Clauson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia

MATTHEW J. CLAUSON, S/K/A
MATTHEW JAMES CLAUSEN
OPINION BY
v. Record No. 0758-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 9, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge

James Amery Thurman (Thurman & Thurman, on
brief), for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Matthew James Clausen (appellant) entered pleas of guilty to

two counts of robbery, in violation of Code § 18.2-58, and two

counts of use of a firearm in the commission of robbery, in

violation of Code § 18.2-53.1. Appellant also entered a plea of
nolo contendere to one count of conspiracy to commit robbery, in

violation of Code § 18.2-22. On appeal, he argues that his plea

of nolo contendere did not constitute a waiver of his right to

appeal the conspiracy charge. 1 For the following reasons, we

dismiss the appeal.

∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
1
Appellant also argues that the trial court erred in denying
his pretrial motion to dismiss the conspiracy charge because Code
 I.

On August 18, 1997, five felony warrants were issued

charging appellant with two counts of robbery, two counts of use

of a firearm in the commission of robbery and one count of

conspiracy to commit robbery. Appellant waived his right to a

preliminary hearing on the charges, and the grand jury returned

indictments on each of the five felonies.

The parties entered a stipulation of facts and on November

25, 1997, appellant pled guilty to both robbery counts and one of

the firearm charges. He received ten years on each robbery

count. The court ordered the terms to be served concurrently.

He also received three years on the firearm charge, which was to

be served consecutive to the robbery terms. The remaining two

charges, conspiracy to commit robbery and use of a firearm in the

commission of robbery, were continued.

On February 10, 1998, appellant moved to dismiss the

conspiracy charge, arguing that Code § 18.2-23.1 2 bars conviction

when the accused has been convicted of the substantive offense.

_______________
§ 18.2-23.1 bars conviction when the accused has been convicted of
the substantive offense. Because of the procedural posture of the
case, we do not reach the merits of the second claim.
2
Code § 18.2-23.1 provides:

Notwithstanding any other provision of
this article or of § 18.2-256, in any case
where a defendant has been tried and convicted
of an act he has also conspired to commit,
such defendant shall be subject to conviction
only for the completed substantive offense and
not thereafter be convicted for the underlying
conspiracy.

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By letter opinion dated February 11, 1998, the trial court denied

appellant's motion.

On March 2, 1998, pursuant to a plea agreement with the

Commonwealth, appellant entered a plea of nolo contendere to the

conspiracy charge and a plea of guilty to the remaining firearm

charge. The agreement, which included appellant's prior guilty

pleas made on November 25, 1997, provided the following:

1. That the defendant stands indicted in
this Court for the following offenses:
Conspiracy to Commit Robbery, Robbery (Two
Counts), and Use of Firearm in the Commission
of Robbery (Two Counts) in violation of
section(s) 18.2-22, 18.2-58, and 18.2-53.1.

2. That the defendant agrees to plead guilty
to the same charges enumerated above (except
that the defendant will plead nolo contendre
[sic] to the Conspiracy charge), in violation
of the same Code sections enumerated above.

3. That the Attorney for the Commonwealth
and the Attorney for the defendant agree that
the following sentence is the appropriate
disposition in this case: The defendant shall
be sentenced to serve ten years in the
Virginia Department of Corrections on the
Conspiracy and Robbery charges. Those
sentences shall run concurrently to each
other and consecutively to the sentences
imposed on the firearm charges. The
defendant shall be sentenced to serve three
years on the first Use of a Firearm charge,
and to serve five years on the second Use of
a Firearm charge. Those sentences shall run
consecutively to each other and to the
sentences on the Robbery and Conspiracy
charges. . . .

4. That this plea agreement is the total
agreement between the parties and there have
been no other inducements, threats, promises,
or coercion of any kind imposed upon the
defendant by the Attorney for the
Commonwealth or any agent of the
Commonwealth.

(Emphasis added).

