                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


GARFIELD B. JOHNSON
                                        MEMORANDUM OPINION * BY
v.   Record No. 1587-97-2             JUDGE JAMES W. BENTON, JR.
                                          DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
                     Richard S. Blanton, Judge
           Michael J. Brickhill for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



      Garfield Johnson pled guilty to possessing with the intent

to distribute cocaine in violation of Code § 18.2-248.     Prior to

sentencing, Johnson moved to withdraw his guilty plea pursuant to

Code § 19.2-296.   The trial judge denied Johnson's motion and

sentenced Johnson to ten years in prison with eight years and one

month suspended.   On appeal, Johnson argues that the trial judge

abused his discretion by denying the motion to withdraw the plea.

 We affirm the conviction.

                                I.

      Rule 3A:8(b) provides that "[a] circuit court shall not

accept a plea of guilty . . . without first determining that the

plea is made voluntarily with an understanding of the nature of

the charge and the consequences of the plea."     The record
      *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
establishes that after Garfield Johnson was arrested and indicted

for possessing with the intent to distribute cocaine, he pled

guilty during the arraignment to violating Code § 18.2-248.   The

following colloquy then occurred:
          JUDGE: Do you fully understand the charge
          against you?

          JOHNSON:   Yes, sir.

          JUDGE: Do you understand what the
          Commonwealth would have to prove in order to
          convict you?
          JOHNSON:   Yes, sir.

          JUDGE: Have you had sufficient time to
          discuss this case with your attorney,
          including any possible defenses you might
          have?

          JOHNSON:   Yes, sir.

          JUDGE: Did you discuss with [your attorney]
          whether you should plead guilty or not
          guilty?

          JOHNSON:   Yes, sir.

          JUDGE: And after that discussion did you
          decide on your own, freely and voluntarily,
          to plead guilty?

          JOHNSON:   Yes, sir.

          JUDGE: Are you pleading guilty because you
          are in fact guilty of the charge?

          JOHNSON: Well, I talked to my child's mom,
          like, she told me, said what's best for me.
          I'm just going by what she said. So I just
          pleaded guilty.

          JUDGE: Let me ask you this. You have gone
          over this case thoroughly with your attorney,
          is that correct?

          JOHNSON:   Yes, sir.



                                 - 2 -
JUDGE: And you have talked to him about the
facts and circumstances and he has related to
you what the Commonwealth's evidence would be
in this case, is that correct?

JOHNSON:   Yes, sir.

JUDGE: And after considering what the
Commonwealth's evidence would be did you
decide that it is in your best interest to
plead guilty?

JOHNSON:   Yes, sir.

JUDGE: And are you pleading guilty because
you believe the Commonwealth has substantial
evidence and you don't want to run the risk
of trying your case in front of a jury, is
that correct?
JOHNSON: I'm pleading guilty because I don't
know these people here.

JUDGE: Okay.     But you understand what the
evidence is?

JOHNSON:   Yes, sir.

JUDGE: And you do agree that if the evidence
was presented it would be sufficient to find
you guilty, is that correct?

JOHNSON:   Yes, sir.

JUDGE: Has anybody threatened you or coerced
you in any way to get you to plead guilty?

JOHNSON:   No.

JUDGE: Has anybody promised you anything to
get you to plead guilty?

JOHNSON:   No, sir.

JUDGE: Do you understand the maximum penalty
for this offense is up to 40 years in the
Virginia Department of Corrections?

JOHNSON:   Yes, sir.




                       - 3 -
          JUDGE: And do you understand that by
          pleading guilty you waive, or you give up
          your right to appeal the decision of this
          court?

          JOHNSON:   Yes, sir.

          JUDGE: All right. And you understand the
          court, based on a recommendation of the
          Commonwealth's Attorney, and the review of a
          presentence report, and the sentencing
          guidelines, can sentence you up to 40 years,
          do you understand that?

          JOHNSON:   Yes, sir.

          JUDGE: All right. And do you also
          understand that by pleading guilty this could
          cause the court to revoke your probation if
          you have a suspended sentence?
          JOHNSON:   Yes, sir.

          JUDGE: Do you understand all the questions I
          have asked you?

          JOHNSON:   Yes, sir.

          JUDGE: And do you also understand that by
          pleading guilty you are not entitled to be
          tried by a jury? I want to make sure we get
          that straight.

          JOHNSON:   Yes, sir.

          JUDGE: All right. Do you have any questions
          you would like to ask the court?

          JOHNSON:   No.


     Johnson's attorney then submitted to the trial judge

Johnson's responses and signature on a written questionnaire

containing questions similar to those asked by the trial judge.

