COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons * and Frank Argued at Ches apeake, Virginia

DANIAL J. WILLIAMS MEMORANDUM OPINION ∗∗ BY v. Record No. 1099-99-1 JUDGE ROBERT P. FRANK JULY 25, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge Cynthia D. Garris for appellant. Virginia B. Theise n, Assistan t Attorney General (Mark L. Earley , Attorney General; Stephen R. McCullough , Assistant Attorney General, on brief), for appellee.

∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia.

∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Danial J. Williams (appellant) chal lenges his convictions for capital murder and rape . On appeal, he cont ends that the trial court erred in refusing to permit him to wi thdraw his pleas of guilty. We disa gree and affirm the convictions.
I. BACKGROUND On January 22, 1999 , appellant pled guilty to the July 7, 1997 capital murder and rape of Michelle Moore Bosko (victi m).Appellant signed a stipulation of facts implicat ing himself and six other men in the victim's rape and murder. In the stipulation, appellant stated that he did no t ejaculate when he had intercourse wi th the victim. At the April 28, 1999 sentencing hearing, appellant move d to withdraw his pl eas of guilty. The trial court denied the motion to withdraw the pleas of guilty, stating that the court found th e pleas were voluntarily and intelligently made, they were not entered under fraud, coercion, or undue influence, and that the new evid ence asserted by appellant was not a defense to his case. The trial court then pronounced sentence. II. ANALYSIS Appellant conten ds that the trial cour t erred in denying his motion to withdraw his pleas of guilty. We find no error and affirm the judgment of the trial court. "[W]hether 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 wi thin the sound discreti on of the trial court and is to be determin ed by the fact s and circumstan ces of each

case." Parris v. Commonwealth , 189 Va. 321, 324, 52 S.E.2d 872, 873 (1949). The trial court's finding as to the cr edibility of witnesses and th e weight of the ev idence in support of a motion to withdraw a plea of gu ilty will not be dist urbed unless plainly wrong or without eviden ce to support it. See Hoverter v.

- 2 -Commonwealth , 23 Va. App. 454, 465, 477 S.E.2d 771, 776 (1996) (citation omitted). No fixed or definite ru le applicable to and determinative of all cases can be laid down. However, the motion shou ld not be denied, if timely made, and if it appears from the surrounding circ umstances that the plea of guilty was submitted in good faith under an honest mistake of materi al fact or facts, or if it was induced by fraud, coer cion or undue influence and would not otherwis e have been made. Parris , 189 Va. at 324, 52 S.E.2d at 873. Appellant argues that , subsequent to the entry of his pleas, another man conf essed to committing the crimes alone, which exculpates appellant an d is indicative that he entered his pleas inadvisedly. In support of his argument , appellant as serts that the physical eviden ce links the other man to the crimes. Before accepting ap pellant's plea s, the trial court asked appellant whet her he understand the plea agreement an d whether he had the opportun ity to discuss the plea agreement with his attorneys. Appe llant answered in the affirmative, and the trial court found that appellant's pleas were voluntarily and intelligently made. The trial court, therefore, did not err in ruling that appe llant's pleas were not entered unde r fraud, undue influence, or coercion. At the time he ente red his guilty pleas, appellant admitted in the stipulatio n of facts that he comm itted the crimes along with six other men. He testified un der oath that the information

- 3 -in the stipulation of facts was true. Clearl y, he knew that other people were involv ed in the crime. He also stated that he did not ejaculate when he had intercourse with the victim, indicating that there was no genetic ev idence to link him to the crimes when he entered his pleas. Thus, we find no er ror in the tr ial court's determination th at the pleas were not based on a mistake of material facts. We, therefore, find that appellant's pl eas were voluntarily and intelligen tly made, were not made as a result of fraud, coercion, or undue infl uence, and his assertio n that new evidence exculpates him is cont rary to his ow n statement unde r oath that his admissions in the stipulation of facts were tr ue. For these reasons, we find no error and affirm the judgment of the trial

court. Affirmed.

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