PRESENT: All the Justices
GERMAN CORTES VELAZQUEZ
OPINION BY
v. Record No. 150849 CHIEF JUSTICE DONALD W. LEMONS
OCTOBER 27, 2016
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals erred in holding that the trial
court lacked jurisdiction to consider a defendant’s motion to withdraw his guilty plea and
whether, in an alternative holding by the trial court, it abused its discretion by denying the
motion on its merits.
I. Facts and Proceedings
On October 30, 2014, in the Circuit Court of the City of Staunton (“trial court”), German
Cortes Velazquez (“Velazquez”) pleaded guilty to the charge of computer solicitation of a child
in violation of Code § 18.2-374.3. During the October 30 hearing, Velazquez, who spoke limited
English, was aided by a Spanish interpreter and represented by counsel. Upon conferring with
his attorney, Velazquez signed a guilty plea questionnaire and a written plea agreement. After a
thorough plea colloquy, in which Velazquez was fully advised of his rights, the trial court
accepted his guilty plea pursuant to the plea agreement. The court advised Velazquez that he
would be sentenced to 15 years’ imprisonment with 10 years suspended. Velazquez had also
been indicted on a charge of attempted indecent liberties with a minor in violation of Code §
18.2-370. In consideration of his guilty plea to the charge of computer solicitation, the
Commonwealth agreed to nolle prosequi the charge of attempted indecent liberties.
Shortly after he entered his guilty plea, Velazquez submitted a pro se notice of appeal in
the form of a handwritten letter to the trial court. The letter was dated November 4, 2014, and
stated:
Dear Mr. Thomas Roberts, Clerk
I have notified my attorney Michael J. Hallahan as of today
that I do wish to appeal my conviction in the Staunton Circuit
Court on October 30th, 2014 and its sentence of 5 years.
I am appealing because I am Hispanic and there is a
language barrier that I did have an interpreter for, however they
(my attorney and interpreter) both spoke very fast and I feel I was
forced to sign a plea deal out of fear and anxiety derived from this
problem.
I did not understand I was signing a plea bargain for five
years.
Please note my intentions to appeal.
Thank you (gracias).
German C.V.
On November 17, 2014, the trial court entered an order sentencing Velazquez in
accordance with the plea agreement. Because of Velazquez’ pro se filing, on November 18,
2014, the trial court appointed new counsel to represent Velazquez on appeal. Shortly thereafter,
on November 25, 2014, Velazquez’ new attorney simultaneously filed a notice of appeal and a
Motion to Withdraw Guilty Plea pursuant to Code § 19.2-296. In a December 3, 2014 filing, the
Commonwealth opposed the withdrawal motion, arguing that Velazquez made his guilty plea
“freely, voluntarily and intelligently with an understanding of the nature of the charge and an
awareness of the consequences.” The Commonwealth further argued that Velazquez “had the
benefit of a certified interpreter through all the proceedings” and that “a withdrawal of the plea
would be prejudicial to the Commonwealth.” On December 5, 2014, the trial court heard
argument on Velazquez’ motion to withdraw his guilty plea. At the beginning of the hearing,
Velazquez’ attorney explained:
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I wanted the Court to understand . . . that the reason that this
motion came after the Notice of Appeal was to preserve
[Velazquez’] appeal rights. And I’ve learned of his . . . desire to
withdraw his plea subsequent to my appointment, so that’s why we
are here today. [T]he only evidence I will put on today will be . . .
testimony from Mr. Velazquez.
Velazquez then testified that he had only five minutes to review the plea agreement with his first
attorney. He stated that he became confused because his first attorney and the translator each
spoke quickly and that he was trying to “tend to both of them at the same time.” Velazquez also
said that he “really wanted to go to trial” even though he could face a significantly greater period
of incarceration. On cross-examination the Commonwealth attempted to show that Velazquez
fully understood the consequences of the plea agreement at the time he entered his plea.
