COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Petty and AtLee 

Argued at Lexington, Virginia 

ALBERT LEWIS FOWLER, III 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0781-14-3 JUDGE RICHARD Y. ATLEE, JR. 

 JULY 14, 2015 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Stacey W. Moreau, Judge 

 Gregory T. Casker, for appellant. 

 Eugene Murphy, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 On January 22, 2014, a judge for the Circuit Court of Pittsylvania County convicted Albert 

Lewis Fowler, III (hereinafter “appellant”) of two counts of felony solicitation of a minor by use of 

a communications system. The court sentenced appellant to twenty years of imprisonment, with ten 

years suspended. On appeal, appellant argues that the trial court erred in finding that he used a 

communications system for purposes of Code § 18.2-374.3(D) when he handed the victim a note. 

The Commonwealth argues that we lack jurisdiction to hear the case because appellant’s 

conditional guilty plea only preserves the right to appeal pretrial motions. We agree with the 

Commonwealth to the extent that we do not reach appellant’s assignment of error. However, 

because appellant’s conditional guilty plea was not “knowingly and voluntarily entered,” it was 

not a valid waiver of his constitutional rights, and therefore we reverse and remand the case to 

the trial court.

 *

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

UNPUBLISHED 
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I. Facts of the Case 

Appellant, then 49 years old, handed the victim, then 17 years old, a note while the victim 

was working in a grocery store. The note read: 

I think you are one fine looking guy. Very hot. I would love to take 

you out to dinner or maybe buy you a drink. I am not trying to make 

you uncomfortable or scare you. If you are not interested I will not 

bother you anymore. But if you would like to be pleasured I would 

love to pleasure you. I can do things for you and to you that no girl 

could ever do. I live alone in a 3 bedroom brick house and can be 

very good for you. My name is Al. If you are interested in just 

laying back and being pleasured call or text me at [redacted]. No one 

knows I am gay except the guys I pleasure. I am straight acting and 

very descreet [sic]. Please do not just throw this away without 

thinking about my offer. This is not a joke, I am very serious. I hope 

you will take me up on my offer to pleasure you and call or text me. 

I know you will enjoy it as I am very good at what I do. So, think 

about my offer. 

After receiving the first note, the victim alerted his manager, who contacted the sheriff’s 

office. Law enforcement placed the note into evidence. Over a month later, appellant delivered a 

second note to the victim containing a substantially similar message. The victim reported this to his 

mother, who also contacted the sheriff’s office. An investigator called the number provided in the 

notes, pretending to be the victim. The investigator ran a trace on the phone number, eventually 

located a picture of appellant, and confirmed with the victim that this was the individual who had 

handed him the notes. 

Initially, appellant pleaded not guilty. The Commonwealth requested a jury trial. At the day 

of trial, appellant’s counsel told the judge that after discussions with the Commonwealth, appellant 

agreed to stipulate to the evidence the Commonwealth intended to proffer, relying solely on motions 

to strike the evidence. Appellant’s counsel also explained on the record that if the trial court denied 

the motions to strike, he would withdraw his plea of not guilty and enter a conditional guilty plea. 

After hearing the evidence and appellant’s argument in favor of his motion, the trial court denied 

appellant’s first motion to strike and renewed motion to strike. 
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As previously contemplated, appellant, with the consent of the Commonwealth and the trial 

court, then amended his plea from not guilty to a conditional guilty plea. Specifically, appellant’s 

counsel stated: “at this time the defendant would ask to change his plea from not guilty to a plea of, 

conditional plea of guilty reserving his rights to appeal of the Court’s ruling on the issues raised at 

the motion to, both at the, at the two motions to strike.” (App. at 65.) The judge conducted the plea 

colloquy, during which she asked appellant “do you understand that by pleading guilty, the 

conditional one, you may be waiving your right to appeal this Court’s decision except for the 

objections that have been noted on the record in regard to the conditional plea?” (App. at 74.) 

Appellant stated that he understood. The judge accepted the plea, and ultimately sentenced 

appellant to ten active years in prison. 

II. Jurisdiction over Appeals from Conditional Guilty Pleas 

“Because the issue before us is a question of law involving the construction of Code 

§ 19.2-254, we review the trial court’s determination de novo.” Cross v. Commonwealth, 49 

Va. App. 484, 492, 642 S.E.2d 763, 767 (2007) (citing Ainslie v. Inman, 265 Va. 347, 352, 577 

S.E.2d 246, 248 (2003)), vacated in part on other grounds, 52 Va. App. 598, 665 S.E.2d 861 

(2008). 

