COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton∗

Argued at Norfolk, Virginia 

MATTHEW J. CLAUSON, S/K/A 

 MATTHEW JAMES CLAUSEN 

 OPINION BY 

v. Record No. 0758-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MARCH 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Alan E. Rosenblatt, Judge 

 James Amery Thurman (Thurman & Thurman, on 

brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Matthew James Clausen (appellant) entered pleas of guilty to 

two counts of robbery, in violation of Code § 18.2-58, and two 

counts of use of a firearm in the commission of robbery, in 

violation of Code § 18.2-53.1. Appellant also entered a plea of 

nolo contendere to one count of conspiracy to commit robbery, in 

violation of Code § 18.2-22. On appeal, he argues that his plea 

of nolo contendere did not constitute a waiver of his right to 

appeal the conspiracy charge.1 For the following reasons, we 

dismiss the appeal. 

 ∗

Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

 1Appellant also argues that the trial court erred in denying 

his pretrial motion to dismiss the conspiracy charge because Code 
 I. 

 On August 18, 1997, five felony warrants were issued 

charging appellant with two counts of robbery, two counts of use 

of a firearm in the commission of robbery and one count of 

conspiracy to commit robbery. Appellant waived his right to a 

preliminary hearing on the charges, and the grand jury returned 

indictments on each of the five felonies. 

 The parties entered a stipulation of facts and on November 

25, 1997, appellant pled guilty to both robbery counts and one of 

the firearm charges. He received ten years on each robbery 

count. The court ordered the terms to be served concurrently. 

He also received three years on the firearm charge, which was to 

be served consecutive to the robbery terms. The remaining two 

charges, conspiracy to commit robbery and use of a firearm in the 

commission of robbery, were continued. 

 On February 10, 1998, appellant moved to dismiss the 

conspiracy charge, arguing that Code § 18.2-23.12 bars conviction 

when the accused has been convicted of the substantive offense. 

_______________ 

§ 18.2-23.1 bars conviction when the accused has been convicted of 

the substantive offense. Because of the procedural posture of the 

case, we do not reach the merits of the second claim. 

 2Code § 18.2-23.1 provides: 

 Notwithstanding any other provision of 

this article or of § 18.2-256, in any case 

where a defendant has been tried and convicted 

of an act he has also conspired to commit, 

such defendant shall be subject to conviction 

only for the completed substantive offense and 

not thereafter be convicted for the underlying 

conspiracy. 

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By letter opinion dated February 11, 1998, the trial court denied 

appellant's motion. 

 On March 2, 1998, pursuant to a plea agreement with the 

Commonwealth, appellant entered a plea of nolo contendere to the 

conspiracy charge and a plea of guilty to the remaining firearm 

charge. The agreement, which included appellant's prior guilty 

pleas made on November 25, 1997, provided the following: 

1. That the defendant stands indicted in 

this Court for the following offenses: 

Conspiracy to Commit Robbery, Robbery (Two 

Counts), and Use of Firearm in the Commission 

of Robbery (Two Counts) in violation of 

section(s) 18.2-22, 18.2-58, and 18.2-53.1. 

2. That the defendant agrees to plead guilty 

to the same charges enumerated above (except 

that the defendant will plead nolo contendre 

[sic] to the Conspiracy charge), in violation 

of the same Code sections enumerated above. 

3. That the Attorney for the Commonwealth 

and the Attorney for the defendant agree that 

the following sentence is the appropriate 

disposition in this case: The defendant shall 

be sentenced to serve ten years in the 

Virginia Department of Corrections on the 

Conspiracy and Robbery charges. Those 

sentences shall run concurrently to each 

other and consecutively to the sentences 

imposed on the firearm charges. The 

defendant shall be sentenced to serve three 

years on the first Use of a Firearm charge, 

and to serve five years on the second Use of 

a Firearm charge. Those sentences shall run 

consecutively to each other and to the 

sentences on the Robbery and Conspiracy 

charges. . . . 

4. That this plea agreement is the total 

agreement between the parties and there have 

been no other inducements, threats, promises, 

or coercion of any kind imposed upon the 

defendant by the Attorney for the 

Commonwealth or any agent of the 

Commonwealth. 