Velazquez responded, “I don’t have a good memory” and “I was afraid and confused.”
At the conclusion of Velazquez’ testimony but before the parties presented their
arguments, the trial court raised a concern regarding its jurisdiction to consider the motion:
Mr. Velazquez filed on his own behalf with the Court on
November 10th [which] the Court treated as a Notice of Appeal.
You also, Mr. Cormier, on . . . December the -- let me see,
November 25th filed a Notice of Appeal. My understanding that
that [sic] -- by filing a Notice of Appeal, perfects the appeal, that’s
what you need to perfect an appeal to the Virginia Court of
Appeals.
Once an appeal is perfected, the jurisdiction of the Appellate Court
on the subject matter of the parties attaches and the Trial Court has
no power to render any further decisions affecting the parties or the
subject matter of the case until it’s remanded, so how can, even if I
were to find that there is a manifest injustice here, … it appears to
me from my review of the record and the law in Virginia, that I’m
powerless to do anything.
That -- this case is now with the Court of Appeals and probably
was [ ] when he filed his Notice of Appeal and certainly is now
that he -- you on his behalf has filed another Notice of Appeal?
Once that -- once that notice and once the appeal is perfected, the
case is before the Court of Appeals. And in this case, when he filed
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his notice or his letter, a transcript was prepared, counsel was
appointed for him for that appeal and this case is now -- the
jurisdiction of this case is before the Virginia Court of Appeals and
no longer does this Court have any power to do anything.
Velazquez’ counsel responded by admitting he had not anticipated an objection on jurisdictional
grounds and that “I can’t articulate an argument . . . off the top of my head without having
research on that.” The trial court then asked for the Commonwealth’s position on the question of
jurisdiction. The Commonwealth’s Attorney responded:
I think that under the manifest injustice . . . there could be issues
raised on that that would allow the Court to still retain jurisdiction
potentially even with the filing of appeal . . . .
[B]ut I think if the Court determines that you did have jurisdiction,
that the validity of the plea agreement, particularly the colloquy
that the Court engaged in, I think it would be difficult to ask the
Court in this posture. . . to make a ruling on that. That’s a ruling
for the . . . Appellate Court.
The trial court then permitted a ten-minute recess so that Velazquez’ attorney could quickly
research the jurisdictional issue. Velazquez’ attorney returned and argued that the trial court had
not yet lost jurisdiction over his client’s case:
I briefly I want to address the jurisdictional argument. . . on the
record. . . . I believe that the Court is correct when it says that a
Notice of Appeal would confer jurisdiction onto the Court of
Appeals. . . , however, I do not necessarily agree that that would
divest a Circuit Court of any concurrent jurisdiction . . . .
I don’t believe there’s any statutory . . . prohibition that says this
Court lost jurisdiction and I think with respect to a motion of this
nature, the Court would have at least concurrent jurisdiction with
the Court of Appeals.
Velazquez’ counsel then cited Ghameshlouy v. Commonwealth, 279 Va. 379, 689 S.E.2d 698
(2010), for the proposition that a notice of appeal was merely a ministerial act “that did not
necessarily deprive any other courts of jurisdiction.”
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Despite this argument, the trial court concluded that it lacked jurisdiction, and
alternatively, that Velazquez did not prove “manifest injustice” to withdraw his guilty plea. The
trial court held that “the law is clear that once an appeal is perfected,” the appellate court obtains
jurisdiction over the case.
[Thereafter] the trial court has no power to render any further
decision affecting the parties in the cause until it is remanded back
for further action. So I don’t believe that the Court has jurisdiction
to enter an order allowing Mr. Velazquez to withdraw his guilty
plea, but even if the Court did have jurisdiction, the record does
not reflect any manifest injustice in this case.
