                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia


JOSEPH McDONALD LYNCH
                                         MEMORANDUM OPINION * BY
v.   Record No. 0512-00-2             JUDGE JEAN HARRISON CLEMENTS
                                              MAY 22, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on brief), for
          appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Appellant Joseph McDonald Lynch was convicted of assault and

battery in violation of Code § 18.2-57 and assault and battery of

a police officer in violation of Code § 18.2-57(C).    On appeal, he

contends that the trial court erred in refusing to allow him to

withdraw his guilty pleas before sentencing.   We disagree and

affirm the convictions.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Specifically, Lynch argues he was entitled to withdraw his

guilty pleas before sentencing because he learned after entering

the pleas that he had a defense. 1   Lynch claims he originally pled

guilty because inmates who witnessed the alleged assaults were no

longer at the jail and, thus, were unavailable to testify.

Without their testimony, he "didn't think [he] had a case."

However, according to Lynch, he changed his mind when two more

witnesses told him they "would come forward" and testify on his

behalf about the alleged assaults.

     "Code § 19.2-296 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).    "Whether a defendant should

be permitted to withdraw a guilty plea rests within the sound

discretion of the trial court to be determined based on the facts

and circumstances of each case."     Hall v. Commonwealth, 30 Va.

App. 74, 79, 515 S.E.2d 343, 346 (1999).    "The court's finding as

to the credibility of witnesses and the weight of the evidence in

support of a motion to withdraw a guilty plea will not be

disturbed unless plainly wrong or without evidence to support it."

Jones, 29 Va. App. at 512, 513 S.E.2d at 435.



     1
       Lynch also argues at length on appeal that Code
§ 19.2-296's post-sentence standard of "manifest injustice" does
not apply to his motion to withdraw his guilty pleas because he
made his motion before sentence was imposed. Such an argument,
however, is moot in this case as the trial court did not apply
the "manifest injustice" standard in determining Lynch's motion
to withdraw his guilty pleas.

                               - 2 -
            "As in other cases of discretionary power, no
            general rule can be laid down as to when a
            defendant will be permitted to withdraw his
            plea. The decision in each case must depend
            to a great extent on the particular attendant
            circumstances. Generally, however, it may be
            said that the withdrawal of a plea of guilty
            should not be denied in any case where it is
            in the least evident that the ends of justice
            will be subserved by permitting not guilty to
            be pleaded in its place. The least surprise
            or influence causing a defendant to plead
            guilty when he has any defense at all should
            be sufficient grounds for permitting a change
            of plea from guilty to not guilty. 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."

Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874

(1949) (quoting 14 Am. Jur. 2d Criminal Law § 287 (1938)).

       Determining whether the trial court erred in denying Lynch's

motion to withdraw his guilty pleas "requires an examination of

the circumstances confronting [Lynch] immediately prior to and at

the time he pleaded to the charge[s]."   Id. at 322, 52 S.E.2d at

872.   On December 21, 1999, Lynch, who was represented by an

attorney, was arraigned and tendered pleas of guilty to both the

charge of assault and battery and the charge of assault and

battery of a police officer.   The trial judge questioned Lynch

extensively to ensure that he was entering the pleas voluntarily,

knowingly, and with a clear understanding of their effect.    The


                                - 3 -
Commonwealth then proffered its evidence, which was not challenged

by Lynch.    The trial judge found Lynch guilty on both counts and

continued the case for sentencing.       On January 7, 2000, Lynch

filed a pro se motion for withdrawal of his pleas.      Lynch's motion

was heard on January 13, 2000 prior to sentencing.      Lynch was

represented at that hearing by his attorney.

        Lynch put on no evidence in support of his motion at the

hearing.    He merely told the trial judge he originally pled guilty

because he was unable to locate fellow inmates who had witnessed

the incident and consequently did not think he had a case.      He

added, however, that two inmates who said they saw the assault and

would testify on his behalf had come forward since then.      He did

not identify those witnesses or proffer what they would say that

might benefit Lynch.

        Asked by the trial court if he had ever interviewed the

possible witnesses, Lynch's attorney told the trial court that

prior to Lynch's entry of the guilty pleas, Lynch had given him a

couple of names of witnesses.    One of them had been transferred to

the Department of Corrections, but the other was still in jail and

Lynch's attorney had been prepared to bring him to trial on the

trial date.    Lynch's attorney also told the trial court that,

since pleading guilty, Lynch had given him the name of one other

witness, but provided no other information about that person

except that Lynch could find him if Lynch was able to get out of

jail.    Likewise, Lynch did not identify at the hearing on his

                                 - 4 -
motion any defense he might have as a result of his newly found

witnesses' testimony.

     Nor did Lynch establish that he entered the guilty pleas

involuntarily, by mistake or under a misconception of the nature

of the charges, through a misunderstanding as to the effect of the

guilty pleas, or through fear, fraud, or official

misrepresentation.

     The trial court chose not to believe or accept Lynch's stated

reasons for seeking leave to withdraw his guilty pleas.   Instead,

the court made specific findings that Lynch understood the

situation when he pled guilty and that the pleas were willingly,

knowingly, voluntarily, and intelligently made.   The court's

ruling is supported by the record and was not plainly wrong.    We

hold, therefore, that the trial court did not abuse its

discretion.

     Accordingly, we affirm appellant's convictions.

                                                          Affirmed.




                              - 5 -
