Tuesday 24th 

 February, 1998. 

Christopher Sandy, s/k/a 

 Christopher E. Sandy, Appellant, 

 against Record No. 2458-95-2 

 Circuit Court Nos. 95-30 and 95-42 through 

 95-47 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Fitzpatrick,* Judges Baker, Benton, Coleman, 

 Moon,** Willis, Elder, Annunziata and Overton 

 Gordon A. Wilkins (Wilkins & Davison, on 

brief), for appellant. 

 Thomas D. Bagwell, Senior Assistant Attorney 

General (Richard Cullen, Attorney General, 

on briefs), for appellee. 

 

On June 10, 1997, a panel of this Court held that the 

Commonwealth had breached the terms of a plea agreement on which the 

defendant had relied to his detriment by "fully answer[ing] any 

questions which were posed to him by [the Commonwealth's Attorney]." 

See Sandy v. Commonwealth, 25 Va. App. 1, 486 S.E.2d 102 (1997). 

Based on that holding, the panel reversed the defendant's seven felony 

convictions and remanded the case to the trial court, with 

instructions requiring the Commonwealth to specifically perform its 

promises in the plea agreement, which were to move to amend certain 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as 

chief judge. 

 **Chief Judge Moon retired from the Court prior to the rendition 

and release of this order and did not participate in the decision. 
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charges, drop others, and recommend sentences on the amended charges. 

 We granted a rehearing en banc from the panel's decision and stayed 

the mandate. Upon rehearing en banc, the stay of this Court's 

June 10, 1997 mandate is lifted and we reverse the trial court for the 

reasons set forth in the panel decision, which we adopt, see id., and 

we vacate the conviction orders and remand the case to the trial 

court. 

To the extent the panel opinion may not have explicitly set 

 forth the procedure for the trial court to follow on remand, we 

provide the following direction: On remand, the Commonwealth's 

Attorney shall make a good faith motion in accordance with the terms 

of the plea agreement to amend seven of the thirty-two felony charges 

to petit larceny, to dismiss or nolle prosequi the remaining charges, 

and, subject to the trial judge's acceptance of the Commonwealth's 

motions and the defendant's election to plead guilty thereto, to 

recommend fines of no more than $500 and concurrent six-month jail 

terms for each petit larceny conviction. On remand, a trial judge 

other than the judge who previously heard the case and held the 

agreement to be "invalid" shall be designated to consider whether to 

accept or reject the Commonwealth's motions, unless the parties agree 

otherwise. See Rule 3A:8(c)(4). 

"There is, of course, no absolute right to have a guilty 

plea accepted. A court may reject a plea in the exercise of sound 

judicial discretion." Santobello v. New York, 404 U.S. 257, 262 

(1971). See Sandy, 25 Va. App. at 12 n.2, 486 S.E.2d at 108 n.2; Rule 

3A:8(c)(2); Holler v. Commonwealth, 220 Va. 961, 968, 265 S.E.2d 715, 

719 (1980). If, on remand, the trial court conditionally accepts the 
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Commonwealth's Attorney's recommendations to amend and nolle prosequi

the various charges, the defendant shall be arraigned and afforded the 

opportunity to plead thereto, with the defendant being informed that 

the trial court is not required to accept the Commonwealth's 

recommendation for $500 fines and concurrent six-month jail sentences. 

See Rule 3A:8(c)(1)(B). In the event the trial court rejects the 

Commonwealth's Attorney's motions to amend and nolle prosequi the 

charges pursuant to the plea agreement or the defendant elects to 

plead not guilty, the Commonwealth shall retry the defendant, if it be 

so advised, and shall do so before a judge other than the one who may 

have rejected the plea agreement, unless the parties agree otherwise 

as provided by Rule 3A:8(c). 

Chief Judge Fitzpatrick and Judge Baker dissent from the 

majority holding and would affirm the trial court's ruling that on the 

record "there was no agreement between the Commonwealth and the 

defendant that should be enforced." 

This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

CHRISTOPHER SANDY, S/K/A 

 CHRISTOPHER E. SANDY 

 OPINION BY 

v. Record No. 2458-95-2 JUDGE MARVIN F. COLE 

 JUNE 10, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY 

Joseph E. Spruill, Jr., Judge 

 Gordon A. Wilkins (Wilkins & Davison, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Thomas D. Bagwell, Senior Assistant Attorney 

General, on brief), for appellee. 