In addressing whether Velazquez showed “manifest injustice” pursuant to Code § 19.2-296, the
trial court concluded:
There was never any question that he was confused, that he did not
understand the nature of the proceedings, [or] the . . . ramifications
of what he was doing[,] and in fact there are -- there is indication
that the questions [were] asked to him slowly[;] that . . . there were
. . . breaks in the questions [and] that . . . they weren’t asked all at
one time so that the interpreter could. . . have an opportunity,
because some of the questions are very lengthy, to advise him
fully[. A]t no time did he indicate he did not understand except for
one occasion which we gave him an opportunity to then ask the
question and clarify. [H]e said he answered all the questions
truthfully–[, and] the record reflect[s] that there is nothing to
indicate that he did not understand what was going on….
Accordingly, on December 12, 2014, the court entered an order denying Velazquez’ motion to
withdraw his guilty plea on the basis that the court “no longer has jurisdiction over the matter”
and for the additional reason that “no manifest injustice occurred in this case.”
Velazquez noted his objection and filed his petition for appeal with the Court of Appeals.
In an unpublished per curiam order entered on May 20, 2015, the Court of Appeals denied
Velazquez’ appeal, holding that “the trial court concluded it no longer had jurisdiction after the
appeal was filed. We agree.” Specifically, the Court of Appeals held that:
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When appellant filed his notice of appeal, the trial court was divested of
jurisdiction. See McCoy v. McCoy, 55 Va. App. 524, 528, 687 S.E.2d 82, 84
(2010) (“When a party files a notice of appeal, that notice ‘effectively transfers
jurisdiction from the lower court to the appellate court and places the named
parties within the jurisdiction of the appellate court.’” (quoting Watkins v. Fairfax
County Dep’t of Family Servs., 42 Va. App. 760, 771, 595 S.E.2d 19, 25 (2004)));
Walton v. Commonwealth, 256 Va. 85, 95, 501 S.E.2d 134, 140 (1998) (“We do
not consider this purported order because the trial court was divested of
jurisdiction once the defendant filed his notices of appeal.”). As the Supreme
Court noted in Ghameshlouy v. Commonwealth, 279 Va. 379, 390, 689 S.E.2d
698, 703 (2010),
Although the circuit court’s jurisdiction over the case extends 21
days beyond the entry of the final order, Rule 1:1, an appellate
court will acquire jurisdiction over the case if a party aggrieved of
the judgment, who was properly before the circuit court, notes an
appeal of the judgment in the circuit court in accord with the rules
of the appellate court having jurisdiction over the subject matter of
the case.
Therefore, the trial court properly held that it lacked jurisdiction to consider his
post-sentencing motion to withdraw his guilty plea.
Velazquez v. Commonwealth, Record No. 2157-14-3, slip op. at 1-2 (May 20, 2015). Because
the Court of Appeals concluded that the trial court lacked jurisdiction to consider the motion to
withdraw the guilty plea, it declined to address whether Velazquez had shown “manifest
injustice.” Id. at 2.
Velazquez timely filed a petition for appeal with this Court, and we granted his appeal on
the following assignments of error:
(1) The Trial Court and the Court of Appeals erred when each
held that the Trial Court did not have jurisdiction to consider Mr.
Velazquez’ post-sentencing Motion to Withdraw his Guilty Plea
because Mr. Velazquez had filed a Notice of Appeal. Mr.
Velazquez filed his motion within the proper statutory deadline for
such a motion and that deadline does not conflict with the deadline
for a notice of appeal. Reading all relevant statutes together
establishes that the Trial Court retained jurisdiction to consider the
motions notwithstanding Mr. Velazquez’ filing of a notice of
appeal. The Court of Appeals decision involves matters of
significant precedential value because there is no Virginia case law
construing the interplay of the notice of appeal deadline in relation
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to the deadline to move to withdraw a plea. Furthermore, there is
conflicting case law from this Court regarding the divest[it]ure of a
trial court’s jurisdiction after an appeal is noted.