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 The trial court accepted the plea agreement after an

extended colloquy with appellant, which included the following:

Q. Do you fully understand the charges
against you?

A. Yes.

Q. Have you discussed the charges and their
elements with your lawyer, Mr. Thurman?

A. Yes, I have.

Q. Have you had enough time to discuss with
Mr. Thurman any possible defenses you may
have to these charges?

A. Yes, sir.

Q. Have you discussed with your lawyer
whether you should plead guilty or not
guilty?

A. Yes.

Q. After speaking with your lawyer, did you
decide for yourself that you should plead
guilty and nolo contendere?

A. Yes.

* * * * * * *

Q. Do you understand by pleading guilty that
you may waive any right to appeal the
decision of this court?
A. Yes. 3

3
At the March 2, 1998 trial, the parties debated at length the
effect of a plea of nolo contendere on appellant's right to
appeal, including the following:

[COUNSEL]: [W]e're pleading no contest on
that to preserve our right of appeal. We
intend to note our exception to that finding
and appeal that to the Virginia Court of
Appeals.

[COMMONWEALTH]: [T]he Commonwealth's position
on that is that there's no stipulation in the

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_______________
plea agreement that he's allowed to preserve
his right to appeal . . . .

[COUNSEL]: That's correct, Your Honor.

THE COURT: Well, then what's the likelihood
of an appeal being heard in this matter?

[COUNSEL]: I'll take my shot. I don't agree.

[COMMONWEALTH]: I think he's waived -- I
think the effect of a nolo plea is the same as
a plea of guilty.

THE COURT: I think the effect of a nolo plea
is a guilty plea.

* * * * * * *

THE COURT: We're going through this now so
that we can make sure that Mr. Clauson freely,
voluntarily and intelligently understands the
consequences of his plea.

[COUNSEL]: Yes, sir.

* * * * * * *

THE COURT: I guess what we need to know at
this stage is based on what you've done in
terms of research on this point does Mr.
Clauson have reason to believe that you're
going to be successful in the Court of
Appeals? Is he expecting that to happen or
what is the situation?

[COUNSEL]: We've talked about it extensively,
and he understands it's mainly a matter of
principle that's going up, that it's not
really going to affect the ultimate outcome of
his sentence . . . because, as I said, [the
conspiracy conviction is] concurrent with the
robbery charges and the ten years.
* * * * * * *

THE COURT: Still, Mr. Clauson, you understand
I don't think there's an appealable issue
here. The Commonwealth doesn't. I don't. Mr.
Thurman thinks there may be a possibility, but
I don't think there's an appealable issue
here. That doesn't mean there isn't. The
Court of Appeals has the right to find that

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Following this colloquy, the trial court convicted appellant of

both counts and sentenced appellant in accordance with the

agreement.

II.

Appellant contends that by entering a plea of nolo

contendere, he did not waive his right to appeal the trial

court's denial of his pretrial motion to dismiss the conspiracy

charge. He argues that a plea of nolo contendere should be

distinguished from a guilty plea for the purpose of determining a

waiver of his right to appeal. This argument presents an issue

of first impression for this Court.

Code § 19.2-254 provides that the accused in a criminal

proceeding "may plead not guilty, guilty, or nolo contendere"

upon arraignment for the offense "on which he will be tried."

Code § 19.2-254. 4 A plea of guilty constitutes a "self-supplied

_______________
I'm wrong; but based on my reading of the law,
I've never seen them do it before. So do you
understand that?

THE DEFENDANT: I do.

THE COURT: Do you still want to enter this
nolo contendere plea today?

THE DEFENDANT: Yes, I do.
4
Code § 19.2-254 provides:

Arraignment shall be conducted in open
court. It shall consist of reading to the
accused the charge on which he will be tried
and calling on him to plead thereto. In a
felony case, arraignment is not necessary when
waived by the accused. In a misdemeanor case,
arraignment is not necessary when waived by
the accused or his counsel, or when the
accused fails to appear.
An accused may plead not guilty, guilty

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conviction." Allen v. Commonwealth, 27 Va. App. 726, 730, 501

S.E.2d 441, 443 (1998). On the other hand, a plea of nolo

contendere is neither "a confession of guilt" nor a "declaration

of innocence equivalent to a plea of not guilty." Commonwealth

v. Jackson, 255 Va. 552, 555, 499 S.E.2d 276, 278 (1998). "It

allows an accused, thinking it best . . . not to submit to trial,

but unwilling to confess the truth of the charge, [and] . . .

plead guilty, to throw[ ] himself on the mercy of the court . . .

without confessing or denying . . . guilt." Jefferson v.