 Christopher Sandy (defendant) was indicted on thirty-two 

charges of issuing fraudulent grain receipts in violation of Code 

§ 3.1-722.28. Defendant entered into a plea agreement with the 

Commonwealth's Attorney. The trial court declared the plea 

agreement invalid. On appeal, the defendant contends (1) a 

contractual relationship existed between the Commonwealth and the 

defendant; (2) the Commonwealth's Attorney could not unilaterally 

withdraw her acceptance of the plea agreement; and (3) assuming 

the Commonwealth breached its agreement, defendant is entitled to 

specific performance of the agreement. We hold that the 

Commonwealth breached the plea agreement and reverse. 

 The defendant and the Commonwealth's Attorney entered into a 

plea agreement on March 31, 1995, in accordance with Rule 
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3A:8(c). It provided that the Commonwealth's Attorney was 

"desirous of securing information from Sandy relating to 

activities in Westmoreland County of which Sandy has 

knowledge . . . ." The agreement stated that Sandy was willing 

to provide such information by meeting with and fully answering 

any questions posed to him by the Commonwealth's Attorney. The 

time and number of the meetings were specified. The agreement 

provided that after the meetings, if the Commonwealth's Attorney 

was reasonably satisfied that the information was full and 

complete, she would amend seven of the indictments involving 

Kermit Thomas to indictments for petit larceny and she would move 

the court to "nol pros" or dismiss all of the other indictments. 

 Further, the agreement stated that the Commonwealth's Attorney 

would recommend to the court that Sandy be fined no more than 

$500 on each of the seven indictments for which he would be 

convicted and be sentenced to concurrent six month jail terms on 

each charge. 

 On June 5, 1995, several days before the trial was scheduled 

to commence, the Commonwealth's Attorney advised defense counsel 

that she thought the defendant had breached the plea agreement by 

untruthfully furnishing information to her and that she was not 

going to honor the agreement. For this reason, the trial was 

postponed. 

 During the summer months, the parties continued their 

negotiations in order to resolve the difficulties, but without 
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success. On September 8, 1995, the defendant filed a petition 

alleging that the Commonwealth's Attorney unilaterally breached 

the plea agreement by refusing to honor it. He asked that the 

court specifically enforce the plea agreement. 

 The procedure for plea agreements is set forth in Rule 

3A:8(c). It provides that the defendant, his or her attorney, 

and the Commonwealth's attorney may enter into a plea agreement 

regarding the disposition of the charges. Pursuant to Rule 

3A:8(c)(1), a Commonwealth's attorney may engage in discussions 

with a view toward reaching an agreement that, upon entry by the 

defendant of a plea of guilty to a charged offense, or to a 

lesser or related offense, the Commonwealth's attorney may do any 

of the following: 

 (A) Move for nolle prosequi or dismissal of 

other charges; 

 (B) Make a recommendation, or agree not to 

oppose the defendant's request, for a 

particular sentence, with the understanding 

that such recommendation or request shall not 

be binding on the court; 

 (C) Agree that a specific sentence is the 

appropriate disposition of the case. 

After a plea agreement is reached by the parties in felony cases, 

it must be reduced to writing, signed, and presented to the 

court. Rule 3A:8(c)(2). The court may accept or reject such an 

agreement when it is presented in open court. Id.; see Wolfe v. 

Commonwealth, 1 Va. App. 498, 339 S.E.2d 913 (1986). The Rule 

specifically provides that the trial court shall not participate 

in any plea agreement discussions between the parties. Rule 
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3A:8(c)(1). 

 The United States Supreme Court has discussed plea 

agreements: 

 This phase of the process of criminal 

justice, and the adjudicative element 

inherent in accepting a plea of guilty, must 

be attended by safeguards to insure the 

defendant what is reasonably due in the 

circumstances. Those circumstances will 

vary, but a constant factor is that when a 

plea rests in any significant degree on a 

promise or agreement of the prosecutor, so 

that it can be said to be part of the 

inducement or consideration, such promise 

must be fulfilled. 

Santobello v. New York, 404 U.S. 257, 262 (1971). 

