                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Richmond, Virginia


PRINCE A. McKINNY, JR., S/K/A
 PRINCE A. McKINNEY, JR.

v.   Record No. 0775-95-1                 MEMORANDUM OPINION * BY
                                          JUDGE WILLIAM H. HODGES
  COMMONWEALTH OF VIRGINIA                       MAY 14, 1996


             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                         Walter J. Ford, Judge
             Fred C. Hardwick, II (Eusner & Hardwick,
             P.C., on brief), for appellant.

             John K. Byrum, Jr., Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     The appellant, Prince A. McKinney, Jr., contends that the

trial judge erred in refusing to allow him to withdraw his pleas

of guilty.    For the reasons that follow, we find no error and

affirm.
                                  I.

     Appellant was indicted on the following six charges:

robbery of a McDonald's Restaurant employee on January 14, 1994,

and threatening to bomb that restaurant; robbery of a Burger King

Restaurant employee on January 24, 1994, and threatening to bomb

that restaurant; and attempted robbery of a Taco Bell Restaurant

employee on February 20, 1994, and threatening to bomb that

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
restaurant.

     Trial was initially scheduled for October 12, 1994, however,

on that date, the case was continued until November 15, 1994, on

appellant's motion.     On November 15, 1994, appellant again moved

for and was granted a continuance until January 10, 1995.           On

January 10, 1995, appellant was arraigned.          The following

colloquy took place:
          THE COURT: Have you had enough time to
          confer with [your attorney] to prepare
          yourself for these trials?
           APPELLANT:       Yes, sir.

                        *     *   *     *   *   *   *

           THE COURT: And have you talked with [your
           attorney] about what plea that you are going
           to make to these charges and whether you want
           to be tried by the Court or by a jury?

           APPELLANT:       Yes, sir.

           THE COURT: Has he explained to you the legal
           elements of these offenses and what must be
           proven by the Commonwealth beyond a
           reasonable doubt?

           APPELLANT:       Yes, Your Honor.


     The prosecutor then asked the trial judge to arraign

appellant on only two charges:          the McDonald's robbery and the

Taco Bell attempted robbery.          Appellant pled guilty to both

charges.   Before the trial judge accepted appellant's pleas, the

following dialogue occurred:
          THE COURT: What grade did you last finish in
          school?

           APPELLANT:       Twelfth.




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THE COURT: And do you understand that you
have the right to plead not guilty?

APPELLANT:   Yes, sir.

THE COURT: Do you understand that if you
plead guilty that is a judicial admission of
your guilt? You're admitting that you are
guilty.

APPELLANT:   Yes, sir.

THE COURT: And whose decision was it to
plead guilty, yours or your attorney?

APPELLANT:   Mine.
THE COURT: And before you came to that
decision, did you first confer with your
attorney and go over the case and talk about
it?

APPELLANT:   Yes, sir.

THE COURT: Is your plea of guilty made
completely freely and voluntarily in each
case?

APPELLANT:   Yes, sir.

THE COURT: Has anyone promised you anything
or used any force or threats on your person
or mind to get you to plead guilty?

APPELLANT:   No, sir.

THE COURT: Are you pleading guilty because
you are in fact guilty of these two offenses?

APPELLANT:   Yes, sir.

THE COURT: And do you understand that if you
plead guilty that you waive your right to a
trial by jury?

APPELLANT:   Yes, sir.

THE COURT: You also may waive your right to
appeal the decision of this Court. You do
waive your right not to incriminate yourself.
 That is, you waive your right to remain



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          silent. You waive your right to be
          confronted by your accusers.
               These are felonies. If you are
          convicted you will lose your right to vote,
          to hold public office. And if you testify
               at a trial your credibility could be
          tested by asking you if you have ever been
          convicted of a felony. Do you understand all
          of that?

          APPELLANT:   Yes, sir.

          THE COURT: And has your attorney advised you
          as to the minimum and maximum sentence you
          could receive on each of these?