Johnson's attorney also submitted another document titled

"Statement by Defendant Regarding Plea of Guilty to Felony,"




                                 - 4 -
which was signed by Johnson.    The document included the following

statement:
             I hereby declare that this plea of guilty is
             made of my own and free and voluntary will
             with full understanding of the nature of the
             charges and the facts upon which the charges
             are based, with full knowledge and
             understanding of the consequences of a plea
             of guilty and of the rights I am waiving by a
             plea of guilty, and that this plea is made
             without any claim of innocence.


It also included a certification from Johnson's attorney as

follows:
             I have explained to the defendant the charges
             against him; that the defendant's plea of
             guilty [was] made freely, willingly, and
             voluntarily with full understanding of the
             nature of the charges against him, the facts
             upon which the charges are based, the
             consequences of a plea of guilty and the
             rights waived by a plea of guilty; and that
             such plea of guilty accords with my
             understanding of the facts in the case as
             explained to me by the defendant.


     After Johnson entered his plea and tendered those documents,

the Commonwealth's Attorney orally presented the following

recitation of facts:
          [O]n the nineteenth day of September, 1996,
          [through the] combined efforts of the
          Sheriff's Department for Prince Edward County
          and the Town of Farmville Police Department,
          a search warrant was executed at Route 1, Box
          183 G in Rice, Virginia. At that time, Mr.
          Johnson was found to be an occupant of those
          premises. A room from which Mr. Johnson was
          seen to exit on more than one occasion was
          searched. When the officers entered the
          room, they found on the bed a plate
          containing a loose substance which they
          believed to be crack cocaine [and] a razor
          blade. Above the plate, within six or eight
          inches, were twenty-four individually



                                 - 5 -
          packaged packets containing what the officers
          believed to be crack cocaine. There were
          also a number of empty packets in the
          proximity of the plate. A search of Mr.
          Johnson's person, as he exited the room, by
          the officers revealed . . . small plastic
          baggies identical in shape, size, and color
          to those baggies found on the bed in plain
          view as well as with the residue of the
          cocaine on the plate. The twenty-four
          packets, as well as the loose material which
          was bagged in one bag, was subsequently
          submitted to the Division of Forensic
          Science. A Certificate of Analysis was
          received on those substances. That Report of
          Analysis . . . indicat[es that] the
          twenty-four zip lock bags contained cocaine
          . . . and that the loose material from the
          plate . . . contained . . . cocaine."

The Commonwealth's Attorney also submitted to the trial judge a

written stipulation, signed by Johnson, containing Johnson's

admission that he "did on the 19th day of September, 1996,

unlawfully and feloniously manufacture, sell, give, distribute,

possess with intent to manufacture, sell, give or distribute a

controlled substance or imitation controlled substance, namely:

cocaine, listed in Schedule II, in violation of [Code

§] 18.2-248."

     The trial judge found that Johnson made his plea "freely and

voluntarily," that Johnson "underst[oo]d the charge against

[him]," and that he "underst[oo]d the consequences of [his] plea

of guilty."   When asked if he would like to make a statement,

Johnson replied:   "I know I was wrongly accused of something.    I

ain't got no idea of nothing.   I ain't holding nothing.   They

didn't find nothing on me.   But, try to help my little kids, you




                                - 6 -
know, I want to see them, I thought I would just plead guilty."

The trial judge accepted Johnson's guilty plea, finding

"substantial evidence in regards . . . to [Johnson's] guilt."

     Prior to Johnson's scheduled sentencing date, Johnson hired

another attorney and filed a motion to withdraw his guilty plea

pursuant to Code § 19.2-296.   In an affidavit, Johnson stated

that on the occasion when his plea was made (1) he had appeared

for trial, (2) he was "surprised to learn that a jury had been

summonsed" because he had informed his attorney he wanted a judge

to hear his case, (3) several witnesses who were necessary for

his defense were not present, (4) his attorney told him that the

jury would not like him because he was black and Jamaican, (4) he

did not realize that the documents he signed "related to pleading

guilty," (5) he had informed his attorney that he did not want to

plead guilty, (6) his attorney had not informed him of his right

to plead conditionally and to appeal the denial of his

suppression motion, and (7) he disagreed that the Commonwealth

could prove his guilt beyond a reasonable doubt.
     At the hearing on the motion to withdraw, the trial judge

accepted Johnson's affidavit not for the truth of the allegations

but, rather, as representative of what Johnson would have said if

called to testify.   Johnson's attorney argued that although

Johnson's plea was voluntary, it was not knowingly made.   The

trial judge denied Johnson's motion to withdraw his plea, finding

that Johnson "made a knowing, intelligent, and voluntary plea."




                               - 7 -
The trial judge sentenced Johnson to ten years in prison and

suspended eight years and one month of that sentence.




                              - 8 -
                                II.

