COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
GARFIELD B. JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 1587-97-2 JUDGE JAMES W. BENTON, JR.
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Richard S. Blanton, Judge
Michael J. Brickhill for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Garfield Johnson pled guilty to possessing with the intent
to distribute cocaine in violation of Code § 18.2-248. Prior to
sentencing, Johnson moved to withdraw his guilty plea pursuant to
Code § 19.2-296. The trial judge denied Johnson's motion and
sentenced Johnson to ten years in prison with eight years and one
month suspended. On appeal, Johnson argues that the trial judge
abused his discretion by denying the motion to withdraw the plea.
We affirm the conviction.
I.
Rule 3A:8(b) provides that "[a] circuit court shall not
accept a plea of guilty . . . without first determining that the
plea is made voluntarily with an understanding of the nature of
the charge and the consequences of the plea." The record
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
establishes that after Garfield Johnson was arrested and indicted
for possessing with the intent to distribute cocaine, he pled
guilty during the arraignment to violating Code § 18.2-248. The
following colloquy then occurred:
JUDGE: Do you fully understand the charge
against you?
JOHNSON: Yes, sir.
JUDGE: Do you understand what the
Commonwealth would have to prove in order to
convict you?
JOHNSON: Yes, sir.
JUDGE: Have you had sufficient time to
discuss this case with your attorney,
including any possible defenses you might
have?
JOHNSON: Yes, sir.
JUDGE: Did you discuss with [your attorney]
whether you should plead guilty or not
guilty?
JOHNSON: Yes, sir.
JUDGE: And after that discussion did you
decide on your own, freely and voluntarily,
to plead guilty?
JOHNSON: Yes, sir.
JUDGE: Are you pleading guilty because you
are in fact guilty of the charge?
JOHNSON: Well, I talked to my child's mom,
like, she told me, said what's best for me.
I'm just going by what she said. So I just
pleaded guilty.
JUDGE: Let me ask you this. You have gone
over this case thoroughly with your attorney,
is that correct?
JOHNSON: Yes, sir.
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JUDGE: And you have talked to him about the
facts and circumstances and he has related to
you what the Commonwealth's evidence would be
in this case, is that correct?
JOHNSON: Yes, sir.
JUDGE: And after considering what the
Commonwealth's evidence would be did you
decide that it is in your best interest to
plead guilty?
JOHNSON: Yes, sir.
JUDGE: And are you pleading guilty because
you believe the Commonwealth has substantial
evidence and you don't want to run the risk
of trying your case in front of a jury, is
that correct?
JOHNSON: I'm pleading guilty because I don't
know these people here.
JUDGE: Okay. But you understand what the
evidence is?
JOHNSON: Yes, sir.
JUDGE: And you do agree that if the evidence
was presented it would be sufficient to find
you guilty, is that correct?
JOHNSON: Yes, sir.
JUDGE: Has anybody threatened you or coerced
you in any way to get you to plead guilty?
JOHNSON: No.
JUDGE: Has anybody promised you anything to
get you to plead guilty?
JOHNSON: No, sir.
JUDGE: Do you understand the maximum penalty
for this offense is up to 40 years in the
Virginia Department of Corrections?
JOHNSON: Yes, sir.
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JUDGE: And do you understand that by
pleading guilty you waive, or you give up
your right to appeal the decision of this
court?
JOHNSON: Yes, sir.
JUDGE: All right. And you understand the
court, based on a recommendation of the
Commonwealth's Attorney, and the review of a
presentence report, and the sentencing
guidelines, can sentence you up to 40 years,
do you understand that?
JOHNSON: Yes, sir.
JUDGE: All right. And do you also
understand that by pleading guilty this could
cause the court to revoke your probation if
you have a suspended sentence?
JOHNSON: Yes, sir.
JUDGE: Do you understand all the questions I
have asked you?
JOHNSON: Yes, sir.
JUDGE: And do you also understand that by
pleading guilty you are not entitled to be
tried by a jury? I want to make sure we get
that straight.
JOHNSON: Yes, sir.
JUDGE: All right. Do you have any questions
you would like to ask the court?
JOHNSON: No.
Johnson's attorney then submitted to the trial judge
Johnson's responses and signature on a written questionnaire
containing questions similar to those asked by the trial judge.
Johnson's attorney also submitted another document titled
"Statement by Defendant Regarding Plea of Guilty to Felony,"
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which was signed by Johnson. The document included the following
statement:
I hereby declare that this plea of guilty is
made of my own and free and voluntary will
with full understanding of the nature of the
charges and the facts upon which the charges
are based, with full knowledge and
understanding of the consequences of a plea
of guilty and of the rights I am waiving by a
plea of guilty, and that this plea is made
without any claim of innocence.