(2) The Trial Court erred when it held that Mr. Velazquez did not
establish “manifest injustice” to support his post-sentencing
Motion to Withdraw Guilty Plea due to the hasty and ill-advised
plea agreement which was negotiated without effective assistance
of counsel in a few minutes following a pre-trial hearing that
occurred immediately prior to the plea hearing. Because it ruled
against Mr. Velazquez on Issue Number 1, the Court of Appeals
did not address this issue. The Court of Appeals decision involves
matters of significant precedential value regarding the
interpretation of “manifest injustice” in the context of a post-
sentencing motion to withdraw a plea when the plea and sentence
occur in the same hearing under conditions that undermine the
voluntariness of the plea.
II. Analysis
A. Standard of Review
Whether the trial court had jurisdiction to consider Velazquez’ motion to withdraw his
guilty plea after he filed his notice of appeal is a question of law which we review de novo.
Henderson v. Ayers & Hartnett, P.C., 285 Va. 556, 563, 740 S.E.2d 518, 521 (2013), Country
Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402, 410, 634 S.E.2d 745, 750 (2006). However, the
decision to deny a motion to withdraw a guilty plea on the merits is reviewed for an abuse of
discretion based on the “facts and circumstances of each case.” Parris v. Commonwealth, 189
Va. 321, 324, 52 S.E.2d 872 (1949); see Justus v. Commonwealth, 274 Va. 143, 152, 645 S.E.2d
284, 288 (2007) (holding that “Parris remains the standard for consideration and review of a
motion made under [Code § 19.2-296]”).
B. Jurisdiction of the Trial Court
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
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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.
Under the express terms of this statute, within 21 days of the entry of a final order imposing a
sentence, a defendant may seek to withdraw a guilty plea “to correct [a] manifest injustice.”
Code § 19.2-296 reflects Virginia’s well-established 21-day rule, Supreme Court Rule 1:1, which
provides that:
All final judgments, orders, and decrees, irrespective of terms of
court, shall remain under the control of the trial court and subject
to be modified, vacated, or suspended for twenty-one days after the
date of entry, and no longer.
See also Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 560, 561 S.E.2d 734,
737 (2002) (“[T]he order renders a final judgment and the twenty-one-day time period prescribed
by Rule 1:1 begins to run.”).
The trial court entered Velazquez’ final sentencing order on November 17, 2014. On
December 5, 2014, at the hearing on Velazquez’ motion to withdraw his guilty plea, only 18
days had elapsed from entry of the final sentencing order. The trial court still had three days to
consider and rule on Velazquez’ motion. Instead, the trial court erroneously concluded that it
had lost jurisdiction the moment Velazquez noted his appeal on November 25, 2014.
Filing the notice of appeal did not divest the trial court of jurisdiction; the plain language
of Code § 19.2-296 gave the trial court 21 days from the entry of its final order to consider any
motions to withdraw a guilty plea and “to set aside the judgment of conviction and permit a
defendant to withdraw his plea.” Code § 19.2-296. The motion to withdraw Velazquez’ guilty
plea was filed within that time period, and the trial court had jurisdiction to consider the merits of
the motion and rule on it.
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In support of its erroneous ruling that the trial court lost jurisdiction to decide Velazquez’
motion to withdraw his plea, the Court of Appeals cited Ghameshlouy v. Commonwealth, 279
Va. 379, 394, 689 S.E.2d 698, 706 (2010) (holding that the notice of appeal “is all that is
required for the Court of Appeals to obtain jurisdiction over the case”). However, our holding in
Ghameshlouy addressed an entirely different question. That case concerned the time at which an
appellate court obtained jurisdiction over a case. Here, the relevant question is not when the
Court of Appeals obtained jurisdiction, but whether the trial court lost jurisdiction over
Velazquez’ motion to withdraw his plea.
The Commonwealth also relied on language from our decision in Walton v.
