COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

FRANK ERNEST MILLER, JR. 

 OPINION BY 

v. Record No. 1513-97-4 JUDGE WILLIAM H. HODGES 

 JANUARY 26, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

J. Peyton Farmer, Judge 

 William E. Glover (Glover & Dahnk, on brief), 

for appellant. 

 Jeffrey S. Shapiro, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Thomas D. Bagwell, Senior Assistant Attorney 

General, on brief), for appellee. 

 Frank Ernest Miller (appellant) was convicted, on his 

conditional plea of guilty, of four counts of forgery. He 

contends on appeal that a plea agreement he made in Spotsylvania 

County barred the Commonwealth's Attorney in Stafford County from 

prosecuting him for any charges arising from his use of the 

fictitious bank account he created using Douglas Payne's driver's 

license. We disagree and affirm the convictions. 

 I. 

 By his own estimate, appellant wrote 188 checks on a false 

bank account he created, using Douglas Payne's driver's license. 

 Appellant was charged in Spotsylvania County with forgeries and 

grand larceny by false pretenses arising out of his use of the 

bank account. He was charged with thirteen offenses. Appellant, 

his attorney, and a Spotsylvania County prosecutor entered into a 
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plea agreement by which appellant agreed to plead guilty to three 

counts of forgery and two counts of grand larceny by false 

pretenses. Appellant, however, was responsible for restitution 

to the victims of all the offenses. 

 Paragraph eight of the plea agreement read, in pertinent 

part: 

 8. I understand that the Commonwealth's 

Attorney has agreed to recommend to the Court 

the following specific punishment as the 

appropriate disposition in this case, as 

follows: 

 

 A. Upon the defendant's guilty plea to the 

indictments, the Commonwealth agrees not to 

prosecute any further charges that may have 

arisen from the use of the bank account in 

Douglas Payne's name. The Commonwealth makes 

no agreement to recommend a specific sentence 

for these charges, but preserves the right to 

argue to the court for appropriate 

sentencing. 

(Emphasis added.) The plea agreement was signed by appellant, 

appellant's counsel, and the Assistant Commonwealth's Attorney. 

The trial judge accepted the plea agreement. The final judgment 

order recited, "The Assistant Attorney for the Commonwealth 

agrees not to prosecute any further charges that may have arisen 

from the use of the bank account in Douglas Payne's name . . . ." 

 Subsequently, appellant was indicted in Stafford County for 

nine counts of forgery and nine counts of uttering. Each of the 

charges involved the use of the Payne bank account. Prior to 

trial, appellant moved to quash the indictments on the ground 

that the plea agreement in Spotsylvania County barred any other 
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jurisdiction in the Commonwealth from prosecuting any charge 

arising from the use of the bank account. 

 The trial judge found that the term, "the Commonwealth," as 

used in the Spotsylvania County plea agreement, was ambiguous. 

Thus, he heard testimony about the agreement from the parties to 

the document. The prosecutor, Donna Van Winkle, testified that 

she neither intended to bind nor understood that she could bind 

any jurisdiction except Spotsylvania County. She was aware that 

other jurisdictions might bring charges against appellant. She 

testified, however, that she did not speak to prosecutors from 

any other jurisdiction about appellant's cases. No one in the 

Stafford County Commonwealth's Attorney's Office had a 

conversation with any prosecutor in Spotsylvania County 

concerning appellant's cases. 

 Muriel Pitney, appellant's attorney for the Spotsylvania 

cases, testified that she never discussed any other jurisdiction 

with appellant.1

 Pitney testified that she showed appellant a 

list of checks for which he would be responsible for paying 

restitution. The checks had been written to stores in 

Spotsylvania County. She did not recall appellant telling her 

about checks in other jurisdictions. Pitney testified that when 

the agreement was signed, she did not believe that Van Winkle was 

binding any other jurisdiction. 

 1Appellant waived his attorney/client privilege with respect 

to the issue of the terms of the Spotsylvania County plea 

agreement. 
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 Appellant testified that Pitney told him that the plea 

agreement with Spotsylvania County also covered Stafford County 

and Fredericksburg. Appellant testified that he believed once he 

entered the plea agreement with Spotsylvania County, he would not 

be prosecuted anywhere on checks he had written on the Payne 

account. 

 The judge denied the motion to quash. He held that as a 

matter of law, a prosecutor in one jurisdiction cannot bind "the 

entire State of Virginia." The judge noted that the Spotsylvania 

County plea agreement, on its face, did not permit an 

interpretation that the Commonwealth's Attorney for Spotsylvania 

County was binding any other jurisdiction in the Commonwealth. 

Moreover, he explicitly rejected appellant's testimony as 

incredible and credited Pitney's testimony regarding the plea 

agreement in Spotsylvania County. 

 II. 

 Pursuant to the Constitution of Virginia, Article VII, 

Section 4, and Code § 15.2-1600, the voters of each county and 

city shall elect an attorney for the Commonwealth. Code 

§ 15.2-1627 provides: 

 The attorney for the Commonwealth and 

assistant attorney for the Commonwealth shall 

be a part of the department of law 

enforcement of the county or city in which he 

is elected or appointed, and shall have the 

duties and powers imposed upon him by general 

law, including the duty of prosecuting all 

warrants, indictments or informations 

charging a felony . . . . 
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 The attorney for the Commonwealth, the defendant, and the 

attorney for the defendant may enter into a plea agreement, which 

shall, in the case of a felony, be reduced to writing. See Rule 

3A:8. The government is bound to fulfill any promise it makes in 

exchange for a defendant's guilty plea. See Santobello v. New 

York, 404 U.S. 257, 262 (1971). 

 In this case, the Assistant Commonwealth's Attorney for 

Spotsylvania County was part of the department of law enforcement 

for that county. She could not bind another jurisdiction by a 

plea agreement, without consent from that jurisdiction. 

Appellant cites no authority, nor do we find any, to show that 

the authority of an Assistant Commonwealth's attorney for 

Spotsylvania County extends beyond that county's boundaries. 

 The record establishes that the prosecutor had no intention 

of obligating any other jurisdiction nor did she have any belief 

that she could.2

 Even if she had so intended, such an agreement 

would have been ultra vires3 and not binding on the 

Commonwealth's Attorney of Stafford County. See Ellis v. 

Commissioner of Dept. of Mental Hyg. & Hosp., 206 Va. 194, 201, 

142 S.E.2d 531, 536 (1965) (state acting in sovereign or 

 

 2Indeed, appellant was the only party to the Spotsylvania 

County plea agreement who claimed that the agreement covered 

other jurisdictions. 

 3"An act performed without any authority to act on subject. . 

. . Ultra vires act of municipality is one which is beyond 

powers conferred upon it by law." Black's Law Dictionary 1522 

(6th ed. 1990). 
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governmental capacity cannot be bound by unauthorized acts or 

representations of its employees and agents). 

 The trial judge did not err in denying appellant's motion to 

quash the indictments. 

 Accordingly, we affirm the convictions. 

 Affirmed.