COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Bray 

Argued at Norfolk, Virginia 

ANTONIO L. JEFFERSON, S/K/A 

 ANTONIO LEMON JEFFERSON 

 OPINION BY 

v. Record No. 0703-97-1 JUDGE RICHARD S. BRAY 

 JUNE 9, 1998 

 COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

E. Everett Bagnell, Judge 

 Andrew M. Sacks (Sacks & Sacks, on briefs), 

for appellant. 

 Thomas D. Bagwell, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Antonio Lemon Jefferson (defendant) was convicted on pleas 

of nolo contendere to indictments charging murder and the related 

use of a firearm. Prior to sentencing, defendant learned that 

the Commonwealth had failed to disclose certain exculpatory 

evidence, and unsuccessfully moved the trial court for leave to 

withdraw the pleas and grant a new trial. He argues on appeal 

that the disputed pleas were improvidently tendered, and the 

court erroneously denied the requested relief. We disagree and 

affirm the convictions. 

 I. 

 A grand jury indicted defendant for the instant offenses on 

May 22, 1995. The court ordered the Commonwealth, on June 26, 

1995, to disclose, inter alia, "[a]ll evidence or information in 

[its] possession or control . . . which tends to exculpate" 
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defendant. Responding, the Commonwealth provided defendant with 

summarized portions of several statements given to police by 

witnesses which conflicted with the recollections of other, 

unnamed witnesses.1

 No mention was made of a police interview 

with witness Letitia King conducted on September 19, 1994, during 

which she was unable to provide details of the incident, 

including the identity of the perpetrator, explaining, "I can't 

see, I need glasses." 

 On June 29, 1995, defendant appeared before the court, pled 

not guilty to the indictments, and requested trial by jury. At 

trial on July 18, 1996,2 defendant initially pled "no contest" 

but, within minutes, changed his pleas to "not guilty" on both 

indictments and demanded a jury trial. During the attendant 

colloquy with the court, defendant complained, "we're not ready," 

because his attorney was unprepared and his witnesses were not 

present. However, following further inquiry, the court ordered 

"that the case proceed," and defendant then requested 

rearraignment to permit pleas of nolo contendere, only to once 

again plead not guilty and demand a jury. 

 During the first day of trial, the Commonwealth's evidence 

established that Vernon Lee Jones (victim) died from "[m]ultiple 

gunshot wounds with internal bleeding." Forensic examination of 

 

 1This document was entitled "EXCULPATORY INFORMATION" by the 

Commonwealth. 

 2Trial was originally docketed for October 11, 1995, but 

defendant failed to appear. 
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the body revealed eight "separate gunshot tracks" which could be 

"explained by a minimum of six shots." The medical examiner 

described the wounds, which included two to the front, one to the 

side, and one to the left hand, noting that "most of the gunshots 

were to the back." 

 Several witnesses to the homicide also testified for the 

Commonwealth. Shortly before the offenses, Sheldon Jones 

(Sheldon) had seen defendant in the neighborhood, heard him 

shout, "there go [sic] June [Vernon Jones, the victim], everybody 

get back in the car," and quickly leave in an automobile. 

According to Sheldon, the vehicle soon returned, "somebody jump 

[sic] out [sic] the car" that "looked like" defendant, and "five 

or six" gunshots sounded as Sheldon fled to a nearby residence. 

Moments later, Sheldon saw the victim wounded and "laying on the 

ground." 

 Commonwealth witness Vernon Artis (Artis) observed defendant 

exit a vehicle and "point [a] gun towards Kevin [Jones]" and the 

victim, both of whom were unarmed and "standing next to" a parked 

car. Artis quickly "got down," heard gunshots, and watched 

defendant flee, leaving the wounded victim. Kevin Jones 

corroborated Artis' testimony, adding that he was "[j]ust 

standing there talking" to the victim when defendant "jumped out 

of the [vehicle] hatch[back] with a [sic] AK" and "shot [the 

victim] several times" at a range of approximately six feet. 

