                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Senior Judge Bumgardner
Argued at Salem, Virginia


THOMAS WILLIAM STONE, SR.
                                                                 MEMORANDUM OPINION * BY
v.      Record No. 0617-10-3                                      JUDGE ROBERT P. FRANK
                                                                    SEPTEMBER 27, 2011
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                   Teresa M. Chafin, Judge

                   Gerald D. Arrington (Arrington Law Office, PLC, on brief), for
                   appellant.

                   Gregory W. Franklin, Assistant Attorney General (Kenneth T.
                   Cuccinelli, II, Attorney General, on brief), for appellee.


        Thomas William Stone, Sr., appellant, was convicted on his plea of nolo contendere of

forcible sodomy in violation of Code § 18.2-67.1. On appeal, he contends the trial court erred in

denying his motion to withdraw his plea of nolo contendere. For the reasons stated, we affirm

the trial court.

                                            BACKGROUND

        On August 27, 2009, appellant entered a plea of nolo contendere to a single count of

forcible sodomy. 1 In a document titled “No Contest Plea Form” appellant represented to the trial

court, inter alia, that he entered the plea freely and voluntarily, that he believed the

Commonwealth’s evidence was sufficient to convict him, and that he understood the maximum


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
            The facts of the actual offense are not relevant to this analysis and will not be recited.
possible penalty was life imprisonment. He also acknowledged that he discussed with his

attorney any possible defenses, the elements of the offense, and whether he should enter this

plea. He decided for himself that he should enter the plea of nolo contendere.

       The trial court accepted appellant’s plea and convicted appellant of forcible sodomy. The

court ordered a pre-sentence report and a psycho-sexual evaluation. In the pre-sentence report,

appellant self-reported that since childhood he has exhibited symptoms of dyslexia, attention

deficit hyperactivity disorder (ADHD), and slow learning. Appellant further reported he had

been diagnosed as bi-polar and had received inpatient treatment in 2004 and 2006. He also

indicated he had suffered from anxiety.

       The court held a sentencing hearing on December 11, 2009. 2 Probation officer John

Hager confirmed appellant’s in-patient and outpatient treatment. Hager further testified

appellant suffered from depression, panic attacks, and suicide ideations. When Hager

interviewed appellant, appellant denied committing the actual offense and said other members of

the family may have persuaded the victim to fabricate the incident.

       During allocution, appellant informed the court that he did not commit the offense and

that he accepted the plea to avoid going “to prison for a long, long time.” At sentencing,

appellant did not move to withdraw his plea. In fact, appellant’s counsel stated that appellant

was in court to be sentenced, not to withdraw his plea. The court sentenced appellant to

sixty-five years in the penitentiary and suspended all but twenty years.

       On January 11, 2010, appellant filed a motion to withdraw his plea of nolo contentere,

claiming he is actually innocent of the charge and requesting to be tried by a jury. He scheduled

a hearing on that motion for January 14, 2010.


       2
           The written sentencing order was entered January 12, 2010.


                                                 -2-
        On January 13, 2010 the trial court denied the motion without a hearing, but erroneously

characterized the pending motion as a “Motion for a Reconsideration of Sentence.” The January

14, 2010 hearing was cancelled.

        Based on the trial court’s characterization of the motion, appellant’s counsel wrote to the

trial court on January 25, 2010 seeking clarification because the trial court never addressed the

motion to withdraw the plea. Counsel also asked for a hearing on the motion.

        On January 26, 2010 appellant filed a motion to reconsider the denial of his motion to

withdraw his plea, stating, inter alia, “Virginia Code § 19.2-296 allows a Court, within

twenty-one days of the entry of the final [sentencing] order, to set aside the judgment of

conviction and permit the defendant to withdraw his plea in order to correct manifest injustice.”

Appellant further recited his motion was filed within twenty-one days of the court’s entry of the

final order.

        On March 12, 2010, the trial court entered an order denying the motion to reconsider in

its order of January 13, 2010. 3

        In denying the motion, the trial court cited Code § 19.2-296 and concluded that since the

original motion was filed on January 11, 2010, more than twenty-one days after sentence was

imposed (December 11, 2009), the statute barred the relief sought by appellant. The court

further found that no manifest injustice occurred, based on its close examination of the court’s

file.

