Present: All the Justices 

COMMONWEALTH OF VIRGINIA 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 980460 January 8, 1999 

E. CHRISTOPHER SANDY 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether a criminal defendant 

may enforce the terms of an agreement that he executed with a 

Commonwealth's Attorney. 

 E. Christopher Sandy was indicted by a Westmoreland 

County grand jury for 32 charges of "intentionally and 

feloniously issu[ing] . . . fraudulent grain receipts" in 

violation of Code § 3.1-722.28. Sandy's counsel and the 

Commonwealth's Attorney, Peggy E. Garland, held plea 

negotiations which culminated in the execution of an agreement 

signed by Sandy, Garland, and W. R. Sanford, a representative 

of the Virginia Department of Agriculture. 

 Pursuant to the terms of the agreement, Sandy agreed to 

meet with, and answer fully any questions posed to him by the 

Commonwealth's Attorney. The agreement provided that Sandy 

would receive "full and complete" transactional immunity for 

any and all acts related to the information that he provided 

the Commonwealth's Attorney during the meetings. The 

agreement also contained the following paragraphs pertinent to 

this proceeding: 
 "3. That if after the meetings referenced in 

paragraph (1), Garland is reasonably satisfied that 

the information provided by Sandy is full and 

complete, Garland will move the Court to amend seven 

of the indictments . . . to petty larceny and that 

she will move the Court to nol pros or dismiss all 

of the other indictments. 

 "4. That Garland will recommend to the Court 

that Sandy be fined Five Hundred Dollars ($500.00) 

on each of the no more than seven (7) misdemeanor 

charges for which he is convicted, and be sentenced 

to six (6) months in jail on each such charge, to 

run concurrently, all suspended on the condition 

that the fines be paid." 

 After the agreement was signed, the Commonwealth's 

Attorney and her designees had four meetings with Sandy. 

After the meetings, Sandy's counsel asked the Commonwealth's 

Attorney whether Sandy had complied with the terms of the 

agreement. She replied that she had not "made up [her] mind." 

A few days later, the Commonwealth's Attorney contacted 

Sandy's counsel by telephone and told him that she was 

"reluctantly going to go along with the plea agreement." The 

next day, however, the Commonwealth's Attorney went to the 

office of Sandy's counsel and stated that she did not intend 

to honor the agreement. 

 Subsequently, the Commonwealth's Attorney forwarded a 

letter to Sandy's counsel which stated in relevant part: 

"After I last talked to you, I received information 

that verifies that [Mr. Sandy] actually lied to me. 

"Please remember that the idea to talk to me came 

from [Mr. Sandy] in the first place, that the 

assumption was that he would tell me something of 

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value regarding other criminal offenses. As I've 

said before, beyond the granary dealings, he 

actually told me less than I told him. It was only 

when I told him what I knew that he gave any 

significant information. That's why I hesitated. 

Now, I find that he was not even honest then. 

"I cannot abide by the agreement. I know you may 

want to take the issue before the court and you 

certainly have that right. You need to think about 

whether you want our arguments to be made in public. 

I must say that I feel sorry for [Mr. Sandy]. It 

appears he's trying to protect the people who have 

hurt him the most." 

 Sandy filed a petition in the circuit court and requested 

that the court enforce the agreement that the Commonwealth had 

repudiated. The Commonwealth's Attorney opposed the petition. 

The trial court conducted an ore tenus hearing and held that 

there was no agreement between the defendant and the 

Commonwealth that could be enforced by the court. 

 The defendant was subsequently tried by a jury and was 

found guilty of intentionally and feloniously issuing 

fraudulent grain receipts as charged in seven indictments and 

sentenced to serve time in jail and required to pay a fine for 

each conviction. The trial court entered judgments on each 

conviction, and the defendant appealed the judgments to the 

Court of Appeals. There, the defendant contended that he had 

a contractual relationship with the Commonwealth, that the 

Commonwealth's Attorney could not unilaterally withdraw her 

acceptance of the agreement, and that he was entitled to 

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specific performance of the agreement. A panel of the Court 

of Appeals agreed with the defendant, reversed the judgments, 

and ordered specific performance of the agreement. Sandy v. 

