COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
JAMIE MICHAEL HALL
OPINION BY
v. Record No. 1761-98-3 JUDGE SAM W. COLEMAN III
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
Kenneth E. Trabue, Judge Designate
Anthony E. Collins (Collins & Collins, on
brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Jamie Michael Hall was indicted for the murder of Timothy
Matthew Earls, the attempted murder of Danny Culbertson, and
two counts of use of a firearm in the commission of a felony.
In accordance with a plea agreement, Hall entered guilty pleas
under the authority of North Carolina v. Alford, 400 U.S. 25
(1970), to first-degree murder, attempted second-degree murder,
and one firearm count. In exchange, the Commonwealth agreed to
dismiss the second firearm charge, to reduce the attempt charge
to attempted second degree murder, and to recommend that the
attempted murder sentence run concurrently with the murder
sentence. The court accepted the pleas. Three months later,
Hall moved to withdraw his pleas based on evidence he discovered
during the sentencing hearing which he asserts was different
from what he had previously understood the Commonwealth’s
evidence to be. The trial court denied Hall’s motion, and Hall
appeals that denial. Finding no error, we affirm the trial
court’s decision.
BACKGROUND
Hall shot and killed Earls early in the morning after a
night of drinking with acquaintances, including Earls and
Culbertson. After a series of quarrelsome telephone calls,
Hall, Culbertson, and Earls agreed to meet on the road near
Earls’ home. Hall arrived at 2:00 a.m., and the three drove in
Hall’s truck to a remote location known as the “Nettle Patch.”
At the Nettle Patch, they argued about women. Hall exited
the truck, produced a rifle, and fired twice into the air.
Shortly thereafter, Hall shot Earls in the face. Hall, rifle in
hand, then chased Culbertson around the truck. As Culbertson
fled into the woods, Hall screamed that Culbertson would have to
watch Earls die.
The indictment alleged that when Culbertson was about
twenty-five yards away, Hall fired a fourth shot that, although
intended for Culbertson, missed. Hall then approached Earls and
fired a fifth shot directly into Earls’ temple. Hall drove away
only to return approximately twenty minutes later. Unable to
find Culbertson, he drove off.
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Before accepting Hall’s Alford pleas, the trial court
questioned Hall to determine whether he entered the guilty pleas
freely, voluntarily, and knowingly. Hall stated that he had
sufficiently discussed the matter with his attorney, that he
understood the elements of the crimes charged, and that he
understood the differences between first-degree murder,
second-degree murder, and voluntary manslaughter. Hall stated
that he was entering the pleas to avoid the unpredictable risks
of prosecution. Hall acknowledged his understanding that he was
waiving his right to a jury trial, his right to remain silent,
his right to require the Commonwealth to prove all the elements
of the charged crimes, his right to cross-examine and confront
witnesses, and his right to appeal the convictions. Hall
further stated that no one had threatened or coerced him into
entering the pleas. The trial judge explained the maximum
sentence for each offense. Hall indicated that it was his
decision to plead guilty and that he was satisified with the
services of his attorney.
For the purposes of that hearing, Hall stipulated to the
facts in the indictment without conceding that the facts were
true. The defense attorney stated that insofar as he was aware,
the Commonwealth fully complied with the trial court’s discovery
orders. Finally, Hall agreed that if the evidence were
presented on pleas of not guilty, and believed beyond a
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reasonable doubt by the fact finder, the evidence would be
sufficient to establish his guilt on the indictments.
During the sentencing hearing, Culbertson, the only
eyewitness to the crime, testified that although he heard the
fourth shot while he was fleeing into the woods, he did not see
Hall point the weapon in his direction. He also stated that he
was not sure if he heard a fifth shot.
The police recovered three expended shell casings near
Earls’ body and two from Hall’s truck -- one from the “bug
screen” on the hood of the truck and one on the floorboard.