Commonwealth, 27 Va. App. 477, 484-85, 500 S.E.2d 219, 223 (1998)

(internal quotations and citations omitted). "Nonetheless, by

entering [the] plea . . . , the defendant implies a

confession . . . of the truth of the charge . . . [and] agrees

that the court may consider him guilty for the purpose of

imposing judgment and sentence." Id. at 485, 500 S.E.2d at 223

(internal quotations and citations omitted).

"Although it is said that a plea of nolo contendere means

literally 'I do not contest it,' and 'is a mere statement of

unwillingness to contest and no more,' it does admit 'every

_______________
or nolo contendere. The court may refuse to
accept a plea of guilty to any lesser offense
included in the charge upon which the accused
is arraigned; but, in misdemeanor and felony
cases the court shall not refuse to accept a
plea of nolo contendere.
With the approval of the court and the
consent of the Commonwealth, a defendant may
enter a conditional plea of guilty in a felony
case, reserving the right, on appeal from the
judgment, to a review of the adverse
determination of any specified pretrial
motion. If the defendant prevails on appeal,
he shall be allowed to withdraw his plea.

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essential element of the offense [that is] well pleaded in the

charge." Lott v. United States, 367 U.S. 421, 426 (1961)

(citations omitted). "Hence, it is tantamount to 'an admission

of guilt for the purposes of the case,' and 'nothing is left but

to render judgment, for the obvious reason that in the face of

the plea no issue of fact exists, and none can be made while the

plea remains of record.'" Id. (citations omitted).

"When an accused enters a voluntary and intelligent plea of

guilty to an offense, he waives all defenses except those

jurisdictional." Savino v. Commonwealth, 239 Va. 534, 538, 391

S.E.2d 276, 278 (1990) (emphasis added).

"[A] voluntary and intelligent plea of guilty
by an accused is, in reality, a self-supplied
conviction authorizing imposition of the
punishment fixed by law. It is a waiver of
all defenses other than those jurisdictional,
effective as such not only in the lower court
but as well in this court. Where a
conviction is rendered upon such a plea and
the punishment fixed by law is in fact
imposed in a proceeding free of
jurisdictional defect, there is nothing to
appeal. To take any other view would give
recognition to an empty right and permit
frivolous appeals for the mere sake of
delay."
Id. at 539, 391 S.E.2d at 278 (quoting Peyton v. King, 210 Va.

194, 196-97, 169 S.E.2d 569, 571 (1971)).

Additionally, "[o]ne who voluntarily and intelligently

pleads guilty waives important constitutional rights, including

his right to trial by jury, his right against self-incrimination,

his right to demand that the Commonwealth prove its case beyond a

reasonable doubt, and his right to object to illegally obtained

evidence." Allen, 27 Va. App. at 730-31, 501 S.E.2d at 443.

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 In the instant case, appellant concedes that when an accused

enters a plea of guilty, the accused waives his or her right to

appeal non-jurisdictional issues. However, appellant argues that

by entering a plea of nolo contendere to the conspiracy charge,

he effectively preserved his right to appeal the trial court's

decision denying his motion to dismiss. We disagree.

We have on prior occasions held that a plea of nolo

contendere carries with it some of the same consequences as a

plea of guilty. In Jefferson, we held that the pleas of guilty

and nolo contendere are treated "alike in the context of a motion

to withdraw" a plea under Code § 19.2-296. Jefferson, 27 Va.