Commonwealth, 25 Va. App. 1, 486 S.E.2d 102 (1997). The Court 

of Appeals, upon a rehearing en banc, agreed with the panel, 

Sandy v. Commonwealth, 26 Va. App. 724, 496 S.E.2d 167 (1998), 

and the Commonwealth appeals. 

 The Commonwealth argues that the Court of Appeals erred 

in holding that the Commonwealth's Attorney had breached the 

agreement with the defendant. Continuing, the Commonwealth 

states that the agreement is without constitutional 

significance and is unenforceable because the trial court had 

not approved any plea agreement. Responding, the defendant 

states that even though "there is no plea agreement and . . . 

one never existed," he executed a "cooperation agreement" with 

the Commonwealth, he fully complied with the so-called 

cooperation agreement and, hence, he is entitled to specific 

performance of that agreement. 

 First, we hold that the Court of Appeals erred in 

concluding that the defendant and the Commonwealth's Attorney 

entered into a plea agreement in accordance with Rule 

3A:8(c)(1)(C)(2). Sandy, 26 Va. App. at 725, 496 S.E.2d at 

168. This Rule, which governs plea agreements in this 

Commonwealth in criminal proceedings, states in relevant part 

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that "[i]f a plea agreement has been reached by the parties, 

it shall, in every felony case, be reduced to writing, signed 

by the attorney for the Commonwealth, the defendant, and, in 

every case, his attorney, if any, and presented to the court." 

This Rule also requires that the circuit court approve the 

plea agreement. The Commonwealth correctly points out, and 

the defendant concedes, that the agreement in this case was 

never approved by the circuit court as required by Rule 3A:8. 

 In Mabry v. Johnson, 467 U.S. 504 (1984), the United 

States Supreme Court considered whether a defendant, who had 

accepted a prosecutor's proposed plea bargain, has a 

constitutional right to have that plea bargain specifically 

enforced. Answering that issue in the negative, the Supreme 

Court stated: 

"A plea bargain standing alone is without 

constitutional significance; in itself it is a mere 

executory agreement which, until embodied in the 

judgment of a court, does not deprive an accused of 

liberty or any other constitutionally protected 

interest. It is the ensuing guilty plea that 

implicates the Constitution. Only after [the 

defendant] pleaded guilty was he convicted, and it 

is that conviction which gave rise to the 

deprivation of [the defendant's] liberty at issue 

here." Id. at 507-08 (footnotes omitted). 

Here, just as in Mabry, the agreement at issue has no 

constitutional significance because it was not embodied in the 

judgment of a court. 

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 We hold that a Commonwealth's Attorney may withdraw from 

a proposed plea agreement at any time before the actual entry 

of a guilty plea by a defendant or any other change of 

position by the defendant resulting in prejudice to him 

because of reliance upon the agreement. See Shields v. State, 

374 A.2d 816, 820 (Del.), cert. denied, 434 U.S. 893 (1977); 

State v. Edwards, 279 N.W.2d 9, 11 (Iowa 1979); State v. 

Collins, 265 S.E.2d 172, 176 (N.C. 1980); State v. Wheeler, 

631 P.2d 376, 378-79 (Wash. 1981). Absent judicial approval 

or prejudice to a criminal defendant, a proposed plea 

agreement cannot be binding upon the Commonwealth because the 

defendant has suffered no harm, and the defendant is free to 

reject the proposed agreement before it is submitted to a 

court in spite of any prejudice that the Commonwealth may have 

incurred. Applying this rule, we hold that the Commonwealth's 

Attorney was entitled to withdraw from the proposed plea 

agreement she had executed with Sandy because the evidence of 

record reveals that he was not prejudiced. When asked by the 

circuit court to identify any prejudice that the defendant 

suffered because of the Commonwealth's Attorney's withdrawal 

from the proposed plea agreement, the defendant's counsel was 

unable to do so. 

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 Accordingly, we will reverse the judgment of the Court of 

Appeals, and we will reinstate the judgments of the circuit 

court. 

Reversed and final judgment. 

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