COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
NORMAN HOVERTER
OPINION BY
v. Record No. 2172-95-4 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 12, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
J. Michael Solak (Suzanne M. Perka; Hobert,
Kerr & Perka, P.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions of first degree murder and
abduction, Norman Hoverter contends that the trial court erred
(1) in denying his motion to withdraw his guilty pleas prior to
sentencing, and (2) in denying him funds to hire a clinical
psychologist to prepare for sentencing. We find no error and
affirm the judgment of the trial court.
I.
Hoverter was indicted for the first degree murder and
abduction of Valerie Smelser. On July 3, 1995, the parties
entered into a plea agreement. The Commonwealth agreed not to
bring any "further charges against [Hoverter] arising out of the
circumstances involving the abuse, neglect, and death of Valerie
Smelser, including, but not limited to any charge of alleged
sodomy." Hoverter agreed to plead guilty to the murder and
abduction charges, pursuant to North Carolina v. Alford, 400 U.S.
25 (1970). The agreement provided that on the murder charge,
Hoverter would be sentenced "to serve a specific term of
imprisonment to be determined by the Court after preparation of a
Pre-Sentence Report" and that on the abduction charge, he would
receive a ten year suspended sentence. Hoverter retained the
right to withdraw his pleas if the trial court rejected the
agreement.
On July 25, 1995, Hoverter and the Commonwealth's Attorney
presented the plea agreement to the trial court. The following
dialogue occurred between the trial court and Hoverter:
BY THE COURT:
Q Tell me your full name sir?
A Norman Hoverter.
Q What is your age Mr. Hoverter?
A Fifty.
Q Your date of birth?
A 6/12/45.
Q What is the last grade of school you
completed?
A Sixth.
Q Sixth grade. What other education have you
received?
A That's it.
Q I'm sorry?
A None.
Q As you stand here now, are you presently
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using any drugs, any medications or any
alcohol?
A No.
Q Are you the person charged in the indictments
with commission in [sic] the offenses of
murder and abduction?
A Yes.
Q Do you fully understand each of those charges
against you?
A Yes.
Q Have you discussed each of those charges and
the elements with your attorneys so that you
understand what the Commonwealth would have
to prove before you can be found guilty of
either of those charges?
A Yes.
Q Okay, do you understand the question?
A Yes.
Q All right. Have you had enough time to
discuss with your attorneys any possible
defenses that you might have to either of
those charges?
A Yes.
Q Have you discussed with your attorneys
whether you should plead not guilty or
guilty? Have you discussed that with your
attorneys? I'm sorry.
A Yes.
Q All right. After these discussions did you
decide yourself that you should plead guilty?
A Yes sir.
Q Okay. The question is whether you made the
decision or somebody forced you to make the
decision?
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A No.
Q You made it?
A Yes.
Q Are you entering those pleas of guilty freely
and voluntarily?
A Yes.
Q Are you entering those pleas of guilty
because you are in fact guilty of the crimes
charge[d]?
A No.
The Commonwealth's Attorney then stated a summary of the evidence
that the Commonwealth would present in support of the charges.
The trial court then resumed its dialogue with Hoverter as
follows:
BY THE COURT:
Q Mr. Hoverter, are you pleading guilty because
this is the Commonwealth's evidence and you
don't want to take the risk that you would be
found guilty by a jury on that evidence
beyond a reasonable doubt?
A Yes.
Q Do you understand that by pleading guilty,
you are not entitled to a trial by jury?
A Yes.
Q Do you understand by pleading guilty you give
up your right not to incriminate yourself?
A Yes
Q Do you understand by pleading guilty you give
up your right to confront and cross examine
your accusers?
A Yes sir.
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Q Do you understand by pleading guilty you give
up your right to defend yourself?
A Yes.
Q Are you presently serving a penitentiary
sentence or on probation or on parole?
A No.
Q Has anyone connected with your arrest and
prosecution such as the police or the
Commonwealth's Attorney or any other person
in any manner threatened you or forced you to
enter these pleas of guilty?
A No.
Q Have they made any promises concerning your
pleas of guilty?
A No.
Q Do you understand that if you are sentenced
consecutively on these charges, the maximum
punishment for these crimes is life plus 10
years in prison plus all court costs?
A Yes.
Q Are you satisfied with Ms. Perka's and Mr.
Solak's services and their representation of
you in these matters?
A Yes.
Q Do you understand by pleading guilty you may
waive any right to appeal the decision of
this Court?
A Yes.
Q Mr. Hoverter the Court has been handed what
is essentially a two page plea agreement with
an attached five, six page acknowledgment of
rights, both of which bear your signature or
appear to bear your signature under the date
of July 3, 1995. Is this in fact your
signature Mr. Hoverter on these two
documents?
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A Yes.
Q And you signed these on July 3?
A Yes.
