                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Humphreys and Kelsey
UNPUBLISHED


              Argued at Alexandria, Virginia


              STANLEY WESLEY BRYANT
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1462-12-4                                   JUDGE ROBERT J. HUMPHREYS
                                                                                   JULY 23, 2013
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                               Burke F. McCahill, Judge

                               Thomas K. Plofchan, Jr. (Jason R. Collins; Jennifer M. Guida;
                               Lavanya K. Carrithers; Westlake Legal Group, on briefs), for
                               appellant.

                               Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Stanley Wesley Bryant (“Bryant”) appeals his conviction for aggravated sexual battery in

              violation of Code § 18.2-67.3 by way of a guilty plea in the Circuit Court of Loudoun County

              (“trial court”). On appeal, he contends that the trial court erred (1) in failing to account for

              Bryant’s mental condition and finding him competent to stand trial,1 (2) in determining that


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      On brief, Bryant sets forth four assignments of error related to the trial court’s finding
              of competency. These assignments of error are as follows:

                               1. The trial court denied Bryant due process of law when it failed
                               to review Bryant’s psychological report prior to his plea hearing.

                               2. The trial court denied Bryant due process of law when it failed
                               to implement the recommendations contained in the mental health
                               evaluation.

                               3. The trial court denied Bryant due process of law when it failed
                               to make a determination of Bryant’s competency to stand trial or
Bryant’s plea was made voluntarily, knowingly, and intelligently, (3) when it found Bryant

guilty based on a proffer of facts that does not assert facts supporting all the elements of the

alleged crime, (4) by failing to grant his motion to dismiss for want of jurisdiction or in the

alternative to withdraw his plea, and (5) in imposing an improper condition of probation and

suspended sentence that forbids Bryant from entering the “neighborhood” of the victim by

crossing certain streets and by forbidding his residing at his parents’ home.

                                             I. Analysis

                                           A. Rule 5A:18

       Prior to addressing the merits of any of Bryant’s claims, we must address the

Commonwealth’s contention that Rule 5A:18 precludes a majority of the claims from appellate

review. We find that Bryant’s failure to object to the trial court’s finding of competency and

ultimate acceptance of Bryant’s guilty plea prior to sentencing waives any objection he may have

to those two aspects of the proceedings below.

       Rule 5A:18 states that “[n]o ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or to enable the Court of Appeals to attain the ends of justice.” (Emphasis

added). “This Court has said ‘the primary function of Rule 5A:18 is to alert the trial judge to

possible error so that the judge may consider the issue intelligently and take any corrective

actions necessary to avoid unnecessary appeals, reversals and mistrials.’” Neal v.

Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 525 (1992) (quoting Martin v.



               ability to assist in his defense after ordering the mental health
               evaluation.

               4. Based on the facts of this case, the trial court denied Bryant due
               process of law when it failed to re-conduct the colloquy upon
               learning of Bryant’s mental limitations.
                                                -2-
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)). Thus, “[n]ot just any

objection will do. It must be both specific and timely-so that the trial judge would know the

particular point being made in time to do something about it.” Thomas v. Commonwealth, 44

Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45 Va. App. 811, 613

S.E.2d 870 (2005). To the extent Bryant raises constitutional issues, we note that “Rule 5A:18

applies to bar even constitutional claims.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998).

         The record before us reveals that Bryant never raised any issue in the trial court related to

his competency to stand trial, whether his plea was made knowingly, voluntarily, and

intelligently, nor to the sufficiency of the Commonwealth’s proffer of facts supporting the guilty

plea at the time of the trial. It was not until after the trial court completed sentencing that Bryant

attempted to raise these issues in his post-sentencing motion to dismiss for want of jurisdiction or

in the alternative to withdraw his plea.2 Therefore, we find that Bryant did not properly preserve

these assignments of error and that they are precluded from appellate review under Rule 5A:18.

We now turn to the remaining assignments of error.