It also included a certification from Johnson's attorney as
follows:
I have explained to the defendant the charges
against him; that the defendant's plea of
guilty [was] made freely, willingly, and
voluntarily with full understanding of the
nature of the charges against him, the facts
upon which the charges are based, the
consequences of a plea of guilty and the
rights waived by a plea of guilty; and that
such plea of guilty accords with my
understanding of the facts in the case as
explained to me by the defendant.
After Johnson entered his plea and tendered those documents,
the Commonwealth's Attorney orally presented the following
recitation of facts:
[O]n the nineteenth day of September, 1996,
[through the] combined efforts of the
Sheriff's Department for Prince Edward County
and the Town of Farmville Police Department,
a search warrant was executed at Route 1, Box
183 G in Rice, Virginia. At that time, Mr.
Johnson was found to be an occupant of those
premises. A room from which Mr. Johnson was
seen to exit on more than one occasion was
searched. When the officers entered the
room, they found on the bed a plate
containing a loose substance which they
believed to be crack cocaine [and] a razor
blade. Above the plate, within six or eight
inches, were twenty-four individually
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packaged packets containing what the officers
believed to be crack cocaine. There were
also a number of empty packets in the
proximity of the plate. A search of Mr.
Johnson's person, as he exited the room, by
the officers revealed . . . small plastic
baggies identical in shape, size, and color
to those baggies found on the bed in plain
view as well as with the residue of the
cocaine on the plate. The twenty-four
packets, as well as the loose material which
was bagged in one bag, was subsequently
submitted to the Division of Forensic
Science. A Certificate of Analysis was
received on those substances. That Report of
Analysis . . . indicat[es that] the
twenty-four zip lock bags contained cocaine
. . . and that the loose material from the
plate . . . contained . . . cocaine."
The Commonwealth's Attorney also submitted to the trial judge a
written stipulation, signed by Johnson, containing Johnson's
admission that he "did on the 19th day of September, 1996,
unlawfully and feloniously manufacture, sell, give, distribute,
possess with intent to manufacture, sell, give or distribute a
controlled substance or imitation controlled substance, namely:
cocaine, listed in Schedule II, in violation of [Code
§] 18.2-248."
The trial judge found that Johnson made his plea "freely and
voluntarily," that Johnson "underst[oo]d the charge against
[him]," and that he "underst[oo]d the consequences of [his] plea
of guilty." When asked if he would like to make a statement,
Johnson replied: "I know I was wrongly accused of something. I
ain't got no idea of nothing. I ain't holding nothing. They
didn't find nothing on me. But, try to help my little kids, you
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know, I want to see them, I thought I would just plead guilty."
The trial judge accepted Johnson's guilty plea, finding
"substantial evidence in regards . . . to [Johnson's] guilt."
Prior to Johnson's scheduled sentencing date, Johnson hired
another attorney and filed a motion to withdraw his guilty plea
pursuant to Code § 19.2-296. In an affidavit, Johnson stated
that on the occasion when his plea was made (1) he had appeared
for trial, (2) he was "surprised to learn that a jury had been
summonsed" because he had informed his attorney he wanted a judge
to hear his case, (3) several witnesses who were necessary for
his defense were not present, (4) his attorney told him that the
jury would not like him because he was black and Jamaican, (4) he
did not realize that the documents he signed "related to pleading
guilty," (5) he had informed his attorney that he did not want to
plead guilty, (6) his attorney had not informed him of his right
to plead conditionally and to appeal the denial of his
suppression motion, and (7) he disagreed that the Commonwealth
could prove his guilt beyond a reasonable doubt.
At the hearing on the motion to withdraw, the trial judge
accepted Johnson's affidavit not for the truth of the allegations
but, rather, as representative of what Johnson would have said if
called to testify. Johnson's attorney argued that although
Johnson's plea was voluntary, it was not knowingly made. The
trial judge denied Johnson's motion to withdraw his plea, finding
that Johnson "made a knowing, intelligent, and voluntary plea."
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The trial judge sentenced Johnson to ten years in prison and
suspended eight years and one month of that sentence.
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II.
In pertinent part, Code § 19.2-296 provides that "[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." Citing the statute and Parris v. Commonwealth, 189
Va. 321, 324, 52 S.E.2d 872, 873 (1949), we have previously held
that whether a criminal defendant may withdraw a plea of guilty
is a matter addressed to the sound discretion of the trial judge.