Q At the time you signed this plea agreement
particularly had you read the plea agreement?
A Yes sir.
Q Do you read and write?
A Some, yes.
Q And were you able to read this by yourself?
A No.
Q Okay, you were assisted by your attorneys?
A Yes.
Q You could read part of it and couldn't
understand some of the words and they helped
you with those?
A Yes sir.
Q In addition to reading it in the manner you
described, did your attorneys explain to you
and describe for you the contents of the plea
agreement?
A Yes.
Q So that at the time you signed this plea
agreement on July 3rd and as you stand here
now, did you have and do you have a full and
complete understanding of the terms and
conditions of this plea agreement?
A Yes.
Q And does this agreement contain the full and
complete agreement entered into among you,
your attorneys and the Commonwealth's
Attorney?
A Yes.
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Q You understand the Court may accept the plea
agreement or may reject the plea agreement or
may defer any decision to either accept or
reject until there has been an opportunity to
consider a presentence report?
A Yes.
Q Do you understand that if the Court accepts
the plea agreement, the Court will include in
[its] judgment and sentence a sentence
provided for in the plea agreement?
A Yes.
Q Do you understand that as far as the sentence
provided for in the plea agreement, the only
limitation on the sentence to be imposed in
the plea agreement is that the 10 year
sentence on the abduction charge be
suspended, there isn't any limitation on the
life sentence?
A Yes.
Q And that the Court could impose anything from
20 years to life on that charge without
restriction by the plea agreement?
A Yes.
Q And the Court could suspend all, part, or
none of any sentence imposed on that charge
without restriction by the plea agreement.
Do you understand that?
A Yes.
Q Do you understand that if the Court rejects
the plea agreement, you will not be bound by
the plea agreement? You will be given an
opportunity to withdraw your pleas of guilty
and if you do that, your trial may be held
before another judge of this Court?
A Yes.
Q Do you understand that?
A Yes.
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Q Do you understand that if the Court rejects
the plea agreement and you are given the
opportunity to withdraw your plea of guilty
and you don't do that, you continue in your
pleas of guilty, then the sentence imposed
may be more severe than that contained in the
plea agreement? Do you understand that also?
A Yes.
Q Have you understood all the questions I have
asked you?
A Yes.
Q Do you have any questions for the Court?
A No sir.
Whereupon, Hoverter was arraigned on both charges and on each
charge pleaded, "Guilty of the Alford Plea." The trial court
found the "pleas of guilty to be freely, intelligently and
voluntarily made with an understanding of the nature of the
charges and the consequences of the pleas and [accepted the]
pleas at [that] time." The trial court deferred acceptance or
rejection of the plea agreement pending receipt of a presentence
report.
Following Hoverter's arraignment, the Commonwealth's
Attorney gave a press conference. A newspaper reported that the
Commonwealth's Attorney stated at the press conference that he
never intended to charge Hoverter with sodomy and that he lacked
sufficient evidence to bring such a charge. On August 10, 1995,
Hoverter moved to withdraw his guilty pleas. He alleged that he
had entered into the plea agreement desiring to avoid prosecution
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for sodomy and upon the understanding that the Commonwealth would
prosecute him for sodomy unless he pleaded guilty to murder and
abduction. He further alleged that his decision to plead guilty
was based upon the Commonwealth's Attorney's false assertion that
the Commonwealth intended to charge him with sodomy.
On August 25, 1995, the trial court conducted a hearing on
Hoverter's motion to withdraw his guilty pleas. The
Commonwealth's Attorney testified that his statements regarding a
sodomy charge, as reported in the newspaper, were incorrect. He
testified that he had sufficient evidence to bring such a charge,
intended to do so, and had authorized the Assistant
Commonwealth's Attorney to proceed. The Assistant Commonwealth's
Attorney testified that he had prepared a sodomy indictment and
intended to present it to the July 6, 1995 grand jury. Special
Agent Shevokas testified that he had been notified to appear
before the grand jury on July 6, 1995 to present the sodomy
charge. At the conclusion of the hearing, the trial court found
"no evidence . . . of any misrepresentation to the defendant of
any material fact that would have induced him to enter into the
guilty plea." The evidence supported this finding. The trial
court accepted the plea agreement and sentenced Hoverter in
accordance with it.
In the absence of statutory regulation or
established practice, whether or not an
accused should be allowed to withdraw a plea
of guilty for the purpose of submitting one
of not guilty is a matter that rests within
the sound discretion of the trial court and
is to be determined by the facts and
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circumstances of each case. . . . [T]he
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 v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873
(1949) (emphasis added).
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Code § 19.2-296 provides:
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.
Hoverter moved to withdraw his guilty pleas before sentence was
imposed. Thus, his motion was timely under the statute.
