COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and AtLee
UNPUBLISHED
Argued at Lexington, Virginia
ALBERT LEWIS FOWLER, III
MEMORANDUM OPINION* BY
v. Record No. 0781-14-3 JUDGE RICHARD Y. ATLEE, JR.
JULY 14, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Stacey W. Moreau, Judge
Gregory T. Casker, for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
On January 22, 2014, a judge for the Circuit Court of Pittsylvania County convicted Albert
Lewis Fowler, III (hereinafter “appellant”) of two counts of felony solicitation of a minor by use of
a communications system. The court sentenced appellant to twenty years of imprisonment, with ten
years suspended. On appeal, appellant argues that the trial court erred in finding that he used a
communications system for purposes of Code § 18.2-374.3(D) when he handed the victim a note.
The Commonwealth argues that we lack jurisdiction to hear the case because appellant’s
conditional guilty plea only preserves the right to appeal pretrial motions. We agree with the
Commonwealth to the extent that we do not reach appellant’s assignment of error. However,
because appellant’s conditional guilty plea was not “knowingly and voluntarily entered,” it was
not a valid waiver of his constitutional rights, and therefore we reverse and remand the case to
the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Facts of the Case
Appellant, then 49 years old, handed the victim, then 17 years old, a note while the victim
was working in a grocery store. The note read:
I think you are one fine looking guy. Very hot. I would love to take
you out to dinner or maybe buy you a drink. I am not trying to make
you uncomfortable or scare you. If you are not interested I will not
bother you anymore. But if you would like to be pleasured I would
love to pleasure you. I can do things for you and to you that no girl
could ever do. I live alone in a 3 bedroom brick house and can be
very good for you. My name is Al. If you are interested in just
laying back and being pleasured call or text me at [redacted]. No one
knows I am gay except the guys I pleasure. I am straight acting and
very descreet [sic]. Please do not just throw this away without
thinking about my offer. This is not a joke, I am very serious. I hope
you will take me up on my offer to pleasure you and call or text me.
I know you will enjoy it as I am very good at what I do. So, think
about my offer.
After receiving the first note, the victim alerted his manager, who contacted the sheriff’s
office. Law enforcement placed the note into evidence. Over a month later, appellant delivered a
second note to the victim containing a substantially similar message. The victim reported this to his
mother, who also contacted the sheriff’s office. An investigator called the number provided in the
notes, pretending to be the victim. The investigator ran a trace on the phone number, eventually
located a picture of appellant, and confirmed with the victim that this was the individual who had
handed him the notes.
Initially, appellant pleaded not guilty. The Commonwealth requested a jury trial. At the day
of trial, appellant’s counsel told the judge that after discussions with the Commonwealth, appellant
agreed to stipulate to the evidence the Commonwealth intended to proffer, relying solely on motions
to strike the evidence. Appellant’s counsel also explained on the record that if the trial court denied
the motions to strike, he would withdraw his plea of not guilty and enter a conditional guilty plea.
After hearing the evidence and appellant’s argument in favor of his motion, the trial court denied
appellant’s first motion to strike and renewed motion to strike.
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As previously contemplated, appellant, with the consent of the Commonwealth and the trial
court, then amended his plea from not guilty to a conditional guilty plea. Specifically, appellant’s
counsel stated: “at this time the defendant would ask to change his plea from not guilty to a plea of,
conditional plea of guilty reserving his rights to appeal of the Court’s ruling on the issues raised at
the motion to, both at the, at the two motions to strike.” (App. at 65.) The judge conducted the plea
colloquy, during which she asked appellant “do you understand that by pleading guilty, the
conditional one, you may be waiving your right to appeal this Court’s decision except for the
objections that have been noted on the record in regard to the conditional plea?” (App. at 74.)
Appellant stated that he understood. The judge accepted the plea, and ultimately sentenced
appellant to ten active years in prison.
II. Jurisdiction over Appeals from Conditional Guilty Pleas
“Because the issue before us is a question of law involving the construction of Code
§ 19.2-254, we review the trial court’s determination de novo.” Cross v. Commonwealth, 49
Va. App. 484, 492, 642 S.E.2d 763, 767 (2007) (citing Ainslie v. Inman, 265 Va. 347, 352, 577
S.E.2d 246, 248 (2003)), vacated in part on other grounds, 52 Va. App. 598, 665 S.E.2d 861
(2008).
