COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Annunziata 

Argued at Chesapeake, Virginia 

JESSIE LOVELL SMITH 

 MEMORANDUM OPINION∗

 BY 

v. Record No. 0106-04-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 9, 2004 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 Charles E. Haden for appellant. 

Steven A.Witmer, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief) for appellee.

 ∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

 Jessie Lovell Smith (appellant) was charged with robbery pursuant to Code § 18.2-58, and 

pled guilty on February 4, 2003. Appellant moved to withdraw his guilty plea on November 24, 

2003 on the basis that he “was under extreme emotional distress at the time of pleading guilty,” and 

was “unable to realize his own best interests at the time of the guilty plea.” Following two 

psychological evaluations of appellant’s competency to stand trial, the trial court overruled this 

motion, and sentenced appellant to 20 years in prison, with 6 years suspended. Appellant contends 

that the trial court erred in denying his motion to withdraw the plea. We hold that the trial court 

properly denied the motion, and affirm. 
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I. BACKGROUND 

Under familiar principles of appellate review, we examine the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible 

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

 So viewed, the evidence established that on September 2, 2002, appellant walked into 

Michael Baker’s (Baker) Solo Food Market in Hampton. After giving Baker five dollars for his 

purchase, appellant pulled a gun and told Baker to give him the money in the register. Baker 

raised his hands and backed away, and told appellant to take the money. The store’s surveillance 

camera captured the robbery, and was turned over to Hampton Detective Kunkel (Kunkel). 

Kunkel discovered that similar robberies had recently occurred in Norfolk, and he went to the 

Norfolk city jail to speak with appellant, who was incarcerated at the time. Kunkel obtained a 

photograph of appellant and showed it to Baker at the Solo Food Mart. Baker positively 

identified appellant as the person who robbed his store on September 2, 2002. 

 Appellant pled guilty and had the following plea colloquy: 

THE CLERK: Jessie Smith, on or about September 22, 2002, did 

unlawfully [sic] and feloniously, in violation of Section 18.2-58, 

Code of Virginia, rob Michael Baker. How say you, are you guilty 

or not guilty? 

THE DEFENDANT: Guilty. 

THE COURT: There are additional questions for me to ask you, 

sir. If at any time you don’t understand the question, please ask 

me to repeat it and confer, if necessary, with Ms. Gerlach before 

you do respond. Do you fully understand the charge against you 

and the elements of the crime? 

THE DEFENDANT: Yes, sir. 

THE COURT: Are you entering this plea of guilty freely and 

voluntarily? 

THE DEFENDANT: Yes, sir. 
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THE COURT: Are you entering this plea of guilty because you 

are, in fact, guilty of the crime of which you are charged? 

THE DEFENDANT: Yes, sir. 

THE COURT: Do you understand that by pleading guilty you 

waive and give up certain rights including the right to a trial by 

jury, the right to cross-examine witnesses and the right to remain 

silent? 

THE DEFENDANT: Yes, sir. 

THE COURT: Has anyone connected with the state such as the 

police or the Commonwealth’s attorney or any official threatened 

you or forced you in any way to enter this plea of guilty? 

THE DEFENDANT: No, sir. 

THE COURT: Commonwealth’s attorney may have advised your 

attorney as to what punishment would be recommended if you pled 

guilty. Other than that, has there been any discussion or promise 

of any leniency in your case? 

THE DEFENDANT: No, sir. 

THE COURT: Have you and Ms. Gerlach talked about the 

maximum penalty that might be assessed in this case? Have you 

and Ms. Gerlach talked? 

THE DEFENDANT: Yes, sir. 

THE COURT: Have you had ample time to prepare any defense 

that you might have to this charge? 

THE DEFENDANT: Excuse me? 

THE COURT: Have you had ample time to prepare any defense? 

THE DEFENDANT: Yes, sir. 

THE COURT: Have you discussed with your attorney whether 

you should plead guilty or not guilty? 

THE DEFENDANT: Yes, sir. 

THE COURT: After that discussion, who made the decision to 

plead guilty? 
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THE DEFENDANT: I did. 

THE COURT: You understand that by pleading guilty, you waive 

and give up your right to appeal the decision of this court? 

THE DEFENDANT: Yes, sir. 

THE COURT: You understand all these questions that I’ve asked 

you? 

THE DEFENDANT: Yes, sir. 

THE COURT: Your plea of guilty is entered as given freely and 

voluntarily with knowledge of its elements. And you may be 

seated. 

Based on stipulated evidence and appellant’s guilty plea, the trial court found appellant guilty of 

the robbery, ordered a presentence report, and continued the sentencing hearing until April 1, 

2003. 