                            B. Motion to Dismiss for Want of Jurisdiction

         Bryant alleges that the trial court erred in denying his motion to dismiss for want of

jurisdiction because the proffer of facts failed to establish that jurisdiction was proper due to the

absence in the Commonwealth’s proffer of evidence of where the incidents took place and the

ages of the victim and defendant at the time of the alleged crimes. This argument is without

merit.

         Bryant’s first argument is that “[i]n order to establish jurisdiction in the circuit court of

Loudoun County, the Commonwealth had to prove that the alleged acts took place within

         2
         We note that after sentencing, Bryant changed counsel. Bryant’s new counsel clearly
had a different strategy and theory of the case than Bryant’s original counsel.
                                                 -3-
Loudoun County.” Bryant cites to Keesee v. Commonwealth, 216 Va. 174, 217 S.E.2d 808

(1975), and Harding v. Commonwealth, 132 Va. 543, 110 S.E. 378 (1922), in support of his

argument. However, Bryant’s argument confuses venue with jurisdiction. As the Supreme

Court explained:

               Venue and jurisdiction, though sometimes confounded, are,
               accurately speaking, separate and distinct matters. Jurisdiction is
               authority to hear and determine a cause, or “it may be defined to be
               the right to adjudicate concerning the subject matter in the given
               case.” It is, like venue, regulated by statute or organic law. Venue
               is merely the place of trial, and the purpose of statutes prescribing
               venue is to give defendants the privilege of being sued only in the
               place or places prescribed by the statutes. “But it is a privilege
               which may be waived . . . .”

Texaco, Inc. v. Runyon, 207 Va. 367, 370, 150 S.E.2d 132, 135 (1966).

       Based on the record before us, it is clear that the trial court did not err in denying

Bryant’s motion with respect to this argument. The trial court clearly had jurisdiction over the

subject matter in this case. See Code § 17.1-513. Furthermore, to the extent that Bryant’s

motion contested whether the trial court was the proper venue, Bryant waived any issues with

regard to venue being proper in Loudoun County. Code § 19.2-244 requires that “[e]xcept as to

motions for a change of venue, all other questions of venue must be raised . . . before the finding

of guilty in cases tried by the court without a jury.” (Emphasis added). As Bryant filed his

motion after the verdict of the trial court, the issue was waived.

       Bryant also contends that the trial court was without jurisdiction because the

Commonwealth’s proffer of facts failed to establish that he was over the age of eighteen at the

time of the offense and therefore jurisdiction lay exclusively with a juvenile and domestic

relations district court under Code § 16.1-241. However, Bryant’s argument is misplaced for

two reasons.




                                                -4-
       First, Bryant relies on Kibert v. Commonwealth, 216 Va. 660, 222 S.E.2d 790 (1976),

and Smyth v. Morrison, 200 Va. 728, 107 S.E.2d 430 (1959), in arguing that when evidence is

presented to a trial court following a guilty plea, the court has a duty to review the evidence and

hear arguments of counsel to make a determination of guilt based on the proffered evidence.

However, this is in direct contrast to the actual holding of Kibert. In Kibert, the Supreme Court

explained that “a ‘plea of guilty, accepted and entered by the court, is a conviction or the

equivalent of a conviction of the offense to which it is directed.’” Kibert, 216 Va. at 664, 222

S.E.2d at 793 (quoting Crutchfield v. Commonwealth, 187 Va. 291, 296, 46 S.E.2d 340, 342

(1948)). Thus, “‘a voluntary and intelligent plea of guilty by an accused is, in reality, a

self-supplied conviction authorizing imposition of the punishment fixed by law. It is a waiver of

all defenses other than those jurisdictional.’” Id. Therefore, “[i]n accepting a plea of guilty, any

Virginia trial judge is, of course, free to hear the evidence he deems necessary to an

understanding of the case and to the fixing of an appropriate sentence. This does not mean,

however, that evidence must be heard upon a plea of guilty.” Id. (emphasis in original). Based

on this holding, it is clear that by virtue of Bryant’s guilty plea, the trial court may have

considered the proffer of evidence; however, it was not necessary to establish proof of the

elements of the crime.

