997, the parties entered
into a plea agreement, wherein the Commonwealth agreed to nolle
prosequi a conspiracy to commit murder charge and appellant
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
agreed to plead guilty to murder, malicious wounding and the
firearm charges, pursuant to North Carolina v. Alford, 400 U.S.
25 (1970). The parties also agreed that appellant "shall be
sentenced to serve less time" than Marvin Serrano, the
codefendant who was awaiting sentencing at the time of
appellant's plea. The plea form and agreement included the
following provisions:
6. My attorney has explained to me what the
Commonwealth (the prosecutor) must prove in
order to convict me of the crime[s] that I
am pleading guilty to. I have told my
attorney everything I know about the
charge[s] against me. I have discussed with
my attorney any possible defenses I might
have to the charge[s] against me.
7. I understand that by pleading guilty I
give up all objections to the admissibility
of evidence, . . . .
8. I understand that I have a right to
plead "Not Guilty" to the charge[s] against
me, but I want to give up that right and
plead guilty instead. . . . In particular,
I understand that by pleading guilty I give
up:
* * * * * * *
C. The right to see and hear all witnesses
against me and the right to cross-examine those
witnesses;
* * * * * * *
10. I understand that by pleading guilty I
may receive the same penalties as if I had
been convicted of the same crime after a
trial by a jury or by a judge sitting
without a jury. . . .
* * * * * * *
- 2 -
17. I still claim innocence but I freely
and voluntarily plead guilty to the crimes
described in paragraph 3, above, because I
have decided it is in my interest to do so.
18. There is no agreement about what
sentence I will receive and I understand
that both my attorney and the Commonwealth
are free to argue their views at the time of
my sentencing and to make recommendations to
the judge. The judge may suspend a part or
all of the sentence or the judge may not
suspend any of it.
It is, however, agreed that the
defendant shall be sentenced to serve less
time than Marvin Serrano who has been
convicted of these same crimes as a
principal in the first degree and who is
currently awaiting sentencing.
At the time appellant and the Commonwealth's Attorney
presented the plea agreement to the trial court, the following
colloquy occurred between the trial court and appellant:
BY THE COURT:
Q. Would you state your full name for the
record, please.
A. Jose Balmorez [sic] Moreno.
Q. Are you the same individual that is
mentioned in Indictments 96-751, 96-752,
96-753 and 96-754?
A. Yes.
Q. How old are you?
A. Nineteen.
Q. How much education have you had?
A. I went to school from first grade to
tenth grade.
- 3 -
Q. Can you read and write?
A. Well, I can't read really much, but --
Q. Well, does your attorney know everything
that you know about these charges? You have
discussed all of them with him?
A. Yes.
Q. Does he know everything that you know
about all of these charges?
A. Excuse me?
Q. Does your lawyer know everything that
you know about these charges?
A. I don't know.
Q. Well, did you tell him everything you
know?
(No response.)
Q. You are charged with murder. Does he
know what you know about that?
A. Yes.
Q. How about the use of a firearm? Did you
tell him everything that you know about the
use of the gun?
(No response.)
Q. Did you keep anything from him?
A. I don't understand what you're saying.
Q. That's pretty obvious. . . . Have you
discussed this plea with him?
[COUNSEL]: Your Honor, I have gone over it
with him. I would relate to the Court that
he is extremely nervous about this. And I
do think he has told me everything that he
knows about this case. I just don't think
- 4 -
he understood the Court's question, that
being what the question was.
Q. Is there anything about these cases,
these charges, that you know of that you
haven't told your lawyer?
A. No, I have told him everything.
Q. It's my understanding that your desire
is to plead guilty to these charges. Is
that correct?
A. Well, Your Honor, I pled [sic] guilty,
but I am not guilty.
[COUNSEL]: Your Honor, he's pleading
pursuant to the Alford doctrine.
Q. Tell me what an Alford plea is.
A. Pleading guilty without admitting that
you are guilty, but because of the evidence
there is against you.
Q. Well, are you aware that the legal
consequences of an Alford plea are the same
as a guilty plea, or a finding of guilt by
the Court?
A. No.
(The defendant and his counsel confer.)
A. Yes, I understand.
Q. Well, let me ask you a question: If the
Court accepts this Alford plea, what is the
maximum time you could get in prison for
murder?
A. Life.
Q. What is the difference between that and
if you plead guilty? You get the same
punishment, or you could get the same
punishment, couldn't you?
A. Yes.
- 5 -
Q. Do you understand that the legal
consequences, being the sentence that you
get, for example, are the same then for both
pleas? A plea of guilty, you are subjected
to life. If you plead the Alford plea and
the Court accepts it, you are still
subjected to life. Do you understand that?
