COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Clements and Felton Argued at Chesapeake, Virginia

SHERON STEVENSON MEMORANDUM OPINION * BY v. Record No. 2350-02-1 JUDGEJEAN HARRISON CLEMENTS FEBRUARY 24, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr., Judge Joseph A. Pennington for appellant. Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Alice T. Armstrong, Assistant Attorney General, on brief), for appellee.

Sheron Stevenson was convicted on his guilty pleas of two counts of robbe ry, in violation of Code § 18.2-58, and two counts of use of a firearm in the commission of ro bbery, in violation of Code § 18.2-53.1. On appeal, Stevenson contends the tria l court erred in denying his motion to withdraw his guilty pleas before sentencing. Finding no error, we affirm the convictions. As the parties are fully conv ersant with the record in this case and because this memorandum opinion carries no precedential value, th is opinion recites on ly those facts and incidents of the pro ceedings as are necessary to the parties’ understandin g of the disposition of this appeal. I. BACKGROUND On February 6, 2002, Stevenson was indicted on four counts of robbery, four counts of the use of a firearm in the commission of robbery, and two counts of co nspiracy to comm it robbery. On

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - April 4, 2002, Stevenson appeared be fore the trial court for arraignment. 1 He was represented by his retained counsel, Ro bert E. Frank. In accordance with th e terms of a written plea agreement he entered into with the Commonwea lth, Stevenson pled guilty to two counts of robbery and two counts of the use of a firearm in the commission of robbery. In exchange for Stevenson’s guilty pleas, the Commonwealth agreed to move to nolle prosequi the remaining charges. The parties further agreed that the case was to be referred for a presentence report and that, in exchange for Stevenson’s cooperation in testif ying against his codefendants, th e “appropriate disposition” of the matter would be for the court to sentence Stevenson “in its discre tion, with the maximum period of active incarceration to be capped at the High End of the range recommended by the Sentencing Guidelines years and with such other suspended time, fi nes, and terms and co nditions of Probation as the Court deems appropriate.” By its term s, the plea agreement wa s “the total agreement between the parties” and no “other inducements, promises, or coercion of any kind [were] imposed upon . . . [or] suggested to” St evenson by the Commonw ealth. Both Stevenson and his attorney signed the plea agreement. At the plea hearing, the tria l judge questioned Stevenson extensively regarding his guilty pleas. Stevenson, who was nineteen years old and ha d finished the eighth gr ade in school, told the trial judge he could read and write “a little bit.” Stevenson’s atto rney told the trial judge he had read every indictment and the plea agreement to Stevenson verbatim and discussed them with him. Stevenson confirmed that his attorn ey had done so. He further told the judge that he “underst[oo]d and consent[ed] to the [p ]lea [a]greement complete ly and entirely,” that “a ll statements and contents of the [p]lea [a]greement [were] entirely true and correct,” that “t he [p]lea [a]greement contain[ed] every part of the agreement made between the Commonwealth and [him] an d [his] attorney,” and

