COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatr ick, Judges Will is and Clements Argued at Alex andria, Virginia

JOSEPH McDONALD LYNCH MEMORANDUM OPINION * BY v. Record No. 0512-00-2 JU DGE JEAN HARR ISON CLEMENTS MAY 22, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Na nce, Judge S. Jane Chittom, Ap pellate Defend er (Public Defender Commission, on brief), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Appellant Joseph Mc Donald Lynch was conv icted of assault and battery in violation of Code § 18.2-57 and as sault and ba ttery of a police officer in viol ation of Code § 18.2-5 7(C). On appeal, he contends that th e trial court erre d in refusing to allow him to withdraw his guilty pl eas before sentencing . We disagree and affirm the convictions. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opinion recites only those fa cts necess ary to a disposition of this appeal.Specifically, Ly nch argues he was entitled to withdraw his guilty pleas before sentencing because he le arned after entering the pleas that he had a defense. 1 Lynch claims he originally pled guilty because inmates who witnessed the alleged assaul ts were no longer at the ja il and, thus, were unav ailable to testify. Without their test imony, he "did n't think [he] had a case." However, according to Lynch, he chan ged his mind wh en two more witnesses told him they "would come forward" and testify on his behalf about the alleged assaults. "Code § 19.2-296 allows a defendant to withdraw a guilty plea before sentence is imposed." Jones v. Commonwealth , 29 Va. App. 503, 511, 513 S.E. 2d 431, 435 (1999). "Whe ther a defendant should be permitted to withdr aw a guilty plea re sts within the sound discretion of th e trial court to be determined ba sed on the facts and circumstan ces of each case." Hall v. Co mmonwealth , 30 Va. App. 74, 79, 515 S.E.2d 343, 346 (1999). "T he court's finding as to the credibilit y of witnesses an d the weight of the evidence in support of a motion to withdraw a guilty plea will not be disturbed unless plainly wrong or without eviden ce to supp ort it."

Jones , 29 Va. App. at 512, 513 S.E.2d at 435.

1 Lynch also argues at length on appeal that Code § 19.2-296's post-sentence standard of "manifest injustice" does not apply to his motion to withdraw his guilty pleas because he made his motion before sentence was imposed. Such an argument, however, is moot in this case as the trial court did not apply the "manifest injustice" standard in determining Lynch's motion to withdraw his guilty pleas. - 2 -"As in other cases of di scretionary 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 to a great extent on th e particular attendant circumstances. Generally, however, it may be said that the withdrawal of a pl ea of guilty should not be denied in any case where it is in the least evid ent that the en ds of justice will be subserved by permitting not guilty to be pleaded in its place. The leas t surprise or influence ca using a defend ant to plead guilty when he has any defense at all should be sufficient grounds fo r permitting a change of plea from guilty to not guilty. Leave should ordinarily be gi ven to withdraw a plea of guilty if it was entered by mistake or under a misconce ption of the nature of the charge; through a misunderstandi ng as to its effect; through fear, fraud, or official misrepresentatio n; was made in voluntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury." Parris v. Commonwealth , 189 Va. 321, 325, 52 S.E.2d 872, 874 (1949) (quoting 14 Am. Jur. 2d Criminal Law § 287 (1938)). Determining wh ether the trial court erred in denying Lynch's motion to withdr aw his guilty pleas "req uires an examination of the circumstan ces confronting [Lynch] immedi ately prior to and at the time he pl eaded to the charge[s]." Id. at 322, 52 S.E.2d at 872. On December 21 , 1999, Lynch, who wa s represente d by an attorney, was arraigned and tendered pleas of guilty to both the charge of assa ult and battery and the charge of assault and battery of a police of ficer. The tr ial judge ques tioned Lynch extensively to ensure that he was en tering the plea s voluntarily, knowingly, and with a clear understand ing of their effect. The

- 3 -Commonwealth then proffered its ev idence, which was not challenged by Lynch. The trial judge found Lynch guilty on both counts and continued the case for sentencing . On January 7, 2000, Lynch filed a pro se motion for withdrawal of his pleas. Lynch's motion was heard on January 13, 2000 prior to se ntencing. Lynch was represented at that hearing by his attorney. Lynch put on no ev idence in supp ort of his motion at the hearing. He merely to ld the trial judg e he originally pled guilty because he was unable to locate fellow inma tes who had witnessed the incident and conseq uently did not think he had a case. He added, however, that two inmates who said they saw the assault and would testify on his behalf had come forw ard since then . He did not identify those witn esses or proffer what they would say that might benefit Lynch. Asked by the trial court if he had ev er interviewed the possible witnesses, Ly nch's attorney told the trial co urt that prior to Lynch's entry of the guilty pleas, Lynch had gi ven him a couple of names of witnesses. One of them had been transferred to the Department of Corrections, but the othe r was still in jail and Lynch's attorn ey had been prepared to bring him to trial on the trial date. Lynch's attorney also told the trial co urt that, since pleading guilty, Lynch had given him the name of one other witness, but provided no other info rmation about that person except that Lync h could find him if Lynch was able to get out of jail. Likewise, Lync h did not identi fy at the he aring on his

- 4 -motion any defense he might have as a result of hi s newly found witnesses' testimony. Nor did Lynch establish that he entered the guilty pleas involuntarily, by mistake or under a misc onception of the nature of the charges, through a misunderstandi ng as to the effect of the guilty pleas, or through fear, fraud, or official misreprese ntation. The trial court chose not to believe or accept Lynch's stated reasons for seekin g leave to withdraw his gu ilty pleas. Instead, the court made specif ic findings that Ly nch understood the situation when he pled guilty and that th e pleas were willingly, knowingly, voluntarily, and in telligently made . The court's ruling is suppor ted by the record and was not plainly wr ong. We hold, therefore, that the trial cour t did not abuse its discretion. Accordingly, we affirm appellan t's convictions. Affirmed.

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