COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Hodges 

Argued at Richmond, Virginia 

PRINCE A. McKINNY, JR., S/K/A 

 PRINCE A. McKINNEY, JR. 

v. Record No. 0775-95-1 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

 COMMONWEALTH OF VIRGINIA MAY 14, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 Fred C. Hardwick, II (Eusner & Hardwick, 

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

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 The appellant, Prince A. McKinney, Jr., contends that the 

trial judge erred in refusing to allow him to withdraw his pleas 

of guilty. For the reasons that follow, we find no error and 

affirm. 

 I.

 Appellant was indicted on the following six charges: 

robbery of a McDonald's Restaurant employee on January 14, 1994, 

and threatening to bomb that restaurant; robbery of a Burger King 

Restaurant employee on January 24, 1994, and threatening to bomb 

that restaurant; and attempted robbery of a Taco Bell Restaurant 

employee on February 20, 1994, and threatening to bomb that 

 

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

designated for publication. 
 2 

restaurant. 

 Trial was initially scheduled for October 12, 1994, however, 

on that date, the case was continued until November 15, 1994, on 

appellant's motion. On November 15, 1994, appellant again moved 

for and was granted a continuance until January 10, 1995. On 

January 10, 1995, appellant was arraigned. The following 

colloquy took place: 

 THE COURT: Have you had enough time to 

confer with [your attorney] to prepare 

yourself for these trials? 

 APPELLANT: Yes, sir. 

* * * * * * * 

 THE COURT: And have you talked with [your 

attorney] about what plea that you are going 

to make to these charges and whether you want 

to be tried by the Court or by a jury? 

 APPELLANT: Yes, sir. 

 THE COURT: Has he explained to you the legal 

elements of these offenses and what must be 

proven by the Commonwealth beyond a 

reasonable doubt? 

 APPELLANT: Yes, Your Honor. 

 The prosecutor then asked the trial judge to arraign 

appellant on only two charges: the McDonald's robbery and the 

Taco Bell attempted robbery. Appellant pled guilty to both 

charges. Before the trial judge accepted appellant's pleas, the 

following dialogue occurred: 

 THE COURT: What grade did you last finish in 

school? 

 APPELLANT: Twelfth. 
 3 

 THE COURT: And do you understand that you 

have the right to plead not guilty? 

 APPELLANT: Yes, sir. 

 THE COURT: Do you understand that if you 

plead guilty that is a judicial admission of 

your guilt? You're admitting that you are 

guilty. 

 APPELLANT: Yes, sir. 

 THE COURT: And whose decision was it to 

plead guilty, yours or your attorney? 

 APPELLANT: Mine. 

 THE COURT: And before you came to that 

decision, did you first confer with your 

attorney and go over the case and talk about 

it? 

 APPELLANT: Yes, sir. 

 THE COURT: Is your plea of guilty made 

completely freely and voluntarily in each 

case? 

 APPELLANT: Yes, sir. 

 THE COURT: Has anyone promised you anything 

or used any force or threats on your person 

or mind to get you to plead guilty? 

 APPELLANT: No, sir. 

 THE COURT: Are you pleading guilty because 

you are in fact guilty of these two offenses? 

 APPELLANT: Yes, sir. 

 THE COURT: And do you understand that if you 

plead guilty that you waive your right to a 

trial by jury? 

 APPELLANT: Yes, sir. 

 THE COURT: You also may waive your right to 

appeal the decision of this Court. You do 

waive your right not to incriminate yourself. 

 That is, you waive your right to remain 
 4 

silent. You waive your right to be 

confronted by your accusers. 

 These are felonies. If you are 

convicted you will lose your right to vote, 

to hold public office. And if you testify 

 at a trial your credibility could be 

tested by asking you if you have ever been 

convicted of a felony. Do you understand all 

of that? 

 APPELLANT: Yes, sir. 

 THE COURT: And has your attorney advised you 

as to the minimum and maximum sentence you 

could receive on each of these? 

 APPELLANT: Yes, sir. 