A. Yes.
Q. And the same would apply to all of these
other charges. Are you aware of that?
A. Yes.
Q. And are you aware that by entering this
plea, you have waived your right to a jury
trial?
A. Yes.
Q. You waive your right to cross-examine
witnesses that may testify against you?
A. Yes.
Q. You waive your right to remain silent.
Are you aware of that?
A. Yes.
Q. And you waive your right to an appeal?
A. Yes.
Q. The punishment range for murder is up to
life in the penitentiary; for the use of a
firearm, it's up to three years in the
penitentiary . . .; for a repeat offender,
it is up to five years; and malicious
wounding it is up to twenty years. Are you
aware of that?
A. Yes.
Q. I have an agreement that appears to be
signed by you on the fifth page. Did you
discuss this agreement with your lawyer?
- 6 -
A. Yes.
Q. Did you discuss it with your lawyer?
A. Yes.
Q. Did he read it to you?
A. Part of it, yes, sir.
Q. Well, did you read it?
A. Yes.
Q. I thought you said you couldn't read.
A. Well, I didn't understand some of it.
Q. Well, do you understand this agreement?
Have you had enough time to discuss it with
your attorney?
A. Yes.
Q. Has anyone threatened you to get you to
do this?
A. No.
Q. Has anyone promised you anything to get
you to do this?
A. No.
Q. Is it your desire to enter the Alford
plea at this time?
A. Yes.
Q. Let the record reflect that the plea is
made freely and voluntarily with an
understanding of its nature and its
consequences.
The Commonwealth then summarized the evidence in the case,
which established the following: (1) the shooting was
- 7 -
gang-related; (2) appellant, who was one of four people in the
car, was the "armer" or individual who provided the weapon and
directed the driver where to go; and (3) appellant had
previously engaged in a physical altercation with members of the
other gang. After the proffer of evidence by the Commonwealth,
appellant's counsel indicated the following, "Your Honor, that's
correct. I have investigated the case, and it is my belief
based on that that the Commonwealth would be in a position to
put on the evidence that they have just described."
Accordingly, the trial court accepted appellant's pleas and
found him guilty on all charges.
On September 12, 1997, the date scheduled for sentencing,
appellant moved to withdraw his pleas. Appellant's only
evidence consisted of hearsay testimony from Dana Potter, the
mother of appellant's infant child. Potter testified that she
visited the codefendant in jail about three months earlier and
that the codefendant "said it could be somebody else [referring
to a person other than appellant]."
The trial judge noted that appellant "had very able and
capable counsel at the time of the plea" and that defense
counsel carefully instructed appellant during the February 3,
1997 hearing "to make sure there was no misunderstanding what
the Court was saying and what his answers were." The trial
court made the following finding:
- 8 -
There's no doubt in my mind that at the time
[appellant] entered this plea, as I stated
then, it was made freely, it was made
voluntarily, and it was made with the
understanding of its consequences. And I
haven't heard anything today to change that.
Accordingly, the trial court denied appellant's motion to
withdraw his Alford pleas.
II. WITHDRAWAL OF PLEA
Appellant asserts no claim that his Alford pleas were
entered involuntarily or that he entered them under fear,
duress, coercion, fraud, or official misrepresentation.
However, he argues that he misunderstood the nature and effect
of his pleas. Additionally, appellant contends that he
mistakenly agreed to the plea agreement because he feared that
his codefendant would testify at trial untruthfully.
A defendant has no absolute right to withdraw a plea of
guilty or nolo contendere; rather, such privilege is permissive.
See Code § 19.2-296.
[W]hether or not an accused should be
allowed to withdraw a plea of guilty for the
purpose of submitting one of not guilty is a
matter that rests within the sound
discretion of the trial court and is to be
determined by the facts and circumstances of
each case. No fixed or definite rule
applicable to and determinative of all cases
can be laid down. However, the motion
should not be denied, if timely made, and if
it appears from the surrounding
circumstances that the plea of guilty was
submitted in good faith under an honest
mistake of material fact or facts, or if it
was induced by fraud, coercion or undue
- 9 -
influence and would not otherwise have been
made.
Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873
(1949) (emphasis added).
"'[T]he finding of the judge, upon the credibility of the
witnesses and the weight to be given their evidence, stands on
the same footing as the verdict of a jury, and unless that
finding is plainly wrong, or without evidence to support it, it
can not be disturbed.'" Hoverter v. Commonwealth, 23 Va. App.
454, 465, 477 S.E.2d 771, 776 (1996) (quoting Yates v.
Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987)).
