                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


THOMAS DANIEL PALENCHAR
                                            MEMORANDUM OPINION * BY
v.   Record No. 0965-00-3                    JUDGE ROBERT P. FRANK
                                                  MAY 1, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                   Porter R. Graves, Jr., Judge

           Peter J. Schwartz (Walter F. Green, IV, on
           brief), for appellant.

           Susan M. Harris, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Thomas Palenchar (appellant) was convicted, in a bench trial,

of possession with the intent to manufacture marijuana, in

violation of Code § 18.2-248.1.    On appeal, appellant contends the

trial court erred in denying his motion to suppress the drugs

seized.   For the following reasons, we affirm the judgment of the

trial court.

                            I.   BACKGROUND 1

     Appellant was indicted for the possession of a firearm while

in possession of more than one pound of marijuana pursuant to Code


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       We do not recite the facts of the search because we do not
address the merits of that issue.
§ 18.2-308.4 and the possession of marijuana with the intent to

manufacture pursuant to Code § 18.2-248.1.       Appellant filed a

motion to suppress the marijuana plants that were observed during

a warrantless search of his residence.        After a hearing on January

20, 2000, the trial court denied the motion to suppress.

     On February 9, 2000, pursuant to a plea agreement with the

Commonwealth, which was accepted by the trial court, appellant

entered an Alford plea of guilty and was convicted of violating

Code § 18.2-248.1.   Appellant did not enter a conditional plea of

guilty pursuant to Code § 19.2-254.       Further, in accordance with

the plea agreement, the trial court entered an order of nolle

prosequi to the charge of violating Code § 18.2-308.4.       The trial

court determined appellant had entered into the plea agreement

freely, voluntarily, and intelligently.        Appellant was sentenced

in accordance with the plea agreement.

     Appellant appeals the trial court's denial of his motion to

suppress.

                            II.    ANALYSIS

     We have addressed the effect of an Alford plea in the context

of a waiver of appeal.   In Perry v. Commonwealth, 33 Va. App. 410,

533 S.E.2d 651 (2000), we wrote:

                 "Under an Alford plea, a defendant
            maintains innocence while entering a plea of
            guilty because the defendant concludes that
            his interests require entry of a guilty plea
            and the record before the court contains
            strong evidence of actual guilt . . . .
            Guilty pleas must be rooted in fact before

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          they may be accepted. Accordingly, courts
          treat Alford pleas as having the same
          preclusive effect as a guilty plea." Cortese
          v. Black, 838 F. Supp. 485, 492 (D. Colo.
          1993) (citing [North Carolina v.]Alford, 400
          U.S. [25,] 37, 91 S. Ct. [160,] 167, [27
          L.Ed.2d 162 (1970)]). In Virginia, it is
          well settled that a voluntary and intelligent
          guilty plea by an accused is "'a waiver of
          all defenses other than those
          jurisdictional . . . . Where a conviction is
          rendered upon such a plea and the punishment
          fixed by law is in fact imposed in a
          proceeding free of jurisdictional defect,
          there is nothing to appeal.'" Dowell v.
          Commonwealth, 12 Va. App. 1145, 1148, 408
          S.E.2d 263, 265 (1991) (quoting Savino v.
          Commonwealth, 239 Va. 534, 539, 391 S.E.2d
          276, 278 (1990)), aff'd on reh'g en banc, 14
          Va. App. 58, 414 S.E.2d 440 (1992). Thus,
          under the circumstances of this case, by
          freely and intelligently entering an Alford
          plea to the breaking and entering charge,
          appellant waived his right to appeal the
          issue of whether the evidence was sufficient
          to prove beyond a reasonable doubt that he
          was guilty of that charge.

Id. at 412-13, 533 S.E.2d at 652-53.

     A guilty plea further waives all preceding non-jurisdictional

defects, including Fourth Amendment claims.   Terry v.

Commonwealth, 30 Va. App. 192, 197, 516 S.E.2d 233, 235-36 (1999)

(en banc) (citations omitted).

     Appellant does not contend that his Alford plea was entered

involuntarily or unintelligently nor that he misunderstood the

effect of his plea.   In fact, in the plea agreement, appellant

acknowledged that he waived his right to appeal.   The trial court

found that the guilty plea was voluntarily and intelligently made.



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        Thus, by freely and voluntarily entering a plea of guilty,

appellant waived his right to appeal the denial of the motion to

suppress.

        Appellant acknowledges the substantial body of

jurisprudence that concludes that a guilty plea waives all

non-jurisdictional defenses.       Yet, he contends that the United

States Supreme Court's decision in Menna v. New York, 423 U.S.

61 (1975), requires a different result.

        In Menna, Menna was convicted of contempt for failing to

testify before a grand jury and was sentenced to thirty days in

jail.     Menna, 423 U.S. at 61.    Subsequently, he was indicted for

his original refusal to answer questions before the grand jury.

Id.     Menna pled guilty to the second charge and later challenged

his conviction under the Double Jeopardy Clause of the Fifth

Amendment.     Id. at 61-62.   The government argued that Menna's

guilty plea waived his constitutional challenge.       Id. at 62.

        The Supreme Court, in a per curiam opinion, held, "Where

the State is precluded by the United States Constitution from

haling a defendant into court on a charge, federal law requires

that a conviction on that charge be set aside even if the

conviction was entered pursuant to a counseled plea of guilty."

Id. (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)).       The

Court expanded on its holding, writing:

                  Neither Tollett v. Henderson, 411 U.S.
             258, 93 S. Ct. 1602, 36 L.Ed.2d 235, nor our
             earlier cases on which it relied, e.g.,

                                   - 4 -
          Brady v. United States, 397 U.S. 742, 90
          S. Ct. 1463, 25 L.Ed.2d 747 and McMann v.
          Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25
          L.Ed.2d 763, stand for the proposition that
          counseled guilty pleas inevitably "waive"
          all antecedent constitutional violations.
          If they did so hold, the New York Court of
          Appeals might be correct. However in
          Tollett we emphasized that waiver was not
          the basic ingredient of this line of cases,
          id., 411 U.S. at 266, 93 S. Ct. at 1607.
          The point of these cases is that a counseled
          plea of guilty is an admission of factual
          guilt so reliable that, where voluntary and
          intelligent, it quite validly removes the
          issue of factual guilt from the case. In
          most cases, factual guilt is a sufficient
          basis for the State's imposition of
          punishment. A guilty plea, therefore,
          simply renders irrelevant those
          constitutional violations not logically
          inconsistent with the valid establishment of
          factual guilt and which do not stand in the
          way of conviction if factual guilt is
          validly established. Here, however, the
          claim is that the State may not convict
          petitioner no matter how validly his factual
          guilt is established. The guilty plea,
          therefore does not bar the claim. We do not
          hold that a double jeopardy claim may never
          be waived. We simply hold that a plea of
          guilty to a charge does not waive a claim
          that judged on its face the charge is one
          which the State may not constitutionally
          prosecute.

Id. at 62 n.2.

     We conclude that Menna is limited to a double jeopardy

defense and not to all allegations of constitutional violations.

Therefore, our jurisprudence on the effect of a guilty plea is

unaffected by Menna.   A double jeopardy violation

constitutionally bars prosecution of the second offense,

irrespective of the defendant’s guilt.   A violation of the

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defendant’s Fourth Amendment right against unreasonable search

and seizure is not a bar against prosecution, but only against

the admission of certain evidence.    A defendant, therefore, can

be prosecuted with other lawfully seized evidence.   We conclude

appellant's reliance on Menna is misplaced.

     We, therefore, affirm the judgment of the trial court.

                                                          Affirmed.




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