 The Commonwealth concluded the opening day of trial with 
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witness Letitia King (King). Contrary to her earlier statement 

to police, King testified that, while seated in a parked car, she 

saw defendant "jump out of the back" of another car, aim and 

repeatedly fire "a very large gun" directly at the unarmed victim 

"standing there talking" to her. She noticed "the backfire from 

the gun" and detailed the victim's movements while "getting shot" 

by defendant, then "about fifteen feet away." Despite the 

manifest inconsistencies between King's pretrial statements to 

police and her testimony, the Commonwealth did not disclose to 

defendant the contents of the earlier interview, and trial 

recessed for the evening.3

 When trial reconvened the following morning, defendant's 

counsel advised the court that defendant wished to "withdraw his 

plea [sic] of not guilty and enter a plea [sic] of no contest." 

Defendant was then rearraigned and pled nolo contendere to the 

indictments. Before accepting the pleas, the trial court advised 

defendant that a nolo contendere plea "is the same as a guilty 

plea" and constituted a waiver of his "right to defend himself" 

in trial. Asked if he was "entering those pleas . . . because 

[he] was guilty," defendant answered, "I think it's in my best 

interest to do so." After further inquiry, the court accepted 

the pleas, found defendant guilty of the offenses, and ordered a 

 

 3Defendant does not assert that the Commonwealth 

intentionally withheld such evidence. See Rule 3A:11(g) (duty to 

disclose continuing); MacKenzie v. Commonwealth, 8 Va. App. 236, 

243, 380 S.E.2d 176, 177 (1989) (good faith does not excuse 

nondisclosure). 
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presentence report. 

 In reviewing the presentence report, defendant first learned 

of King's pretrial statements to police and moved the court, 

prior to sentencing, to allow withdrawal of the nolo contendere

pleas and grant a new trial. In support of his motion, defendant 

asserted that he decided upon the pleas at the conclusion of 

King's testimony, arguing that the "outcome would have been 

different" had he been aware of the opportunity to impeach her. 

The trial court denied the motions, finding that any consequences 

of "information" withheld from defendant, when considered with 

the other evidence, was "harmless at most." 

 During the ensuing sentencing hearing, defendant testified 

that he approached the victim and Kevin Jones to discuss some 

"conflicts with Kevin," not to engage the victim. However, 

because the victim had repeatedly robbed him at "gunpoint," 

"abducted . . ., and kidnapped" him and "threatened" his family, 

defendant was "scared for [his] life when it came to" the victim 

and armed himself. Defendant testified that he saw the victim 

"go for [his] gun" and fired at the victim to "keep him from 

shooting me." Although acting in "self defense," defendant 

explained that he "pleaded no contest . . . because [he] felt 

like [his] testimony alone wouldn't . . . be strong enough for a 

jury after hearing all those negative false statements that the 

witnesses was [sic] giving." At the conclusion of the 

proceedings, the court sentenced defendant to life imprisonment 
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for murder and three years for the related firearm offense. 

 Shortly thereafter, defendant's appellate counsel moved the 

court to reconsider its rulings. Accordingly, the court 

"suspended" the sentencing order and conducted a rehearing, 

during which counsel proffered, without objection, that defendant 

"has a substantial defense . . . of self defense" but pled nolo

contendere after concluding that his testimony could not overcome 

the "false statements" of Commonwealth witnesses.4 Defendant, 

therefore, reasoned that ignorance of King's prior inconsistent 

statements had resulted in uninformed and misguided pleas, to his 

severe prejudice. In once again denying defendant's motions, the 

court acknowledged that defendant may have established a "plea of 

self defense," but, "considering the totality" of the record, 

King's impeachable testimony did not sufficiently influence the 

disputed pleas. 

 The Commonwealth concedes that the inconsistency between 

King's earlier statements to police and later testimony was 

exculpatory and properly subject to the discovery order. The 

Commonwealth argues, however, that any error attributable to 

nondisclosure had no objectively reasonable effect on defendant's 

pleas and, therefore, was immaterial to the result. 

 II. 

