Zigta v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia

REZENE MEHART ZIGTA, S/K/A
REZENE MEHRT ZIGTA
OPINION BY
v. Record No. 0145-01-4 JUDGE G. STEVEN AGEE
APRIL 23, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge

Thomas W. Farquhar (Peter L. Sissman, on
briefs), for appellant.

Thomas D. Bagwell, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.

Rezene Mehart Zigta (Zigta) was convicted in the Arlington

County Circuit Court of rape, in violation of Code § 18.2-61,

pursuant to an Alford 1 guilty plea. He was sentenced to serve a

fifteen-year term of imprisonment. On appeal he contends the
trial court erred by refusing to allow him to withdraw his plea

prior to sentencing. For the following reasons, we affirm the

decision of the trial court.

1
The so-called "Alford plea" takes its name from North
Carolina v. Alford, 420 U.S. 25 (1970). An Alford guilty plea
is one where the defendant refuses to admit guilt, or even
protests his innocence, but, nonetheless, wants to enter a
guilty plea. The Supreme Court ruled that an admission of guilt
is not a constitutional requisite to the imposition of a
criminal penalty.
 I. BACKGROUND

Zigta, an Eritrean citizen, was indicted for the rape of a

six-year-old child. He originally pleaded "not guilty," but

withdrew his plea prior to trial and entered an Alford plea of

guilty. Before entering the Alford plea, Zigta signed a Plea

Agreement Memorandum, which advised him of the consequences of

his plea. Zigta acknowledged in the memorandum that he

understood the elements of the charges against him, that he would

be waiving any objections to the Commonwealth's evidence, that he

was giving up his right to have a speedy trial, the right to a

jury trial, the right to confront witnesses and the rights to

compel evidence, to remain silent, to appeal, to refuse to

testify and to require the Commonwealth to prove its case against

him beyond a reasonable doubt. Zigta reviewed the memorandum

with his attorney and an interpreter.
Although Zigta spoke some English, the trial court used an

interpreter. 2 Through the interpreter, the trial court

extensively inquired of Zigta about his understanding of what it

meant to plead guilty, the rights he would waive and the sentence

that could be imposed. Zigta acknowledged that he had read and

understood the Plea Agreement Memorandum, that he had ample time

to discuss his case with counsel, and that he

2
Zigta raised no claim at trial or on appeal alleging
inability, by reason of his limited knowledge of the English
language, to understand and comprehend the proceedings.

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understood what it meant to enter an Alford plea. The trial

court found that Zigta's plea was freely, intelligently and

voluntarily given, and it accepted his plea. The trial court did

not inform Zigta of any possible immigration consequences of his

plea. The case was set for sentencing at a later date.

Prior to sentencing, Zigta filed a motion to withdraw his

guilty plea. He contended his plea was not knowingly,

intelligently and voluntarily made because "[h]e, an Eritrean in

this country under political asylum did not understand the

immigration consequences (deportation to his home country where

he faces persecution)." The trial court denied the motion,

finding it was not obligated to inform Zigta about the

deportation consequences of his conviction.
II. ANALYSIS

On appeal, Zigta contends the trial court erred in denying

his motion to withdraw his guilty plea and presents a question of

first impression in the Commonwealth. Zigta contends that

because his plea was made without specific instruction by the

trial court as to the possible immigration consequences, his plea

was not knowingly and voluntarily made. He avers the Due Process

Clauses of the United States and Virginia Constitutions and Rule

3A:8(b) of the Rules of the Supreme Court of Virginia do not

permit the acceptance of a guilty plea and waiver of rights in

that circumstance. Accordingly, he contends the trial court

abused its discretion by refusing to allow him to withdraw his

plea. We disagree and affirm the trial court's decision to deny

Zigta's motion to withdraw his plea.

A. STANDARD OF REVIEW

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 "Code § 19.2-296 allows a defendant to withdraw a guilty

plea before sentence is imposed." Jones v. Commonwealth, 29 Va.

App. 503, 511, 513 S.E.2d 431, 435 (1999). "Whether a defendant

should be permitted to withdraw a guilty plea rests within the

sound discretion of the trial court to be determined based on the

facts and circumstances of each case." Hall v. Commonwealth, 30

Va. App. 74, 79, 515 S.E.2d 343, 346 (1999). "The court's

finding as to the credibility of witnesses and the weight of the

evidence in support of a motion to withdraw a guilty plea will

not be disturbed unless plainly wrong or without evidence to

support it." Jones, 29 Va. App. at 512, 513 S.E.2d at 435.

"As in other cases of discretionary
power, no general rule can be laid down as to
when a defendant will be permitted to
withdraw his plea. The decision in each case
must depend to a great extent on the
particular attendant circumstances."

Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874

(1949) (quoting 14 Am. Jur. 2d Criminal Law § 287 (1938)).

Determining whether the trial court erred in declining to

allow a withdrawal of a guilty plea "requires an examination of

the circumstances confronting [the] accused immediately prior to

and at the time he pleaded to the charge." Id. at 322, 52 S.E.2d

at 872.

B. CONSTITUTIONAL REQUIREMENTS FOR ACCEPTANCE OF A PLEA

The United States Constitution provides an individual with

several rights upon being accused of a crime, which apply to

those accused in state courts by reason of the Fourteenth

Amendment. "First, is the privilege against compulsory self-

incrimination guaranteed by the Fifth Amendment . . . . Second,

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is the right to trial by jury. Third, is the right to confront

one's accusers." Boykin v. Alabama, 395 U.S. 238, 243 (1969)

(internal citations omitted). In order to ensure that these and

other constitutional rights are adequately protected, the trial

court is required to determine whether a defendant's decision to

waive them by pleading guilty "represents a voluntary and

intelligent choice among the alternative courses of action open

to the defendant." North Carolina v. Alford, 400 U.S. 25, 31

(1970).
It is clear from the record that the trial court inquired,

employing an interpreter, as to Zigta's knowledge of these

rights, and his voluntary, intelligent decision to waive them.

In addition, the trial court extensively examined Zigta as to

whether he understood the elements of the charges against him,

that he would be waiving any objections of the Commonwealth's

evidence, and that he was giving up his rights to have a speedy

trial, to have a jury trial, to confront witnesses, to compel

evidence, to remain silent, to appeal, to refuse to testify and

to require the Commonwealth to prove its case against him beyond

a reasonable doubt. Zigta informed the trial court that he

understood his rights and the consequences of his plea. The

trial court specifically found Zigta's plea was "freely,

voluntarily and intelligently" made and that competent counsel

ably represented him. Zigta's guilty plea was, therefore,

knowingly and voluntarily entered.

The trial court's determination is not rendered

constitutionally infirm by Zigta's contention that he was not

aware of the immigration consequences of his guilty plea. A

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trial court is not required to discuss every nuance of the law

regarding a defendant's plea in order to render a guilty plea

voluntary and knowing. The collateral consequences of pleading

guilty are numerous, with some consequences being more direct

than others. Regardless, collateral consequences are irrelevant

to the determination of whether a guilty plea was entered

voluntarily and knowingly. A defendant need not be advised of

the collateral consequences of a guilty plea unless otherwise

mandated. See Bell v. State of North Carolina, 576 F.2d 564 (4th

Cir. 1978); Cuthrell v. Director, 475 F.2d 1364 (4th Cir. 1973).
There is no such mandate in Virginia as to immigration matters.

The fact that deportation may result from a conviction is a

collateral consequence of a guilty plea. See United States v.

Amador-Leal, 276 F.3d 511 (9th Cir. 2002); United States v.

Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Yearwood,

863 F.3d 6 (4th Cir. 1988). 3 Deportation is a collateral

3
See also United States v. Osiemi, 980 F.2d 344 (5th Cir.
1993); Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992); United
States v. Montoya, 891 F.2d 1273 (7th Cir. 1989); United States
v. Romero-Vilca, 850 F.2d 177 (3d Cir. 1988); Downs-Morgan v.
United States, 765 F.2d 1534 (11th Cir. 1985); Fruchtman v.
Kenton, 531 F.2d 946 (9th Cir. 1976); Robinson v. State, 730
So.2d 252 (Ala. Crim. App. 1998); State v. Vera, 766 P.2d 110
(Ariz. Ct. App. 1988); People v. Pozo, 746 P.2d 523 (Colo.
1987); Orellanes v. State, 790 So.2d 613 (Fl. App. 2001);
Michigan v. Davidovich, 618 N.W.2d 579 (Mich. 2000); Alanis v.
State, 583 N.W.2d 573 (Minn. 1998); State v. Clark, 926 S.W.2d
22 (Mo. 1996); Barajas v. Nevada, 991 P.2d 474 (Nev. 1999);
State v. Chung, 510 A.2d 72 (N.J. App. 1986); People v. Ford,
657 N.E.2d 265 (N.Y. 1995); North Dakota v. Abdullahi, 607
N.W.2d 561 (N.D. 2000); Commonwealth v. Frometa, 555 A.2d 92
(Pa. 1989); State v. Desir, 766 A.2d 374 (R.I. 2001); State v.
Jimenez, 987 S.W.2d 886 (Tex. 1999); State v. Rodriguez, 585
N.W.2d 701 (Wis. App. 1998); see also, Collateral Consequences
of Guilty Pleas in the Federal Criminal Justice System, 16
Harvard C.R.C.L.L.Rev. 157 (1981).