1 Stevenson’s arraignment was conducted by th e Honorable Marc Jacobson. Pursuant to Stevenson’s request and the Commonwealth’s cons ent, the case was subsequently transferred to the Honorable John C. Morrison, Jr., for sentencing.- 3 - that he signed the plea agreemen t “freely and voluntarily.” In responding to the trial judge’s questions, Stevenson also indicated that he “fully underst[oo] d the charges against [him]”; that he had talked to his lawyer “about each of the charges”; that he had had sufficient time to talk to his lawyer about the “possible defenses [he] might have to each of the charges”; that he “talked to [his] lawyer about whether [he] sh ould plead guilty, not guilty, or nolo contendere to each of the charges”; that he “decide [d] for [himself] that [he] should plea d guilty to each of the charges”; that he was pleading guilty to each of the charges “f reely and voluntarily afte r full consu ltation with [his] attorney”; and that he was “pleading guilty to each of the charges because [he wa s], in fact, guilty of each of the charges.” In addition, Stevenson told the judge that no one had “threatened or forced him to plead guilty” and that no “person whatso ever [had] made any promises to him concerning each of [his] pleas of guilty,” other than the te rms of the written plea agreement. St evenson also told the judge that he understood he was forfeiting certai n rights by pl eading guilty, including the right to defend himself, the right to a jury trial, the right to remain silent, the right to confront witnesses, and the right possibly to appeal. Stevenson further told the judge that he unders tood the possible sentence he faced by pleading guilty, including a mandatory eight-year senten ce for the firearms charges and the possibility of two life sentence s for the robbery charges. He al so stated that he understood that parole had been abolished in Virg inia. Finally, Stevenson stated that he understood all of the questions the trial judge had asked him at the plea hearing, that all of his answers to those questions had been “truthful, true, and correct,” and that he had no questions he wanted to ask the judge or his attorney at that time. Finding Stevenson had made each of the pl eas of guilty “knowingly, voluntarily, and intelligently,” the trial court acc epted the pleas and found Steven son guilty of the four charges. Finding Stevenson had entered into the plea agr eement “knowingly, voluntarily, and intelligently,”- 4 - the trial court took the agreement under advisement pending the preparation and consideration of a presentence report. Thereafter, Frank withdrew as St evenson’s attorney. Prior to sentencing, Stevenson, by his newly appointed attorney, filed a motion to withdr aw his guilty pleas. Stevenson argued that he pled guilty because of his erroneous belief, based on his former counsel’s alleged representation to him, that he could withdraw his guilty pleas if, after speaking w ith his mother, he decided not to cooperate with the Commonwealth. In support of that claim, Stevenson presented an affidavit executed by Frank on July 11, 2002 . In that affidavit, Frank stated, in relevant part, as follows: 6.) Counsel explained to Defe ndant that his plea agreement was contingent upon his cooperat ion against co-defendants . . . , and that if he declined to coopera te that the Commonwealth would move to be released from the terms of the plea agreement and probably would add additional charges to those with which he was already charged Though Defendant was reluct ant to make any decision without talking to his mother, he agreed to enter the plea with the specificunderstanding that, after cons ulting with his mother, if he decided not to cooperate that the plea agreement would be set aside.

