COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

NORMAN HOVERTER 

 OPINION BY 

v. Record No. 2172-95-4 JUDGE JERE M. H. WILLIS, JR. 

 NOVEMBER 12, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

James L. Berry, Judge 

 J. Michael Solak (Suzanne M. Perka; Hobert, 

Kerr & Perka, P.C., on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 On appeal from his convictions of first degree murder and 

abduction, Norman Hoverter contends that the trial court erred 

(1) in denying his motion to withdraw his guilty pleas prior to 

sentencing, and (2) in denying him funds to hire a clinical 

psychologist to prepare for sentencing. We find no error and 

affirm the judgment of the trial court. 

 I. 

 Hoverter was indicted for the first degree murder and 

abduction of Valerie Smelser. On July 3, 1995, the parties 

entered into a plea agreement. The Commonwealth agreed not to 

bring any "further charges against [Hoverter] arising out of the 

circumstances involving the abuse, neglect, and death of Valerie 

Smelser, including, but not limited to any charge of alleged 

sodomy." Hoverter agreed to plead guilty to the murder and 
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abduction charges, pursuant to North Carolina v. Alford, 400 U.S. 

25 (1970). The agreement provided that on the murder charge, 

Hoverter would be sentenced "to serve a specific term of 

imprisonment to be determined by the Court after preparation of a 

Pre-Sentence Report" and that on the abduction charge, he would 

receive a ten year suspended sentence. Hoverter retained the 

right to withdraw his pleas if the trial court rejected the 

agreement. 

 On July 25, 1995, Hoverter and the Commonwealth's Attorney 

presented the plea agreement to the trial court. The following 

dialogue occurred between the trial court and Hoverter: 

 BY THE COURT: 

 Q Tell me your full name sir? 

 A Norman Hoverter. 

 Q What is your age Mr. Hoverter? 

 A Fifty. 

 Q Your date of birth? 

 A 6/12/45. 

 Q What is the last grade of school you 

completed? 

 A Sixth. 

 Q Sixth grade. What other education have you 

received? 

 A That's it. 

 Q I'm sorry? 

 A None. 

 Q As you stand here now, are you presently 
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using any drugs, any medications or any 

alcohol? 

 A No. 

 Q Are you the person charged in the indictments 

with commission in [sic] the offenses of 

murder and abduction? 

 A Yes. 

 Q Do you fully understand each of those charges 

against you? 

 A Yes. 

 Q Have you discussed each of those charges and 

the elements with your attorneys so that you 

understand what the Commonwealth would have 

to prove before you can be found guilty of 

either of those charges? 

 A Yes. 

 Q Okay, do you understand the question? 

 A Yes. 

 Q All right. Have you had enough time to 

discuss with your attorneys any possible 

defenses that you might have to either of 

those charges? 

 A Yes. 

 

 Q Have you discussed with your attorneys 

whether you should plead not guilty or 

guilty? Have you discussed that with your 

attorneys? I'm sorry. 

 A Yes. 

 Q All right. After these discussions did you 

decide yourself that you should plead guilty? 

 A Yes sir. 

 Q Okay. The question is whether you made the 

decision or somebody forced you to make the 

decision? 
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 A No. 

 Q You made it? 

 A Yes. 

 Q Are you entering those pleas of guilty freely 

and voluntarily? 

 A Yes. 

 Q Are you entering those pleas of guilty 

because you are in fact guilty of the crimes 

charge[d]? 

 A No. 

The Commonwealth's Attorney then stated a summary of the evidence 

that the Commonwealth would present in support of the charges. 

The trial court then resumed its dialogue with Hoverter as 

follows: 

 BY THE COURT: 

 Q Mr. Hoverter, are you pleading guilty because 

this is the Commonwealth's evidence and you 

don't want to take the risk that you would be 

found guilty by a jury on that evidence 

beyond a reasonable doubt? 

 A Yes. 

 Q Do you understand that by pleading guilty, 

you are not entitled to a trial by jury? 

 A Yes. 

 Q Do you understand by pleading guilty you give 

up your right not to incriminate yourself? 

 A Yes 

 Q Do you understand by pleading guilty you give 

up your right to confront and cross examine 

your accusers? 

 A Yes sir. 
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 Q Do you understand by pleading guilty you give 

up your right to defend yourself? 

 A Yes. 

 Q Are you presently serving a penitentiary 

sentence or on probation or on parole? 

 A No. 

 Q Has anyone connected with your arrest and 

prosecution such as the police or the 

Commonwealth's Attorney or any other person 

in any manner threatened you or forced you to 

enter these pleas of guilty? 

 A No. 

 Q Have they made any promises concerning your 

pleas of guilty? 

 A No. 

 Q Do you understand that if you are sentenced 

consecutively on these charges, the maximum 

punishment for these crimes is life plus 10 

years in prison plus all court costs? 

 A Yes. 

 Q Are you satisfied with Ms. Perka's and Mr. 

Solak's services and their representation of 

you in these matters? 

 A Yes. 

 Q Do you understand by pleading guilty you may 

waive any right to appeal the decision of 

this Court? 

