COURT OF APPEALS OF VIRGINIA
Present: Judges Hum phreys, Beales and Huff Argued at Salem, Virginia

TRACI LYNN GUNNELL MEMORANDUM OPINION * BY v. Record No. 0475-13-3 J UDGE RANDOLPH A. BEALES MARCH 18, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Jr., Judge Heath L. Sabin, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

After the trial court denied Traci Lynn Gunnell’s (appellant) motion to suppress evidence found during a search inci dent to arrest, appellant ’s trial counsel informed the trial court that appellant wished to en ter a conditional guilty pl ea. This conditional gu ilty plea encompassed two felony charges (for possession of cocaine and possession of me thadone) and two misdemeanor charges (for possession of a Sche dule IV controlled substance and driving under the in fluence, first offense). On appeal, appellant ar gues that the trial court erred in denying her motion to suppress the evidence on the ground that the police officer lacked pr obable cause to arrest her for driving under the influence. Appellant also cont ends for the first time on appeal that the trial c ourt erred when it accepted her conditional guilty pleas to the two misdemeanor charge s. Appellant contends that the guilty pleas for the misdem eanor charges were not en tered knowingly, volunt arily, or intelligently since appellant “entered the condition al [pleas] expressly to preserve issues raised in the motion to

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - suppress.” For the follow ing reasons, we affirm both of appellant’s felony convictions and dismiss with prejudice appellant’s appeal of both of her misdemeanor convictions.
I. B ACKGROUND Applying the established standard of review on appeal, we consider th e evidence at trial “‘in the light most favorable to the Co mmonwealth, as we must since it was the prevailing party’” in the trial court. Beasley v. Commonwealth, 60 Va. Ap p. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). On August 24, 2012, just before midnight, Officer Lancaster of the Danville Police Depart ment, observed a vehicle with non-illuminated taillights. After in itiating and effecting a stop of the vehicle – whic h appellant was driving – Officer Lancaster approached appellant a nd, after noticing that th e headlights were also not illuminated, told her that he had stoppedher because her headlights were not illuminated. A video that was admitted at the suppression hearing shows appellant attempting to make a phone call on her cell phone as Officer Lancaster approached her vehicl e and attempted to initiate a conversation with her. After detecting an odor of alcohol coming from the vehi cle, Officer Lancaster asked appellant if she had been drinki ng alcohol. Appell ant admitted to drinking some alcohol – specifically, a mixed drink with dinn er around 7:30 or 8:30 p.m. – at which point Officer Lancaster asked her to step out of the vehi cle. Officer Lancaste r testified that during the encounter, appellant was “very talkative . . . also she had a strong od or of alcohol coming from her person as well as watery and glassy eyes, she was very talkative, she was very upset . . . speech was slurred.” Officer Lancaster proceeded to ask appellant to perform three field sobriety tests: (1) the alphabet test (a recitati on of the alphabet without singing it), (2) the index finger to nose test, and (3) the nine-step heel-to-toe walk. Appellant performed the alphabet test co rrectly. Appellant failed to perform the index finger to no se test correctly, however, as sh e used her middle finger instead of- 3 - her index finger and did no t close her eyes as Officer Lancaster had instructed her to do. On the nine-step heel-to-toe walk, appellant walked nine steps out, withou t stumbling, but did not walk nine steps back as instructed. Appellant blew (or claimed to blow) thre e times into a device designed to detect a person’s bloo d alcohol content, but the device was unable to register a reading of any kind. After appellant’s repeated attempts to blow into the device, Officer Lancaster arrested her. During the search incident to arrest, Officer Lancaster foun d a pink straw in appellant’s shorts pocket. It was later determ ined that the stra w contained cocaine residue. In the same pocket, Officer Lancaster found four yellow pills in a clear ba g. It was later determin ed that thos e pills were diazepam, which is a Schedule IV controlled substance. After conducting an inventory search of appellant’s car, Officer Lancaster found a brown pock etbook on the right front floor of the car. At the jail, appellant cl aimed the pocketbook as he r own. The pocket book contained a white pill that turned out to be methadone, a Schedule II contro lled substance. Finall y, the breath analysis performed at the police station revealed that appellant had a blood alcohol content of 0.15. In denying appellant’s motion to suppress the ev idence, the trial court noted that appellant’s speech seemed slurred in the be ginning of the encounter, that sh e failed to follo w the officer’s instructions on the finger-to-nose test and on the heel-t o-toe test, that she fu mbled with her phone, and that Officer Lancaster discerne d an odor of alcohol. After th e trial court’s ru ling on the motion to suppress, appellant’s c ounsel informed the trial court that appellant wi shed to ente r a conditional guilty plea to the possession of cocaine charge, the possession of methadon e charge, the possession of a Schedule IV controlled substance charge, and the DWI (first offense) charge. Appellant entered conditional guilty pleas to those charges, and the trial court accepted them as knowing and voluntary.