        This appeal follows.



        3
         It should be noted the March 12, 2010 order only denied the motion to reconsider. The
statement of facts entered on May 21, 2010 pursuant to Rule 5A:8 also characterized this order
as denying the motion to reconsider. Appellant on appeal did not allege error of the denial of his
motion to reconsider. Thus, we will only address the denial of the motion to withdraw the plea.


                                                -3-
                                            ANALYSIS

       On appeal, appellant contends the trial court erred in failing to grant his motion to

withdraw his plea of nolo contendere. The specific language of the assignment of error granted

by this Court and set forth in his brief is “The trial court committed reversible error by failing to

grant Mr. Stone’s Motion to Withdraw Plea of Nolo Contendere.” However, his argument and

supporting legal authority on appeal address two different issues: 1) the trial court erred in not

affording him a hearing on the merits of his motion; and 2) the trial court erred by applying the

incorrect standard to review the merits of his motion. Neither of these issues is part of the

assignment of error granted by this Court. The assignment of error addresses the merits of the

motion, i.e., whether the motion to withdraw the plea should have been granted. However, the

issues raised and argued in appellant’s brief address alleged procedural errors, failure to grant a

hearing, and use of an incorrect standard to review the merits of the motion. 4

       Therefore, as these two issues are not part of the assignment of error that was designated

for appeal, we will not address them. See Rule 5A:12(c) (“Only assignments of error assigned in

the petition for appeal will be noticed by this Court.”); see also Commonwealth v. Brown, 279

Va. 235, 241, 687 S.E.2d 742, 745 (2010) (discussing Rule 5A:12(c) and stating that “[t]he Court

of Appeals can only consider issues properly brought before it by the litigants”); Clifford v.

Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007) (approving Court of Appeals’

interpretation of Rule 5A:12(c)); McDowell v. Commonwealth, 57 Va. App. 308, 318-19, 701

S.E.2d 820, 825 (2010) (“[U]nlike Rule 5A:18, Rule 5A:12 contains no ‘good cause’ or ‘ends of


       4
          The parties did not address this issue on brief. However, the Court advised counsel to
be prepared to address at oral argument whether appellant’s assignment of error encompasses the
issues of whether the trial court erred in (a) not granting a hearing on the motion; and
(b) applying an incorrect standard to review the merits of the motion. The parties addressed this
issue at oral argument.


                                                 -4-
justice’ exception.”); Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542

S.E.2d 785, 789 n.4 (2001) (declining to consider an issue on appeal because it was not

“expressly stated” in the questions presented). Thus, the only issue before us is appellant’s

assignment of error, specifically, that the trial court “committed reversible error by failing to

grant [appellant’s] Motion to Withdraw Plea of Nolo Contendere.”

       “Code § 19.2-296 5 allows a defendant to withdraw a guilty plea before sentence is

imposed.” Jones v. Commonwealth, 29 Va. App. 503, 511, 513 S.E.2d 431, 435 (1999)

(footnote added). “[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.” Parris v.

Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873 (1949).

                Leave should ordinarily be given to withdraw a plea of guilty if it
                was entered by mistake or under a misconception of the nature of
                the charge; through a misunderstanding as to its effect; through
                fear, fraud, or official misrepresentation; was made involuntarily
                for any reason; or even where it was entered inadvisedly, if any
                reasonable ground is offered for going to the jury.”

Id. at 325, 52 S.E.2d at 874 (other citation omitted). “The Parris standard thus requires the

defendant (i) to establish a good-faith basis for making the guilty plea and later seeking to

withdraw it, and (ii) to proffer evidence of a reasonable basis for contesting guilt.” Cobbins v.

Commonwealth, 53 Va. App. 28, 34, 668 S.E.2d 816, 819 (2008) (emphasis added) (citing Justus


       5
           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.