See Hoverter v. Commonwealth, 23 Va. App. 454, 463-64, 477
S.E.2d 771, 775 (1996). "Thus, we should reverse [a trial
judge's denial of the motion] only upon 'clear evidence that [the
decision] was not judicially sound' and not simply to substitute
our 'discretion for that rendered below.'" Jefferson v.
Commonwealth, 27 Va. App. 477, 488, 500 S.E.2d 219, 225 (1998)
(citation omitted).
Citing Parris, Rule 3A:8(b), and Code § 19.2-296, Johnson
contends that "it [was] not sufficient for the trial [judge] to
focus exclusively on whether the plea of 'guilty' was made
voluntarily, knowingly, and intelligently." He argues that Code
§ 19.2-296 required the trial judge to "evaluate[] Johnson's
claim that through the inaction of his trial counsel, [Johnson]
was not in a position to proceed to trial on [the day Johnson
entered his guilty plea]." He further argues that the trial
judge acted inconsistent with Parris by failing to address the
issue whether Johnson's plea was made pursuant to a mistake of
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material fact, fraud, coercion or undue influence. See 189 Va.
at 324, 52 S.E.2d at 873 (noting that "the motion should not be
denied . . . if it . . . was submitted in good faith under an
honest mistake of material fact or facts, or if it was induced by
fraud, coercion or undue influence").
The record clearly reveals, however, that Johnson never
presented these issues to the trial judge. In fact, Johnson
framed the issue before the trial judge as follows:
[T]his is a voluntary plea. No one held a
gun to his head. This was not coerced. That
is not the allegation here. The only
allegation here is that it was not knowing.
He did not know the ramifications of what he
was doing when he pled guilty to this charge.
He did not have the benefit of a plea
bargain. He had no promise by the
Commonwealth as far as what would happen to
him if he pled guilty rather than go forward
with a jury trial.
* * * * * * *
That, coupled with the fact that he never
came right out and said, yes, I'm guilty of
this charge. And, then with the third matter
that he didn't even do a conditional plea.
He wasn't aware that a conditional plea might
have been available. . . . He didn't even
reserve the right to condition his plea on
the right to appeal that pretrial motion.
All I'm saying, Judge, is that those
things together show the court that he did
not knowingly enter into his plea of guilty,
and he is ready to go forward with his trial
if this court will allow him.
(Emphasis added). These statements limited the scope of the
trial judge's review to whether Johnson's plea was knowingly
made.
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"A well-accepted definition of 'knowingly' is '[a]n act
. . . done voluntarily and intentionally, and not because of
mistake or accident or other innocent reason.'" United States v.
Jones, 735 F.2d 785, 789 (4th Cir. 1984) (citation omitted). The
record contains abundant evidence that Johnson's plea was
knowingly made.
In considering Johnson's claim that his plea was not
knowingly made, the trial judge was aware of Johnson's admissions
during the extensive colloquy prior to the judge's acceptance of
the plea. In addition, Johnson signed a stipulation admitting
that he possessed with the intent to distribute the cocaine.
Both Johnson and his first attorney acknowledged that the entire
matter had been explained to Johnson prior to the hearing and
that Johnson understood the charge against him and the
consequences of pleading guilty.
Prior to pleading "guilty," Johnson informed the trial judge
that he was prepared to proceed that day. Johnson gave no
indication that he was "surprised" at the presence of jurors or
the absence of his witnesses. Furthermore, the trial judge was
not required to accept as true the self-serving allegations of
surprise in Johnson's affidavit.
Even if Johnson was not aware of the opportunity to make a
conditional plea, that fact did not make his plea an act not
knowingly made. In making a conditional plea, Johnson would have
acknowledged his guilt. Similarly, the absence of a plea bargain
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did not make Johnson's plea an act not knowingly made. Not every
guilty plea is accompanied by a recommended sentence from the
Commonwealth's attorney. The record establishes that the trial
judge fully disclosed to Johnson the range of punishment. During
the colloquy, Johnson acknowledged that he could be sentenced to
forty years in prison.
To the extent that Johnson now raises issues that concern
his first attorney's conduct, those allegations appear to be an
attempt to raise claims of ineffective assistance of counsel,
which are not cognizable on direct appeal. See Roach v.
Commonwealth, 251 Va. 324, 335 n.4, 468 S.E.2d 98, 105 n.4
(1996).
For these reasons, we hold that the record fails to
establish that the trial judge abused his discretion.
Accordingly, we affirm the conviction.
Affirmed.
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