     In pertinent part, Code § 19.2-296 provides that "[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."   Citing the statute and Parris v. Commonwealth, 189

Va. 321, 324, 52 S.E.2d 872, 873 (1949), we have previously held

that whether a criminal defendant may withdraw a plea of guilty

is a matter addressed to the sound discretion of the trial judge.
 See Hoverter v. Commonwealth, 23 Va. App. 454, 463-64, 477

S.E.2d 771, 775 (1996).   "Thus, we should reverse [a trial

judge's denial of the motion] only upon 'clear evidence that [the

decision] was not judicially sound' and not simply to substitute

our 'discretion for that rendered below.'"    Jefferson v.

Commonwealth, 27 Va. App. 477, 488, 500 S.E.2d 219, 225 (1998)

(citation omitted).

     Citing Parris, Rule 3A:8(b), and Code § 19.2-296, Johnson

contends that "it [was] not sufficient for the trial [judge] to

focus exclusively on whether the plea of 'guilty' was made

voluntarily, knowingly, and intelligently."   He argues that Code

§ 19.2-296 required the trial judge to "evaluate[] Johnson's

claim that through the inaction of his trial counsel, [Johnson]

was not in a position to proceed to trial on [the day Johnson

entered his guilty plea]."   He further argues that the trial

judge acted inconsistent with Parris by failing to address the

issue whether Johnson's plea was made pursuant to a mistake of



                               - 9 -
material fact, fraud, coercion or undue influence.     See 189 Va.

at 324, 52 S.E.2d at 873 (noting that "the motion should not be

denied . . . if it . . . 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").

        The record clearly reveals, however, that Johnson never

presented these issues to the trial judge.    In fact, Johnson

framed the issue before the trial judge as follows:
          [T]his is a voluntary plea. No one held a
          gun to his head. This was not coerced. That
          is not the allegation here. The only
          allegation here is that it was not knowing.
          He did not know the ramifications of what he
          was doing when he pled guilty to this charge.
           He did not have the benefit of a plea
          bargain. He had no promise by the
          Commonwealth as far as what would happen to
          him if he pled guilty rather than go forward
          with a jury trial.

              *      *      *      *      *      *      *

             That, coupled with the fact that he never
             came right out and said, yes, I'm guilty of
             this charge. And, then with the third matter
             that he didn't even do a conditional plea.
             He wasn't aware that a conditional plea might
             have been available. . . . He didn't even
             reserve the right to condition his plea on
             the right to appeal that pretrial motion.

                All I'm saying, Judge, is that those
             things together show the court that he did
             not knowingly enter into his plea of guilty,
             and he is ready to go forward with his trial
             if this court will allow him.


(Emphasis added).    These statements limited the scope of the

trial judge's review to whether Johnson's plea was knowingly

made.



                                - 10 -
     "A well-accepted definition of 'knowingly' is '[a]n act

. . . done voluntarily and intentionally, and not because of

mistake or accident or other innocent reason.'"    United States v.

Jones, 735 F.2d 785, 789 (4th Cir. 1984) (citation omitted).      The

record contains abundant evidence that Johnson's plea was

knowingly made.

     In considering Johnson's claim that his plea was not

knowingly made, the trial judge was aware of Johnson's admissions

during the extensive colloquy prior to the judge's acceptance of

the plea.   In addition, Johnson signed a stipulation admitting

that he possessed with the intent to distribute the cocaine.

Both Johnson and his first attorney acknowledged that the entire

matter had been explained to Johnson prior to the hearing and

that Johnson understood the charge against him and the

consequences of pleading guilty.
     Prior to pleading "guilty," Johnson informed the trial judge

that he was prepared to proceed that day.   Johnson gave no

indication that he was "surprised" at the presence of jurors or

the absence of his witnesses.    Furthermore, the trial judge was

not required to accept as true the self-serving allegations of

surprise in Johnson's affidavit.

     Even if Johnson was not aware of the opportunity to make a

conditional plea, that fact did not make his plea an act not

knowingly made.   In making a conditional plea, Johnson would have

acknowledged his guilt.   Similarly, the absence of a plea bargain



                                - 11 -
did not make Johnson's plea an act not knowingly made.   Not every

guilty plea is accompanied by a recommended sentence from the

Commonwealth's attorney.   The record establishes that the trial

judge fully disclosed to Johnson the range of punishment.    During

the colloquy, Johnson acknowledged that he could be sentenced to

forty years in prison.

     To the extent that Johnson now raises issues that concern

his first attorney's conduct, those allegations appear to be an

attempt to raise claims of ineffective assistance of counsel,

which are not cognizable on direct appeal.   See Roach v.

Commonwealth, 251 Va. 324, 335 n.4, 468 S.E.2d 98, 105 n.4

(1996).

     For these reasons, we hold that the record fails to

establish that the trial judge abused his discretion.

Accordingly, we affirm the conviction.

                                                         Affirmed.




                              - 12 -
