Frank Ernest Miller, Jr. v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia

FRANK ERNEST MILLER, JR.
OPINION BY
v. Record No. 1513-97-4 JUDGE WILLIAM H. HODGES
JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
William E. Glover (Glover & Dahnk, on brief),
for appellant.

Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General;
Thomas D. Bagwell, Senior Assistant Attorney
General, on brief), for appellee.

Frank Ernest Miller (appellant) was convicted, on his

conditional plea of guilty, of four counts of forgery. He

contends on appeal that a plea agreement he made in Spotsylvania

County barred the Commonwealth's Attorney in Stafford County from

prosecuting him for any charges arising from his use of the

fictitious bank account he created using Douglas Payne's driver's

license. We disagree and affirm the convictions.

I.

By his own estimate, appellant wrote 188 checks on a false

bank account he created, using Douglas Payne's driver's license.

Appellant was charged in Spotsylvania County with forgeries and

grand larceny by false pretenses arising out of his use of the

bank account. He was charged with thirteen offenses. Appellant,

his attorney, and a Spotsylvania County prosecutor entered into a
plea agreement by which appellant agreed to plead guilty to three

counts of forgery and two counts of grand larceny by false

pretenses. Appellant, however, was responsible for restitution

to the victims of all the offenses.

Paragraph eight of the plea agreement read, in pertinent

part:
8. I understand that the Commonwealth's
Attorney has agreed to recommend to the Court
the following specific punishment as the
appropriate disposition in this case, as
follows:

A. Upon the defendant's guilty plea to the
indictments, the Commonwealth agrees not to
prosecute any further charges that may have
arisen from the use of the bank account in
Douglas Payne's name. The Commonwealth makes
no agreement to recommend a specific sentence
for these charges, but preserves the right to
argue to the court for appropriate
sentencing.

(Emphasis added.) The plea agreement was signed by appellant,

appellant's counsel, and the Assistant Commonwealth's Attorney.

The trial judge accepted the plea agreement. The final judgment

order recited, "The Assistant Attorney for the Commonwealth

agrees not to prosecute any further charges that may have arisen

from the use of the bank account in Douglas Payne's name . . . ."

Subsequently, appellant was indicted in Stafford County for

nine counts of forgery and nine counts of uttering. Each of the

charges involved the use of the Payne bank account. Prior to

trial, appellant moved to quash the indictments on the ground

that the plea agreement in Spotsylvania County barred any other

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jurisdiction in the Commonwealth from prosecuting any charge

arising from the use of the bank account.

The trial judge found that the term, "the Commonwealth," as

used in the Spotsylvania County plea agreement, was ambiguous.

Thus, he heard testimony about the agreement from the parties to

the document. The prosecutor, Donna Van Winkle, testified that

she neither intended to bind nor understood that she could bind

any jurisdiction except Spotsylvania County. She was aware that

other jurisdictions might bring charges against appellant. She

testified, however, that she did not speak to prosecutors from

any other jurisdiction about appellant's cases. No one in the

Stafford County Commonwealth's Attorney's Office had a

conversation with any prosecutor in Spotsylvania County

concerning appellant's cases.
Muriel Pitney, appellant's attorney for the Spotsylvania

cases, testified that she never discussed any other jurisdiction

with appellant. 1 Pitney testified that she showed appellant a

list of checks for which he would be responsible for paying

restitution. The checks had been written to stores in

Spotsylvania County. She did not recall appellant telling her

about checks in other jurisdictions. Pitney testified that when

the agreement was signed, she did not believe that Van Winkle was

binding any other jurisdiction.
1
Appellant waived his attorney/client privilege with respect
to the issue of the terms of the Spotsylvania County plea
agreement.

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 Appellant testified that Pitney told him that the plea

agreement with Spotsylvania County also covered Stafford County

and Fredericksburg. Appellant testified that he believed once he

entered the plea agreement with Spotsylvania County, he would not

be prosecuted anywhere on checks he had written on the Payne

account.

The judge denied the motion to quash. He held that as a

matter of law, a prosecutor in one jurisdiction cannot bind "the

entire State of Virginia." The judge noted that the Spotsylvania

County plea agreement, on its face, did not permit an

interpretation that the Commonwealth's Attorney for Spotsylvania

County was binding any other jurisdiction in the Commonwealth.

Moreover, he explicitly rejected appellant's testimony as

incredible and credited Pitney's testimony regarding the plea

agreement in Spotsylvania County.
II.

Pursuant to the Constitution of Virginia, Article VII,

Section 4, and Code § 15.2-1600, the voters of each county and

city shall elect an attorney for the Commonwealth. Code

§ 15.2-1627 provides:
The attorney for the Commonwealth and
assistant attorney for the Commonwealth shall
be a part of the department of law
enforcement of the county or city in which he
is elected or appointed, and shall have the
duties and powers imposed upon him by general
law, including the duty of prosecuting all
warrants, indictments or informations
charging a felony . . . .

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 The attorney for the Commonwealth, the defendant, and the

attorney for the defendant may enter into a plea agreement, which

shall, in the case of a felony, be reduced to writing. See Rule

3A:8. The government is bound to fulfill any promise it makes in

exchange for a defendant's guilty plea. See Santobello v. New

York, 404 U.S. 257, 262 (1971).

In this case, the Assistant Commonwealth's Attorney for

Spotsylvania County was part of the department of law enforcement

for that county. She could not bind another jurisdiction by a

plea agreement, without consent from that jurisdiction.

Appellant cites no authority, nor do we find any, to show that

the authority of an Assistant Commonwealth's attorney for

Spotsylvania County extends beyond that county's boundaries.

The record establishes that the prosecutor had no intention

of obligating any other jurisdiction nor did she have any belief
2
that she could. Even if she had so intended, such an agreement

would have been ultra vires 3 and not binding on the

Commonwealth's Attorney of Stafford County. See Ellis v.

Commissioner of Dept. of Mental Hyg. & Hosp., 206 Va. 194, 201,

142 S.E.2d 531, 536 (1965) (state acting in sovereign or

2
Indeed, appellant was the only party to the Spotsylvania
County plea agreement who claimed that the agreement covered
other jurisdictions.
3
"An act performed without any authority to act on subject. .
. . Ultra vires act of municipality is one which is beyond
powers conferred upon it by law." Black's Law Dictionary 1522
(6th ed. 1990).

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governmental capacity cannot be bound by unauthorized acts or

representations of its employees and agents).

The trial judge did not err in denying appellant's motion to

quash the indictments.

Accordingly, we affirm the convictions.

Affirmed.

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