 In United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 

1986), a leading case from the Fourth Circuit1, the court stated: 

 In the process of determining whether 

disputed plea agreements have been formed or 

performed, courts have necessarily drawn on 

the most relevant body of developed rules and 

principles of private law, those pertaining 

to the formation and interpretation of 

commercial contracts. But the courts have 

recognized that those rules have to be 

applied to plea agreements with two things in 

mind which may require their tempering in 

particular cases. First, the defendant's 

underlying "contract" right is 

constitutionally based and therefore reflects 

concerns that differ fundamentally from and 

run wider than those of commercial contract 

law. See Mabry v. Johnson, 467 U.S. [504] at 

509 [(1984),] (broken government promise that 

induced guilty plea implicates due process 

clause because it impairs voluntariness and 

intelligence of plea). Second, with respect 

to federal prosecutions, the courts' concerns 

 

 1Fed. R. Crim. P. 11(e) is substantially identical to Rule 

3A:8(c). See Holler v. Commonwealth, 220 Va. 961, 968, 265 

S.E.2d 715, 719 (1980). 
 -8- 

run even wider than protection of the 

defendant's individual constitutional 

 rights--to concerns for "honor of the 

government, public confidence in the fair 

administration of justice, and the effective 

administration of justice in a federal scheme 

of government." United States v. Carter, 454 

F.2d 426, 428 (4th Cir. 1972). 

See also United States v. Dixon, 998 F.2d 228 (4th Cir. 1993); 

United States v. Garcia, 956 F.2d 41 (4th Cir. 1992); United 

States v. Conner, 930 F.2d 1073 (4th Cir.), cert. denied, 502 

U.S. 958 (1991). 

 The Virginia Supreme Court has discussed plea agreements and 

said: 

 [A] plea bargain agreement was made and 

defendant, who had complied with the 

agreement, was entitled to have the agreement 

strictly complied with by the prosecutor 

until the sentencing process was completed. 

Any deviation from the agreement by the 

prosecutor, whether inadvertent or not, 

should not have been countenanced. Here the 

defendant promptly elected to withdraw his 

guilty plea entered pursuant to the agreement 

and he should have been permitted to do so. 

Johnson v. Commonwealth, 214 Va. 515, 518, 201 S.E.2d 594, 596 

(1974) (footnote omitted). See also Lilly v. Commonwealth, 218 

Va. 960, 963, 243 S.E.2d 208, 210 (1978) (where the prosecutor 

fails to honor any terms of the plea agreement, a defendant has a 

right to withdraw a guilty plea); Jones v. Commonwealth, 217 Va. 

248, 257, 227 S.E.2d 701, 707 (1976) (defendant entitled to 

specific performance where Commonwealth breached plea agreement); 

Jordan v. Commonwealth, 217 Va. 57, 59, 225 S.E.2d 661, 663 

(1976) ("The word of the Commonwealth has been given in this 
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case, and it cannot be abridged, revoked or diluted. The 

integrity of the Commonwealth itself must be upheld." Specific 

performance of the plea agreement was decreed.); Calvillo v. 

Commonwealth, 19 Va. App. 433, 435, 452 S.E.2d 363, 364 (1994) 

(Commonwealth required to honor agreement and dismiss charge when 

defendant committed no further violations within a year); 

Commonwealth v. Sluss, 14 Va. App. 601, 604, 419 S.E.2d 263, 265 

(1992) (plea agreements are contractual in nature and subject to 

principles of contract law). 

 The petition for specific performance was scheduled for 

hearing on September 18, 1995. The defendant called as his only 

witness on the plea agreement issue Gordon A. Wilkins, who was 

his attorney during the plea agreement negotiations. The 

Commonwealth did not put on any evidence. 

 Wilkins testified that he, Sandy and the Commonwealth's 

Attorney engaged in discussions with a view toward reaching a 

plea agreement. An agreement was reached, reduced to writing, 

and signed by the parties. 

 Under the agreement, the defendant was required to provide 

certain information to the Commonwealth's Attorney specified in 

the agreement. Wilkins testified that Sandy was questioned on 

four occasions by the Commonwealth's Attorney or her 

representative and that he truthfully answered all questions 

propounded to him. 

 According to Wilkins' testimony, the last meeting was held 
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on May 25, 1995. That afternoon, he asked the Commonwealth's 

Attorney whether Sandy had complied with the agreement and 

reasonably satisfied her that the information furnished was full 

and complete. Her answer was that she was leaning toward it, had 

not made up her mind, and wanted a little more time. 

 Wilkins contacted the Commonwealth's Attorney the next 

afternoon. On this occasion, she stated that she was 

"reluctantly going along with the plea agreement." Memorial Day 

weekend intervened. The next business day, May 30, 1995, the 

Commonwealth's Attorney went to Wilkins' office and told him that 

she had rethought the situation and she was not going to go 

through with the plea agreement. 

 On May 31, 1995, Wilkins went to the Commonwealth's 

Attorney's office and expressed his concern about her repudiation 

of the agreement when the trial was scheduled on June 8, 1995, 

and stated to her that he "couldn't allow that to happen." 

