Brown, T v. Commonwealth

PRESENT: All the Justices

TAMARA FELICIA BROWN
OPINION BY
v. Record No. 180537 JUSTICE STEPHEN R. McCULLOUGH
May 2, 2019
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Tamara Brown appeals from the refusal of the circuit court to set aside her guilty plea.

For the reasons noted below, we conclude that the circuit court did not abuse its discretion in

denying Brown’s motion. Thus, for the reasons explained below, the judgment of the Court of

Appeals will be affirmed.

BACKGROUND

The Commonwealth proffered the following evidence at Brown’s guilty plea. On

May 12, 2016, Brown entered a Wal-Mart store after having been previously banned from the

store. A loss prevention officer observed her leaving the store without paying for items she had

placed in her bags. When the loss prevention officer confronted Brown, she asked if he was

going to press charges. She then left the items behind, ran to a vehicle, and fled.

Charged with trespass and the felony of petit larceny, third offense, Brown negotiated a

plea agreement. On January 30, 2017, pursuant to that agreement, she entered a plea of guilty to

trespass and the lesser included misdemeanor offense of petit larceny, second offense. From the

bench, the court pronounced a sentence in conformity with the plea agreement: twelve months in

jail, with eleven months suspended for the petit larceny charge and twelve months, all

suspended, for the trespass charge.

On February 1, 2017, before the circuit court entered the final sentencing order, Brown

filed a motion to withdraw her guilty plea to the petit larceny conviction. Counsel explained at a
hearing on the motion that Brown regretted pleading guilty, and stated that “she thinks she has

some evidence now” that could be “present[ed] to the court to assist in her defense.” Brown

testified that she “just took the plea to try to avoid the felony” but she did not know that pleading

guilty “would make [her] lose [her] house and [her] job.” Brown worked in the school system

and she learned she might lose her job as a consequence of her conviction. She also stated that

she had “evidence to fight against this case” and that she was not guilty. Specifically, she stated

that she had “evidence to prove that the merchandise was left in the store and [she] had [her]

money returned back to [her], and all of that.” The circuit court denied the motion and entered

the final sentencing order. A three-judge panel of the Court of Appeals affirmed the circuit

court’s judgment in an unpublished opinion. 1 The defendant appeals.

ANALYSIS

I. THE “MANIFEST INJUSTICE” STANDARD GOVERNS A MOTION TO WITHDRAW A
GUILTY PLEA MADE AFTER SENTENCE WAS PRONOUNCED BUT BEFORE THE ORDER
WAS ENTERED.

Under Virginia law, motions to withdraw a guilty plea are governed by two separate

standards. The timing of the motion to withdraw determines which standard a court will apply to

review the motion. A long line of cases, beginning with Parris v. Commonwealth, 189 Va. 321

(1949), have refined the standard that governs pre-sentencing motions to withdraw a guilty plea.

Under the more forgiving pre-sentencing standard, a motion to withdraw should be granted if the

guilty plea was “made involuntarily” or “entered inadvisedly, if any reasonable ground is offered

for going to the jury.” Id. at 325. Whether the guilty plea was voluntary and counseled are thus

central considerations. “[A] defendant who moves to withdraw a guilty plea before sentencing

1
Brown v. Commonwealth, Record No. 0269-17-1, 2018 Va. App. LEXIS 77 (March 27,
2018).

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need only show that [1] his motion was made in good faith and [2] premised upon a reasonable

basis.” Velazquez v. Commonwealth, 292 Va. 603, 616 (2016). A reasonable basis must include

a proffer of evidence showing a reasonable basis for contesting guilt.” Cobbins v.

Commonwealth, 53 Va. App. 28, 34 (2008) (citing Justus v. Commonwealth, 274 Va. 143,

155-56 (2007)). “The first requirement protects the integrity of the judicial process by

precluding defendants from using a guilty plea as a subterfuge to manipulate the court. The

second requirement defeats motions to withdraw which would result in an essentially futile

trial.” Id.