       Second, the issue of Bryant’s age at the time of the offense is a factual issue that Bryant

admitted as true when he pled guilty to the indictment. This is similar to the situation in Jones v.

Commonwealth, 42 Va. App. 142, 590 S.E.2d 572 (2004). In that case, the defendant was

indicted for distributing cocaine, and he entered a plea of nolo contendere to the offense. Id. at

144-45, 590 S.E.2d at 573-74. However, the proffered evidence did not establish that the offense

took place in Virginia. Id. at 145, 590 S.E.2d at 574. Nevertheless, the circuit court found him

guilty of the offense, and the defendant appealed. Id. This Court held that, although the

                                                 -5-
proffered facts did not establish that the crime took place in Virginia, the indictment alleged that

the offense took place in the city of Petersburg, Virginia. Since a no contest plea admits all the

facts pleaded in the indictment as true, the defendant’s plea of nolo contendere was sufficient

standing alone to establish the circuit court’s jurisdiction. Id. at 148, 590 S.E.2d at 575.

       Likewise, in this case, the indictment states that “on or about June 1, 2009 to on or about

September 1, 2009, in the County of Loudoun, [Bryant] did feloniously and unlawfully commit

aggravated sexual battery on the complaining witness, to wit: A.P., who was less than thirteen

years of age, in violation of Section § 18.2-67.3 of the Code of Virginia.” The indictment also

alleges that Bryant was born on July 10, 1990. Thus, his guilty plea admitted that, for the period

during which the offenses occurred, Bryant was over the age of eighteen. Therefore, Bryant

factually conceded the trial court’s jurisdiction over this offense, and we find that the trial court

did not err in denying Bryant’s motion to dismiss for want of jurisdiction.

                              C. Motion to Withdraw the Guilty Plea

       Bryant also challenges the trial court’s denial of his motion to withdraw his guilty plea.

“‘[W]hether 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.’” Howell v. Commonwealth, 60

Va. App. 737, 745, 732 S.E.2d 722, 726 (2012) (quoting Parris v. Commonwealth, 189 Va. 321,

324, 52 S.E.2d 872, 873 (1949)). Thus, an appellate court “‘should reverse only upon clear

evidence that [the decision] was not judicially sound . . . .’” Coleman v. Commonwealth, 51

Va. App. 284, 289, 657 S.E.2d 164, 166 (2008) (quoting Jefferson v. Commonwealth, 27

Va. App. 477, 488, 500 S.E.2d 219, 225 (1998)).

       Under Code § 19.2-296,

               [a] motion to withdraw a plea of guilty . . . may be made only
               before sentence is imposed or imposition of a sentence is
                                                 -6-
               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.

As Bryant recognizes, his motion to withdraw his guilty plea was made after sentencing, thereby

invoking Code § 19.2-296’s “manifest injustice” standard. “‘The more severe standard is

applied to avoid motions for withdrawal based on disappointment in the terms of the sentence.’”

Howell, 60 Va. App. at 746, 732 S.E.2d at 726 (quoting Lilly v. Commonwealth, 218 Va. 960,

965, 243 S.E.2d 208, 211 (1978)).

        As the Supreme Court recently explained, “[t]he term ‘manifest’ is defined as being

‘synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident, and

self-evident. In evidence, that which is clear and requires no proof; that which is notorious.’”

Johnson v. Anis, 284 Va. 462, 466, 731 S.E.2d 914, 916 (2012) (quoting Black’s Law Dictionary

962 (6th ed. 1990)). “‘In examining a case for miscarriage of justice,’ courts determine whether

the record contains ‘affirmative evidence of innocence or lack of a criminal offense.’” Howell,

60 Va. App. at 746-47, 732 S.E.2d at 727 (quoting Tooke v. Commonwealth, 47 Va. App. 759,

765, 627 S.E.2d 533, 536 (2006)). Similarly, a “[m]anifest injustice amounts to an obvious

miscarriage of justice, such as an involuntary guilty plea or a plea based on a plea agreement that

has been rescinded.” Id. at 746, 732 S.E.2d at 727. In any event, “‘a defendant must

affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have

occurred.’” Id. at 747, 732 S.E.2d at 727 (quoting Tooke, 47 Va. App. at 765, 627 S.E.2d at

536).

