COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued by teleconference
EZELL TORONTO GREENE, S/K/A
EZELL TORONTO GREEN
MEMORANDUM OPINION * BY
v. Record No. 1137-97-3 JUDGE JERE M. H. WILLIS, JR.
APRIL 28, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Rudolph Bumgardner, III, Judge
William E. Bobbitt, Jr., Public Defender, for
appellant.
Robert H. Anderson, III, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
On appeal from his conviction for robbery, Ezell Toronto
Greene contends that he did not enter his guilty plea
voluntarily, knowingly and intelligently and that the
Commonwealth's attorney breached the plea agreement by failing to
recommend the sentence contained in the agreement. Because
Greene failed to preserve these issues in the trial court, we
will not consider them on appeal.
No ruling of the trial court . . . 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.
Rule 5A:18.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The primary function of the contemporaneous objection rule
is to advise the trial court of the action or ruling complained
of so that the trial court may consider the issue intelligently
and, if warranted, take timely corrective action to avoid
unnecessary appeals, reversals and mistrials. See generally
Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2
(1991) (en banc). To hold otherwise would invite parties to
remain silent at trial, thereby building error into the record
and causing needless appeals.
Greene tendered no objection to the rulings or procedures of
the trial court. He made no objection to the actions of the
Commonwealth's attorney. He moved neither to withdraw his plea
of guilty nor to set aside the sentence. Thus, he failed to
preserve these issues properly for appeal.
"Under Rule 5A:18, we do not consider trial court error as a
basis for reversal where no timely objection was made except in
extraordinary situations to attain the ends of justice." Redman
v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272
(1997). We find no reason to invoke that exception in this case.
"[T]he ends of justice exception is narrow
and is to be used sparingly . . . ." "[I]t
is a rare case in which, rather than invoke
Rule [5A:18], we rely upon the exception and
consider an assignment of error not preserved
at trial . . . ." In order to avail oneself
of the exception, a defendant must
affirmatively show that a miscarriage of
justice has occurred, not that a miscarriage
of justice might have occurred. The trial
error must be "clear, substantial and
material."
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Id. at 220-21, 487 S.E.2d at 272 (emphasis in original)
(citations omitted).
A.
Indicted for robbery, Greene entered into a plea agreement,
which provided, in part:
The Commonwealth of Virginia . . .
pursuant to Rule 3A:8(c)(1)(B) of the Rules
of the Supreme Court, agrees following a plea
of guilty by Defendant to recommend as
follows:
Defendant is to be found guilty as
charged in the indictment and is to be
sentenced to confinement in the penitentiary
for a period of five years and shall pay
the Court costs. The five years penitentiary
sentence is to be suspended for a period
of five years upon the following
conditions . . . .
Defendant, and Counsel for Defendant, as
evidenced by their signatures hereinbelow,
agree to the terms of such recommendation if
the recommendation is accepted by the Court.
At his arraignment, Greene pled guilty. Responding to
questions from the trial court, Greene acknowledged that he had
entered his plea voluntarily and understanding the consequences.
The trial court entered the plea agreement into the record and
examined Greene's understanding of its effect. Greene affirmed:
(1) that the written plea agreement reflected the entire
agreement; (2) that he had read and discussed the plea agreement
fully with his attorney; and (3) that he understood the agreement
and had signed it of his own free will. The following dialogue
ensued:
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COURT: Tell me in your own words what you
understand to be the sentence that you would
receive if the plea agreement is followed.
MR. GREENE: Five years' prison time, and the
prison time be suspended on the condition
that I be on five years' supervised
probation, and obey my probation.
(Emphasis added).
The trial court found that Greene had entered his plea
knowingly, voluntarily and intelligently. It memorialized this
finding in its written order. Greene contests this finding
because the trial court failed to advise him that he could not
withdraw his plea if the court did not accept the sentencing
recommendation. See Rule 3A:8(c)(2). This argument is moot.
Greene never sought to withdraw his plea. Therefore, he was not
prejudiced by the trial court's failure to advise him that he
could not do so.
B.
Greene contends also that the Commonwealth's attorney
breached the plea agreement, which required the Commonwealth to
recommend that Greene receive a suspended five-year sentence.
See Rule 3A:8(c)(1)(B).
At the sentencing hearing, a probation officer presented a
presentence report prepared at the order of the trial court. The
probation officer testified that an appropriate sentence under
the guidelines would include a period of incarceration. The
Commonwealth's attorney stated that he was presented with a
"novel situation" because of:
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[T]he vast difference in the sentencing
guidelines prepared by [the probation
officer] and the original guidelines from
which the plea agreement was prepared.
The Presentence Investigation Report,
again[] is not a good report, as far as this
Defendant is concerned. The Commonwealth, of
course, is perplexed because of the
difference in the sentencing guidelines, as
I've alluded to.
For all of these reasons, the
Commonwealth simply submits the matter to the
Court at this point.
The trial court sentenced Greene to five years in the
penitentiary, and suspended two years and six months of the
sentence upon certain conditions.
When there is noncompliance, whether
intentional or inadvertent, by the prosecutor
with the plea bargain agreement as the
defendant understands it, the defendant must
promptly call such noncompliance to the
court's attention and request that he be
allowed to withdraw his guilty plea,
otherwise it will be deemed to have been
waived.
Johnson v. Commonwealth, 214 Va. 515, 518-19, 201 S.E.2d 594, 597
(1974).
At the hearing, Greene's counsel acknowledged that
sentencing lay within the discretion of the trial court. Despite
the omission of a recommendation by the Commonwealth's attorney,
Greene did not complain. See Holler v. Commonwealth, 220 Va.
961, 967, 265 S.E.2d 715, 718 (1980). Thus, he waived objection
to the Commonwealth's attorney's noncompliance with the plea
agreement.
Under the terms of the agreement, the trial court was
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permitted to impose a sentence at variance with the plea
agreement. Greene was not convicted of a crime for which he was
not guilty. We find no miscarriage of justice. We affirm the
conviction. The motion for bail is denied.
Affirmed.
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