 The trial judge was told that there was a plea agreement, 

after which defense counsel stipulated to the evidence. The 

prosecutor summarized the evidence as follows: 

 Your Honor, if presented, the evidence 

would show with regard to the robbery of 

McDonald's on January 14th, of 1994, the 

Defendant went to the McDonald's Restaurant 

located at 236 South Mallory Street here in 

the City of Hampton. He presented a note to 

the clerk there, Phyllis LeBoeuf, which 

stated that he was armed and told her to give 

him money. 

 Ms. LeBoeuf gave him five hundred and 

eighty-eight dollars of McDonald's money 

based on his note claiming that he was armed. 

 The Defendant subsequently gave a statement 

to Detective Browning admitting to that 

robbery. 

 With regard to the Taco Bell, the 

evidence would show that on February 20th, of 

1994, the Defendant presented a similar note 

as in the McDonald's case to Charles Rainey 

at the Taco Bell store . . . . That note 

indicated that there was a bomb that Mr. 

McKinny [sic] had planted and that if he 

didn't give him the money that he would set 

the bomb off. At the time the Defendant gave 

Mr. Rainey the demand note, the Defendant was 

standing outside the door. After Mr. Rainey 

got the note he slammed the door and locked 
 5 

it, so ultimately the Defendant did not get 

any money from Taco Bell. 

 The Defendant also gave a statement 

admitting to that attempted robbery. . . . 

Based on the Defendant's plea [sic] of guilty 

to these two charges, I would ask the Court 

to nol-pros[equi] the remainder. 

 The trial judge directed counsel to put the agreement in 

writing. After a brief recess, a written agreement was 

presented, and the trial judge accepted it. The remaining four 

charges were nolle prosequied on motion of the prosecutor. 

 At the March 2, 1995 sentencing hearing, appellant moved to 

withdraw his pleas. Defense counsel (Smith) explained that, 

after pleading guilty to the two charges, appellant 

 stood before the Isle of Wight County Court 

on similar charges. The Judge in that case 

reduced the, I believe, attempted robbery 

charge -- the facts were similar to the one 

that was before this Court -- reduced it to 

an extortion charge and the Defendant, I 

believe, was upset that he entered pleas of 

guilty to this. 

 The Commonwealth's Attorney objected, arguing that the pleas 

were knowing and voluntary and that other charges were dropped 

based on his pleas. The trial judge indicated that he was 

"inclined to grant the motion" if the Commonwealth was not 

prejudiced by appellant's actions. The trial judge directed the 

prosecutor to determine whether the witnesses necessary to 

prosecute the original six charges were still available. Defense 

counsel (Smith) moved to withdraw, and the trial judge granted 

that request. 

 On March 8, 1995, the prosecutor made the following 
 6 

representation to the trial judge: 

 Your Honor, this case involves three separate 

robberies or attempted robberies involving 

different victims. One of the victims is 

still available, ready to come to court; 

that's the January 14th case. Karin Gimple 

no longer has a listed phone number, and the 

work number that we had for her is now a fax 

or a modem computer type line. We have no 

way of reaching her. And Charles Rainy 

[sic], on the February 20th offense date, is 

apparently in the area but is not very 

cooperative and does not want -- obviously 

does not want to come to court again. 

 So we would have witness problems on two 

out of three underlying offenses and we would 

again object to the defendant being allowed 

to withdraw his pleas . . . . And I don't 

think the justification that he stated to the 

Court last week . . . would be sufficient to 

understanding his knowing, and voluntary, 

plea of guilty to the two robberies and the 

attempted robbery. 

 Defense counsel (Hardwick) argued that the witnesses were 

still available and could be ordered to appear, therefore, 

appellant "ought to be able to withdraw the guilty plea [sic]." 

The trial judge made the following ruling: 

 The Court finds from the evidence that 

the Commonwealth's position is different than 

what it was when this matter was originally 

set for trial. The witnesses at that point, 

as the Court recalls, were available and were 

ready to proceed with trial. The plea 

agreement was worked out without any duress 

or any pressure against the defendant. And 

the Court does not know the reason for the 

defendant wanting to withdraw. 

