COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Hodges 

Argued by teleconference 

BRANDON CLAY NICHOLS, S/K/A 

 BRANDON CLAY NICHOLAS 

 MEMORANDUM OPINION* BY 

v. Record No. 2331-01-1 JUDGE LARRY G. ELDER 

 SEPTEMBER 24, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Charles D. Griffith, Jr., Judge 

 Cynthia D. Garris (The Law Office of Cynthia 

D. Garris, P.C., on brief), for appellant. 

 Robert H. Anderson, III, Senior Assistant 

Attorney General (Jerry W. Kilgore, Attorney 

General, on brief), for appellee. 

Brandon Clay Nicholas (appellant) appeals from his 

convictions for first-degree murder and use of a firearm in the 

commission of murder. On appeal, he contends the trial court 

erroneously refused, under Rule 3A:8, to consider a plea 

agreement tendered during the sentencing phase of the bifurcated 

trial, before the jury completed its deliberations on 

appellant's sentence. The Commonwealth contends the trial court 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
lacked authority to consider the agreement.1 We hold the trial 

court lacked authority to entertain a guilty plea after the 

sentencing phase had begun. Thus, the court did not err in 

refusing to consider the terms of the agreement under the facts 

of this case, and we affirm. 

 I. 

 BACKGROUND 

Appellant was charged in separate indictments with the 

capital murder, first-degree murder and robbery of Stephen 

Jordan, robbery of Jordan's companion, and four related counts 

of using a firearm during the commission of those offenses. 

Appellant entered pleas of not guilty to those charges and 

requested trial by jury. Appellant also was indicted for 

possession of a firearm by a convicted felon. Proceedings on 

that indictment were continued for trial at a later date. 

 1

 The Commonwealth argues it is not prevented from taking an 

inconsistent position on appeal because the Commonwealth's 

attorney lacked authority to enter into a plea agreement which 

the trial court had no authority to consider. See In re 

Department of Corrections, 222 Va. 454, 465, 281 S.E.2d 857, 863 

(1981) (relying on Segaloff v. City of Newport News, 209 Va. 

259, 261, 163 S.E.2d 135, 137 (1968), and WANV v. Houff, 219 Va. 

57, 62-63, 244 S.E.2d 760, 763-64 (1978), zoning cases holding 

that public official cannot bind his agency or the state to do 

something the agency has no authority to do, to conclude that 

"the Commonwealth may not be estopped from repudiating the 

earlier position erroneously taken by the Commonwealth's 

Attorney . . ."). This procedural bar issue is inextricably 

linked to the merits of the appeal, and we must, therefore, 

reach the substantive issue of the trial court's authority to 

entertain the proffered agreement. 

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The jury found appellant guilty of first degree murder and 

the use of a firearm in the commission of murder. Following 

several hours of deliberations in the penalty phase of the 

trial, the parties notified the court they had reached a plea 

agreement. Before the trial court announced a decision about 

whether it would consider the terms of the plea agreement, the 

jury indicated it had reached a verdict on the appropriate 

sentence, and the court said, "I'm going to let the jury verdict 

be in this case." 

At appellant's request, the trial court marked the plea 

agreement as an exhibit, but noted it had not read the agreement 

and would not consider it for the reasons it stated in the 

record. The agreement listed only three offenses--the two 

offenses for which appellant already had been convicted and the 

felon-in-possession-of-a-firearm offense for which appellant had 

not yet been tried. It indicated appellant agreed the facts 

were sufficient to prove his guilt for the first two offenses 

and that he was pleading guilty because he "[was] in fact 

guilty." The document also provided that, in exchange for 

appellant's guilty pleas, the parties agreed as to the 

appropriate sentences for those two offenses and indicated what 

those sentences were. 

The trial court sentenced appellant in accordance with the 

jury's recommendation, giving him an active sentence greater 

than that contained in the proposed plea agreement. 

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 II. 

 ANALYSIS 

A plea agreement usually involves a defendant's pleading 

guilty in "exchange[] for sentencing concessions," a process in 

which "each side may obtain advantages." Mabry v. Johnson, 467 

U.S. 504, 508, 104 S. Ct. 2543, 2547, 81 L. Ed. 2d 437 (1984). 

Here, the parties proffered the agreement pursuant to Rule 

3A:8(c), which provides as follows: 

(1) The attorney for the Commonwealth 

and the attorney for the defendant or the 

defendant when acting pro se 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 attorney for the Commonwealth will do 

any of the following: 

 * * * * * * * 

(C) Agree that a specific sentence is 

the appropriate disposition of the case. 

As we held in Daye v. Commonwealth, 21 Va. App. 688, 467 

S.E.2d 287 (1996), in which the defendant sought to change his 

plea to guilty after the jury had already returned its verdict, 

"a plea of guilty" offered "following publication of a guilty 

verdict and its acceptance by the trial court" is "untimely and 

may not upset the procedural course of a bifurcated trial." Id.

at 692-93, 467 S.E.2d at 289. Here, the trial court implicitly 

accepted the jury's verdicts when it proceeded to the sentencing 

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phase of the trial. Thus, it lacked authority to accept the 

guilty pleas which are an integral part of any plea agreement.2

For these reasons, we hold the trial court did not err in 

refusing to consider the proffered agreement on its merits under 

the facts of this case, and we affirm. 

Affirmed. 

 2

 We do not address whether the trial court had inherent 

authority, outside the authority granted by Rule 3A:8(c), to 

entertain a sentence agreement between the parties dealing 

solely with the appropriate sentence to be imposed on the 

offenses for which the jury already had convicted appellant. 

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