COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

TOBY STEPHENS, S/K/A 

 TOBY DANE STEPHENS 

 MEMORANDUM OPINION*

v. Record Nos. 1312-96-1 and BY JUDGE WILLIAM H. HODGES 

 1313-96-1 OCTOBER 28, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Lydia C. Taylor, Judge 

 Charles E. Jenkins, II (Brahm & Jenkins, on 

brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Richard Cullen, Attorney General; 

Monica S. McElyea, Assistant Attorney 

General, on brief), for appellee. 

 Toby Dane Stephens, appellant, contends that the trial judge 

abused her discretion in denying his post-sentence motion to 

withdraw his guilty pleas. For the reasons that follow, we 

affirm his convictions. 

I. BACKGROUND 

 Appellant was charged with three crimes occurring on 

February 14, 1995. Those crimes included malicious wounding, 

shooting into an occupied dwelling, and using a firearm in the 

commission of a felony. On February 26, 1996, appellant and his 

court-appointed attorney, Robert Bohannon, appeared before Judge 

Poston. Appellant entered Alford pleas to malicious wounding and 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

shooting into an occupied dwelling. The parties presented Judge 

Poston with a plea agreement indicating that "the sentence for 

these charges shall run concurrently with" sentences from other 

pending charges. It was agreed that Judge Taylor would sentence 

appellant on these convictions and other pending charges in one 

proceeding. 

 On March 4, 1996, appellant appeared before Judge Taylor on 

charges of first degree murder, malicious wounding, conspiracy to 

commit murder, and two counts of using a firearm. These crimes 

occurred February 18, 1995. Court-appointed counsel, Robert M. 

Smith, III, represented appellant on those charges.1

 Appellant 

entered Alford pleas to the murder, malicious wounding, and 

firearm charges. The parties presented a plea agreement to Judge 

Taylor under which the Commonwealth agreed to nolle prosequi the 

conspiracy charge in exchange for guilty pleas to the murder, 

malicious wounding, and firearm charges. Also, the agreement 

stated that, "active incarceration shall not exceed fifty-five 

(55) years." 

 On April 26, 1996, Judge Taylor sentenced appellant to a 

total of forty-five years active incarceration on all charges. 

Following sentencing, appellant moved to withdraw his guilty 

 

 1Bohannon initially represented appellant on both sets of 

charges, however, after he withdrew from the murder case due to a 

conflict of interest, the trial judge appointed Smith. 

 In addition, appellant's grandmother retained C. Lydon 

Harrell, Jr., to assist appellant's family and the two 

court-appointed attorneys. 
 3 

pleas. On June 6, 1996, following an evidentiary hearing, Judge 

Taylor denied the motion. These appeals followed. 

II. THE LAW 

 A motion to withdraw a plea of guilty or nolo 

contendre may be made only before sentence is 

imposed or imposition 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 (emphasis added). 

 Post-sentence motions to withdraw a guilty plea "involve 

judicial discretion." Holler v. Commonwealth, 220 Va. 961, 967, 

265 S.E.2d 715, 719 (1980). See also Lilly v. Commonwealth, 218 

Va. 960, 965, 243 S.E.2d 208, 211 (1978) (applying federal 

standard, explaining that post-sentence motions under Code 

§ 19.2-296 require application of "'[t]he more severe [manifest 

injustice] standard to avoid motions for withdrawal based on 

disappointment in the terms of the sentence'") (quoting Paradiso 

v. United States, 482 F.2d 409, 416 (3rd Cir. 1973)). But see

Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874 

(1949) (explaining that case law requires liberal allowance to 

withdraw pleas before sentencing as long as there is some basis 

for believing that the defendant is, in fact, innocent or that 
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ends of justice will be subserved). 

III. ANALYSIS 

 In his appeal, Stephens raises no claim that his Alford

pleas were entered involuntarily or that he entered them under 

fear, duress, coercion, fraud, or official misrepresentation. 

There is also no claim that appellant misunderstood the effect of 

the pleas. Appellant's claim is that he mistakenly agreed to the 

plea agreement because he was led to believe by one or more of 

his attorneys that he would not receive as lengthy a sentence as 

he actually did receive from the trial court.2

 As a result, 

appellant claims that the sentence he received was a "shocking 

departure" from what his attorneys advised him he could receive. 