For example, where “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” a trial court

should permit it to be withdrawn. Parris, 189 Va. at 324-25. In addition, courts should consider

what prejudice withdrawing the plea might cause to the Commonwealth. Pritchett v.

Commonwealth, 61 Va. App. 777, 787 (2013). Trial courts possess “sound discretion” to

determine whether to allow a defendant to withdraw a pre-sentencing guilty plea, and the

exercise of that discretion will of course turn on “the facts and circumstances of each

case.” Parris, 189 Va. at 324.

A motion to withdraw a guilty plea made after sentencing is governed by the “manifest

injustice” standard. The manifest injustice standard comes from Code § 19.2-296. That statute

provides as follows:

[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.

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Manifest injustice is a “more severe standard” and it applies post-sentencing “to avoid motions

for withdrawal based on disappointment in the terms of the sentence . . . .” Lilly v.

Commonwealth, 218 Va. 960, 965 (1978) (internal citation omitted). A manifest injustice

“amounts to an obvious miscarriage of justice” or “[a] direct, obvious, and observable error in a

trial court.” Velazquez, 292 Va. at 616 (citations omitted).

Here, Brown filed her motion to set aside the guilty plea after the circuit court had

pronounced Brown’s sentence from the bench but before the entry of a written order. Brown

argues that because no final order had been entered at the time of her motion, she was entitled to

the more lenient, pre-sentencing standard. In Howell v. Commonwealth, 60 Va. App. 737

(2012), the Court of Appeals concluded that, in such a situation, the more stringent “manifest

injustice” standard applies, noting that the rationale for that standard – avoiding “buyers’

remorse” motions to withdraw – is present once the circuit court has pronounced its sentence.

We agree with the holding in Howell. Brown also argues that application of this principle should

be limited to felonies rather than misdemeanors. Specifically, she argues that because she, like

many misdemeanants, was sentenced immediately upon pleading guilty while felons may have

days or weeks between their plea and sentence, the manifest injustice standard should not apply.

We see no reason to draw such a distinction. When a defendant moves to withdraw a guilty plea

after the court has pronounced a sentence but before entry of the order imposing the sentence, the

more demanding “manifest injustice” standard governs such motions.

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 II. THE TWO GROUNDS BROWN ADVANCED TO WITHDRAW HER GUILTY PLEA – A
NON-VIABLE DEFENSE AND COLLATERAL CONSEQUENCES – DO NOT WARRANT
VACATING A GUILTY PLEA UNDER THE POST-SENTENCING “MANIFEST INJUSTICE”
STANDARD.

At trial, Brown’s motion to withdraw her guilty plea rested upon two bases: she

purported to offer a defense to the charge and complained about the collateral consequences of

her conviction. We conclude that these grounds do not satisfy the “manifest injustice” standard.

A. Brown’s proffered defense was no defense.

It is settled law that a circuit court’s discretion to grant the motion to withdraw a guilty

plea “‘will rarely, if ever, be exercised in aid of an attempt to rely upon a merely dilatory or

formal defense.’” Justus, 274 Va. at 153 (quoting Parris, 189 Va. at 324-25). Moreover, the

asserted defense must be “substantive” and a “reasonable defense.” Bottoms v. Commonwealth,

281 Va. 23, 33-34 (2011).

Brown failed “to proffer evidence of a reasonable basis for contesting guilt.” Cobbins, 53

Va. App. at 34. She stated that she was not guilty, and that she had evidence “to prove that the

merchandise was left in the store and [she] had [her] money returned back to [her], and all of

that.” To prove petit larceny, however, the Commonwealth is not required to establish that the

merchandise left the store. Larceny, a common law crime, is defined as “the wrongful or

fraudulent taking of personal goods of some intrinsic value, belonging to another, without his

assent, and with the intention to deprive the owner thereof permanently.” Bryant v.

Commonwealth, 248 Va. 179, 183 (1994); see also Dunlavey v. Commonwealth, 184 Va. 521,

524 (1945). In Bryant, we sustained a larceny conviction despite the fact that the defendant had

not left the store with the merchandise. 248 Va. at 180-81, 183-84.