“[A]lthough an accused has the constitutional right to enter a guilty plea, an accused does
not have a constitutional right to enter a conditional guilty plea. Rather, this right—established
by Code § 19.2-254—is a statutory one.” Hill v. Commonwealth, 47 Va. App. 667, 671, 626
S.E.2d 459, 461 (2006). Code § 19.2-254 states, in pertinent part:
With the approval of the court and the consent of the
Commonwealth, a defendant may enter a conditional plea of guilty
in a misdemeanor or felony case in circuit court, reserving the
right, on appeal from the judgment, to a review of the adverse
determination of any specified pretrial motion. If the defendant
prevails on appeal, he shall be allowed to withdraw his plea.
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Code § 19.2-254 (emphasis added). In interpreting a statute, “we apply the well-established
principle that ‘words in a statute are to be construed according to their ordinary meaning, given
the context in which they are used.’” Cross, 49 Va. App. at 493, 642 S.E.2d at 767 (quoting
Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)). We also follow a
fundamental principle of statutory construction that “‘where a statute speaks in specific terms, an
implication arises that omitted terms were not intended to be included within the scope of the
statute.’” Conkling v. Commonwealth, 45 Va. App. 518, 522, 612 S.E.2d 235, 237 (2005)
(quoting Commonwealth v. Brown, 259 Va. 697, 704–05, 529 S.E.2d 96, 100 (2000)). Here, the
legislature explicitly limited the scope of appeals from conditional pleas to pretrial motions. To
permit an appeal of the denial of a motion to strike would impermissibly expand the scope of the
statute beyond what the legislature intended. Accordingly, appellant has no right to appeal the
denials of his motions to strike.
III. Validity of the Plea: Knowing and Voluntary
Although a conditional guilty plea is a statutory, not constitutional right, a defendant
entering such a plea nonetheless waives several of the defendant’s constitutional rights,
including the right to a jury trial, the right to confront witnesses, and the protection against
self-incrimination. Graham v. Commonwealth, 11 Va. App. 133, 139, 397 S.E.2d 270, 273
(1990) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). “‘Waivers of constitutional rights
not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness
of the relevant circumstances and likely consequences.’” Cross, 49 Va. App. at 495, 642 S.E.2d
at 768 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). In other words, for a
conditional guilty plea to be a valid waiver of a defendant’s constitutional rights, he or she must
have entered the plea “‘freely, intelligently, and knowingly.’” Id. (quoting Hill, 47 Va. App. at
674, 626 S.E. 2d at 463). Furthermore, “to withstand scrutiny on appeal, the record must contain
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an ‘affirmative showing’ that the guilty plea was entered voluntarily and intelligently.” Hill, 47
Va. App. at 674, 626 S.E.2d at 463 (citing Boykin, 395 U.S. at 243).
Here, appellant clearly did not enter his plea intelligently and knowingly. His counsel
unequivocally stated that appellant was entering a conditional plea for the express purpose of
retaining his right to appeal the denial of his motions to strike. The Commonwealth did not
object. The judge did not clarify that this was not allowed under Code § 19.2-254. Everyone
present appeared to share the same mistaken understanding of Code § 19.2-254.
We faced a remarkably similar set of facts in Cross v. Commonwealth, 49 Va. App. 484,
642 S.E.2d 763 (2007). In that case, appellant entered a conditional guilty plea to misdemeanor
charges, despite the fact that at the time, Code § 19.2-254 only permitted conditional pleas to
felony charges. We concluded that the defendant “did not knowingly and intelligently enter a
constitutionally valid plea of guilty,” where “he specifically informed the trial court that he
wished to preserve his right to appeal the denial of his motion to suppress” as it related to his
misdemeanor charge and “entered his guilty plea based upon the understanding that he could
appeal that issue.” Id. at 495–96, 642 S.E.2d at 768. As in the case before us, “the trial court
never advised [him] that a conditional guilty plea was not permitted,” and “all parties were acting
under the mistaken assumption that [he] was entering a valid conditional guilty plea.” Id. at 496,
642 S.E.2d at 768–69.
IV. Conclusion
Because appellant did not enter a constitutionally valid guilty plea, we reverse his
conviction, vacate his plea, and remand for proceedings consistent with this memorandum
opinion.
Reversed and remanded.
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Albert Lewis Fowler, III v. Commonwealth of Virginia
Combined Opinion