(Emphasis added). 

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 The trial court accepted the plea agreement after an 

extended colloquy with appellant, which included the following: 

Q. Do you fully understand the charges 

against you? 

 A. Yes. 

Q. Have you discussed the charges and their 

elements with your lawyer, Mr. Thurman? 

 A. Yes, I have. 

Q. Have you had enough time to discuss with 

Mr. Thurman any possible defenses you may 

have to these charges? 

 A. Yes, sir. 

Q. Have you discussed with your lawyer 

whether you should plead guilty or not 

guilty? 

 A. Yes. 

Q. After speaking with your lawyer, did you 

decide for yourself that you should plead 

guilty and nolo contendere? 

 A. Yes. 

* * * * * * * 

Q. Do you understand by pleading guilty that 

you may waive any right to appeal the 

decision of this court? 

 A. Yes.3

 

 3At the March 2, 1998 trial, the parties debated at length the 

effect of a plea of nolo contendere on appellant's right to 

appeal, including the following: 

[COUNSEL]: [W]e're pleading no contest on 

that to preserve our right of appeal. We 

intend to note our exception to that finding 

and appeal that to the Virginia Court of 

Appeals. 

[COMMONWEALTH]: [T]he Commonwealth's position 

on that is that there's no stipulation in the 

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_______________ plea agreement that he's allowed to preserve 

his right to appeal . . . . 

[COUNSEL]: That's correct, Your Honor. 

THE COURT: Well, then what's the likelihood 

of an appeal being heard in this matter? 

[COUNSEL]: I'll take my shot. I don't agree. 

[COMMONWEALTH]: I think he's waived -- I 

think the effect of a nolo plea is the same as 

a plea of guilty. 

THE COURT: I think the effect of a nolo plea 

is a guilty plea. 

* * * * * * * 

THE COURT: We're going through this now so 

that we can make sure that Mr. Clauson freely, 

voluntarily and intelligently understands the 

consequences of his plea. 

 [COUNSEL]: Yes, sir. 

* * * * * * * 

THE COURT: I guess what we need to know at 

this stage is based on what you've done in 

terms of research on this point does Mr. 

Clauson have reason to believe that you're 

going to be successful in the Court of 

Appeals? Is he expecting that to happen or 

what is the situation? 

[COUNSEL]: We've talked about it extensively, 

and he understands it's mainly a matter of 

principle that's going up, that it's not 

really going to affect the ultimate outcome of 

his sentence . . . because, as I said, [the 

conspiracy conviction is] concurrent with the 

robbery charges and the ten years. 

* * * * * * * 

THE COURT: Still, Mr. Clauson, you understand 

I don't think there's an appealable issue 

here. The Commonwealth doesn't. I don't. Mr. 

Thurman thinks there may be a possibility, but 

I don't think there's an appealable issue 

here. That doesn't mean there isn't. The 

Court of Appeals has the right to find that 

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Following this colloquy, the trial court convicted appellant of 

both counts and sentenced appellant in accordance with the 

agreement. 

 II. 

 Appellant contends that by entering a plea of nolo

contendere, he did not waive his right to appeal the trial 

court's denial of his pretrial motion to dismiss the conspiracy 

charge. He argues that a plea of nolo contendere should be 

distinguished from a guilty plea for the purpose of determining a 

waiver of his right to appeal. This argument presents an issue 

of first impression for this Court. 

 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 § 19.2-254.4 A plea of guilty constitutes a "self-supplied 

_______________ I'm wrong; but based on my reading of the law, 

I've never seen them do it before. So do you 

understand that? 

 THE DEFENDANT: I do. 

THE COURT: Do you still want to enter this 

nolo contendere plea today? 

 THE DEFENDANT: Yes, I do. 

 4Code § 19.2-254 provides: 

 Arraignment shall be conducted in open 

court. It shall consist of reading to the 

accused the charge on which he will be tried 

and calling on him to plead thereto. In a 

felony case, arraignment is not necessary when 

waived by the accused. In a misdemeanor case, 

arraignment is not necessary when waived by 

the accused or his counsel, or when the 

accused fails to appear. 

