COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Chafin and O’Brien
PUBLISHED
Argued by teleconference
JONTA RAMSEY
OPINION BY
v. Record No. 1960-14-1 JUDGE MARY GRACE O’BRIEN
DECEMBER 8, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge
William Joshua Holder, Assistant Public Defender, for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Jonta Ramsey (“appellant”) challenges his convictions for two felonies after the trial
court refused to allow him to withdraw pleas of guilty to the charges. Appellant was arrested
after his neighbor’s house was burglarized. Following plea negotiations in general district court,
he waived his preliminary hearing and appealed a misdemeanor conviction for damage to
property, in violation of Code § 18.2-137, to circuit court. He was then indicted for four felonies
on September 3, 2013: statutory burglary, in violation of Code § 18.2-91; grand larceny, in
violation of Code § 18.2-95; larceny with intent to sell, in violation of Code § 18.2-108.01; and
conspiracy to commit burglary, in violation of Code §§ 18.2-22 and 18.2-91.
On April 11, 2014, appellant entered pleas of guilty pursuant to North Carolina v. Alford,
400 U.S. 25 (1970), to the charges of burglary and grand larceny.1 The Commonwealth moved
1
When offering an Alford plea of guilty, a defendant asserts his innocence but admits
that sufficient evidence exists to convict him of the offense. See Alford, 400 U.S. at 37-38; see
also Parson v. Carroll, 272 Va. 560, 565, 636 S.E.2d 452, 454-55 (2006) (describing effect of
Alford plea in Virginia). Virginia courts “treat Alford pleas as having the same preclusive effect
to dismiss the remaining three charges by nolle prosequi pursuant to a written plea agreement.2
On September 18, 2014, appellant moved to withdraw his guilty plea. The court continued the
matter until October 9, 2014, and ordered a transcript of the April 11, 2014 plea hearing. On
October 9, after considering the transcript as well as additional evidence and argument, the court
denied appellant’s motion to withdraw his guilty plea and sentenced him to a total of thirteen
years of incarceration, with nine years and seven months of the sentence suspended. Appellant
alleges that “[t]he trial court erred by denying [his] motion to withdraw his guilty plea.” Finding
no error, we affirm the court’s ruling.
I. BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). “We also accord the
Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v.
Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004).
At the plea hearing on April 11, 2014, appellant signed an agreed stipulation of facts.
The stipulation stated that on May 21, 2013, Tracie Edwards discovered that her home had been
burglarized and her laptop computer had been taken. A witness observed appellant and his
cousin, Almonta Ramsey, inside Edwards’s home. Appellant sold a laptop to a pawn shop on the
same day. The laptop was later recovered and identified as the victim’s property.
as a guilty plea.” Perry v. Commonwealth, 33 Va. App. 410, 412, 533 S.E.2d 651, 652 (2000)
(citation omitted). As a result, they are often termed “‘Alford’ pleas of guilty.” Malbrough v.
Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008).
2
Appellant executed a written plea agreement pursuant to Rule 3A:8(c), which differs
from a plea and recommendation pursuant to Rule 3A:8(b). In fact, the plea agreement executed
by appellant did not provide for an agreed-upon sentence, but left the disposition to the trial
court.
-2-
Following the stipulation, the court engaged in a plea colloquy with appellant. Appellant
confirmed that he fully understood the charges, he had sufficient time to discuss them with his
attorney, he had been advised of the elements of the offenses, and he had spoken with his
attorney about how he should plead to the charges. He stated that he decided for himself to enter
the plea and was doing so freely and voluntarily. The court noticed appellant’s hesitation and
said, “You were somewhat reluctant to say that you were pleading guilty because you feel you
are, in fact, guilty. If you have any reservations in your mind, I want you to express them.”
Appellant responded, “I feel innocent. I still feel I should hold my innocence, but if there ain’t
no way, no obvious way for me to prove my innocence, then I have no other choice.”
Following a discussion with counsel, the court conducted an Alford plea colloquy with
appellant. Appellant confirmed that he was pleading guilty because he felt that the
Commonwealth had enough evidence to prove him guilty. He also stated that he had read and
signed the stipulation of facts and that the agreed facts were sufficient to establish his guilt.
Appellant acknowledged that he had discussed the sentencing guidelines with his attorney and he
understood that the court was not required to follow the guidelines, and, in fact, he would “be
sentenced at the discretion of the court.” He also stated that he understood that he could be
sentenced to as much as forty years in the state penitentiary. The court found that appellant’s
plea was made freely, voluntarily, and intelligently and that he understood the charges and their
consequences. The court then found appellant guilty of the two felony offenses. Pursuant to the
plea agreement, the remaining charges were nolle prosequied.
On September 18, 2014, before he was sentenced, appellant moved to withdraw his guilty
plea. He testified that he “took the guilty plea by mistake being that [he] was unsure what to do
with [his] case being that [his] lawyer wasn’t trying to fight [his] case.” Appellant said “I never
dealt with anything like this, I didn’t understand what I was doing at the time.” He asserted that
-3-
he did not “want to get some serious jail time” for something he was “not guilty of.” The court
asked appellant the basis of his defense. Appellant said, “I had possession of the stolen property,
but I was not in the house. I never broke in anyone’s house.”