 

 4Counsel further proffered detailed evidence of the victim's 

reputation for "violen[ce and] turbulen[ce]," his prior attacks 

on defendant, and his movements moments before the shooting which 

suggested to defendant that he "was going to a weapon that he was 

known to carry." 
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 Code § 19.2-254 provides that the accused in a criminal 

proceeding "may plead not guilty, guilty or nolo contendere" upon 

arraignment for the offense "on which he will be tried." Code 

§ 19.2-254. A plea of nolo contendere is neither "a confession 

of guilt" nor a "declaration of innocence equivalent to a plea of 

not guilty." Commonwealth v. Jackson, 255 Va. ___, ___, ___ 

S.E.2d ___, ___ (1998) (citation omitted). It allows an accused, 

"'thinking it best . . . not to submit to trial,'" but 

"'unwilling to confess the truth of the charge, [and] . . . plead 

guilty,'" to "'throw[] himself on the mercy of the court . . . 

without confessing or denying . . . guilt.'" Roach v. 

Commonwealth, 157 Va. 954, 958, 162 S.E. 50, 51 (1932) (quoting 

Honaker v. Howe, 60 Va. (19 Gratt.) 50, 53 (1869)). 

"Nonetheless, by entering [the] plea . . ., the defendant 

'implies a confession . . . of the truth of the charge . . . 

[and] agrees that the court may consider him guilty' for the 

purpose of imposing judgment and sentence." Jackson, 255 Va. at 

___, ___ S.E.2d at ___ (quoting Honaker, 60 Va. (19 Gratt.) at 

52). "[I]n misdemeanor and felony cases, the court [must] accept 

a plea of nolo contendere," Code § 19.2-254, once satisfied "that 

the plea is made voluntarily with an understanding of the nature 

of the charge and the consequences of the plea." Rule 3A:8. 

 An accused may seek to withdraw both a plea of guilty and 

nolo contendere, previously tendered and received by the court, 

upon motion "made only before sentence is imposed or imposition 
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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." Code § 19.2-296. Thus, Code § 19.2-296 

treats pleas of guilty and nolo contendere alike in the context 

of a motion to withdraw. 

 Generally, "whether or not an accused should be allowed to 

withdraw a plea of [nolo contendere] for the purpose of 

submitting one of not guilty is a matter that rests within the 

sound discretion of the trial court." Parris v. Commonwealth, 

189 Va. 321, 324, 52 S.E.2d 872, 873 (1949); Hoverter v. 

Commonwealth, 23 Va. App. 454, 463-64, 477 S.E.2d 771, 775 

(1996). 

 "As in other cases of discretionary 

power, no general rule can be laid down as to 

when a defendant will be permitted to 

withdraw his plea. The decision in each case 

must depend . . . on the particular . . . 

circumstances. Generally, however, it may be 

said that the withdrawal of a plea of [nolo

contendere] should not be denied . . . where 

it is in the least evident that the ends of 

justice will be subserved by permitting not 

guilty to be pleaded in its place." 

Parris, 189 Va. at 325, 52 S.E.2d at 874 (emphasis added) 

(quoting 14 Am.Jur. Criminal Law § 287); Manning v. Commonwealth, 

22 Va. App. 252, 254, 468 S.E.2d 705, 706 (1996). 

 Resolution of this issue by the trial court "requires an 

examination of the circumstances confronting [the] accused 

immediately prior to and at the time he pleaded to the charge." 
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Id. at 322, 52 S.E.2d at 872. 

 "The least surprise or influence causing a 

defendant to plead [nolo contendere] when he 

has any defense at all should be sufficient 

grounds for permitting a change of plea from 

[nolo contendere] to not guilty. Leave 

should ordinarily be given to withdraw [the] 

plea . . . if . . . entered by mistake or 

under a misconception of the nature of the 

charge; through a misunderstanding as to its 

effect; through fear, fraud, or official 

misrepresentation; . . . made involuntarily 

for any reason; or even where it was entered 

inadvisedly, if any reasonable ground is 

offered for going to the jury."5

Id. at 325, 52 S.E.2d at 874 (quoting 14 Am.Jur. Criminal Law

§ 287) (emphasis added). 

 It is well established that evidence which impeaches the 

credibility of a witness is exculpatory, Robinson v. 

Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986), and 

suppression of exculpatory evidence, material to either guilt or 

punishment, violates due process. Brady v. Maryland, 373 U.S. 