App. at 485, 500 S.E.2d at 223. In Allen, we held that "the plea

of nolo contendere, or no contest, [was] equivalent to a plea of

guilty" for purposes of determining whether the plea was entered

voluntarily, intelligently and knowingly. Allen, 27 Va. App. at

729 n.1, 501 S.E.2d at 443 n.1. See also Smith v. Commonwealth,

27 Va. App. 357, 363, 499 S.E.2d 11, 14 (1998) (holding that "a

trial court may consider a defendant's lack of remorse at

sentencing, even when the defendant has chosen to enter an Alford
[or nolo contendere] plea").
While we have not expressly addressed this precise issue,

several of our sister states have found no distinction between a

plea of guilty and nolo contendere for the purpose of determining

a waiver of the right to appeal. For example, in State v.

Arnsberg, 553 P.2d 238 (Az. App. 1976), the Court of Appeals of

Arizona held that when a defendant enters a plea of no contest,

he or she waives all non-jurisdictional defenses preceding the

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entry of the plea. See id. at 240. In Arnsberg, the defendant

pled no contest to one count of possession of marijuana for sale.

Prior to entering his plea, the defendant filed a pretrial motion

to suppress the evidence, which was denied by the trial court.

On appeal, the Court of Appeals considered "whether a defendant

may raise issues concerning a denial of his motion to suppress

evidence following a plea of no contest," and concluded that the

trial court's decision could not be challenged because the

defendant had waived his right to appeal by entering a plea of no

contest. Id. at 238. The Court of Appeals reasoned:

We think that the consequences of a no
contest plea parallel closely the results
following a plea of guilty. One of the
consequences flowing from a plea of guilty is
the foreclosure by the defendant of an
argument on appeal that the ruling by the
trial court on a motion to suppress was
erroneous. Because the consequence of a plea
of guilty and no contest are the same, does
the same principle apply to an attack of the
trial judge's ruling on a motion to suppress
following a plea of no contest? We believe
it does.

* * * * * * *

We hold, therefore, that when a
defendant enters a plea of no contest he
waivers, [sic] as is true with respect to a
guilty plea, all non-jurisdictional defenses
preceding the entry of the plea, and he may
not by express stipulation or otherwise,
reserve for appeal non-jurisdictional defects
under such a plea.
Id. at 239-40 (citations omitted).

Similarly, in State v. Gilnite, 521 A.2d 547 (Conn. 1987),

the Supreme Court of Connecticut held that "an unconditional nolo

contendere plea, when intelligently and voluntarily made,

operates as a waiver of all non-jurisdictional defects and bars

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later challenges to pretrial proceedings." Id. at 550. In

Gilnite, the defendant was convicted on a plea of nolo contendere

of being a "persistent larceny offender." Id. at 548. On appeal

to the appellate court, she argued that the trial court erred in

denying her motion to dismiss the charge. The appellate court

raised sua sponte the issue of waiver and held that by pleading

nolo contendere the defendant waived her right to appeal the

trial court's determination. See id. On appeal from the

appellate court, the Supreme Court of Connecticut affirmed and

held that "[a] plea of nolo contendere has virtually the same

legal effect as a guilty plea; the only practical difference is

that a nolo contendere plea may not be used as an admission in a

subsequent criminal or civil case. It is clear, however, that a

nolo contendere plea also constitutes a waiver of all

non-jurisdictional defects in the same manner as a guilty plea."

Id. at 550 n.4.

Finally, in Walker v. United States, 481 A.2d 1308 (D.C.

App. 1984) (per curiam), the District of Columbia Court of

Appeals held that the defendant's voluntary plea of nolo
contendere foreclosed the possibility of seeking appellate review

of his convictions. In that case, the defendant challenged the

sufficiency of evidence used to convict him of two counts of

robbery. He also argued that the trial court erred in failing to

observe the time limitations of the speedy trial statute. See

id. at 1309. The Court of Appeals noted that "[a] plea of nolo

contendere is an admission of guilt for the purposes of that case

and removes from the trial court's consideration all issues of

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fact." Id. Accordingly, the Court of Appeals held that "[b]y

entering a voluntary plea of nolo contendere, [the defendant]

foreclosed himself from seeking appellate review of his

contentions of evidentiary insufficiency and violation of the

Federal Speedy Trial Act." Id.; see also State v. Hodge, 882

P.2d 1, 5 (N.M. 1994) ("[A] plea of . . . nolo contendere, when

voluntarily made after advice of counsel and with full

understanding of the consequences, waives objections to prior

defects in the proceedings and also operates as a waiver of

statutory or constitutional rights, including the right to

appeal."); Commonwealth v. Jannetta, 605 A.2d 386, 388 (Pa.