 A Yes. 

 Q Mr. Hoverter the Court has been handed what 

is essentially a two page plea agreement with 

an attached five, six page acknowledgment of 

rights, both of which bear your signature or 

appear to bear your signature under the date 

of July 3, 1995. Is this in fact your 

signature Mr. Hoverter on these two 

documents? 
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 A Yes. 

 Q And you signed these on July 3? 

 A Yes. 

 Q At the time you signed this plea agreement 

particularly had you read the plea agreement? 

 A Yes sir. 

 Q Do you read and write? 

 A Some, yes. 

 Q And were you able to read this by yourself? 

 A No. 

 Q Okay, you were assisted by your attorneys? 

 A Yes. 

 Q You could read part of it and couldn't 

understand some of the words and they helped 

you with those? 

 A Yes sir. 

 Q In addition to reading it in the manner you 

described, did your attorneys explain to you 

and describe for you the contents of the plea 

agreement? 

 A Yes. 

 Q So that at the time you signed this plea 

agreement on July 3rd and as you stand here 

now, did you have and do you have a full and 

complete understanding of the terms and 

conditions of this plea agreement? 

 A Yes. 

 Q And does this agreement contain the full and 

complete agreement entered into among you, 

your attorneys and the Commonwealth's 

Attorney? 

 A Yes. 
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 Q You understand the Court may accept the plea 

agreement or may reject the plea agreement or 

may defer any decision to either accept or 

reject until there has been an opportunity to 

consider a presentence report? 

 A Yes. 

 Q Do you understand that if the Court accepts 

the plea agreement, the Court will include in 

[its] judgment and sentence a sentence 

provided for in the plea agreement? 

 A Yes. 

 Q Do you understand that as far as the sentence 

provided for in the plea agreement, the only 

limitation on the sentence to be imposed in 

the plea agreement is that the 10 year 

sentence on the abduction charge be 

suspended, there isn't any limitation on the 

life sentence? 

 A Yes. 

 Q And that the Court could impose anything from 

20 years to life on that charge without 

restriction by the plea agreement? 

 A Yes. 

 Q And the Court could suspend all, part, or 

none of any sentence imposed on that charge 

without restriction by the plea agreement. 

Do you understand that? 

 A Yes. 

 Q Do you understand that if the Court rejects 

the plea agreement, you will not be bound by 

the plea agreement? You will be given an 

opportunity to withdraw your pleas of guilty 

and if you do that, your trial may be held 

before another judge of this Court? 

 A Yes. 

 Q Do you understand that? 

 A Yes. 
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 Q Do you understand that if the Court rejects 

the plea agreement and you are given the 

opportunity to withdraw your plea of guilty 

and you don't do that, you continue in your 

pleas of guilty, then the sentence imposed 

may be more severe than that contained in the 

plea agreement? Do you understand that also? 

 A Yes. 

 Q Have you understood all the questions I have 

asked you? 

 A Yes. 

 Q Do you have any questions for the Court? 

 A No sir. 

Whereupon, Hoverter was arraigned on both charges and on each 

charge pleaded, "Guilty of the Alford Plea." The trial court 

found the "pleas of guilty to be freely, intelligently and 

voluntarily made with an understanding of the nature of the 

charges and the consequences of the pleas and [accepted the] 

pleas at [that] time." The trial court deferred acceptance or 

rejection of the plea agreement pending receipt of a presentence 

report. 

 Following Hoverter's arraignment, the Commonwealth's 

Attorney gave a press conference. A newspaper reported that the 

Commonwealth's Attorney stated at the press conference that he 

never intended to charge Hoverter with sodomy and that he lacked 

sufficient evidence to bring such a charge. On August 10, 1995, 

Hoverter moved to withdraw his guilty pleas. He alleged that he 

had entered into the plea agreement desiring to avoid prosecution 
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for sodomy and upon the understanding that the Commonwealth would 

prosecute him for sodomy unless he pleaded guilty to murder and 

abduction. He further alleged that his decision to plead guilty 

was based upon the Commonwealth's Attorney's false assertion that 

the Commonwealth intended to charge him with sodomy. 

 On August 25, 1995, the trial court conducted a hearing on 

Hoverter's motion to withdraw his guilty pleas. The 

Commonwealth's Attorney testified that his statements regarding a 

sodomy charge, as reported in the newspaper, were incorrect. He 

testified that he had sufficient evidence to bring such a charge, 

intended to do so, and had authorized the Assistant 

Commonwealth's Attorney to proceed. The Assistant Commonwealth's 

Attorney testified that he had prepared a sodomy indictment and 

intended to present it to the July 6, 1995 grand jury. Special 

Agent Shevokas testified that he had been notified to appear 

before the grand jury on July 6, 1995 to present the sodomy 

charge. At the conclusion of the hearing, the trial court found 

"no evidence . . . of any misrepresentation to the defendant of 

any material fact that would have induced him to enter into the 

guilty plea." The evidence supported this finding. The trial 

court accepted the plea agreement and sentenced Hoverter in 

accordance with it. 

