COURT OF APPEAL S OF VIRGINIA

Present: Chief Judge Felton, Judges Cl ements and Beales Argued at Richmond, Virginia

RONALD BEASLEY CHANEY, S/K/A RONALD B. CHANEY, III MEMORANDUM OPINION * BY v. Record No. 1197-07-2 JUDGE JEAN HARRISON CLEMENTS APRIL 1, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Burnett Miller, III, Judge G. Russell Stone, Jr. (Bow en, Champlin, Carr, Foreman & Rockecharlie, on brief), for appellant. Joanne V. Frye, Assistant Attorn ey General (Rober t F. McDonnell, Attorney General, on brief), for appellee.

Ronald Beasley Chaney (appellant) was c onvicted of two counts of malicious wounding in violation of Code § 18.2-51, two counts of using a firearm in the commission of malicious wounding in violation of Code § 18.2-53.1, conspiracy to commit robbery in violation of Code §§ 18.2-22 and 18.2-58, and wearing body armor in vi olation of Code § 18.2-287.2. On appeal, he contends the trial court erred in refusing to allow him to withdraw his guilty pleas before sentencing. We disagree and affirm the trial court’s judgment and appellant’s convictions. As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND In connection with events o ccurring on the night of June 27, 2006, appellant was charged with two counts of mali cious wounding, two counts of using a firearm in the commission of malicious wounding, conspiracy to co mmit robbery, and wearing body armor. 1 According to the evidence proffered by th e Commonwealth without objection, appellant and his cousin, Wade Robertson, planned to rob Omari Barrett through the guise of selling Barrett an AK-47 in exchange for drugs and money. In furtherance of the plan, appellant and Robertson armed themselves with handguns, dressed in bulletproof vests, and convinced another individual, Gary Sanford, to join them in the commission of the robbery. In a red Kia vehicle, appellant, Robertson, and Sanford rode to an ap artment complex where they had planned to meet Barrett. After they arrived and parked the vehicl e, Barrett approached and entered the vehicle, sitting in the backseat with appellant who held the AK-47. Almost immediately, Barrett’s two friends , Lamont Thomas and Thomas Scott, approached the vehicle on either side. Thom as and Scott, armed with guns, saw the AK-47 in the backseat of the vehicle. Ba rrett heard one of the three men in the car say something about a robbery. When Sanford saw one of Barrett’s fri ends pull out a gun, he bent down onto the floor of the vehicle. Robertson and appellant also drew their guns and began shooting at Thomas and Scott. Scott retreated to the ap artment complex but returned and s hot at the vehicle when he saw that Thomas had been shot. Inside the vehicle, Barrett and appellant wrestled for a ppellant’s pistol. During the struggle, appellant shot Barrett in the arm and Robertson, who sat in the driver’s seat, turned and