Commonwealth, 256 Va. 85, 501 S.E.2d 134 (1998). In Walton, the trial court attempted to enter
a nunc pro tunc order after we heard oral argument in a capital appeal, in order to clarify that it
had found the defendant’s acts involved the depravity of mind. Id. at 95, 501 S.E.2d at 140.
Under those circumstances, we held that “the trial court was divested of jurisdiction once the
defendant filed his notices of appeal.” Id. This attempted action by the trial court in Walton
clearly occurred after more than 21 days had passed, and we had heard oral argument in a
pending appeal. Unlike Velazquez’ circumstances, there was no statute like Code § 19.2-296
that expressly granted the trial court jurisdiction for 21 days after final judgment to decide a
specific motion. Additionally, the order of the trial court in Walton, purportedly entered nunc
pro tunc, was attempted to be entered far beyond 21 days after the final sentencing order in the
case. Simply stated, Walton is inapplicable to the controversy in this case.
The fact that an appellate court has obtained jurisdiction over an appeal does not
necessarily divest a trial court of all jurisdiction to act upon certain matters. For example, a trial
court retains jurisdiction beyond the 21 days to set a bond to suspend execution of a judgment or
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to modify the terms of the security for the appeal. See Code § 8.01-676.1. A trial court also
retains jurisdiction to decide matters related to the appellate record, such as the written statement
of facts. Rules 5:11(e) and 5A:8(c) require that counsel file a written statement of facts with the
clerk of the trial court within 55 days of entry of judgment to allow the trial court to rule on any
objections or make any corrections before signing the statement and certifying the record as
complete. Recently, in Granado v. Commonwealth, we held that pursuant to Rule 5A:8(d) “[a]
trial judge has the power to correct a written statement [of facts] at any time while it remains in
the office of the clerk after notifying counsel and providing an opportunity for a hearing.”
Granado v. Commonwealth, 292 Va. __, ___, 790 S.E.2d 233, 237, 2016 Va. LEXIS 110, at *8
(Sept. 8, 2016). And under the plain language of Code § 19.2-296, regardless of when a notice
of appeal is filed, a trial court retains jurisdiction for 21 days after entry of its final order to
consider a motion to withdraw a guilty plea.
In this case, Velazquez’ motion to withdraw the guilty plea was filed and argued before
the 21-day period expired. Pursuant to Code § 19.2-296, the trial court erred in ruling that it had
no jurisdiction to consider the motion and rule on it within the 21-day period. Accordingly, the
Court of Appeals also erred in holding “the trial court properly held that it lacked jurisdiction to
consider [Velazquez’] motion.”
Despite finding it lacked jurisdiction to consider the motion, the trial court then
considered the merits of Velazquez’ motion to withdraw his guilty plea. The trial court held that
“even if the Court did have jurisdiction, the record does not reflect any manifest injustice in this
case.”
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C. Velazquez Failed to Prove “Manifest Injustice”
Velazquez argues that he “pled and was sentenced on the same day (October 30, 2014)
after he appeared in court for a pre-trial motion and when he had but a few minutes to review and
sign the plea agreement with virtually no consultation with his trial attorney.” (Opening Br. at
21) (emphasis in original). He contends “there is no evidence that he received effective counsel
with regards to the terms of the agreement from his English speaking trial counsel in the minutes
between the adjournment of his pre-trial motion hearing which turned unexpectedly into a plea
and sentencing hearing.” Id.
Of course, Velazquez has the burden of proof on his motion to withdraw his guilty plea.
Under Code § 19.2-296, a defendant who moves to withdraw a guilty plea before sentencing
need only show that his motion was made in good faith and premised upon a reasonable basis.
Bottoms v. Commonwealth, 281 Va. 23, 34, 704 S.E.2d 406, 412 (2011); Justus v.