83, 87 (1963); Stover v. Commonwealth, 211 Va. 789, 795, 180 

S.E.2d 504, 509 (1971). "[E]vidence is material, 'only if there 

is a reasonable probability that, had the evidence been disclosed 

to the defense, the result of the proceeding would have been 

different.'" Hughes v. Commonwealth, 18 Va. App. 510, 525, 446 

S.E.2d 451, 460-61 (1994) (en banc) (citations omitted). "'"A 

'reasonable probability' is a probability sufficient to undermine 

confidence in the outcome [of the trial]."'" Knight v. 

 

 5Defendant argues that his motion to withdraw the plea finds 

support in every circumstance recognized in Parris. 
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Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994) 

(citations omitted). To prevail on appeal, defendant must 

"demonstrate that the undisclosed evidence was [both] exculpatory 

and material" beyond mere speculation or possibility. Goins v. 

Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 (1996); see

Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (accused 

must establish likelihood of different plea had exculpatory 

evidence been available). 

 Thus, defendant was entitled to withdraw the disputed plea 

if the record established "any defense at all" to the 

indictments, and it was reasonably probable that nondisclosure of 

the exculpatory impeachment evidence had the "least . . . 

influence" on such plea. This highly remedial principle 

recognizes that a plea of nolo contendere constitutes a waiver of 

trial, together with "many important constitutional rights," 

including "the privilege against self-incrimination, the right to 

a trial by jury, the right to confront witnesses, the right to 

demand that the prosecution prove its case beyond a reasonable 

doubt and the right to object to illegally obtained evidence." 

Dowell v. Commonwealth, 12 Va. App. 1145, 1148-49, 408 S.E.2d 

263, 265 (1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d 440 

(1992). Such fundamental guarantees may be abandoned only by an 

accused fully advised of all relevant considerations, thereby 

ensuring the exercise of informed judgment to a just result. 

 III. 
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 Guided by Parris, we review the trial court's decision in 

this instance for abuse of discretion, a "strict legal term" 

"synonymous with a failure to exercise a sound, reasonable and 

legal discretion," a "clearly erroneous conclusion and judgment 

-- one . . . clearly against logic[,] . . . [and] the reasonable 

and probable deductions to be drawn from the facts disclosed." 

Black's Law Dictionary 10 (6th ed. 1990 (citations omitted)). 

"'[T]he discretion of the able, learned and experienced trial 

judge . . . will not be interfered with upon review of this 

Court, unless some injustice has been done.'" Bell v. Kirby, 226 

Va. 641, 643, 311 S.E.2d 799, 800 (1984) (quoting Temple v. 

Moses, 175 Va. 320, 337, 8 S.E.2d 262, 269 (1940)). Thus, we 

should reverse only upon "clear evidence that [the decision] was 

not judicially sound" and not simply to substitute our 

"discretion for that rendered below." Nat'l Linen Serv. v. 

Parker, 21 Va. App. 8, 19, 461 S.E.2d 404, 410 (1995). 

 Following defendant's proffer, together with a thorough 

argument of his counsel, which included controlling legal 

principles, the court correctly considered the merits of his 

motions under the circumstances prevailing at the time of the 

disputed plea and recognized that defendant could conceivably 

prevail on a "plea of self defense." However, when viewed with 

the entire record, the court was unconvinced of the reasonable 

probability that nondisclosure of the exculpatory evidence had 

the requisite "least . . . influence" on the result in issue, 
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defendant's pleas of nolo contendere. This conclusion was not 

clearly erroneous, without support in the evidence, or judicially 

unsound, and visited no injustice on defendant. 

 Through the unimpeached testimony of three eyewitnesses, 

excluding King, the Commonwealth established that defendant 

killed the unarmed victim, without provocation, willfully, 

deliberately and with premeditation, by repeatedly shooting him 

at close range. Faced with such overwhelming evidence of guilt, 

nothing in the record, save defendant's post-trial assertions, 

suggests a reasonable probability that nondisclosure of King's 

pretrial statements had even the "least" influence on his 

decision to plead nolo contendere. Thus, the record does not 

demonstrate that such exculpatory evidence was material to 

defendant's pleas, and the trial court correctly overruled his 

motions. 

 Accordingly, the court did not abuse its sound discretion, 

and we affirm the convictions. 

 Affirmed.