According to Wilkins' testimony, the Commonwealth's Attorney 

suggested that at the trial on June 8, 1995, they go through with 

the agreement in its original form, that the case be continued to 

August, and she make her recommendations at that time. This 

deviation was agreed to. However, on June 5, 1995, Wilkins 

received a letter from the Commonwealth's Attorney dated May 31, 

1995, the same date they agreed upon the modification, which 

stated: 

 This is to confirm that in consideration of 

Mr. Sandy's frankness in discussions with me 

and the police regarding short-weighting and 
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other matters, his willingness to agree to a 

continuance of this matter, and various 

mitigating circumstances, if he will plead 

guilty as agreed in our contract of March 31, 

1995, I agree to recommend the amendments, 

penalties and orders of nolle prosequi as set 

forth in the agreement. The case will be 

continued from June 8 to the first court date 

in August available to both attorneys. . . . 

 Obviously, if it becomes apparent that Mr. 

Sandy has told substantial and actual lies 

regarding any matter, the agreement would 

have been breached and be void. Mr. Sandy 

knows (as you and I cannot) whether that is 

the case. 

 Wilkins testified that he was "nonplussed" upon receipt of 

that letter because it did not accurately represent what was said 

between them on May 31, 1995. The second paragraph of the letter 

indicated that the investigation would continue. He had 

understood from her that the investigation had been completed and 

that she was satisfied with it. 

 Wilkins testified that he received another faxed letter 

dated June 5, 1995, from the Commonwealth's Attorney. The letter 

stated that she had received information that "verifies that 

Christopher actually lied to me," although the letter did not 

specify what the lies were or who had verified them. The letter 

concluded with the statement, "I cannot abide by the agreement." 

 The facts disclosed in Wilkins' testimony are not in 

dispute. The Commonwealth did not call a single witness to 

refute his testimony. Further, the Commonwealth did not put on 

any evidence to prove that Sandy lied or that he was anything but 

truthful in the information that he gave at the four sessions. 
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The Commonwealth's Attorney in argument before the trial court 

stated that "the defendant breached the agreement by not being 

truthful." However, no testimony in the record supports this 

allegation. 

 At the conclusion of the evidence and argument of counsel, 

the trial court found: 

 Let's cut through this, the Court makes 

some findings here. The Court finds that 

there was no agreement between the 

Commonwealth and the defendant that should be 

enforced by this Court. The Court finds that 

the Commonwealth's Attorney had not accepted 

this, that she had tentatively accepted it. 

There certainly isn't anything that I find, 

shown to me this [sic] proposed, and I 

emphasize the word proposed plea agreement, 

that said that she was bound to accept this 

orally at any particular time. 

 Now, she did indicate that she was 

accepting it according to the testimony, but 

I don't think that's any plea agreement until 

the plea agreement is accepted by the court. 

 Now, there may be an agreement between the 

parties before that, but I don't find that in 

this case that there was such an agreement. 

 The trial court denied the defendant's motion to require the 

Commonwealth to specifically perform the plea agreement. Later 

in September, a jury trial was held. The defendant pled not 

guilty to all charges, and was convicted upon seven felony 

charges. 

 We hold that the trial court abused its discretion when it 

declined to grant the defendant's petition for specific 

performance of the plea agreement. 

 The decision whether to grant specific 
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performance of a contract is a matter 

submitted to the sound discretion of the 

trial court. Griscom v. Childress, 183 Va. 

42, 47, 31 S.E.2d 309, 312 (1944). Specific 

performance is an equitable remedy, which may 

be considered by the trial court where the 

remedy at law is inadequate and the nature of 

the contract is such that specific 

enforcement of it will not result in great 

practical difficulties. Thompson v. 

Commonwealth, 197 Va. 208, 212-13, 89 S.E.2d 

64, 67 (1955). Although the granting of 

specific performance is not a matter of 

absolute right, 

 [w]hen the contract sought to be 

enforced . . . has been proven by 

competent and satisfactory 

evidence, and there is nothing to 

indicate that its enforcement would 

be inequitable to a defendant, but 

will work injury and damage to the 

other party if it should be 

refused, in the absence of fraud, 

misapprehension, or mistake, relief 

will be granted by specific 

enforcement. 

 Haythe v. May, 223 Va. 359, 361, 288 S.E.2d 

487, 488 (1982). 

Chattin v. Chattin, 245 Va. 302, 306-07, 427 S.E.2d 347, 350 

(1993). 