Commonwealth, 274 Va. 143, 155-56, 645 S.E.2d 284, 290 (2007). However, when a defendant
moves to withdraw a guilty plea after the trial court has imposed a sentence, he must show
“manifest injustice” in order to succeed on his motion to withdraw the plea. See Code §
19.2-296. This “more severe standard is applied to avoid motions for withdrawal based on
disappointment in the terms of the sentence imposed.” Lilly v. Commonwealth, 218 Va. 960,
965, 243 S.E.2d 208, 211 (1978) (quoting Paradiso v. United States, 482 F.2d 409, 416 (3d Cir.
1973)).
In this case, Velazquez sought to withdraw his guilty plea exactly one week after the trial
court entered the final sentencing order. As a result, Velazquez needed to prove that his motion
to withdraw his guilty plea was necessary “to correct manifest injustice.” See Code § 19.2-296.
“The term ‘manifest’ is defined as being ‘synonymous with open, clear, visible, unmistakable,
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indubitable, indisputable, evident, and self-evident. In evidence, that which is clear and requires
no proof; that which is notorious.’” Johnson v. Anis, 284 Va. 462, 466, 731 S.E.2d 914, 916
(2012) (emphasis in original) (quoting Black’s Law Dictionary 962 (6th ed. 1990)). In Howell v.
Commonwealth, 60 Va. App. 737, 746, 732 S.E.2d 722, 727 (2012), a defendant challenged the
denial of his post-sentencing motion to withdraw his guilty plea. Applying Code § 19.2-296, the
Court of Appeals affirmed the trial court and held that “manifest injustice amounts to an obvious
miscarriage of justice, such as an involuntary guilty plea or a plea based on a plea agreement that
has been rescinded.” Id. (citing Black’s Law Dictionary 1048 (9th ed. 2009) (defining “manifest
injustice” as “[a] direct, obvious, and observable error in a trial court”)).
There is no evidence in this case to indicate a miscarriage of justice. In Justus, we
rejected the notion that in the context of a motion seeking to withdraw a guilty plea “admissions
made by a defendant in a guilty plea and the attendant colloquy were presumed to be valid.” 274
Va. at 154, 645 S.E.2d at 289. We held that “when a defendant files a motion under Code §
19.2-296, he is necessarily seeking to repudiate the admission of guilt, and some, if not all, of the
admissions made in the guilty plea colloquy.” Id. However, in this case Velazquez admitted at
the hearing on his motion to withdraw that his answers during the plea colloquy were truthful.
He has not asserted that his plea was involuntary. See Howell, 60 Va. App. at 746, 732 S.E.2d at
727. Also, Velazquez has not claimed that the trial court or the Commonwealth violated any of
the terms of the plea agreement or that the plea agreement was rescinded. See id. The trial court
found that Velazquez understood the charges and voluntarily entered into the plea agreement.
Accordingly, Velazquez failed to carry his burden of proof and the trial court correctly held that
“the record does not reflect any manifest injustice in this case.”
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In this case, both the Court of Appeals and the trial court erred in holding that the trial
court had lost jurisdiction to consider Velazquez’ motion to withdraw his plea. Although the
Court of Appeals failed to address the merits of Velazquez’ motion to withdraw the guilty plea,
the trial court did not abuse its discretion when it denied the motion on the alternative basis that
Velazquez failed to prove manifest injustice. We hold that the trial court’s alternative holding
was fully supported by evidence in the record, and Velazquez suffered no manifest injustice
requiring the trial court to permit him to withdraw his guilty plea. Because this appeal is from
the Court of Appeals and it did not address the question of manifest injustice, we will affirm the
judgment of the Court of Appeals as the right result for the wrong reason. See Perry v.
Commonwealth, 280 Va. 572, 579-80, 701 S.E.2d 431, 435-36 (2010); Whitehead v.
Commonwealth, 278 Va. 105, 115, 677 S.E.2d 265, 270 (2009).
III. Conclusion
For the reasons stated, we will affirm the judgment of the Court of Appeals.
Affirmed.
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