1 Although appellant was charged originally with eleven felonies, the Commonwealth nolle prossed five of the indictments (attempted robbery, use of a firearm in the commission of attempted robbery, shooting from a vehicle so as to endanger others, and two charges of aggravated malicious wounding) pu rsuant to a plea agreement.- 3 - shot towards the backseat. Appellant also a ttempted to shoot the AK-47 from his backseat window but dropped the gun outside of the vehicle. Barrett threw appellant out of the car and reached for the AK-47. Robertson told Barrett to drop the money and following Barrett’s refusal, Robertson shot at Barrett who jumped from the vehicle. Barrett received shots in the arm and shoulder, Scott sustained a shot to th e stomach, and Thomas was shot in the stomach and chest. Robertson and Sanford departed in the vehicle leaving a ppellant at the scene. Pursuant to a plea agreement, appellant entere d guilty pleas to six of the eleven felonies originally charged. During the plea colloquy, appella nt maintained that he had an opportunity to speak with counsel about the charges, that he understood the charges, that by pleading guilty, he waived his right to a jury trial, his right agai nst self-incrimination, his right to confront and cross-examine witnesses, and his right to appeal. He claimed that he made his pleas willingly and voluntarily and did so because he was guilty. Appellant further claimed that he was not forced to plead guilty by threat or intimidation. The trial court accepted the pleas, finding they were made willingly, intelligently, and voluntarily. Prior to sentencing, appellant moved to withdr aw his pleas on the ground that he acted in self-defense. At the hearing on appellant’s motion, he maintained that he “never purposely shot anybody during the entire situation. ” He claimed he “shot one pe rson, and that was an accident” because it was a “struggle for a firearm.” Specifi cally, when Barrett’s two friends approached the red Kia, appellant “was forced to try to de fend” himself. Barrett grabbed appellant’s pistol, and a struggle ensued. During the struggle, the gun “accidentally went off twice and hit [Barrett] in the arm.” Appellant further stated that he “never purposely . . . held the gun to anybody that wasn’t a threat to [him].” He admitted that he “may have got off a shot or two before [Barrett] grabbed the gun . . . out of the window maybe at [h is] aggressors, but other than that, [appellant- 4 - was] not clear on that.” Appe llant claimed he was “pressured” into the robbery by Robertson because he owed Robertson money. Appellant, however, admitted to the trial court that the evidence had not changed since the time of his guilty pleas. He also acknowledg ed that he answered truthfully during the plea colloquy and that before he entered his guilty pl eas, he had spent three or four hours with his attorney reviewing his case. Af ter appellant entered his guilty pl eas, he discussed his case with family members and reviewed self-defense la w. Consequently, appe llant decided he was innocent by means of self-defense and wi shed to withdraw his guilty pleas. The trial court denied appellant’s moti on and sentenced him on the convictions. This appeal followed.
II. ANALYSIS On appeal, appellant contends the trial cour t erred in refusing to grant his motion to withdraw his guilty pleas “where [appellant] ha[d] offered a reasonable ground for trying the matter and the trial court applied an incorrect st andard to [appellant’s] motion.” We disagree with appellant. “Whether a defendant should be permitted to withdraw a guilty plea rests within the sound discretion of the trial court to be determined based on the facts and circumstances of each
case.” Hall v. Commonwealth , 30 Va. App. 74, 79, 515 S.E.2d 343, 346 (1999). “The court’s finding as to the credibility of witnesses and the weight of the evidence in support of a motion to withdraw a guilty plea will not be disturbed unl ess plainly wrong or without evidence to support it.” Jones v. Commonwealth , 29 Va. App. 503, 512, 513 S.E.2d 431, 435 (1999). Code § 19.2-296 provides that “[a] motion to withdraw a plea of guilty or nolo contendere 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 as ide the judgment of conviction and permit the defendant to withdraw his plea.” Under the express- 5 - terms of the statute, when the motion is made after entry of a final order imposing sentence or deferr ing the imposition of sentence, a defendant will be allowed to withdraw a guilty plea only while the case remains under the trial court’ s jurisdiction for twenty-one days and only “to correct [a] manifest injustice.” Justus v. Commonwealth , 274 Va. 143, 152, 645 S.E.2d 284, 288 (2007). When the motion to withdraw a guilty plea is made before the sent ence has been imposed, “logic dictates that the standard must be more liberal than the requi rement of showing a manifest injustice.” Id. at 153, 645 S.E.2d at 288. That more liber al standard is described in Parris v. Commonwealth , 189 Va. 321, 325, 52 S.E.2d 872, 874 (1949), as follows: “the withdrawal of a plea of gu ilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. The least surprise or influence causing a defendant to plead guilty when he has any defense at all s hould be sufficient grounds for permitting a change of plea from gu ilty to not guilty. Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury. ” (Emphases added). In addition, a “‘merely dilatory or formal de fense’” to the charges will not establish a reasonable ground for going to the jury. Coleman v. Commonwealth , 51 Va. App. 284, 289, 657 S.E.2d 164, ___ (2008) (quoting Justus , 274 Va. at 155-56, 645 S.E.2d at 290). Rather, “‘the accused should be permitted to withdraw a plea of guilty entered [i]nadvisedly when application therefor is duly made in good faith and sustaine d by proofs, and a proper offer is made to go to trial on a plea of not guilty.’” Justus , 274 Va. at 153-54, 645 S.E.2d at 288 (quoting Parris , 189 Va. at 325-26, 52 S.E.2d at 874). To assert the affirmative defense of self-def ense without fault, the defendant must be completely free of fault in provoking or bringing about the confrontation that resulted in the- 6 - killing or wounding. See Smith v. Commonwealth , 165 Va. 776, 785, 182 S.E. 124, 128 (1935) (holding that, to employ the without-fault self-d efense, the defendant “must have been without fault in the ‘minutest degree’”). “[A] person cannot rely upon a pl ea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth , 219 Va. 852, 855, 252 S.E.2d 323, 325 (1979) (citing Sims v. Commonwealth , 134 Va. 736, 115 S.E. 382 (1922)). Considering the facts and circumstances of this case, appellant’s justifications for withdrawing his guilty pleas do not constitute ev idence of “reasonable ground[s]” for trying the matter as set forth in Justus and Parris . Having received advice from family members and upon a review of self-defense law, appellant simply changed his mind as to his guilt based on a theory of self-defense. The record proves, however, that appellant’s actions do not constitute any viable self-defense claim because he provoked and plan ned the robbery with Robertson, armed himself with guns and body armor, acted in furtherance of the plan, struggled for control of his firearm with Barrett, shot Barrett, and also shot at other aggresso rs approaching the vehicle. Furthermore, unlike the defendant in Parris , appellant claimed no mistake of fact or otherwise asserted that he entered his pleas with “the least surprise or influence” or out of “fear, fraud, or official misrepresentation.” Contrary to the defendant in Justus , appellant also failed to support his claim of self-defense with affidavits and proffers to the trial court, and in fact, agreed that the evidence had not changed since the time he entered his guilty pleas. Instead, appellant presented a “merely dilatory or formal defens e,” one not supported by the record and one not established by the law of self-defense. See Coleman , 51 Va. App. at 292, 657 S.E.2d at ____ (rejecting a claim of misi dentification as a reasonable defe nse when five witnesses recognized the defendant as the perpetrator, the trial court found the evidence to be “overwhelming” against- 7 - the defendant, and defendant presented no affidavits, alibi witnesses, or other explanations for a mistaken identity defense). Although the trial court used th e phrase “manifest [injustice]” in rendering its decision, the trial court’s discussion and rationale demons trates that it actually evaluated the facts and circumstances properly within the mandate of Justus . In assessing appellant’s self-defense claim, the trial court noted that appellant’s attorney at tempted to create speculation as to which side shot first during the robbery in cident. Concluding that th e evidence did not support that speculation, the trial c ourt found, as follows: But the point of it is that wa sn’t the evidence. It didn’t happen that way. And that wa s not the evidence that was previewed in court, which you h eard and didn’t c ontest at that time. In addition, the trial court stated, as follows: I also asked you whether anything had changed with regard to your perception of self-defen se, and you said, no. I mean the evidence is the same, one way or th e other. The point is now that you just want to change your plea. And there has to be some finality, and if the plea is voluntary, it’s intelligent, it’s based on all of the facts and circumstances at the time, then it’s a valid guilty plea. And I so find. Accordingly, because the trial court’s ra tionale comports with the mandate of Justus , and because the evidence supports that rationale, we fi nd the trial court properly denied appellant’s motion to withdraw his guilty pleas.
III. CONCLUSION For these reasons, we affirm the judgment of the trial court and appellant’s convictions. Affirmed.