                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Senior Judge Bumgardner
Argued at Richmond, Virginia

RICHARD LAWAYNE GALLIMORE, S/K/A
 RICHARD LAWAYNE GALIMORE

v.            Record No. 0251-07-2                         MEMORANDUM OPINION ∗ BY
                                                        JUDGE ELIZABETH A. McCLANAHAN
COMMONWEALTH OF VIRGINIA                                         APRIL 15, 2008


                  FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                            J. Peyton Farmer, Judge Designate

                 (John D. Mayoras, Senior Assistant Public Defender, on brief), for
                 appellant. Appellant submitting on brief.

                 Karri B. Atwood, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       While the jury was deliberating, appellant entered Alford guilty pleas to four charges:

carjacking, assault and battery of a law enforcement officer, felony eluding, and felony

destruction of property. See North Carolina v. Alford, 400 U.S. 25 (1970). Appellant contends

the trial court abused its discretion in denying his motion to withdraw his Alford pleas at

sentencing and in denying his motion for withdrawal of defense counsel due to a conflict of

interest. We affirm the judgment of the trial court.

                             I. Motion to Withdraw Alford Guilty Pleas

       Appellant argues that his motion to withdraw his guilty pleas pursuant to Code

§ 19.2-296 should have been granted because his trial counsel told him that if he pled guilty, he

would be sentenced only to the midpoint of the discretionary sentencing guidelines.



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       “[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); accord Justus v. Commonwealth,

274 Va. 143, 645 S.E.2d 284 (2007); Jones v. Commonwealth, 29 Va. App. 503, 513 S.E.2d 431

(1999); Hoverter v. Commonwealth, 23 Va. App. 454, 477 S.E.2d 771 (1996). See also Rakes v.

United States, 231 F. Supp. 812 (W.D. Va. 1964); Eberhardt v. Robinson, 397 F. Supp. 378

(W.D. Va. 1975). This Court has noted previously that “we should reverse only upon ‘clear

evidence that [the decision] was not judicially sound.’” Jefferson v. Commonwealth, 27

Va. App. 477, 488, 500 S.E.2d 219, 225 (1998) (quoting Nat’l Linen Serv. v. Parker, 21

Va. App. 8, 19, 461 S.E.2d 404, 410 (1995) (brackets in original)).

       The Supreme Court recently addressed motions to withdraw guilty pleas in Justus, 274

Va. 143, 645 S.E.2d 284. Justus pled guilty to breaking and entering and to malicious wounding,

but then asked to withdraw her pleas pursuant to Code § 19.2-296. Id. at 148-49, 645 S.E.2d at

285-86. In support of her motion, she presented the trial court affidavits avowing that she lived

in the house that she allegedly burgled and that she acted in self-defense after being assaulted

upon entering her home. Both of these allegations, if true, were absolute defenses to the crimes

with which Justus was charged. The trial court denied her motion.

       The Supreme Court remanded the case for trial, explaining:

               The record supports the conclusion that her motion to withdraw her
               guilty pleas was made in good faith and premised upon a
               reasonable basis for substantive, and not “merely dilatory or
               formal,” defenses to the charges.

Id. at 155-56, 645 S.E.2d at 290. The Justus Court concluded that an accused should be allowed

to withdraw a guilty plea entered “[i]nadvisedly,” when the motion is “made in good faith and



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sustained by proofs.” Id. at 153, 645 S.E.2d at 288 (brackets in original) (internal quotation

marks and citation omitted).

       Appellant’s request to withdraw his guilty pleas was not made in good faith. Appellant

first pled not guilty and proceeded to a jury trial. After the jury retired to deliberate, he made a

motion to withdraw his not guilty pleas. Appellant alleged not only that counsel told him he

could receive only the mid-point or below of the sentencing guidelines, but also that counsel

failed to investigate and present mitigating evidence and failed to adequately prepare for trial.

This was the second time appellant had alleged ineffective assistance of counsel during the trial

without any proof of the same. Appellant did not have a viable or “reasonable” defense and

never provided any “proofs” as required by Justus to support his allegations. 1 Id. at 154, 645

S.E.2d at 288. His substantive defense was one of mistaken identity with his sister testifying as

to his alibi, but both Officer Jones and Barbara Robison identified appellant as being the person

who assaulted Jones and took Robison’s car. Deputy Jones witnessed the defendant take

Robison’s car and flee the scene. Therefore, he did not present a “reasonable basis for [a]

substantive” defense. Id. at 155, 645 S.E.2d at 290.

       The trial court properly exercised its discretion when it denied appellant’s motion to

withdraw his guilty pleas.

                          II. Motion for Withdrawal of Defense Counsel

       Appellant contends the trial court abused its discretion in denying his motion for

withdrawal of defense counsel due to a conflict of interest. The granting or denial of a motion to

allow counsel to withdraw rests in the sound discretion of the trial court. Payne v.

Commonwealth, 233 Va. 460, 473, 357 S.E.2d 500, 508 (1987). “An actual conflict of interest


       1
         While the trial court did announce that it would hear no additional information on the
ineffective assistance of counsel claims, appellant neither objected nor asked that additional
information be considered.
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exists when the attorney’s interests and the defendant’s interests ‘diverge with respect to a

material factual or legal issue or to a course of action.’” Moore v. Hinkle, 259 Va. 479, 487, 527

S.E.2d 419, 423 (2000) (quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980)).

       While appellant avers his counsel misinformed him as to the maximum sentence he could

receive as the result of his Alford pleas, defense counsel denied misinforming appellant.

Appellant argues that this “conflict of interest” prevented defense counsel from effectively

arguing appellant’s motion to withdraw his guilty pleas.

               When allegations [of misconduct by counsel] are supported by
               some credible evidence, disciplinary or criminal charges become
               more than mere threats, and the attorney has “reason to fear that
               vigorous advocacy on behalf of his client would expose him to
               criminal liability or any other sanction.” Waterhouse v. Rodriguez,
               848 F.2d 375, 383 (2d Cir. 1988). However, “a reviewing court
               cannot presume that the possibility for conflict has resulted in
               ineffective assistance of counsel.” Cuyler v. Sullivan, 446 U.S. at
               348 (emphasis added). The defendant must identify an actual
               conflict of interest. United States v. Lovano, 420 F.2d 769, 773
               (2d Cir.), cert. denied, 397 U.S. 1071, 25 L. Ed. 2d 694, 90 S. Ct.
               1515 (1970). Allegations of wrongdoing alone cannot rise to the
               level of an actual conflict unless the charges have some
               foundation.

United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990).

       The trial court relied on the representations of counsel as to the positions of defense

counsel and appellant, without taking additional evidence. Neither counsel nor appellant asked

the trial court to consider additional information, and neither objected when the trial court

announced that no additional evidence would be taken nor would any additional hearing be held.

The trial court found “the record very clear that [appellant] understood what an Alford plea was.”

The record includes the court’s discussion with appellant about the meaning of an Alford plea,

which did not include any representation regarding his sentencing though the record reveals the

appellant clearly knew he could potentially receive a life sentence by pleading not guilty and

having a jury decide the case. The appellant told the court, “If I let a jury decide on this – on
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this, I feel they might try to take the rest of my life from me, you know, I mean, that’s as far as

I’m – I’m feeling right now. So, you know, I wanted to – I enter the Alford plea under the

carjacking. That’s as plain as I can get it.” The carjacking charge under Code § 18.2-58.1

carried with it, if convicted, a maximum sentence of life imprisonment.

       The trial court did not abuse its discretion in denying appellant’s motion to permit

counsel to withdraw based on an alleged conflict of interest.

                                                                                      Affirmed.




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