 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 
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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) (emphasis added). 
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 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. 

Hoverter moved to withdraw his guilty pleas before sentence was 

imposed. Thus, his motion was timely under the statute. 

 Hoverter asserts no honest mistake of material fact or 

facts. He contends that the Commonwealth induced his pleas by 

fraud or coercion when it represented to him that it would 

prosecute him for sodomy when, according to the newspaper account 

of the press conference, the Commonwealth's Attorney never 

intended to prosecute him for sodomy and lacked the evidence to 

do so. 

 The evidence adduced at the hearing on Hoverter's motion 

does not support his contention. The Commonwealth's Attorney 

acknowledged that he may have misspoken at the press conference, 

noting that it was an excited and confused event. However, the 

Commonwealth's Attorney testified that had there been no plea 

agreement, he fully intended to prosecute Hoverter for sodomy and 

had authorized his assistant to seek an indictment on that 

charge. This testimony was corroborated by the Assistant 

Commonwealth's Attorney and by the state police investigator who 

was scheduled to appear before the grand jury. This testimony 

supports the trial court's finding that, regardless of what may 
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have appeared in the newspaper report, the Commonwealth's 

Attorney made no misrepresentation to Hoverter and that 

Hoverter's guilty pleas were not based on fraud or coercion. 

 "[T]he finding of the judge, upon the credibility of the 

witnesses and the weight to be given their evidence, stands on 

the same footing as the verdict of a jury, and unless that 

finding is plainly wrong, or without evidence to support it, it 

can not be disturbed." Yates v. Commonwealth, 4 Va. App. 140, 

143, 355 S.E.2d 14, 16 (1987) (citation omitted). 

 "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 (citation omitted). 

 Before accepting Hoverter's guilty pleas, the trial court 

examined him conscientiously and thoroughly. That examination 

leaves no room for doubt that Hoverter's pleas were freely and 

voluntarily made, were entered by him without a semblance of 

coercion and without fear or duress of any kind. Hoverter 

alleged misrepresentation, but his proof failed to support that 

allegation. The evidence established that the Commonwealth dealt 

openly and honestly with Hoverter in negotiating the plea 

agreement, that the Commonwealth withheld or misrepresented no 

material fact, and that the Commonwealth scrupulously discharged 
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its duties under the plea agreement. The evidence supports the 

trial court's determination that the Commonwealth made no 

misrepresentation of any material fact to Hoverter to induce the 

plea agreement and his guilty pleas. Thus, the trial court did 

not abuse its discretion in denying Hoverter's motion to withdraw 

his pleas. 

 II. 

 Hoverter next contends that the trial court violated his 

constitutional right to due process by denying him funds to 

employ a mental health expert to prepare for sentencing. On 

August 10, 1995, the trial court conducted a hearing on 

Hoverter's motion for the appointment of "a mental health expert 

to conduct a psychological evaluation" for his sentencing 

hearing. Hoverter's counsel stated that they needed the expert 

"to determine if psychological or mental health mitigation 

evidence exists," and, if so, "to aid him in the development and 

presentation of such evidence for the sentencing proceeding." 

 After considering the representations and argument presented 

by counsel, the trial court denied the motion. It ruled that 

"there has been no showing of either necessity or that such 

evidence would likely be a significant factor in the 

determination of the appropriate sentence." 

 Whether to provide a defendant expert assistance at state 

expense lies within the sound discretion of the trial court, and 

the burden is on the defendant to show that this discretion has 
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been abused. O'Dell v. Commonwealth, 234 Va. 672, 687, 364 

S.E.2d 491, 499, cert. denied, 488 U.S. 871 (1988). An indigent 

defendant's constitutional right to the appointment of an expert 

at state expense is not absolute. Rather, "an indigent defendant 

who seeks appointment of an expert witness, at the Commonwealth's 

expense, must demonstrate that the subject which necessitates the 

assistance of the expert is 'likely to be a significant factor in 

his defense,' and that he will be prejudiced by the lack of 

expert assistance." Husske v. Commonwealth, 252 Va. , , 

S.E.2d , (1996) (quoting Ake v. Oklahoma, 470 U.S. 68, 82-83 

(1985)). Hoverter was required to show a particularized need for 

the requested services and that he would be prejudiced by the 

lack of expert assistance. See id. at ___, ___ S.E.2d at ___. 

He failed to do so. 

 Hoverter alleged no existing mental illness. He 

demonstrated no way that the services of an expert might 

constitute a significant factor in his defense. He showed no 

prejudice resulting from the non-appointment of an expert, nor 

did he explain why the detailed presentence investigation would 

not sufficiently reflect any "mitigation evidence." 

 At most, we surmise, Hoverter hoped that a psychological 

examination would support a decision for leniency at the 

sentencing hearing. However, a mere hope or suspicion that 

favorable evidence may result from an expert's services does not 

create a constitutional mandate. See id. at , S.E.2d at . 
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 Accordingly, we hold that the trial court did not abuse its 

discretion in denying the motion. 

 For these reasons we affirm the convictions. 

 Affirmed.