 The real question in this case, therefore, is whether, in the 

exercise of sound judicial discretion, the trial court should 

have granted the motion to withdraw to correct some manifest 

injustice resulting from the circumstances concerning the entry 

of the pleas and presentation of the plea agreement. 

 During the March 4, 1996 hearing, Judge Taylor thoroughly 

questioned appellant to assure herself that he was entering his 

pleas knowingly, freely, and voluntarily. The trial judge 

carefully explained the consequences and ramifications of 

 

 2To the extent that appellant characterizes his argument as 

an ineffective assistance of counsel claim, we are precluded from 

hearing such claims. Claims of ineffective assistance of counsel 

may no longer be raised on direct appeal. Code § 19.2-317.1, 

which allowed direct appeal of such claims under certain 

circumstances, was repealed in 1990. 1990 Va. Acts, c. 74. See 

also Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983). 
 5 

pleading guilty, she reviewed the evidence against him, and 

explained the maximum sentence that she could impose under the 

agreement. Following this colloquy, appellant assured the trial 

judge that the decision was, indeed, his, and that he was 

satisfied with his attorneys. 

 Appellant admits that he was aware of the fifty-five year 

cap on active incarceration contained in the plea agreement and 

that he received "very sound advice" from Smith. He contends, 

however, that this advice was substantially in conflict with that 

offered by Harrell. 

 Smith testified that he and Bohannon discussed the 

advantages of having one presentence report and sentencing event 

under the plea agreement. Smith admitted telling appellant that 

he could expect to receive a twenty-five to thirty year sentence. 

 However, he also testified that he advised appellant that the 

decision would be up to the judge and that the limit of active 

incarceration in the plea agreement was fifty-five years. 

 Harrell testified that he did not recall advising appellant 

that he would likely receive a sentence ranging between eight and 

fifteen years. However, if he did so, Harrell stated that he 

gave that advice when he was first retained by the family, before 

he was familiar with all the facts of the case, and that any 

reference to specific sentences was initiated by appellant. 

Harrell further testified that he told appellant that the 

sentence would be entirely at the trial judge's discretion. 
 6 

 At the June 6, 1996 post-sentence hearing on the motion to 

withdraw his pleas, the trial judge listened to testimony from 

the attorneys, appellant, and appellant's mother. The trial 

judge found the testimony of the attorneys to be credible and 

rejected the testimony of appellant and his mother. The mother 

recalled that Smith discussed with her and explained the 

advantages of a sentencing guideline range computed for a single 

sentencing event and how that range contrasted with the higher 

range were appellant separately sentenced for the two unrelated 

sets of crimes. As a result, the trial judge found that 

appellant was fully and completely informed about the law 

applicable to his case, that he received competent advice from 

counsel, and that he was fully informed by his attorneys of the 

possible consequences of the plea agreement. The trial judge 

also found Harrell's role merely advisory as a family counselor. 

 It is also well established throughout the record that appellant 

was aware of the possible consequences of his plea. "The weight 

which should be given to evidence and whether the testimony of a 

witness is credible are questions which the fact finder must 

decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 

S.E.2d 598, 601 (1986). Reviewing the entire record and applying 

a deferential standard of review to the trial judge's findings, 

we are unable to say that such findings were plainly wrong. 

 Appellant's shocked reaction to the sentence received and 

the arguments presented to the trial court and to this Court 
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amount to no more than expressions of disappointment in the 

outcome of his plea agreement. See Lilly, 218 Va. at 965, 243 

S.E.2d at 211. The trial judge's findings following extensive 

testimonial evidence are clearly supported by the record. As a 

result, we find no Code § 19.2-296 "manifest injustice" requiring 

correction based on the advice given appellant regarding the 

guilty pleas or the plea agreement. We, therefore, conclude that 

the trial court did not abuse its discretion in denying the 

appellant's motion to withdraw his guilty pleas. Accordingly, 

the judgments of the trial court are affirmed. 

 Affirmed.