On October 9, 2014, appellant testified again. He reiterated that he pled guilty because
his attorney recommended it, but he did not understand what it meant. He told the court that he
did not know that his juvenile record could be used against him. At the time of the plea, he had
not told his attorney about his juvenile record because he believed that the record was sealed.
According to appellant, when he entered the plea, he thought he would be in a better position for
sentencing. He said that he thought he would be sentenced to “strictly probation, something like
that.” Appellant conceded that he was aware that his cousin, the co-defendant, had been
sentenced for his role in the offense.
Defense counsel proffered that he had a witness who would testify that at the time of the
offense, appellant was in a vehicle around the corner from the victim’s residence. He also
proffered that he had other witnesses who he “anticipated” would support appellant’s contention
that he was unaware that the burglary was occurring, unaware of his cousin’s intentions
concerning the burglary, and unaware that the laptop he pawned was stolen.
The court denied appellant’s motion to withdraw his guilty plea. The court made a
finding of fact that the motion was not made in good faith. Finding it “noteworthy” that the
co-defendant had been sentenced to serve four years in the penitentiary before appellant moved
to withdraw his guilty plea, the court concluded that appellant was more concerned with his
potential sentence than his purported innocence. The court also held that appellant did not have
a “reasonable defense sustained by proof” and found that the Commonwealth would suffer
prejudice if appellant was allowed to withdraw his guilty plea.
-4-
II. ANALYSIS
A. Standard of Review
A trial court’s decision to deny a motion to withdraw a guilty plea prior to sentencing is
reviewed under an abuse of discretion standard. Pritchett v. Commonwealth, 61 Va. App. 777,
785, 739 S.E.2d 922, 926 (2013). The decision “rests within the sound discretion of the trial
court and is to be determined by the facts and circumstances of each case.” Parris v.
Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873 (1949). “Only when reasonable jurists
could not differ can we say an abuse of discretion has occurred.” Williams v. Commonwealth,
59 Va. App. 238, 246-47, 717 S.E.2d 837, 841 (2011) (quoting Tynes v. Commonwealth, 49
Va. App. 17, 21, 635 S.E.2d 688, 689 (2006)). “[W]hen a decision is discretionary . . . ‘the court
has a range of choice, and . . . its decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.’” Landrum v. Chippenham &
Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (quoting Kern v.
TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
B. Denial of Withdrawal of Guilty Plea
Appellant argues that “[t]he trial court erred by denying [his] motion to withdraw his
guilty plea.” We disagree.
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; but to correct 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.
Although this statute does not provide a legal standard for withdrawal of a guilty plea, the
guidelines for determining when to allow a defendant to withdraw a guilty plea prior to
sentencing were discussed in Parris, 189 Va. 321, 52 S.E.2d 872. In Parris, the Court ruled that
-5-
withdrawal of a guilty plea should be allowed “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 influence and would not otherwise have
been made.” Id. at 324, 52 S.E.2d at 873. However, while noting that the decision to allow the
withdrawal of a guilty plea is discretionary, the Court stated that a trial court should not exercise
its discretion “in aid of an attempt to rely upon a merely dilatory or formal defense.” Id. at 325,
52 S.E.2d at 874 (quoting Early v. Commonwealth, 86 Va. 921, 924, 11 S.E. 795, 796 (1890)).
Therefore, under Parris, a defendant who wishes to withdraw his guilty plea must show that his
motion is made in good faith and must proffer that he has a reasonable basis for contesting his
guilt.
Additionally, the court should consider whether withdrawal of a guilty plea will result in
prejudice to the Commonwealth. Pritchett, 61 Va. App. at 787, 739 S.E.2d at 927.
[A] motion to withdraw a guilty plea may be appropriately denied
where the record indicates that there has been some form of
significant prejudice to the Commonwealth. Such prejudice may
exist where the record reflects that the Commonwealth has
partially or fully fulfilled its obligations in a plea agreement by
dismissing or amending charges.
Hubbard v. Commonwealth, 60 Va. App. 200, 211 n.4, 725 S.E.2d 163, 168 n.4 (2012).
(1) Good Faith
Here, the trial court found that appellant’s motion to withdraw his guilty plea was not
made in good faith. A trial court’s finding on the issue of good faith is a finding of fact, and “we
are bound by the trial court’s finding[] . . . unless [it was] ‘plainly wrong’ or without evidence to
support [it].” Branch v. Commonwealth, 60 Va. App. 540, 548, 729 S.E.2d 777, 781 (2012)
(quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en
banc)). In Branch, the defendant sought to withdraw his guilty plea and claimed he was under
pressure from his attorneys to plead guilty; otherwise he would receive a more serious sentence.