Super. 1992) ("For purposes of appellate review, this Court

treats a plea of nolo contendere the same as a guilty plea.").

Other states have simply adopted the general rule that a

defendant may not appeal "non-jurisdictional" issues following a

plea of nolo contendere. See, e.g., People v. Arwood, 211 Cal.

Rptr. 307, 309-10 (Ca. App. 1985) ("The merits of the issue of

guilt or innocence are not reviewable on appeal of a judgment

entered on [a plea of nolo contendere]. The only issues

cognizable on appeal following entry of . . . a nolo contendere

plea are those based upon constitutional, jurisdictional, or

other grounds going to the legality of the proceedings. . . .");
Hughes v. State, 565 So.2d 354, 355 (Fla. Dist. Ct. App. 1990)

(per curiam) (dismissing appeal from plea of nolo contendere

because the defendant failed "to present a justiciable issue");

Lill v. State, 602 P.2d 129, 130-31 (Kan. App. 1979) ("A

conviction based on a plea of nolo contendere may be collaterally

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attacked only on 'jurisdictional or other grounds going to the

legality of the proceedings . . . .'"); Stevens v. State, 938

S.W.2d 517, 520 (Tx. App. 1997) (holding that a challenge to the

sufficiency of the evidence was a "non-jurisdictional" issue that

could not be appealed because the defendant entered a plea of

nolo contendere); State v. Smith, 833 P.2d 371, 372 (Utah App.

1992) ("A voluntary plea of guilty or no contest constitutes a

waiver of the right to appeal all non-jurisdictional issues,

including denial of a motion to suppress."); Davila v. State, 831

P.2d 204, 205 (Wyo. 1992) ("A plea of nolo contendere has the

same effect in criminal cases as a guilty plea. As a guilty plea

waives all non-jurisdictional defenses, so does a plea of nolo

contendere."); see also Wayne R. LaFave & Jerold H. Israel,

Criminal Procedure § 10.2(d), at 787 (1984) ("A plea of guilty

'is an admission of guilt and a waiver of all non-jurisdictional

defects.' It 'represents a break in the chain of events which

has preceded it in the criminal process,' and thus once a valid

plea is received defendant may not appeal on the ground that his

earlier suppression motion was erroneously denied. The same is

true for a valid nolo contendere plea."). 5

5
In a minority of states where courts have allowed an appeal
of non-jurisdictional issues following a plea of nolo contendere,
a state statute or court rule specifically grants such a right of
appeal. See, e.g., State v. Piorkowski, 672 A.2d 921, 930 (Conn.
1991) ("A plea of nolo contendere by a defendant under this
section shall not constitute a waiver by the defendant of
non-jurisdictional defects in the criminal prosecution.").

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 In Virginia, "[w]hen an accused enters a voluntary and

intelligent plea of guilty to an offense, he waives all defenses

except those jurisdictional." Savino, 239 Va. at 538, 391 S.E.2d

at 278. We hold the same is true when an accused enters a plea

of nolo contendere. In the instant case, by entering a plea of

nolo contendere to the conspiracy charge, appellant foreclosed

the opportunity to appeal the trial court's denial of his

pretrial motion to dismiss. Accordingly, we dismiss his appeal. 6

Dismissed.

6
Additionally, appellant cannot complain of error when he has
specifically entered into a plea agreement with the Commonwealth
and asked the trial court to enter judgment on that agreement.
When appellant requested the trial court to accept the plea
agreement with its favorable sentencing provisions, he "invited"
the trial court to act in the manner he claims was erroneous. See
Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613,
615 (1992) ("The defendant, having agreed upon the action taken by
the trial court, should not be allowed to assume an inconsistent
position. No litigant, even a defendant in a criminal case, will
be permitted to approbate and reprobate--to invite error . . . and
then to take advantage of the situation created by his own
wrong.").

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