PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy,
S.J.

LEONTE D. EDMONDS
                                                                OPINION BY
v. Record No. 151100                                      JUSTICE CLEO E. POWELL
                                                                July 14, 2016
COMMONWEALTH OF VIRGINIA



                       FROM THE COURT OF APPEALS OF VIRGINIA

       Leonte Delmario Edmonds (“Edmonds”) was charged with possession of a firearm after

conviction of a felony, in violation of Code § 18.2-308.2. He entered a guilty plea on March 12,

2014. Edmonds moved to withdraw his guilty plea prior to sentencing. The trial court denied

the motion and the Court of Appeals affirmed the judgment of the trial court. On appeal,

Edmonds argues that the Court of Appeals erred when it held that the trial court did not abuse its

discretion in denying his motion to withdraw his guilty plea because the motion “was made in

good faith and premised upon a reasonable basis for the substantive defense of duress.”

                                       I. BACKGROUND

       At Edmonds’ guilty plea hearing, the Commonwealth offered the following stipulated

facts leading to his charge of possession of a firearm after conviction of a felony:

                       [O]n September 30, 2013, officers responded to 104 North
               Thomas Street in Arlington County for a disturbance of a man
               threatening a woman and saying that he had a gun. When police
               arrived, they learned that the threats involved an individual by the
               name of Brandon Bumpy Miller, who had previously threatened
               [Edmonds’] girlfriend with a gun.

                       While on the scene, Officer Martin heard shouting from an
               apartment from that location and saw [Edmonds] coming out of an
               apartment that was in the same direction as the shouting.
               [Edmonds] had clothing that was similar to the clothing described
               in the 911 call and he was detained. He initially did not comply
               with keeping both of his hands on the wall as directed by Officer
               Martin, keeping his right hand down by his waist. He then
                 complied and told Officer Martin that he had a gun in his pants
                 pocket. Martin recovered the handgun from the pocket without
                 incident. The chamber was empty, but there were seven rounds in
                 the magazine. [Edmonds] said he was not involved in the
                 disturbance and that he was trying to do the right thing by getting
                 the gun out of the apartment, so that Bumpy Miller couldn’t access
                 it while he was drunk and angry.

                         While in front of the magistrate, [Edmonds] stated, “Even
                 though I was wrong, I know I was wrong. I was doing the right
                 thing.” [Edmonds] had a blood alcohol content of .18 while he
                 was in booking. [Edmonds] was convicted of armed robbery in
                 South Carolina in 1998.

       Represented by new counsel, Edmonds filed his motion to withdraw his guilty plea in

September 2014 prior to sentencing. Edmonds argued that he took the gun under duress because

of the threat of imminent harm to his uncle and girlfriend.

       Denying the motion to withdraw the guilty plea, the trial court held that

                 It’s clear that the defense of duress could be available, and the
                 requirement is imminent harm. The facts here [are] that they
                 assume a threat was made, the individual – Mr. Miller – who
                 allegedly had the gun would have to exit the apartment building,
                 go across a courtyard, and go into another building. The Court
                 simply doesn’t find that can be imminent. This method of self help
                 is . . . not supported by the facts. A call to the police could have
                 been made, and a call to – we don’t even know if those individuals
                 were in the apartment at that point in time. So there is simply no
                 evidence of any imminent harm.

The trial court sentenced Edmonds to the statutorily mandated 5 year sentence.

       Adopting the rationale of and affirming the trial court, the Court of Appeals held, in

relevant part:

                 [T]here was no indication that Miller’s threat of harm was
                 imminent. . . . In addition, taking possession of the firearm and
                 leaving the apartment was not the only way for appellant to avoid
                 the threatened harm. . . .

Edmonds v. Commonwealth, Record No. 1958-14-4, slip op. at 4 (June 19, 2015) (unpublished).




                                                  2
                                            II. ANALYSIS

       Edmonds argues that the trial court erred in denying his motion to withdraw his guilty

plea because he had a reasonable basis for arguing he possessed the firearm under duress. 1 We

disagree that his defense of duress was reasonable.

       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.

       This Court previously addressed the applicable standard for reviewing a motion to

withdraw a guilty plea in Parris v. Commonwealth, 189 Va. 321, 52 S.E.2d 872 (1949).

               [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, 189 Va. at 324, 52 S.E.2d at 873.

               [T]he statute does not expressly provide the standard by which a
               trial court is to determine whether to grant a motion to withdraw a
               guilty plea when, as in this case, the motion is made before
               sentence has been imposed. However, logic dictates that the
               standard must be more liberal than the requirement of showing a
               manifest injustice. Cf. Lilly v. Commonwealth, 218 Va. 960, 965,
               243 S.E.2d 208, 211 (1978) (quoting Paradiso v. United States,
               482 F.2d 409, 416 (3d Cir. 1973)) (holding that where the
               defendant “waited until after sentence had been imposed to move


       1
       While Edmonds’ assignment of error raises the issue of good faith, he presents no
argument to support this basis. Therefore, we need not address it. Rule 5:27(d).