Hall testified that he accidentally fired the shots that
killed Earls. Hall presented expert testimony to show that due
to alcohol impairment, his actions only amounted to
manslaughter. Noting the peculiarity of pleading guilty to
murder, then presenting evidence of manslaughter, the trial
judge asked Hall whether he was asking to withdraw his pleas.
Shortly thereafter, Hall moved to withdraw the guilty
pleas, contending that during the sentencing hearing, he became
aware of several defenses to the charges. Hall argued that he
had pled guilty under the mistaken belief that Culbertson would
testify that he saw Hall point the gun in his direction.
Culbertson, who was the only eyewitness, had refused Hall’s
request for a pretrial interview. Because the indictment
charged that Hall aimed the weapon at Culbertson, Hall claims to
have erroneously assumed that Culbertson would testify that he
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saw Hall aim the weapon in his direction. The trial court
denied the motion.
ANALYSIS
On appeal, Hall argues that he was entitled to withdraw his
guilty pleas during the sentencing hearing because he had not
entered the pleas voluntarily, knowingly, and intelligently and
because he made the decision to plead guilty without the
effective assistance of counsel.
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. See Parris v, Commonwealth, 189 Va. 321, 324-25, 52
S.E.2d 872, 873-74 (1949); Hoverter v. Commonwealth, 23 Va. App.
454, 463-64, 477 S.E.2d 771, 775 (1996).
No fixed or definite rule applicable to and
determinative of all cases can be laid down.
However, the motion should not be denied, if
timely made, and 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.
Parris, 189 Va. at 324, 52 S.E.2d at 873. Generally, a trial
court should permit withdrawal of a guilty plea whenever
permitting withdrawal of the guilty plea will promote the ends
of justice.
“The least surprise or influence causing a
defendant to plead guilty when he has any
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defense at all should be sufficient grounds
for permitting a change of plea from guilty
to not guilty. Leave should ordinarily be
given to withdraw a plea of guilty if it was
entered by mistake or under a misconception
of the nature of the charge; through a
misunderstanding as to its effect; through
fear, fraud or official misrepresentation;
was made involuntarily for any reason; or
even where it was entered inadvisedly, if
any reasonable ground is offered for going
to the jury.”
Id. at 325, 52 S.E.2d at 874 (quoting 14 Am. Jur. Criminal Law
§ 287 (1938)).
Before accepting the pleas, the trial judge carefully and
extensively questioned and instructed Hall to ensure that he was
entering the pleas freely, voluntarily, and with a clear
understanding as to their effect. Based on our review of that
transcript, we find that Hall entered the pleas freely,
voluntarily, and with a complete and intelligent understanding
as to their effect.
Hall, however, contends the trial court should have
permitted him to withdraw his guilty pleas because the evidence
at the sentencing hearing supported manslaughter and attempted
manslaughter convictions, not murder and attempted murder.
Although some evidence presented at the sentencing hearing may
have supported a manslaughter conviction, Hall, not the
Commonwealth, presented that evidence. Hall testified that he
shot Earls by accident, and his expert testified that Hall’s
alcohol impairment would have impaired his ability to form
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malice aforethought. 1 This evidence was fully available to Hall
when he pled guilty. Thus, Hall did not suffer from an honest
mistake of material fact when he pled guilty to the murder and
attempted murder charges.
Hall also contends he was entitled to withdraw his plea of
guilty to the attempted murder charge because Culbertson’s
testimony at the sentencing hearing suggested a possible
defense. Hall argues that when he pled guilty to the attempted
murder charge, he operated under the mistaken assumption that
Culbertson would testify that he saw Hall point a gun at him.
The indictment alleged that Hall aimed the gun at Culbertson.
Culbertson had refused all pretrial interviews with Hall or
Hall’s attorney and because Culbertson was the only eyewitness
to the crime, Hall contends the language of the indictment led
him to misunderstand the nature of the evidence against him.