“[A]lthough an accused has the constitutional right to enter a guilty plea, an accused does 

not have a constitutional right to enter a conditional guilty plea. Rather, this right—established 

by Code § 19.2-254—is a statutory one.” Hill v. Commonwealth, 47 Va. App. 667, 671, 626 

S.E.2d 459, 461 (2006). Code § 19.2-254 states, in pertinent part: 

With the approval of the court and the consent of the 

Commonwealth, a defendant may enter a conditional plea of guilty 

in a misdemeanor or felony case in circuit court, 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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Code § 19.2-254 (emphasis added). In interpreting a statute, “we apply the well-established 

principle that ‘words in a statute are to be construed according to their ordinary meaning, given 

the context in which they are used.’” Cross, 49 Va. App. at 493, 642 S.E.2d at 767 (quoting 

Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)). We also follow a 

fundamental principle of statutory construction that “‘where a statute speaks in specific terms, an 

implication arises that omitted terms were not intended to be included within the scope of the 

statute.’” Conkling v. Commonwealth, 45 Va. App. 518, 522, 612 S.E.2d 235, 237 (2005) 

(quoting Commonwealth v. Brown, 259 Va. 697, 704–05, 529 S.E.2d 96, 100 (2000)). Here, the 

legislature explicitly limited the scope of appeals from conditional pleas to pretrial motions. To 

permit an appeal of the denial of a motion to strike would impermissibly expand the scope of the 

statute beyond what the legislature intended. Accordingly, appellant has no right to appeal the 

denials of his motions to strike. 

III. Validity of the Plea: Knowing and Voluntary 

Although a conditional guilty plea is a statutory, not constitutional right, a defendant 

entering such a plea nonetheless waives several of the defendant’s constitutional rights, 

including the right to a jury trial, the right to confront witnesses, and the protection against 

self-incrimination. Graham v. Commonwealth, 11 Va. App. 133, 139, 397 S.E.2d 270, 273 

(1990) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). “‘Waivers of constitutional rights 

not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness 

of the relevant circumstances and likely consequences.’” Cross, 49 Va. App. at 495, 642 S.E.2d 

at 768 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). In other words, for a 

conditional guilty plea to be a valid waiver of a defendant’s constitutional rights, he or she must 

have entered the plea “‘freely, intelligently, and knowingly.’” Id. (quoting Hill, 47 Va. App. at 

674, 626 S.E. 2d at 463). Furthermore, “to withstand scrutiny on appeal, the record must contain 
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an ‘affirmative showing’ that the guilty plea was entered voluntarily and intelligently.” Hill, 47 

Va. App. at 674, 626 S.E.2d at 463 (citing Boykin, 395 U.S. at 243). 

Here, appellant clearly did not enter his plea intelligently and knowingly. His counsel 

unequivocally stated that appellant was entering a conditional plea for the express purpose of 

retaining his right to appeal the denial of his motions to strike. The Commonwealth did not 

object. The judge did not clarify that this was not allowed under Code § 19.2-254. Everyone 

present appeared to share the same mistaken understanding of Code § 19.2-254. 

We faced a remarkably similar set of facts in Cross v. Commonwealth, 49 Va. App. 484, 

642 S.E.2d 763 (2007). In that case, appellant entered a conditional guilty plea to misdemeanor 

charges, despite the fact that at the time, Code § 19.2-254 only permitted conditional pleas to 

felony charges. We concluded that the defendant “did not knowingly and intelligently enter a 

constitutionally valid plea of guilty,” where “he specifically informed the trial court that he 

wished to preserve his right to appeal the denial of his motion to suppress” as it related to his 

misdemeanor charge and “entered his guilty plea based upon the understanding that he could 

appeal that issue.” Id. at 495–96, 642 S.E.2d at 768. As in the case before us, “the trial court 

never advised [him] that a conditional guilty plea was not permitted,” and “all parties were acting 

under the mistaken assumption that [he] was entering a valid conditional guilty plea.” Id. at 496, 

642 S.E.2d at 768–69. 

IV. Conclusion 

Because appellant did not enter a constitutionally valid guilty plea, we reverse his 

conviction, vacate his plea, and remand for proceedings consistent with this memorandum 

opinion. 

Reversed and remanded.