 An accused may plead not guilty, guilty 

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conviction." Allen v. Commonwealth, 27 Va. App. 726, 730, 501 

S.E.2d 441, 443 (1998). On the other hand, 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. 552, 555, 499 S.E.2d 276, 278 (1998). "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." Jefferson v. 

Commonwealth, 27 Va. App. 477, 484-85, 500 S.E.2d 219, 223 (1998) 

(internal quotations and citations omitted). "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." Id. at 485, 500 S.E.2d at 223 

(internal quotations and citations omitted). 

 "Although it is said that a plea of nolo contendere means 

literally 'I do not contest it,' and 'is a mere statement of 

unwillingness to contest and no more,' it does admit 'every 

_______________ or nolo contendere. The court may refuse to 

accept a plea of guilty to any lesser offense 

included in the charge upon which the accused 

is arraigned; but, in misdemeanor and felony 

cases the court shall not refuse to accept a 

plea of nolo contendere. 

 With the approval of the court and the 

consent of the Commonwealth, a defendant may 

enter a conditional plea of guilty in a felony 

case, reserving the right, on appeal from the 

judgment, to a review of the adverse 

determination of any specified pretrial 

motion. If the defendant prevails on appeal, 

he shall be allowed to withdraw his plea. 

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essential element of the offense [that is] well pleaded in the 

charge." Lott v. United States, 367 U.S. 421, 426 (1961) 

(citations omitted). "Hence, it is tantamount to 'an admission 

of guilt for the purposes of the case,' and 'nothing is left but 

to render judgment, for the obvious reason that in the face of 

the plea no issue of fact exists, and none can be made while the 

plea remains of record.'" Id. (citations omitted). 

 "When an accused enters a voluntary and intelligent plea of 

guilty to an offense, he waives all defenses except those 

jurisdictional." Savino v. Commonwealth, 239 Va. 534, 538, 391 

S.E.2d 276, 278 (1990) (emphasis added). 

"[A] voluntary and intelligent plea of guilty 

by an accused is, in reality, a self-supplied 

conviction authorizing imposition of the 

punishment fixed by law. It is a waiver of 

all defenses other than those jurisdictional, 

effective as such not only in the lower court 

but as well in this court. Where a 

conviction is rendered upon such a plea and 

the punishment fixed by law is in fact 

imposed in a proceeding free of 

jurisdictional defect, there is nothing to 

appeal. To take any other view would give 

recognition to an empty right and permit 

frivolous appeals for the mere sake of 

delay." 

Id. at 539, 391 S.E.2d at 278 (quoting Peyton v. King, 210 Va. 

194, 196-97, 169 S.E.2d 569, 571 (1971)). 

 Additionally, "[o]ne who voluntarily and intelligently 

pleads guilty waives important constitutional rights, including 

his right to trial by jury, his right against self-incrimination, 

his right to demand that the Commonwealth prove its case beyond a 

reasonable doubt, and his right to object to illegally obtained 

evidence." Allen, 27 Va. App. at 730-31, 501 S.E.2d at 443. 

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 In the instant case, appellant concedes that when an accused 

enters a plea of guilty, the accused waives his or her right to 

appeal non-jurisdictional issues. However, appellant argues that 

by entering a plea of nolo contendere to the conspiracy charge, 

he effectively preserved his right to appeal the trial court's 

decision denying his motion to dismiss. We disagree. 

 We have on prior occasions held that a plea of nolo

contendere carries with it some of the same consequences as a 

plea of guilty. In Jefferson, we held that the pleas of guilty 

and nolo contendere are treated "alike in the context of a motion 

to withdraw" a plea under Code § 19.2-296. Jefferson, 27 Va. 

App. at 485, 500 S.E.2d at 223. In Allen, we held that "the plea 

of nolo contendere, or no contest, [was] equivalent to a plea of 

guilty" for purposes of determining whether the plea was entered 

voluntarily, intelligently and knowingly. Allen, 27 Va. App. at 

729 n.1, 501 S.E.2d at 443 n.1. See also Smith v. Commonwealth, 

27 Va. App. 357, 363, 499 S.E.2d 11, 14 (1998) (holding that "a 

trial court may consider a defendant's lack of remorse at 

sentencing, even when the defendant has chosen to enter an Alford

[or nolo contendere] plea"). 