Hoverter asserts no honest mistake of material fact or
facts. He contends that the Commonwealth induced his pleas by
fraud or coercion when it represented to him that it would
prosecute him for sodomy when, according to the newspaper account
of the press conference, the Commonwealth's Attorney never
intended to prosecute him for sodomy and lacked the evidence to
do so.
The evidence adduced at the hearing on Hoverter's motion
does not support his contention. The Commonwealth's Attorney
acknowledged that he may have misspoken at the press conference,
noting that it was an excited and confused event. However, the
Commonwealth's Attorney testified that had there been no plea
agreement, he fully intended to prosecute Hoverter for sodomy and
had authorized his assistant to seek an indictment on that
charge. This testimony was corroborated by the Assistant
Commonwealth's Attorney and by the state police investigator who
was scheduled to appear before the grand jury. This testimony
supports the trial court's finding that, regardless of what may
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have appeared in the newspaper report, the Commonwealth's
Attorney made no misrepresentation to Hoverter and that
Hoverter's guilty pleas were not based on fraud or coercion.
"[T]he finding of the judge, upon the credibility of the
witnesses and the weight to be given their evidence, stands on
the same footing as the verdict of a jury, and unless that
finding is plainly wrong, or without evidence to support it, it
can not be disturbed." Yates v. Commonwealth, 4 Va. App. 140,
143, 355 S.E.2d 14, 16 (1987) (citation omitted).
"The plea of guilty to a serious criminal
charge should be freely and voluntarily made,
and entered by the accused, without a
semblance of coercion, and without fear or
duress of any kind, and the accused should be
permitted to withdraw a plea of guilty
entered unadvisably when application therefor
is duly made in good faith and sustained by
proofs . . . ."
Parris, 189 Va. at 325, 52 S.E.2d at 874 (citation omitted).
Before accepting Hoverter's guilty pleas, the trial court
examined him conscientiously and thoroughly. That examination
leaves no room for doubt that Hoverter's pleas were freely and
voluntarily made, were entered by him without a semblance of
coercion and without fear or duress of any kind. Hoverter
alleged misrepresentation, but his proof failed to support that
allegation. The evidence established that the Commonwealth dealt
openly and honestly with Hoverter in negotiating the plea
agreement, that the Commonwealth withheld or misrepresented no
material fact, and that the Commonwealth scrupulously discharged
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its duties under the plea agreement. The evidence supports the
trial court's determination that the Commonwealth made no
misrepresentation of any material fact to Hoverter to induce the
plea agreement and his guilty pleas. Thus, the trial court did
not abuse its discretion in denying Hoverter's motion to withdraw
his pleas.
II.
Hoverter next contends that the trial court violated his
constitutional right to due process by denying him funds to
employ a mental health expert to prepare for sentencing. On
August 10, 1995, the trial court conducted a hearing on
Hoverter's motion for the appointment of "a mental health expert
to conduct a psychological evaluation" for his sentencing
hearing. Hoverter's counsel stated that they needed the expert
"to determine if psychological or mental health mitigation
evidence exists," and, if so, "to aid him in the development and
presentation of such evidence for the sentencing proceeding."
After considering the representations and argument presented
by counsel, the trial court denied the motion. It ruled that
"there has been no showing of either necessity or that such
evidence would likely be a significant factor in the
determination of the appropriate sentence."
Whether to provide a defendant expert assistance at state
expense lies within the sound discretion of the trial court, and
the burden is on the defendant to show that this discretion has
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been abused. O'Dell v. Commonwealth, 234 Va. 672, 687, 364
S.E.2d 491, 499, cert. denied, 488 U.S. 871 (1988). An indigent
defendant's constitutional right to the appointment of an expert
at state expense is not absolute. Rather, "an indigent defendant
who seeks appointment of an expert witness, at the Commonwealth's
expense, must demonstrate that the subject which necessitates the
assistance of the expert is 'likely to be a significant factor in
his defense,' and that he will be prejudiced by the lack of
expert assistance." Husske v. Commonwealth, 252 Va. , ,
S.E.2d , (1996) (quoting Ake v. Oklahoma, 470 U.S. 68, 82-83
(1985)). Hoverter was required to show a particularized need for
the requested services and that he would be prejudiced by the
lack of expert assistance. See id. at ___, ___ S.E.2d at ___.
He failed to do so.
Hoverter alleged no existing mental illness. He
demonstrated no way that the services of an expert might
constitute a significant factor in his defense. He showed no
prejudice resulting from the non-appointment of an expert, nor
did he explain why the detailed presentence investigation would
not sufficiently reflect any "mitigation evidence."
At most, we surmise, Hoverter hoped that a psychological
examination would support a decision for leniency at the
sentencing hearing. However, a mere hope or suspicion that
favorable evidence may result from an expert's services does not
create a constitutional mandate. See id. at , S.E.2d at .
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Accordingly, we hold that the trial court did not abuse its
discretion in denying the motion.
For these reasons we affirm the convictions.
Affirmed.
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