Opinion
Record No. 2330-91-2
June 1, 1993
FROM THE CIRCUIT COURT OF HENRICO COUNTY LEE A. HARRIS, JR., JUDGE.
Robert J. Rice (Talbot Rice, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellant.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Ray Harland Grant, Jr., appeals from his convictions for rape and forcible sodomy. He contends on appeal that the trial judge erred in rejecting his guilty plea to the reduced charge of aggravated sexual battery after finding that it was not knowingly, intelligently and voluntarily made. The Commonwealth argues that our review of the trial judge's rejection of the guilty plea is barred by appellant's failure to make a contemporaneous objection. For the reasons set forth below, we reverse appellant's convictions and remand to the trial court for further proceedings.
We first address the Commonwealth's contention that appellant waived his right to assign error to the rejection of his guilty plea because he failed to object to the ruling at trial. Although we agree with the Commonwealth's assertions regarding Rule 5A:18 generally, none of the cases it cites relate to the trial court's rejection of a proffered guilty plea. We do not agree that Rule 5A:18 applies in this case. After questioning appellant extensively concerning his proffered guilty plea, the trial judge noted that appellant was "very hesitant about why he was pleading guilty" and that, as a result, he was not comfortable that the plea was "knowingly, intelligently and voluntarily made." Clearly, this was the only ground on which the court could have rejected the plea, and by simply making the plea in the first place, appellant preserved his right to challenge this determination on appeal. "Requiring [appellant] to 'object' after this refusal would, in effect, recreate the requirement of noting an exception to a final adverse ruling of the trial judge." Martin v. Commonwealth, 13 Va. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc) (holding review of trial court's refusal to give proffered jury instruction not barred by failure to object). Accordingly, appellant's assignment of error is properly before this court.
Although a defendant has the right to plead guilty to the whole of an indictment, "the trial court may, and is in fact required, to reject the plea" if it is not "intelligently, voluntarily and knowingly made." Graham v. Commonwealth, 11 Va. App. 133, 134, 397 S.E.2d 270, 273-74 (1990). Appellant concedes this point, but argues that the record affirmatively shows his waiver was indeed intelligently, voluntarily and knowingly made. "[T]he governing standard [of review] as to whether a plea of guilty is voluntary for purposes of the federal Constitution is a question of federal law . . . and not a question of fact . . . ." Marshall v. Lonberger, 459 U.S. 422, 431 (1983) (citations omitted) (considering the voluntariness of a guilty plea in the context of a habeas corpus proceeding under 28 U.S.C. § 2254). As to the facts "surrounding the acceptance [or rejection] of [a] plea of guilty," however, we apply the traditional standard for appellate review of questions of fact in Virginia. Id. at 426. This includes credibility determinations made by the trial court. Id. at 434.
"A state 'is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Marshall, 459 U.S. at 435 n. 4 (quotingSnyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
The trial judge in this case determined that appellant's guilty plea was not voluntarily, knowingly and intelligently made. In reviewing the factual basis for this determination,
we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The [factual finding] of a trial court . . . will not be set aside unless it appears from the evidence that [it] is plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680). Similarly, "the finding of the judge, upon the credibility of the [defendant] cannot be disturbed [unless] that finding is plainly wrong or without evidence to support it." Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987) (citation omitted).
The record shows that appellant was indicted originally on rape and sodomy charges but that the Commonwealth agreed to rearraign him on charges of aggravated sexual battery in exchange for his promise to plead guilty to that charge. The trial judge questioned appellant extensively as to his desire to enter a guilty plea and the basis for his decision. Although appellant said he was entering his plea freely and voluntarily, he said that he was not doing so because he was in fact guilty of that charge but rather that "because of his background . . . [he could not] do a lot of time . . . if [he] was proven guilty." At least four different times during the interchange, appellant asked the trial judge to repeat his question. He said that he was "under stress," "having problems . . . in [his current] facility," and that he "just want[ed] to get this over with so that [he could] get out." Appellant admitted knowledge of a previously suspended sentence that could have been imposed should he plead guilty, but he nevertheless insisted that he wanted to plead guilty to the reduced charge because, he stated, "I don't have a choice, sir." After the above interchange, the trial judge concluded that the plea was not voluntarily, knowingly and intelligently made:
I am not comfortable with Mr. Grant's plea of guilty in this matter, and at this point he is not — you're dealing with serious charges, you're dealing with the charge as represented by the Commonwealth really does not one hundred percent fit the facts in the case. The Defendant is very hesitant about why he is pleading guilty and I understand that. I understand that. These are serious charges. And he obviously does not admit his guilt in any way, and under those circumstances I'm just not inclined to accept his plea of guilty in the matter.
After reviewing the extended exchange contained in the record, we conclude that the trial judge erred in finding that appellant's plea was not voluntarily made. First, whether appellant admitted his guilt to the charged offenses was not relevant. The United States Supreme Court's holding inNorth Carolina v. Alford, 400 U.S. 25, 37-38 (1970), makes clear that an admission of guilt is not a prerequisite to a finding that a plea is voluntary. In addition, it is completely appropriate under Alford for a defendant to enter a plea of guilty in order to obtain a reduced sentence. Id. The record presented on appeal contains several pages of dialogue between appellant and the trial court concerning the reasons for appellant's desire to enter a guilty plea and makes clear that his desire to avoid the possibility of a lengthy prison sentence, a permissible goal under Alford, was one of those reasons.
Second, the trial judge's finding that the reduced charge did "not one hundred percent fit the facts of the case" does not support his decision to reject the plea to the reduced charge. The voluntariness requirement counsels that "pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea." North Carolina v. Alford, 400 U.S. at 38 n. 10. Thus, although the judge must find a "factual basis for the plea," he or she does not have to find that plea "one hundred percent" fits the facts of the case. The record on appeal shows that, at the time he rejected appellant's guilty plea, the trial judge was aware of a statement made by appellant in which he admitted to having sexual intercourse with the complaining witness. Although the record does not reveal whether the judge was aware at that time of the complaining witness' version of the facts, her subsequent testimony that appellant forced her to have intercourse by putting his hand around her throat and choking her makes clear that a sufficient factual basis as to guilt existed to support the voluntariness of the plea. Even viewing this evidence in the light most favorable to the Commonwealth, as we are required to do on appeal, we conclude that the evidence in the record shows clearly that appellant's plea was voluntary, knowing and intelligent. Accordingly, the trial court erred in refusing to accept the plea.
It might have been an appropriate characterization had the issue before the court been the acceptance or rejection of the plea agreement itself. However, both parties have strenuously objected to this approach and the trial judge also never characterized the proceedings in that fashion.
A conviction for aggravated sexual battery in this case would have required proof that appellant (1) sexually abused the complaining witness; (2) against her will; (3) by force, threat or intimidation, or through the use of her mental incapacity or physical helplessness; and (4) caused serious bodily or mental injury. Code § 18.2-67.3; see Walker v. Commonwealth, 12 Va. App. 438, 444, 404 S.E.2d 394, 397 (1991).
We note, however, that the standard of review would be very different if this case had been presented as one involving the trial court's rejection of the proposed plea agreement.
For the aforementioned reasons, we reverse appellant's convictions and remand this case to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.