 Defense counsel requested a continuance on that date after learning that appellant had 

charges pending in two other jurisdictions and that a psychological evaluation of appellant had 

been ordered, which defense counsel in the instant case wished to review. The trial court 

continued the case until June 18, 2003, pending these results. 

 At the next hearing, appellant submitted a psychological evaluation prepared by Dr. D.H. 

Killian (Killian) for a different criminal matter. Killian summarized his letter to the trial court in 

that case as follows: 

To summarize, I do not think that this man can cooperate with his 

defense attorney and I do not think that he can understand the 

proceedings against him. I do believe that he is acutely mentally 

ill, and he is probably possessed of a psychiatric disorder such as 

schizophrenia. However, he is obviously quite depressed, and he 

is currently functioning intellectually at a retarded level, though it 

is unclear if this is a permanent issue or a temporary one secondary 

to his psychiatric disturbance. 

I do think that he should be sent to Eastern or Central State 

Hospital for further evaluation, treatment as indicated, and 

re-evaluation of his Competency to stand trial and his mental status 
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at the time of the alleged offense when the hospital staff believe 

that his competency has been restored. 

At the June 18 hearing, the trial court continued the case again until September 12, 2003, 

because appellant had been sent to Central State Hospital for evaluation in accord with Killian’s 

recommendation. On that date the sentencing hearing was again continued until November 19, 

2003. On November 19, the hearing was again continued until December 22, 2003, pending 

appellant’s motion to withdraw his guilty plea. 

 In its discharge report, and in contrast to Killian’s analysis, Central State Hospital 

described appellant’s symptoms as “minor depressive symptoms that did not meet criteria [sic] 

for a major depressive disorder.” The report stated that “[t]he patient appeared to be able to 

interact with others and had no major cognitive deficits,” and “he was found competent to stand 

trial.” The hospital diagnosed appellant with “depressive disorder, not otherwise specified,” and 

“polysubstance dependance.” 

 Appellant moved to withdraw his guilty plea on November 21, 2003, citing his “extreme 

emotional distress at the time of pleading guilty,” and argued that “the Defendant was unable to 

realize his own best interest at the time of the guilty plea.” At the hearing on December 22, 

2003, the trial court denied appellant’s request: 

I find nothing in the materials presented to me having to do with 

Mr. Smith’s capacity that would indicate that in any way he was 

not fully competent to waive the preliminary hearing and waive his 

right to a Grand Jury indictment. And we proceed to try him on 

the arrest warrant to which he pled guilty, and it’s normal practice 

in this court to ask a number of questions about whether or not one 

understands what’s going on. He has indicated that he did. 

Therefore, I deny your motion . . . . 

The trial court sentenced appellant to 20 years in prison, with 6 years suspended for 30 years 

conditioned upon good behavior. 
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II. ANALYSIS 

 Appellant contends the trial court erred in denying his motion to withdraw his guilty plea. 

Appellant contends that he was incompetent to plead guilty and, thus, he should be allowed to 

withdraw his plea. We disagree. 

 We review this appeal for an abuse of discretion. See Hoverter v. Commonwealth, 23 

Va. App. 454, 465, 477 S.E.2d 771, 776 (1996). 

In the absence of statutory regulation or established practice, 

whether 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. . . . [T]he 

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, 52 S.E.2d 872, 873 (1949). Code 

§ 19.2-296 provides: 

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 aside the 

judgment of conviction and permit the defendant to withdraw his 

plea.1

 Further, 

The plea of guilty to a serious criminal charge should be freely and 

voluntarily made, and entered by the accused, without a semblance 

of coercion, and without fear or duress of any kind, and the 

accused should be permitted to withdraw a plea of guilty entered 

unadvisably when application therefor is duly made in good faith 

and sustained by proofs . . . . 

Parris, 189 Va. at 325, 52 S.E.2d at 874. 

 1

 The timeliness of appellant’s motion is not at issue on appeal. Appellant moved to 

withdraw the plea before sentencing. 
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 Credible evidence supports the trial court’s denial of appellant’s motion to withdraw his 

guilty plea. Appellant sufficiently demonstrated his competence when answering the trial court’s 

questions during the colloquy. The mental evaluation submitted from Central State determined 

that appellant was competent to stand trial, and formed no basis to show appellant was 

incompetent at the time he entered his plea. The hospital diagnosed appellant as depressed and 

suffering from polysubstance dependence, but stated that he “appeared to be able to interact with 

others and had no major cognitive deficits.” The record reflects no “honest mistake of material 

fact” nor was the plea “induced by fraud, coercion, or undue influence.” Id. at 324, 52 S.E.2d at 

873. We therefore cannot say that the trial court was plainly wrong in ruling that appellant could 

not withdraw his guilty plea. 

 Accordingly, we affirm the judgment of the trial court. 

Affirmed.