Hall had no right to pretrial discovery of the Commonwealth
witnesses’ testimony. See Rule 3A:11. The Commonwealth had
evidence to support the indictment and did not misrepresent the
amount or quality of the evidence against Hall. Thus, the
Commonwealth did not induce by fraud or undue influence whatever
1
In response to the Commonwealth’s motion to strike this
evidence as beyond the expert’s qualifications, the trial judge
stated that he would consider the testimony for the effect that
the alcohol had and in mitigation for sentencing purposes, but
not as to whether the alcohol impaired Hall’s ability to form
the requisite criminal intent.
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erroneous evidentiary conclusions Hall reached based on his
knowledge of the events or the indictment’s language.
Furthermore, regardless of whether Culbertson actually saw
Hall point the weapon, the Commonwealth had sufficient evidence
to support a conviction on the indictment for attempted murder,
and Hall was aware of the nature of the evidence against him.
Culbertson testified that after Hall first shot Earls, Hall
chased Culbertson around the truck with his weapon in hand. As
Culbertson fled into the woods, Hall discharged a fourth round.
After briefly leaving the scene, Hall returned and slowly
circled the area. This evidence supported the inference that
Hall shot at Culbertson, missed him, and returned later to
search for him. Therefore, the evidence was sufficient to
support the Commonwealth’s charge of attempted murder, and could
have supported Hall’s conviction before a jury. Accordingly,
Hall’s alleged misconception regarding Culbertson’s testimony
was not a mistake of material fact entitling him to withdraw his
guilty plea. See Jefferson v. Commonwealth, 27 Va. App. 477,
488, 500 S.E.2d 219, 225 (1998) (holding that prosecution’s
improper failure to disclose exculpatory evidence prior to
defendant’s plea of nolo contendere did not entitle defendant to
withdraw the plea where the withheld evidence was immaterial to
the charges and its nondisclosure could not have influenced
defendant’s choice to enter pleas).
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Claims of ineffective assistance of counsel may not be
raised on direct appeal. See Browning v. Commonwealth, 19 Va.
App. 295, 297 n.2, 452 S.E.2d 360, 362 n.2 (1994) (noting that,
in 1990, the legislature repealed Code § 19.2-317.1 which
provided for direct appeal of certain ineffective assistance
claims); see also Walker v. Mitchell, 224 Va. 568, 570, 299
S.E.2d 698, 699 (1983). Hall, however, claims that his guilty
pleas were not voluntarily, knowingly, and intelligently made
because his counsel failed to discover and reveal to him that
Culbertson had not seen him fire the shot and because his
counsel did not develop an intoxication defense.
As previously discussed, Hall’s misunderstanding of
Culbertson’s testimony did not prejudice him because, even
without Culbertson’s testimony that he saw Hall fire the weapon,
the evidence was sufficient to prove that Hall shot at
Culbertson. Additionally, no evidence proves that Hall entered
his guilty pleas involuntarily or without knowledge of the facts
due to inadequate investigation by counsel. Furthermore, the
evidence shows that defense counsel had an expert witness who
testified at sentencing in mitigation concerning the effect of
intoxication upon the defendant. Clearly, the defendant and his
counsel had considered the issue of intoxication and were
prepared to and did introduce expert evidence on that issue.
Although the defendant was not entitled to a post-trial hearing
for the purpose of appealing his ineffective assistance of
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counsel claim, nothing in the record supports his claim that his
guilty pleas were involuntary because he was not adequately
advised of an intoxication defense. Accordingly, although we do
not directly rule on Hall’s claim of ineffective assistance of
counsel, we find no merit to his claim that his guilty pleas
were involuntary because of his counsel’s ineffectiveness.
We find that Hall entered pleas of guilty freely,
voluntarily, and intelligently. He was fully cognizant of the
constitutional rights he waived by entering the pleas, and he
understood the consequences of those pleas. The Commonwealth
did not violate its discovery obligations and did not
misrepresent the quantity or quality of incriminating evidence
against Hall. Finally, any erroneous conclusion that Hall may
have reached concerning the quality of evidence that the
Commonwealth had concerning the attempted murder charge did not
constitute a material mistake of fact entitling Hall to withdraw
that plea. Accordingly, we affirm the convictions.
Affirmed.
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