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consequence of the criminal conviction because it arises through

the efforts of an arm of government over which the trial court

has no control and which is not part of the underlying criminal

proceeding. The immigration consequences of Zigta's criminal

conviction remain subject to the discretion of entities other

than the trial court. As such, we cannot find that the trial

court's failure to advise him on immigration rules affected his

substantial rights as to the crime for which he was charged and,

thus, the voluntariness of his plea.
Our decision is consistent with those cases previously cited

from other jurisdictions. For example, in Gonzalez, the

defendant, a native of Cuba, pled guilty to mail fraud. Prior to

sentencing, he moved to withdraw his plea pursuant to Rule 32(e)

of the Federal Rules of Criminal Procedure, the equivalent to our

Code § 19.2-296, arguing he had not been informed of adverse

immigration consequences until after the plea was made. The

district court denied the motion. On appeal, the First Circuit

Court of Appeals affirmed the decision of the district court,

holding "deportation is only a collateral concomitant to criminal

conviction." 202 F.3d at 25.

What renders the plea's immigration effects
"collateral" is not that they arise
"virtually by operation of law," but the fact
that deportation is "not the sentence of the
court which accepts the plea but of another
agency over which the trial judge has no
control and for which he has no
responsibility." . . . However
"automatically" [the defendant's] deportation
– or administrative detention —might follow
from his conviction, it remains beyond the
control and responsibility of the district
court in which that conviction was entered
and it thus remains a collateral consequence
thereof.

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Id. at 27 (internal citations omitted).

[B]ecause deportation is a collateral
consequence of a guilty plea, district courts
are not obliged to grant plea withdrawal
motions filed by defendants who realize,
post-plea, the immigration implications of
their conviction.

Id. at 28.

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 C. RULE 3A:8(b) REQUIREMENTS FOR ACCEPTANCE OF A PLEA

We also find no merit to Zigta's contention that Rule

3A:8(b) requires a reversal of the trial court's denial of the

motion.

Rule 3A:8 provides, in pertinent part, that a trial court

shall not accept a plea of guilty or nolo
contendere without first determining that the
plea is made voluntarily with an
understanding of the nature of the charge and
the consequences of the plea.

Rule 3A:8(b). The rule restates the due process requirements of
Boykin. James v. Commonwealth, 18 Va. App. 746, 750, 446 S.E.2d

900, 903 (1994). As such, the rule simply requires that prior to

accepting a defendant's plea, the trial court must determine if

the defendant is aware of his constitutional rights, the nature

of the charges against him, and whether the plea is intelligently

and voluntarily made, all of which must appear on the record.

Sisk v. Commonwealth, 3 Va. App. 459, 463, 350 S.E.2d 676, 679

(1986) (citing Boykin, 395 U.S. 238; Rule 3A:8(b), Forms 6 and

7). 4
The record in the case at bar clearly demonstrates that the

trial court advised Zigta that the plea of guilty was a waiver of

all of his rights incident to trial and inquired of him as to

4
Rule 3A:8(b) is similar to Rule 11 of the Federal Rules of
Criminal Procedure, which also does not place a duty upon the
trial court to advise a defendant of collateral consequences in
order for the plea to be entered knowingly and voluntarily. See
Gonzales, 202 F.3d 20.

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his understanding of the plea in regards to these rights. The

trial court was not required to advise Zigta on any other

potential consequences. Neither Rule 3A:8(b) nor any statute or

case law in Virginia requires a trial court to inform a defendant

of any collateral consequences that may arise upon the entry of a

guilty plea. The immigration implications of a guilty plea are a

collateral consequence.

Zigta's citation to cases in other jurisdictions where trial

courts have been held to have a duty to advise immigrants of

potential deportation consequences is unpersuasive because those

jurisdictions have explicitly established a duty by rule or
5
statute. Virginia has no such requirement.

The record reflects Zigta knowingly and voluntarily waived

his constitutional rights before the trial court accepted his

guilty plea, as required by Boykin and Rule 3A:8(b). Thus, the

trial court did not abuse its discretion in denying Zigta's

motion to withdraw his plea of guilty on the basis that it was

unknowing and involuntary, simply because he was not advised of

the immigration consequences of his plea. We affirm the decision

of the trial court.
Affirmed.

5
See, e.g., Con. General Statutes § 54-1j(a); Florida Rule
of Criminal Procedure 3.172(c)(8); Maryland Rule 4-242(e);
Washington RCW 10.40.200(2); Wis. Stat. § 971.08(1)(c).

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