 Having found that the Commonwealth's 

position has now been altered and that they 

would be placed at an -- the Court rules that 

they would be placed at a disadvantage now to 

proceed on this matter, and the motion to 

withdraw his guilty plea [sic] is denied. 
 7 

 On March 31, 1995, the trial judge imposed a ten-year 

sentence for the robbery and a five-year sentence for the 

attempted robbery. 
 8 

 II.

 A defendant has no absolute right to withdraw a plea of 

guilty or nolo contendere; rather, such privilege is permissive. 

See Code § 19.2-296 (providing that "a motion to withdraw a plea 

of guilty or nolo contendere may be made" before sentence is 

imposed). 

 [W]hether or not an accused should be allowed 

to withdraw a plea of guilty for the purpose 

of submitting one of not guilty is a matter 

that rests within the sound discretion of the 

trial court and is to be determined by the 

facts and circumstances of each case. No 

fixed or definite rule applicable to and 

determinative of all cases can be laid down. 

 However, the motion should not be denied, if 

timely made, and if it appears from the 

surrounding circumstances that the plea of 

guilty was submitted in good faith under an 

honest mistake of material fact or facts, or 

if it was induced by fraud, coercion or undue 

influence and would not otherwise have been 

made. 

Parris v. Commonwealth, 189 Va. 321, 324-25, 52 S.E.2d 872, 

873-74 (1949) (emphasis added). 

 Virginia 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 "the ends of 

justice will be subserved." Id. at 325, 52 S.E.2d at 874. But 

if the motion to withdraw the plea is intended to delay or 

present a "formal" defense, the trial judge should deny the 

motion. Id. Moreover, the United States Supreme Court has held 

that a plea is not compelled merely because an accused enters it 

to avoid the possibility of more severe punishment. North 
 9 

Carolina v. Alford, 400 U.S. 25, 31, 37 (1970). Where the 

prosecution fails to honor any terms of the plea agreement, a 

defendant has a right to withdraw a guilty plea, if such motion 

is timely made. Lilly v. Commonwealth, 218 Va. 960, 963, 243 

S.E.2d 208, 210 (1978); Johnson v. Commonwealth, 214 Va. 515, 

518, 201 S.E.2d 594, 597 (1974). 

 The trial judge thoroughly examined appellant to ensure that 

his guilty pleas were entered freely, knowingly, and voluntarily. 

 The record shows that appellant admitted that he committed the 

acts for which he was convicted. Moreover, the Commonwealth 

complied with the terms of the agreement and nolle prosequied the 

remaining four charges. 

 On appeal, appellant contends that he had a right to 

withdraw his pleas (1) because the Commonwealth failed to show 

that its witnesses were unavailable; and (2) because the pleas 

were entered "under an honest mistake on his part as to the 

nature of the charges and the crimes which he truly committed." 

 The law in Virginia does not require the trial court to 

allow an accused to withdraw a guilty plea merely because 

witnesses and evidence are still available. The availability of 

evidence is a factor for the trial court to consider in 

determining how to exercise its discretion, but the prosecution 

is not required to establish that such evidence is unavailable 

before a trial court may exercise its discretion. 

 Appellant failed to show that his pleas were entered "under 
 10 

an honest mistake of material fact" or through any misconduct by 

the Commonwealth. Appellant did not show that his pleas were 

induced by fraud, coercion, or undue influence. Moreover, he 

failed to show that, since conferring with counsel and pleading 

guilty, he gained any additional evidence relating to this case 

that would have affected his decision to plead guilty or that 

supported a valid defense to his admitted acts. 

 Appellant does not contest the proffered evidence presented 

to the trial court. We cannot say that the proffered, 

uncontested evidence did not support the robbery and attempted 

robbery charges. The fact that another trial court allegedly 

found appellant guilty of a reduced charge for a different, 

unrelated crime does not establish that appellant was innocent of 

these crimes or that he could not have been tried for robbery. 

 Viewing the entire record, including the evidence and the 

facts surrounding the agreement and pleas, we cannot say that the 

trial judge abused his discretion in refusing to allow appellant 

to withdraw his pleas of guilty. Accordingly, we affirm 

appellant's convictions. 

 Affirmed.