                                                 3
               to withdraw his guilty plea,” it was appropriate to apply the “‘more
               severe standard’” of requiring a finding of a manifest injustice).

Justus v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007).

       The Court of Appeals has held that in order to use the defense of duress or necessity, the

offender must show

               “(1) a reasonable belief that the action was necessary to
               avoid an imminent threatened harm; (2) a lack of other
               adequate means to avoid the threatened harm; and (3) a
               direct causal relationship that may be reasonably
               anticipated between the action taken and the avoidance of
               the harm.”

Humphrey v. Commonwealth, 37 Va. App. 36, 45, 553 S.E.2d 546, 550 (2001) (quoting Buckley

v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)). See also McGhee v.

Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978) (“The law of self-defense is the

law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct.

Accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the

hands of his victim.”).

       We agree with the Court of Appeals’ articulation of the duress standard as announced in

Buckley and reiterated in Humphrey. Accordingly, we adopt the standard and apply it to the

facts of this case and to the facts in Small v. Commonwealth, 292 Va. __, ___ S.E.2d ___ (2016)

(this day decided). The only factor argued by Edmonds in support of his defense of duress was a

threat of “imminent harm.” In order to show that a threat of harm is imminent, Edmonds must

demonstrate “‘an immediate, real threat to one’s safety . . . .’” 2 Commonwealth v. Sands, 262

Va. 724, 729, 553 S.E.2d 733, 736 (2001) (quoting Black’s Law Dictionary 399 (7th ed. 1999)).



       2
         Edmonds’ defense was based on a perceived threat to his uncle and his girlfriend.
Because we find that there was no “imminent threat,” we need not address the issue of whether
his argument based on the defense of a girlfriend is valid.

                                                4
See United States v. Crittendon, 883 F.2d 326, 329-30 (4th Cir. 1989) (finding no evidence to

show present or imminent threat of death or injury despite a generalized fear of danger); Byrd v.

Commonwealth, 89 Va. 536, 539, 16 S.E. 727, 729 (1893) (“There must be . . . some act

menacing present peril . . . [and] the act . . . must be of such a character as to afford a reasonable

ground for believing there is a design . . . to do some serious bodily harm, and imminent danger

of carrying such design into immediate execution.”); Byers v. Commonwealth, 37 Va. App. 174,

185, 554 S.E.2d 714, 719 (2001) (finding no imminent danger requiring possession of a firearm

by a convicted felon where Byers only had a “generalized fear” of bodily harm after alleged

threats to “finish the job” of killing Byers had been made); Humphrey v. Commonwealth, 37

Va. App. 36, 553 S.E.2d 546 (2001) (allowing defense of necessity to charge of possession of a

firearm by a convicted felon where defendant was under direct attack by gunfire at the time of

possession).

       Here, Edmonds has not shown that there was “imminent threatened harm” which led to

him possessing a firearm. Humphrey, 37 Va. App. at 45, 553 S.E.2d at 550 (citation and internal

quotation marks omitted). The record is devoid of a sufficient proffer of evidence that there was

the threat of imminent danger. Numerous questions are left unanswered by the record, including

the location of the apartment, where the firearm was actually located, whether Bumpy Miller

even possessed the firearm, or even knew of the firearm’s location. As the trial court held,

Edmonds’ actions in possessing the firearm were a “method of self help . . . not supported by the

facts.” In addition, as the trial court explained, “[a] call to the police could have been made, and

a call to – we don’t even know if those individuals were in the apartment at that point in time.

So there is simply no evidence of any imminent harm.” The Court of Appeals agreed with these

observations, concluding that “there was no indication that [the] threat of harm was imminent”




                                                  5
and that “taking possession of the firearm and leaving the apartment was not the only way for

[Edmonds] to avoid the threatened harm; he could have called the police.” Edmonds, Record

No. 1958-14-1, slip op. at 4. Based on the facts of this case, we cannot say that the trial court

abused its discretion in finding no indication that any harm was imminent and, concomitantly, in

denying Edmonds’ motion to withdraw his guilty plea. 3 Nor do we conclude that the Court of

Appeals erred in concluding, for those same reasons, that “the trial court did not err in denying

[Edmonds’] motion to withdraw [his] plea.” Id.

                                       III. CONCLUSION

        For the foregoing reasons, we will affirm the judgment of the Court of Appeals

concluding that the trial court did not err in denying Edmonds’ motion to withdraw his guilty

plea.

                                                                                          Affirmed.




        3
          The Commonwealth argued on brief and at oral argument that the Court should apply
the stricter manifest injustice standard rather than the more liberal standard applied when a
motion to withdraw a guilty plea is filed prior to entry of the sentencing order. Because we hold
Edmonds cannot meet the more liberal standard, applying the stricter manifest injustice standard
would be unnecessary.

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