 While we have not expressly addressed this precise issue, 

several of our sister states have found no distinction between a 

plea of guilty and nolo contendere for the purpose of determining 

a waiver of the right to appeal. For example, in State v. 

Arnsberg, 553 P.2d 238 (Az. App. 1976), the Court of Appeals of 

Arizona held that when a defendant enters a plea of no contest, 

he or she waives all non-jurisdictional defenses preceding the 

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entry of the plea. See id. at 240. In Arnsberg, the defendant 

pled no contest to one count of possession of marijuana for sale. 

Prior to entering his plea, the defendant filed a pretrial motion 

to suppress the evidence, which was denied by the trial court. 

On appeal, the Court of Appeals considered "whether a defendant 

may raise issues concerning a denial of his motion to suppress 

evidence following a plea of no contest," and concluded that the 

trial court's decision could not be challenged because the 

defendant had waived his right to appeal by entering a plea of no 

contest. Id. at 238. The Court of Appeals reasoned: 

 We think that the consequences of a no 

contest plea parallel closely the results 

following a plea of guilty. One of the 

consequences flowing from a plea of guilty is 

the foreclosure by the defendant of an 

argument on appeal that the ruling by the 

trial court on a motion to suppress was 

erroneous. Because the consequence of a plea 

of guilty and no contest are the same, does 

the same principle apply to an attack of the 

trial judge's ruling on a motion to suppress 

following a plea of no contest? We believe 

it does. 

* * * * * * * 

 We hold, therefore, that when a 

defendant enters a plea of no contest he 

waivers, [sic] as is true with respect to a 

guilty plea, all non-jurisdictional defenses 

preceding the entry of the plea, and he may 

not by express stipulation or otherwise, 

reserve for appeal non-jurisdictional defects 

under such a plea. 

Id. at 239-40 (citations omitted). 

 Similarly, in State v. Gilnite, 521 A.2d 547 (Conn. 1987), 

the Supreme Court of Connecticut held that "an unconditional nolo 

contendere plea, when intelligently and voluntarily made, 

operates as a waiver of all non-jurisdictional defects and bars 

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later challenges to pretrial proceedings." Id. at 550. In 

Gilnite, the defendant was convicted on a plea of nolo contendere

of being a "persistent larceny offender." Id. at 548. On appeal 

to the appellate court, she argued that the trial court erred in 

denying her motion to dismiss the charge. The appellate court 

raised sua sponte the issue of waiver and held that by pleading 

nolo contendere the defendant waived her right to appeal the 

trial court's determination. See id. On appeal from the 

appellate court, the Supreme Court of Connecticut affirmed and 

held that "[a] plea of nolo contendere has virtually the same 

legal effect as a guilty plea; the only practical difference is 

that a nolo contendere plea may not be used as an admission in a 

subsequent criminal or civil case. It is clear, however, that a 

nolo contendere plea also constitutes a waiver of all 

non-jurisdictional defects in the same manner as a guilty plea." 

Id. at 550 n.4. 

 Finally, in Walker v. United States, 481 A.2d 1308 (D.C. 

App. 1984) (per curiam), the District of Columbia Court of 

Appeals held that the defendant's voluntary plea of nolo

contendere foreclosed the possibility of seeking appellate review 

of his convictions. In that case, the defendant challenged the 

sufficiency of evidence used to convict him of two counts of 

robbery. He also argued that the trial court erred in failing to 

observe the time limitations of the speedy trial statute. See

id. at 1309. The Court of Appeals noted that "[a] plea of nolo 

contendere is an admission of guilt for the purposes of that case 

and removes from the trial court's consideration all issues of 

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fact." Id. Accordingly, the Court of Appeals held that "[b]y 

entering a voluntary plea of nolo contendere, [the defendant] 

foreclosed himself from seeking appellate review of his 

contentions of evidentiary insufficiency and violation of the 

Federal Speedy Trial Act." Id.; see also State v. Hodge, 882 

P.2d 1, 5 (N.M. 1994) ("[A] plea of . . . nolo contendere, when 

voluntarily made after advice of counsel and with full 

understanding of the consequences, waives objections to prior 

defects in the proceedings and also operates as a waiver of 

statutory or constitutional rights, including the right to 

appeal."); Commonwealth v. Jannetta, 605 A.2d 386, 388 (Pa. 