In the instant case, the trial court examined appellant
thoroughly and conscientiously before accepting his pleas. That
examination, consisting of more than twenty direct questions
about the plea agreement, underscores that appellant's pleas
were freely and voluntarily made. When appellant indicated at
the February 3, 1997 hearing that he did not understand some of
the trial court's questions, the trial judge either explained
the question again or stopped the questioning and allowed
counsel to confer with appellant. At the hearing on appellant's
motion to withdraw his pleas, the trial judge noted the
following:
COURT: First of all, [appellant] had very
able and capable counsel at the time of the
plea. And what the record doesn't reflect
is that those breaks in the colloquy were
considerable. And that able counsel . . .
took advantage of that time and talked to
- 10 -
[appellant], to make sure what the Court was
saying and what his answers were.
(Emphasis added). The trial judge's finding that appellant's
pleas were made voluntarily, intelligently and knowingly is
supported by the evidence in the record, and we are unable to
say that this finding was plainly wrong.
Next, we turn to appellant's argument that he mistakenly
agreed to the plea agreement because he feared that his
codefendant would testify at trial untruthfully. At the hearing
in support of his motion to withdraw, appellant offered the
testimony of Potter, who recited statements allegedly made by
the codefendant. Although Potter was allowed to testify about
the codefendant's statements, the court concluded that the
testimony was inadmissible, hearsay evidence. Accordingly, the
trial court rejected appellant's claim that his motion should be
granted because there was a change in the evidence.
In Jefferson v. Commonwealth, 27 Va. App. 477, 500 S.E.2d
219 (1998), we considered an analogous situation. There, the
defendant attempted to withdraw his plea of nolo contendere,
prior to sentencing, because counsel learned that the
Commonwealth's primary witness had made a pretrial statement
tending to exculpate the defendant. In support of his motion,
defendant asserted that he decided to enter a plea of nolo
contendere based upon the witness' testimony. He argued that
his decision to enter a plea would have been different had he
- 11 -
been aware of the opportunity to impeach the witness. See id.
at 483, 500 S.E.2d at 222.
On appeal, we affirmed the trial court's decision denying
defendant's motion to withdraw his pleas. Specifically, we held
that the non-disclosure of the exculpatory evidence did not
affect defendant's decision to enter a plea of nolo contendere
because "nothing in the record, save defendant's post-trial
assertions, suggests a reasonable probability that nondisclosure
of [the witness'] pretrial statements had even the 'least'
influence on his decision to plead nolo contendere." Id. at
488, 500 S.E.2d at 225. See also Jones v. Commonwealth, ___ Va.
App. ___, ___, ___ S.E.2d ___, ___ (1999) ("As evidenced by the
terms of his plea agreement, appellant waived his right to
confront and cross-examine [the codefendant] upon deciding that
guilty pleas were in his best interest.").
In the instant case, the only evidence before the trial
judge was the inadmissible, hearsay evidence of Potter, who
recited the codefendant's alleged statements. Viewing the
record in its entirety, appellant failed to present any
competent or admissible evidence to indicate that his pleas were
involuntary, based upon an honest mistake of material fact, or
induced by fraud, coercion or undue influence. Likewise,
appellant failed to show that the Commonwealth did not honor the
terms of the plea agreement, or that, contrary to the terms of
the agreement, the trial judge imposed a sentence greater than
- 12 -
that imposed on the codefendant. Finding no error, we affirm
appellant's convictions. 1
Affirmed.
1
We reject appellant's argument that by entering an Alford
plea, he is placed in "a more favorable position" for withdrawal
of his plea than a defendant who has entered a guilty plea. An
Alford plea or plea of nolo contendere carries some of the same
consequences as a guilty plea, including the standard for
reviewing a motion to withdraw a plea under Code § 19.2-296.
See Jefferson, 27 Va. App. at 485, 500 S.E.2d at 223 (holding
that pleas of guilty and nolo contendere are treated "alike in
the context of a motion to withdraw" a plea under Code
§ 19.2-296); Allen v. Commonwealth, 27 Va. App. 726, 729 n.1,
501 S.E.2d 441, 443 n.1 (1998) (holding that "the plea of nolo
contendere, or no contest, [was] equivalent to a plea of guilty"
for purposes of determining whether the plea was entered
voluntarily, intelligently and knowingly); see also Clausen v.
Commonwealth, 29 Va. App. 282, 294, 511 S.E.2d 449, 455 (1999)
(holding that plea of nolo contendere, like a guilty plea,
constitutes a waiver of right to appeal all non-jurisdictional
issues).
- 13 -
Jose Balmoris Moreno v. Commonwealth of Virginia
Combined Opinion