-6-
Id. at 544, 729 S.E.2d at 778. The trial court’s ruling denying the motion was affirmed on
appeal. Id. at 549, 729 S.E.2d at 782. There was no evidence of mistake or misunderstanding on
the defendant’s part. Id. at 548, 729 S.E.2d at 781. This Court noted that every guilty plea is the
product of some influence on a defendant and stated that “‘the least influence’ and ‘fear’ cannot
include fear of sentencing alone.” Id. at 549, 729 S.E.2d at 782 (quoting Williams, 59 Va. App.
at 248, 717 S.E.2d at 841). Accordingly, in Branch, the defendant did not establish that his
motion to withdraw the guilty plea was made in good faith when the court found that he was
merely fearful of his possible sentence.
Similarly, the trial court in the case before us found that “the defendant was more
concerned about the [sentencing] guidelines and what impact they would have on his sentence
than any possible defense . . . and . . . it’s just another instance where the defendant changed his
mind again.” The trial court reviewed the length of time the case was pending before the guilty
plea was entered, the sentence that the co-defendant received for his role in the crimes, and the
fact that appellant only sought to withdraw his plea when his sentencing guidelines came back
recommending a similar sentence to the co-defendant’s sentence. Therefore, we hold that the
appellant did not meet his burden of showing that his motion to withdraw his guilty plea was
made in good faith.
(2) Reasonable Defense
Additionally, the court found that the defense proffered by appellant was “not a
reasonable defense sustained by proof.” A reasonable defense sufficient to withdraw a guilty
plea is “one based upon a proposition of law or one supported by credible testimony, supported
by affidavit.” Williams, 59 Va. App. at 249, 717 S.E.2d at 842 (citation omitted). In the present
case, appellant did not attempt to establish his defense on the record by offering credible witness
testimony or affidavits. His attorney merely proffered that appellant had a witness who was in a
-7-
car with him during the burglary and an additional, unnamed witnesses who counsel
“anticipated” would support appellant’s contention that he was unaware of the burglary.
Even if counsel’s proffer is accepted as true, it does not establish the “reasonable
defense” that is necessary for a finding that the trial court abused its discretion in refusing to
allow appellant to withdraw his guilty plea. Appellant did not proffer a defense to the grand
larceny charge. Indeed, he acknowledged his possession of and intent to sell the laptop when he
stated, “I had possession of the stolen property, but I was not in the house. I never broke in
anyone’s house. That’s the defense, but I did have stolen possession, you know, and intent to
sell it.” His defense to the burglary charge merely consisted of a proffer of testimony that would
contradict the testimony of the Commonwealth’s witness who saw him burglarize the house. As
we have held, a defense “based solely upon a challenge to the credibility of a victim’s testimony”
is not a reasonable defense that would warrant withdrawal of a guilty plea. Williams, 59
Va. App. at 249, 717 S.E.2d at 842. Additionally, as the trial court observed, even if the
testimony that appellant was in a car outside and not in the residence at the time of the burglary
was accepted as true, it could still be evidence of his guilt as a principal in the second degree.
See Whitbeck v. Commonwealth, 210 Va. 324, 326-27, 170 S.E.2d 776, 778 (1969) (affirming a
conviction for burglary as a principal in the second degree when the accused waited in a getaway
car). For all of these reasons, we cannot say that the trial court erred in ruling that appellant did
not provide proof of a substantial and reasonable defense to the charges.
(3) Prejudice to the Commonwealth
The trial court also considered any prejudice that might inure to the Commonwealth by
allowing appellant to withdraw his guilty plea. In exchange for the defendant’s guilty plea to
two felony charges, the Commonwealth moved to nolle prosequi two additional felonies and one
misdemeanor charge. While it is true that the Commonwealth could reinstate the felony charges,
-8-
appellant did not make a motion to withdraw his guilty plea until eighteen months after the
offense. The court properly took into account the additional time and expense of re-indicting the
defendant as well as any potential difficulty in obtaining necessary witnesses, given the passage
of time. Additionally, one of the charges, the misdemeanor offense, could not be reinstated
against appellant; it is barred by the one-year statute of limitations. See Code § 19.2-8.3
Because the trial court correctly held that appellant’s motion to withdraw his guilty plea
was not made in good faith, because appellant did not provide any proffer or testimony of a
reasonable defense to the charges, and because the Commonwealth could suffer significant
prejudice if appellant was allowed to withdraw his guilty plea, we affirm the judgment of the
trial court.
III. CONCLUSION
For the foregoing reasons, the decision of the trial court is affirmed.
Affirmed.
3
In this case, while the Commonwealth did argue that it would be prejudiced if appellant
were permitted to withdraw his guilty plea, the Commonwealth did not argue that appellant’s
decision to enter a written plea agreement precluded him from moving to withdraw his guilty
plea. This Court has noted that “a defendant’s knowing and voluntary pretrial decisions may
preclude him from exercising certain rights in the future, including constitutional rights, if they
result in prejudice to the Commonwealth or if it will otherwise cause undue delay in the
administration of justice.” Hubbard, 60 Va. App. at 211 n.4, 725 S.E.2d at 168 n.4. Because
neither party argued this issue on appeal, however, we do not address whether a defendant
waives the ability to move to withdraw a guilty plea when he enters into a written plea
agreement.
-9-