          APPELLANT:   Yes, sir.

     The trial judge was told that there was a plea agreement,

after which defense counsel stipulated to the evidence.   The

prosecutor summarized the evidence as follows:
               Your Honor, if presented, the evidence
          would show with regard to the robbery of
          McDonald's on January 14th, of 1994, the
          Defendant went to the McDonald's Restaurant
          located at 236 South Mallory Street here in
          the City of Hampton. He presented a note to
          the clerk there, Phyllis LeBoeuf, which
          stated that he was armed and told her to give
          him money.
               Ms. LeBoeuf gave him five hundred and
          eighty-eight dollars of McDonald's money
          based on his note claiming that he was armed.
           The Defendant subsequently gave a statement
          to Detective Browning admitting to that
          robbery.
               With regard to the Taco Bell, the
          evidence would show that on February 20th, of
          1994, the Defendant presented a similar note
          as in the McDonald's case to Charles Rainey
          at the Taco Bell store . . . . That note
          indicated that there was a bomb that Mr.
          McKinny [sic] had planted and that if he
          didn't give him the money that he would set
          the bomb off. At the time the Defendant gave
          Mr. Rainey the demand note, the Defendant was
          standing outside the door. After Mr. Rainey
          got the note he slammed the door and locked



                                   4
           it, so ultimately the Defendant did not get
           any money from Taco Bell.
                The Defendant also gave a statement
           admitting to that attempted robbery. . . .
           Based on the Defendant's plea [sic] of guilty
           to these two charges, I would ask the Court
           to nol-pros[equi] the remainder.


     The trial judge directed counsel to put the agreement in

writing.   After a brief recess, a written agreement was

presented, and the trial judge accepted it.   The remaining four

charges were nolle prosequied on motion of the prosecutor.

     At the March 2, 1995 sentencing hearing, appellant moved to

withdraw his pleas.   Defense counsel (Smith) explained that,

after pleading guilty to the two charges, appellant
          stood before the Isle of Wight County Court
          on similar charges. The Judge in that case
          reduced the, I believe, attempted robbery
          charge -- the facts were similar to the one
          that was before this Court -- reduced it to
          an extortion charge and the Defendant, I
          believe, was upset that he entered pleas of
          guilty to this.


     The Commonwealth's Attorney objected, arguing that the pleas

were knowing and voluntary and that other charges were dropped

based on his pleas.   The trial judge indicated that he was

"inclined to grant the motion" if the Commonwealth was not

prejudiced by appellant's actions.   The trial judge directed the

prosecutor to determine whether the witnesses necessary to

prosecute the original six charges were still available.   Defense

counsel (Smith) moved to withdraw, and the trial judge granted

that request.

     On March 8, 1995, the prosecutor made the following


                                 5
representation to the trial judge:
          Your Honor, this case involves three separate
          robberies or attempted robberies involving
          different victims. One of the victims is
          still available, ready to come to court;
          that's the January 14th case. Karin Gimple
          no longer has a listed phone number, and the
          work number that we had for her is now a fax
          or a modem computer type line. We have no
          way of reaching her. And Charles Rainy
          [sic], on the February 20th offense date, is
          apparently in the area but is not very
          cooperative and does not want -- obviously
          does not want to come to court again.
               So we would have witness problems on two
          out of three underlying offenses and we would
          again object to the defendant being allowed
          to withdraw his pleas . . . . And I don't
          think the justification that he stated to the
          Court last week . . . would be sufficient to
          understanding his knowing, and voluntary,
          plea of guilty to the two robberies and the
          attempted robbery.

     Defense counsel (Hardwick) argued that the witnesses were

still available and could be ordered to appear, therefore,

appellant "ought to be able to withdraw the guilty plea [sic]."