******* 8.) In light of Defendant’s co ncerns and previous discussions with Defendant’s mother wherein sh e indicated that she did not want her son to plead guilty, before the entry of the plea Counsel advised the prosecutor . . . that the plea agreement might fallapart after the Defendant spoke to his mother. 9.) In sum, counsel avers th at Sheron Stev enson would not have . . . entered a guilty plea but for the belief that the Commonwealth would have sought re lease from the agreement if he chose to not cooperate against his co-defendants after consulting with his mother. In response, the Commonwealth’s attorney represented to the court that he had prosecuted the case and that there had been “no such discussion or agreement about mother’s approval or anything else like that.” The Co mmonwealth then argued as follows:- 5 - Judge, the defendant changed his mind. That’s the bottom line. That’s all that happened here. He entered into this plea agreement voluntarily and intelli gently. The Court’s read the transcript of the hearing wherei n Judge Jacobson accepted the guilty plea[s]. What we have here, apparently, is the defendant’s mother being upset. Mr. Frank withdrew , as you may recall, because the defendant’s mother sued him to get her retainer back. The Commonwealth further argued that there was nothing in the record to support Stevenson’s claim that he “had the understanding that if his mother di sagreed he could withdraw” his guilty pleas. The plea agreement, which Stevenson told the court constituted the parties’ entire agreement, did not, the Commonwealth maintained, “contemplate a withdrawal of the guilty plea[s]” if Stevenson refused to cooperate. Rather, the Commonwealth argu ed, the plea agreement provided that “[i]n exchange for his plea of guilty,” the Commonwealth “agree d to nol-pross certain charges,” and “[i]n exchange for his anticipated cooperation,” th e Commonwealth “agreed to impose a cap” on his sentence. The trial judge denied th e motion to withdraw th e guilty pleas. In anno uncing that decision, the court found that Stevenson “ful ly understood what he was pleading guilty to. . . . He answered all questions to that effect.” In so finding, th e court rejected the eviden ce set forth in the former counsel’s affidavit as to what St evenson’s understanding was when he pled guilty . Specifically, the judge stated that he did not “fi nd it credible” that pr ior counsel told Stev enson he could simply withdraw his guilty pleas if he changed his mind. Rather, the trial judge stat ed, “I think that . . . what has occurred here is that th is defendant got cold feet and d ecided not to go through with the agreement.” The trial court subsequently sentenced Stevenso n in accordance with the terms of the plea agreement, and this appeal followed.- 6 - II. ANALYSIS On appeal, Stevenson asserts his pleas of guilty were not knowingly and voluntarily tendered with full know ledge of their import. Specifica lly, he argues the evidence was uncontroverted that he entered his guilty pleas in good faith under the honest mistak e of material fact that he was advised by his attorney that hecould withdraw his pleas if, after discussing the matter with his mother, he chose to do so. Thus, he contends, th e trial court erre d in refusing to allow him to withdr aw his guilty pleas. “Code § 19.2-296 allows a defendan t to withdraw a guilty plea be fore sentence is imposed.” Jones v. Commonwealth, 29 Va. App. 503, 511, 513 S.E.2d 431, 435 (1999). “Whether a defendant should be permitted to w ithdraw a guilty plea rests within the sound discreti on of the trial court to be determined based on the f acts and circumstances of each case.” Hall v. Commonwealth, 30 Va. App. 74, 79, 515 S.E.2d 343, 346 (1999). “The court’ s finding as to the cr edibility of witnesses and the weight of the evidence in su pport of a motion to withdraw a guilty plea will not be disturbed unless plainly wrong or without evidence to support it.” Jone s, 29 Va. App. at 512, 513 S.E.2d at 435. Rule 3A: 8(b) provides that “[a] circuit court shall not ac cept a plea of guilty . . . without first determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea .” Therefore, a motion to wit hdraw a guilty plea “should not be denied, if timely ma de, and if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fa ct or facts, or if it was induced by fraud, coercion or un due influence and would not otherwise have been made.” Parris v. Commonwealth, 189 Va. 321, 32 4, 52 S.E.2d 872, 873 (1949). In other words, “[l]eave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a mi sconception of th e nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentatio n; was made involuntarily for any- 7 - reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury.” Id. at 324, 52 S.E.2d at 874 (quoting 14 Am. Jur. Criminal Law§ 287). However, “the truth and accuracy of representations made by an accused as to . . . the voluntariness [and understanding] of his guilty plea will be consider ed conclusively established by the trial proceedings, unless the [accused] offers a valid reason why he should be permitted to controvert his prior statements.” Anderson v. Warden, 222 Va. 511, 516, 281 S.E.2d 885, 888 (1981). Determination of whether a court erred in denying a motion to withdraw a guilty plea “req uires an examination of the circumstances confronting [the] acc used immediately prior to and at the time he pleaded to the charge.” Id. at 322, 52 S.E.2d at 872. Here, Stevenson, who was represented by an attorney, tendered pleas of guilty at his arraignment to two charges of ro bbery and two charges of use of a firearm in th e commission of robbery. Stevenson entere d the pleas pursuant to a plea agreem ent. At the conc lusion of the plea hearing, the trial court found e ach of Stevenson’s pleas to have been knowingly, voluntarily, and intelligently made. Th e record supports the trial court’s findings. The trial judge questioned Stevenson extensivel y to ensure that he was entering the pleas voluntarily, knowingly, and with a clear understanding of their ef fect. Stevens on acknowledged that the charges and the plea agr eement had been read ve rbatim to him and that he un derstood them. Additionally, Stevenson told the trial judge that he was enteringhis pleas freely and voluntarily and that no one, including his attorn ey and the Commonwealth ’s attorney, had threatened or forced him to plead guilty or made an y promises concerning his pleas of guilty other than those set forth in the plea agreement. Stevenson further assured the trial judge that the plea agreement was accurate and contained “every part of the agreement between the Commonwealth and [him] and [his] attorney.” When given the opportunity by the trial judge to ask clarifying que stions of his attorney or the court- 8 - about the claimed promise of his right or opportunity to later withdraw his pleas, Stevenson declined. Plainly, Stevenson did not aler t the trial judge to his claimed promise. Stevenson’s motion to withdraw his guilty pleas was based solely on his former attorney’s affidavit. The trial court, findi ng the evidence in the affidavi t in conflict with Stevenson’s statements at the plea hearing, ch ose not to accept the representation in the affidavit that Stevenson believed, when tendering his guilty pleas, “that, after cons ulting with hi s mother, if he decided not to cooperate that the plea agreem ent would be set aside. ” (Emphasis omitted.) The trial judge did not find it credible that Steven son’s former counsel would have in structed him that he could simply withdraw his pleas if he changed his mind after talking to his mother, and speci fically rejected the assertion that such instruction had been given. Thus, the trial court found that Stevenson “fully understood what he was pleading guilty to” and did not enter his pleas of guilty in good faith under an honest mistake of material fact. Because the trial court’s findings are supported by the record and are not, in light of the circumstances of this case, plainly wrong, we hol d the trial court did not abuse its discretion in denying Stevenson’s motion for l eave to withdraw the guilty pleas. Accordingly, we affirm Stevenson’s convictions. Affirmed.