                                                -5-
v. Commonwealth, 274 Va. 143, 155-56, 645 S.E.2d 284, 289-90 (2007)). “The first

requirement protects the integrity of the judicial process by precluding defendants from using a

guilty plea as a subterfuge to manipulate the court.” Id. “The second requirement defeats

motions to withdraw which would result in an essentially futile trial.” Id. As Parris explained, a

trial court’s discretion to grant the motion ‘“will rarely, if ever, be exercised in aid of an attempt

to rely upon a merely dilatory or formal defense.’” Justus, 274 Va. at 153, 645 S.E.2d at 288

(quoting Parris, 189 Va. at 323-34, 52 S.E.2d at 873-74).

       In his brief, appellant points to appellant’s mental health issues and treatment, his

anxiety, slow learning, and protestations of innocence as evidence to determine whether there

was a proper basis for the entry of his plea. He argued that “had the trial court given [him] an

opportunity to be heard on his motion, he may have been able to establish a defense and a

‘reasonable grounds’ for going forward with a jury trial.” He also referred to possible perjured

testimony as establishing reasonable grounds for proceeding with a jury trial. 6

       Appellant never argued why his motion should be granted, nor did he proffer any

argument. 7 While appellant was afforded no hearing on his motion, he was obligated to proffer

his argument. O’Dell v. Commonwealth, 234 Va. 672, 698, 364 S.E.2d 491, 506 (1988).

Appellant failed to proffer the evidence he intended to elicit, as well as the argument he now

makes on appeal, thereby failing to properly preserve this issue for purposes of appeal.

Whittaker v. Commonwealth, 217 Va. 966, 968-89, 234 S.E.2d 79, 81 (1977). Moreover, the

record does not indicate the trial court prohibited appellant from making a proffer.


       6
           The record discloses no factual basis for this statement.
       7
         The parties did not address this procedural error on brief. However, the Court advised
counsel to be prepared to address at oral argument whether this issue is waived pursuant to Rule
5A:18, and whether appellant proffered the evidence he would rely upon to support his motion.
The parties addressed this issue at oral argument.

                                                 -6-
        We should note that the original motion to withdraw, the letter dated January 25, 2010

seeking clarification of the January 13, 2010 order, appellant’s motion to reconsider, nor any

other part of the record discloses any argument why appellant’s motion should be granted. The

record contains no proffer that the elements required in Parris have been met.

        In his brief, appellant contends that his mental health issues and perjured testimony have

established a defense to the instant charge. However, these matters were mentioned by the

probation officer at the sentencing hearing when appellant’s counsel had advised the trial court

that he was not withdrawing his plea. Appellant never argued why these matters would have

entitled him to withdraw his plea.

        We conclude appellant’s argument is waived pursuant to Rule 5A:18. Rule 5A:18 is

clear that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the time of the ruling . . . .” 8 Applying

Rule 5A:18, we have held “this Court ‘will not consider an argument on appeal [that] was not

presented to the trial court.’” Farnsworth v. Commonwealth, 43 Va. App. 490, 500, 599 S.E.2d

482, 487 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488

(1998)). “The purpose of [this] rule is to ensure that the trial court and opposing party are given

the opportunity to intelligently address, examine, and resolve issues in the trial court, thus

avoiding unnecessary appeals.” Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d

401, 408 (2002). Thus, before we may address an argument on appeal, an accused must present

the specific argument to the trial court that he wishes to raise on appeal. See Edwards v.


        8
           Effective July 1, 2010, Rule 5A:18 was revised to state 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 . . . .” Because the proceedings below were completed prior to
this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect.
See Fails v. Va. State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule
of Court in effect at the time of the proceedings below).

                                                  -7-
Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (“Under [Rule

5A:18], a specific argument must be made to the trial court at the appropriate time, or the

allegation of error will not be considered on appeal.” (citing Mounce v. Commonwealth, 4

Va. App. 433, 435, 357 S.E.2d 742, 744 (1987))). By failing to raise these specific arguments

below, appellant deprived the trial court of the opportunity to consider the issues he now asks us

to address on appeal.

       Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice,

appellant does not argue that we should invoke these exceptions. See Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). We will not consider such

an argument sua sponte. Edwards, 41 Va. App. at 761, 589 S.E.2d at 448.

       For the foregoing reasons, appellant’s conviction is affirmed.

                                                                                         Affirmed.




                                               -8-