Super. 1992) ("For purposes of appellate review, this Court 

treats a plea of nolo contendere the same as a guilty plea."). 

 Other states have simply adopted the general rule that a 

defendant may not appeal "non-jurisdictional" issues following a 

plea of nolo contendere. See, e.g., People v. Arwood, 211 Cal. 

Rptr. 307, 309-10 (Ca. App. 1985) ("The merits of the issue of 

guilt or innocence are not reviewable on appeal of a judgment 

entered on [a plea of nolo contendere]. The only issues 

cognizable on appeal following entry of . . . a nolo contendere 

plea are those based upon constitutional, jurisdictional, or 

other grounds going to the legality of the proceedings. . . ."); 

Hughes v. State, 565 So.2d 354, 355 (Fla. Dist. Ct. App. 1990) 

(per curiam) (dismissing appeal from plea of nolo contendere

because the defendant failed "to present a justiciable issue"); 

Lill v. State, 602 P.2d 129, 130-31 (Kan. App. 1979) ("A 

conviction based on a plea of nolo contendere may be collaterally 

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attacked only on 'jurisdictional or other grounds going to the 

legality of the proceedings . . . .'"); Stevens v. State, 938 

S.W.2d 517, 520 (Tx. App. 1997) (holding that a challenge to the 

sufficiency of the evidence was a "non-jurisdictional" issue that 

could not be appealed because the defendant entered a plea of 

nolo contendere); State v. Smith, 833 P.2d 371, 372 (Utah App. 

1992) ("A voluntary plea of guilty or no contest constitutes a 

waiver of the right to appeal all non-jurisdictional issues, 

including denial of a motion to suppress."); Davila v. State, 831 

P.2d 204, 205 (Wyo. 1992) ("A plea of nolo contendere has the 

same effect in criminal cases as a guilty plea. As a guilty plea 

waives all non-jurisdictional defenses, so does a plea of nolo 

contendere."); see also Wayne R. LaFave & Jerold H. Israel, 

Criminal Procedure § 10.2(d), at 787 (1984) ("A plea of guilty 

'is an admission of guilt and a waiver of all non-jurisdictional 

defects.' It 'represents a break in the chain of events which 

has preceded it in the criminal process,' and thus once a valid 

plea is received defendant may not appeal on the ground that his 

earlier suppression motion was erroneously denied. The same is 

true for a valid nolo contendere plea.").5

 

 5In a minority of states where courts have allowed an appeal 

of non-jurisdictional issues following a plea of nolo contendere, 

a state statute or court rule specifically grants such a right of 

appeal. See, e.g., State v. Piorkowski, 672 A.2d 921, 930 (Conn. 

1991) ("A plea of nolo contendere by a defendant under this 

section shall not constitute a waiver by the defendant of 

non-jurisdictional defects in the criminal prosecution."). 

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 In Virginia, "[w]hen an accused enters a voluntary and 

intelligent plea of guilty to an offense, he waives all defenses 

except those jurisdictional." Savino, 239 Va. at 538, 391 S.E.2d 

at 278. We hold the same is true when an accused enters a plea 

of nolo contendere. In the instant case, by entering a plea of 

nolo contendere to the conspiracy charge, appellant foreclosed 

the opportunity to appeal the trial court's denial of his 

pretrial motion to dismiss. Accordingly, we dismiss his appeal.6

 Dismissed.

 

 6Additionally, appellant cannot complain of error when he has 

specifically entered into a plea agreement with the Commonwealth 

and asked the trial court to enter judgment on that agreement. 

When appellant requested the trial court to accept the plea 

agreement with its favorable sentencing provisions, he "invited" 

the trial court to act in the manner he claims was erroneous. See

Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 

615 (1992) ("The defendant, having agreed upon the action taken by 

the trial court, should not be allowed to assume an inconsistent 

position. No litigant, even a defendant in a criminal case, will 

be permitted to approbate and reprobate--to invite error . . . and 

then to take advantage of the situation created by his own 

wrong."). 

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