 The defendant proved all of the necessary elements to obtain 

specific performance of the agreement. Significantly, the 

evidence proved that a valid contract existed between the parties 

and that the Commonwealth's Attorney failed to meet her 

obligations. The defendant offered as an exhibit a copy of the 

plea agreement entered into between the parties. The written 
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agreement evinces a clear, complete and distinct meeting of the 

minds between the parties that was based upon proper 

consideration and characterized by mutuality of obligation and of 

remedy. See 17 M.J., Specific Performance, §§ 6-24 (1994). The 

contract required the defendant to meet with the Commonwealth's 

Attorney and other officials at specified times and to "fully 

answer any questions which are posed to him by [the 

Commonwealth's Attorney]." Upon the condition that the 

Commonwealth's Attorney "is reasonably satisfied that the 

information provided by Sandy is full and complete," the 

Commonwealth's Attorney agreed to move to amend the charges 

against the defendant and to make a sentence recommendation. 

After the defendant provided information to the Commonwealth's 

Attorney, she indicated her satisfaction with the defendant's 

information by stating that she would "go along with" both the 

motion to amend the charges and the sentencing recommendation. 

However, the Commonwealth's Attorney subsequently withdrew her 

approval and refused to fulfill her contractual obligations. 

 The record also reflects that the defendant's legal remedies 

are inadequate and that specific enforcement of the plea 

agreement is both feasible and fair to both parties. Because the 

Commonwealth's Attorney failed to comply with the agreement, the 

defendant was convicted of seven felonies instead of seven 

misdemeanors, and he received a sentence in excess of that set 

forth in the agreement. An action at law for damages would be 
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insufficient to restore the defendant to the position he occupied 

before the agreement was violated because money damages cannot, 

among other things, compensate the defendant for the loss of his 

right to vote. See Va. Const. Art. II, § 1 (stating that 

convicted felons are unqualified to vote). Moreover, vacating 

the defendant's convictions and ordering the Commonwealth's 

Attorney to specifically perform her obligations under the 

agreement is not impractical. Any other remedy will result in 

significant injury to appellant. 

 We disagree with the Commonwealth's argument that the 

defendant was not entitled to specific performance because his 

information failed to "reasonably satisf[y]" the Commonwealth's 

Attorney. The Commonwealth's obligations under the agreement 

were contingent on the condition subsequent that "[the 

Commonwealth's Attorney] is reasonably satisfied that the 

information provided by Sandy is full and complete . . . ." The 

Commonwealth argues that the defendant breached this condition 

because the Commonwealth's Attorney discovered that the 

information given by the defendant was false. However, at the 

hearing on the defendant's petition for specific performance, the 

Commonwealth presented no evidence proving that the defendant had 

given false information. Although "[t]here can be no specific 

performance of a contract which is subject to a condition unless 

the condition has been fulfilled," Cushman v. Fitz-Hugh, 199 Va. 

234, 240, 98 S.E.2d 706, 709 (1957), "the government [bears] the 
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'burden of establishing a breach by the defendant [of the . . . 

agreement] if the agreement is to be considered unenforceable.'" 

Sluss, 14 Va. App. at 606, 419 S.E.2d at 266 (citation omitted). 

 The Commonwealth failed to satisfy its burden. 

 Furthermore, we hold that the trial court's assertion that 

no agreement could exist between the parties until it was 

approved by the trial court was plainly wrong. Like other 

contracts in Virginia, a Commonwealth's attorney is contractually

bound by an agreement with a defendant from the moment the 

parties mutually assent by forming the contract. See Richardson 

v. Richardson, 10 Va. App. 391, 396, 392 S.E.2d 688, 690 (1990). 

 Both the defendant and the Commonwealth's Attorney entered into 

a valid contract on March 31, 1995, and the Commonwealth's 

Attorney was bound by its terms from that point forward.2

 We therefore hold that the defendant is entitled to have his 

petition for specific performance granted because the 

Commonwealth breached the plea agreement. We reverse and vacate 

the convictions and remand for further proceedings consistent 

with this opinion. 

 

 2The agreement, however, cannot bind the court to accept the 

terms of the agreement. There is a significant difference, 

however, between requiring the Commonwealth's attorney to perform 

his or her obligations under the agreement and requiring the 

court to act. Here, the defendant simply asks the Commonwealth's 

Attorney to do what she agreed to do, namely, move to amend the 

indictments as to certain charges, dismiss the remainder, and 

make a specific sentencing recommendation. The court's 

responsibility thereafter depends upon the terms of the 

agreement. The issue of the court's responsibility is not before 

us. 
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 Reversed and remanded.