        Here, Bryant contends that there was a manifest injustice due to a combination of the

facts that the record “contains evidence of incompetency” in addition to “evidence of the

innocence of Bryant,” and furthermore that the trial court lacked jurisdiction for the

aforementioned reasons. We disagree. The record before us reveals that at the time of the guilty
                                               -7-
plea, there was a pre-trial health evaluation that established that Bryant was competent to stand

trial. While Bryant attempted to admit the testimony of a new witness after sentencing to rebut

this evaluation, the fact remains that the trial court found this argument unpersuasive, and on

appeal, we are bound by this credibility finding. Furthermore, Bryant admitted to committing

the acts alleged in the indictment, and agreed with the Commonwealth’s proffer of facts. Finally,

as discussed previously, the trial court had subject matter jurisdiction over the case. Therefore

there is nothing in the record before us that would amount to a manifest injustice. Thus, we find

that the trial court did not abuse its discretion in denying Bryant’s motion to withdraw his guilty

plea.

                         D. Terms of Bryant’s Probation and Suspended Sentence

        Finally, Bryant contends that the trial court abused its discretion by forbidding Bryant

from entering the victim’s neighborhood, which encompasses his parents’ house, as a term of his

probation and suspended sentence.

        Code § 19.2-303 states, in relevant part, that “[a]fter conviction, whether with or without

jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and

in addition may place the defendant on probation under such conditions as the court shall

determine.” Virginia’s statutes dealing with probation and suspended sentences “‘obviously

confer upon trial courts wide latitude and much discretion in matters of suspension and probation

. . . to provide a remedial tool . . . in the rehabilitation of criminals and, to that end, should be

liberally construed.’” Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786

(2000) (quoting Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 899 (1992)).

                “The sole statutory limitation placed upon a trial court’s discretion
                in its determination of such conditions is one of reasonableness.”
                The limitation on the discretion of the trial court is that the
                conditions of suspension “must be reasonable in relation to the
                nature of the offense, the background of the offender and the
                surrounding circumstances.”
                                                  -8-
Waiters v. Commonwealth, 33 Va. App. 739, 742, 536 S.E.2d 923, 925 (2000) (quoting

Anderson v. Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998); Deal, 15 Va. App.

at 161, 421 S.E.2d at 899).

       In this case, the trial court revised its original sentence prohibiting Bryant from residing

in the victim’s “neighborhood” to a set geographical area around the victim’s house. Bryant’s

parents’ residence, where Bryant previously resided, is contained within the prohibited area.

Thus, on appeal, Bryant contends that it is unreasonable to inhibit him from residing with his

parents, as he is unable to find alternative housing.3 However, this term is not unreasonable. As

the Commonwealth points out, the legislature has specifically forbidden certain sex offenders

from residing near schools, day care centers, and certain parks. See Code § 18.2-370.3. Thus, it

is clear that a geographical limitation on the residence of a sex offender is permissible. The

prohibition in this case has an equally reasonable justification behind it as those listed when you

consider the background of the offender and the victim. The victim in this case has become

emotionally fragile as a result of the incident. When asked how she would respond if Bryant

were to reside at his parents’ house, which is across the street from her house, the victim stated,

“I don’t think I could just look at him. I think I would lose it. I can’t – I look at his parents and I

lose it.” She has also admitted to attempting to commit suicide during an incident on

Thanksgiving as a result of the emotional stresses put on her by the offenses involved in this

case. Thus, as the condition is aimed at protecting the victim in this case, it is not unreasonable.




       3
         At the hearing on the issue, Bryant’s father testified that Bryant was having difficulties
finding a residence that he could afford on his limited income and based on his sex offender
status.
                                                -9-
Therefore, we find that the trial court did not abuse its discretion in ordering this term as a

condition of Bryant’s probation and suspended sentence.

       For the reasons stated above, we affirm the judgment of the trial court in this case.

                                                                                            Affirmed.




                                                - 10 -