- 4 - II. A NALYSIS A. Motion to Suppress the Evidence Appellant’s first a ssignment of error challeng es the trial court’s deci sion to deny her motion to suppress the evidence r ecovered after her arrest. “When re viewing a denial of a motion to suppress evidence, an appellate c ourt considers the evidence in th e light most favorable to the Commonwealth and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.” Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012) (citing Sidney v. Commonw ealth, 280 Va. 517, 52 0, 702 S.E.2d 124, 126 (2010)). In addition, “The defendant has the bu rden of showing that even when the evidence is reviewed in that light, denying the motion to suppress was reversible error.” Id. (citing Sidney, 280 Va. at 522, 702 S.E.2d at 127). “We review de no vo the trial court’s application of the law to the particular facts of the case.” Id. (citing Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008)). The trial court’s findings of fact are not distur bed unless plainly wrong. See Code § 8.01-680. Code § 18.2-266 provides, in re levant part, “It shall be unlawf ul for any person to drive or operate any motor vehicle . . . whil e such person is under the infl uence of alcohol.” Viewing the evidence in the light most favora ble to the Commonwealth (as we must since it was the prevailing party at the suppression hearing), the evidence shows that the trial court did not err when it denied appellant’s motion to suppr ess the evidence on the gr ound that Officer Lancaster had probable cause to arrest appellant for driving under the influen ce in violation of Code § 18.2-266. “‘[P]robable cause exists when the f acts and circumstances within the officer’s knowledge, and of which he has reasonably trustworthy information, alone are suffic ient to warrant a person of reasonable caution to believe that an offense has been or is being co mmitted.’” McGhee v. Commonwealth , 280 Va. 620, 624, 701 S.E.2d 58, 60 (2010) (quoting Jones v. Commonwealth, 279 Va. 52, 59, 688 S.E.2d 269, 273 (2010)). Here, the facts and circumstances in th e record suggest that a fi nder of fact reasonably- 5 - could have found that Officer Lancaster had probabl e cause to arrest appell ant for drivin g under the influence. First, appellant’s speech was slurred in th e beginning of the encounter with Officer Lancaster. In addition, appell ant fumbled with her ph one – and attempted to use her phone – as Officer Lancaster was attempting to initiate a conversation with her. Third, appellant was unable to successfully follow directions during two of the thr ee field sobriety tests. Fourth, Officer Lancaster testified that he discerned an odor of alcohol coming from appellant’s person. Fifth, appellant did admit to Officer Lancaster that sh e had consumed some alcohol. Finally, as the trial court pointed out, appellant was operating a vehi cle at night with no n-illuminated taillights and n on-illuminated headlights. Thus, all of these circ umstances, taken together , were “‘sufficient to warrant a person of reasonable caution to believe that an offense . . . [was] being committed.’” I d. As Officer Lancaster had probable cause that appellant had been driving under the influence, he was justified in arresting her for that offense. He was th erefore justified in conducting a se arch incident to arrest, which yielded, among other things, cocaine and methadone. For these reasons, we affirm appellant’s two felony convictions for possession of cocaine and fo r possession of methadone – both in violation of Code § 18.2-250. B. Conditional Guilty Pleas In her second assignmen t of error, appellant argues that th e trial court erred in permitting her to enter conditional guilty pleas to her possession of a Schedule IV controlle d substance charge and to her driving under the influence (first offense) charge. Specifically, appe llant contends that her conditional guilty pleas to thos e two misdemeanor offenses we re not entered knowingly, intelligently, or voluntarily since Code § 19.2-254 does not permit a defendant to enter a conditional guilty plea to a misdemeanor charge.- 6 - Article I, Section 8 of the Vi rginia Constitution states, “in criminal cases, the accused may plead guilty.” This C ourt has “interpreted this constituti onal provision to mean that the Commonwealth must accept any guilty plea tendered before a jury has rendered its verdict, so long as the plea is entered ‘knowingly, voluntarily, and intelligently.’” H ill v. Commonwealth, 47 Va. App. 667, 671, 626 S.E.2d 459, 461 (2006) (citing Graham v. Commo nwealth, 11 Va. App. 133, 139, 397 S.E. 2d 270, 273 (1990)). An accused does have the constitutional right to enter a guilty plea, but “an accused does not ha ve a constitutional right to enter a conditional guilty plea. Rather, this right – established by Code § 19.2-254 – is a statutory one.” Id. Code § 19.2-254 provides, in relevant part, as follows: With the approval of the court and the consent of th e Commonwealth, a defendant may enter a conditional plea of guilty in a felony case , reserving the right, on appeal from the judgm ent, to a review of the adverse determination of any specified pretrial motions. If the defendant prevails on appeal, he shall be allo wed to withdraw his plea. (Emphasis added). Interpreting the plain language of Code § 19.2-254, th is Court has held th at it is error to permit a defendant to enter a conditional guilty plea to a misdemeanor charge since no such right exists by statute. Cross v. Co mmonwealth, 49 Va. App. 484, 487, 642 S.E.2d 763, 766 (2007), vacated on other grounds, 665 S.E.2d 861 (2008). 1 However, this principl e of law does not end our analysis here.