The trial judge made the following ruling:
               The Court finds from the evidence that
          the Commonwealth's position is different than
          what it was when this matter was originally
          set for trial. The witnesses at that point,
          as the Court recalls, were available and were
          ready to proceed with trial. The plea
          agreement was worked out without any duress
          or any pressure against the defendant. And
          the Court does not know the reason for the
          defendant wanting to withdraw.
               Having found that the Commonwealth's
          position has now been altered and that they
          would be placed at an -- the Court rules that
          they would be placed at a disadvantage now to
          proceed on this matter, and the motion to
          withdraw his guilty plea [sic] is denied.




                                6
     On March 31, 1995, the trial judge imposed a ten-year

sentence for the robbery and a five-year sentence for the

attempted robbery.




                                7
                                   II.

     A defendant has no absolute right to withdraw a plea of

guilty or nolo contendere; rather, such privilege is permissive.

 See Code § 19.2-296 (providing that "a motion to withdraw a plea

of guilty or nolo contendere may be made" before sentence is

imposed).
            [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. No
            fixed or definite rule applicable to and
            determinative of all cases can be laid down.
             However, the 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, 324-25, 52 S.E.2d 872,

873-74 (1949) (emphasis added).

     Virginia case law requires liberal allowance to withdraw

pleas before sentencing as long as there is some basis for

believing that the defendant is in fact innocent or "the ends of

justice will be subserved."      Id. at 325, 52 S.E.2d at 874.   But

if the motion to withdraw the plea is intended to delay or

present a "formal" defense, the trial judge should deny the

motion.     Id.   Moreover, the United States Supreme Court has held

that a plea is not compelled merely because an accused enters it

to avoid the possibility of more severe punishment.      North



                                    8
Carolina v. Alford, 400 U.S. 25, 31, 37 (1970).       Where the

prosecution fails to honor any terms of the plea agreement, a

defendant has a right to withdraw a guilty plea, if such motion

is timely made.   Lilly v. Commonwealth, 218 Va. 960, 963, 243

S.E.2d 208, 210 (1978); Johnson v. Commonwealth, 214 Va. 515,

518, 201 S.E.2d 594, 597 (1974).

     The trial judge thoroughly examined appellant to ensure that

his guilty pleas were entered freely, knowingly, and voluntarily.

The record shows that appellant admitted that he committed the

acts for which he was convicted.       Moreover, the Commonwealth

complied with the terms of the agreement and nolle prosequied the
remaining four charges.

     On appeal, appellant contends that he had a right to

withdraw his pleas (1) because the Commonwealth failed to show

that its witnesses were unavailable; and (2) because the pleas

were entered "under an honest mistake on his part as to the

nature of the charges and the crimes which he truly committed."

     The law in Virginia does not require the trial court to

allow an accused to withdraw a guilty plea merely because

witnesses and evidence are still available.      The availability of

evidence is a factor for the trial court to consider in

determining how to exercise its discretion, but the prosecution

is not required to establish that such evidence is unavailable

before a trial court may exercise its discretion.

     Appellant failed to show that his pleas were entered "under



                                   9
an honest mistake of material fact" or through any misconduct by

the Commonwealth.   Appellant did not show that his pleas were

induced by fraud, coercion, or undue influence.     Moreover, he

failed to show that, since conferring with counsel and pleading

guilty, he gained any additional evidence relating to this case

that would have affected his decision to plead guilty or that

supported a valid defense to his admitted acts.

     Appellant does not contest the proffered evidence presented

to the trial court.   We cannot say that the proffered,

uncontested evidence did not support the robbery and attempted

robbery charges.    The fact that another trial court allegedly

found appellant guilty of a reduced charge for a different,

unrelated crime does not establish that appellant was innocent of

these crimes or that he could not have been tried for robbery.
     Viewing the entire record, including the evidence and the

facts surrounding the agreement and pleas, we cannot say that the

trial judge abused his discretion in refusing to allow appellant

to withdraw his pleas of guilty.      Accordingly, we affirm

appellant's convictions.

                                            Affirmed.




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