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 Brown’s asserted defense was not viable as a matter of law. Consequently, the circuit

court did not abuse its discretion in refusing to withdraw a guilty plea so that Brown could assert

a legally groundless defense.

B. Lack of knowledge concerning collateral consequences does not justify vacating a
guilty plea under the post-sentence manifest injustice standard.

Brown also pointed to the collateral consequences of her conviction. She argued her

conviction could cause her to lose her job and home. “For a guilty plea to be constitutionally

valid, a defendant must be made aware of all the direct, but not the collateral, consequences of

his plea.” Meyer v. Branker, 506 F.3d 358, 367-68 (4th Cir. 2007) (internal quotation marks

omitted). These direct consequences ordinarily are covered by the standard colloquy with the

court. “Courts reason that the lone concern is the case in which the plea is entered. Future or

contemplated, but uncertain, consequences are irrelevant to the validity of the guilty plea.”

People v. Williams, 721 N.E.2d 539, 544 (Ill. 1999). “Because consequences attendant to the

commission of an offense are so numerous and logically unforeseeable, to require more would be

an absurdity and would impose upon the circuit court an impossible, unwarranted, and

unnecessary burden.” State v. Fournier, 385 A.2d 223, 224 (N.H. 1978).

“Direct consequences have a definite, immediate and largely automatic effect on the

range of the defendant’s punishment. A consequence is collateral when it is uncertain or beyond

the direct control of the court.” Meyer, 506 F.3d at 368. (emphasis added) (internal quotations

and citations omitted); see also United States v. Littlejohn, 224 F.3d 960, 965 (9th Cir. 2000)

(“[W]here the consequence is contingent upon action taken by an individual or individuals other

[than] the sentencing court . . . the consequence is generally ‘collateral.’”).

We have not previously addressed whether the prospect of loss of a job or housing can

supply a basis for setting aside a guilty plea. Other courts, however, have explored analogous

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arguments. 2 These courts uniformly have rejected claims that lack of knowledge concerning the

impact of a guilty plea on job or housing prospects justified setting aside the plea. See United

States v. Muhammad, 747 F.3d 1234, 1240 (10th Cir. 2014) (difficulty obtaining credit, securing

employment, and obtaining housing and federal financial aid no basis upon which to set aside

guilty plea); United States v. Crowley, 529 F.2d 1066, 1072 (3rd Cir. 1976) (withdrawal of guilty

plea not justified on the ground that the defendant did not know that his conviction would result

in the loss of his job as a fireman); State v. Heitzman, 508 A.2d 1161, 1164 (N.J. Sup. Ct. App.

Div. 1986) (“We reject defendant’s argument that he should be entitled at this date to have his

plea set aside because neither the judge nor anyone else told him he would lose his state job as a

collateral consequence if convicted of a crime.”); Nollette v. State, 46 P.3d 87, 91-92 (Nev.

2002) (“Like other jurisdictions that have considered the issue, we hold that the loss of a

professional license or employment is not a direct consequence of a guilty plea. Our holding is

based on the fact that the revocation of a professional license is not a form of punishment

imposed by the circuit court. Instead, like other collateral consequences, the revocation of a

professional license or the termination of employment is the result of an action taken by a

government agency or private entity.”). In accord with these decisions, we conclude that actual

or potential adverse employment or housing consequences that flow from Brown’s guilty plea do

not satisfy the manifest injustice standard and, therefore, did not provide a basis upon which to

set aside her guilty plea. 3

2
We acknowledge Padilla v. Kentucky, 559 U.S. 356, 374 (2010), where the United
States Supreme Court held that, in the Sixth Amendment post-conviction context, counsel’s
failure to apprise a criminal defendant of the deportation consequences of a guilty plea is a
proper basis for relief. No such issue is before us.
3
Given our holding, we need not decide whether a trial court may consider collateral
consequences when deciding a pre-sentence motion to withdraw a guilty plea.

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 CONCLUSION

The judgment of the Court of Appeals will be affirmed.

Affirmed.

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