1 This case is distinguishable from Cross. First, this Court’s opi nion in Cross did not address whether Cross invited the error. Here , however, appellant invited the error when appellant’s counsel told the tria l court, “[I]t will be a conditio nal guilty plea on the DUI and the three drug possessions” charged ag ainst appellant. “‘A party ma y not approbate and reprobate by taking successive positions in the course of litigation that are ei ther inconsistent with each other or mutually contradictory. Nor may a party invite error and then at tempt to take advantage of the situation created by his own wr ong.’” Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). Second, this Court in Cross reversed the trial court’s denial of Cross’s motion to suppress the evidence. Cross, 49 Va. App. at 487, 642 S.E.2d at 763. Thus, in Cross the defendant’s conditional guilty plea was supported by facts that ought to have been suppressed- 7 - In this case, unlike inCross, it is clear that appellant’s trial counsel invited the error by expressly informing the trial court that appellant wished to enter a conditional guilty plea to the two felony charges and two misdemeanor charges that were pending against appellant. 2 Thus, appellant through counsel asserted a right to enter a conditional guilty plea to misdem eanor charges – but now, on appeal, seeks a re versal of the trial court’s judgment on the basis that such a right does not exist by statute. As th e Supreme Court has held, “We will not ‘notice error which has been invited by the party seeking to take advantage thereof on appeal.’” Muhammad v. Commonwealth, 269 Va. 451, 525, 619 S.E. 2d 16, 58 (2005) (quoting Saunders v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1 970)); see also Rowe v. Commonwealth , 277 Va. 495, 501-03, 675 S.E.2d 161, 164-65 (2009) (h olding that the defendant’s counsel inv ited error when counse l argued at trial that assault and battery of a law enforcement offi cer, for which the defendant was never indicted, was a lesser-included offense of attempted capital murder of a law enforcement officer – but then argued on appeal that the defendant’s conviction for assault and battery of a law enforcement officer was improper because it was not a lesser-included offense). Because appellant’s tria l counsel invited the same error in the trial cour t that is now the basis of this assignment of error to this Court, we will not notice that error on appeal . See Muhammad, 269 Va. at 525, 619 S.E.2d at 58. Theref ore, appellant’s ch allenge based on th e conditional nature of her guilty pleas to the two misd emeanor charges is not properly before this Court. Accordingly, we dismiss appellant’s appeal as it pertains to her two misdemeanor convictions. See Hill, 47 Va. App. at 675-76, 62 6 S.E.2d at 463-64.

under the existing caselaw at that time. Here , however, in addressing appellant’s first assignment of error, we have concluded that the trial court correctly denied appellant’s motion to suppress evidence that supported appellant ’s felony and misdemeanor convictions.

2 We note also that appellant never made a motion to withdraw her conditional guilty plea to either the misdemeanor or felony charges.- 8 - III. C ONCLUSION The record establishes that appellant had sl urred speech, was drivin g at night without the benefit of either her headlights or her taillights, fa iled to follow Officer Lancaster’s instructions, failed to perform satisfactorily tw o field sobriety tests, had watery eyes, fumbled w ith her phone, smelled of alcohol, and admitted to consuming some alcohol. Viewing the evidence in the light most favorable to the Co mmonwealth, as we must si nce it was the prevailing party below, a rational trier of fact could find that Offi cer Lancaster had probable cause to arrest appellant for driving under the influence. Thus, the trial court did not err wh en it denied appellant’s motion to suppress the evidence on the ground that Offi cer Lancaster lacked probable caus e to arrest appellant for driving under the influence. Accordingly, we affirm both of ap pellant’s felony convic tions. Because appeal of her two misdemeanor conviction s is not properly before us, however, we dismiss appellant’s appeal of the two mi sdemeanor convictions. Affirmed in part and dismissed in part.