                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


TOBY STEPHENS, S/K/A
 TOBY DANE STEPHENS
                                               MEMORANDUM OPINION *
v.   Record Nos. 1312-96-1 and             BY JUDGE WILLIAM H. HODGES
                 1313-96-1                      OCTOBER 28, 1997

COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Lydia C. Taylor, Judge

           Charles E. Jenkins, II (Brahm & Jenkins, on
           brief), for appellant.

           Robert H. Anderson, III, Assistant Attorney
           General (Richard Cullen, Attorney General;
           Monica S. McElyea, Assistant Attorney
           General, on brief), for appellee.



     Toby Dane Stephens, appellant, contends that the trial judge

abused her discretion in denying his post-sentence motion to

withdraw his guilty pleas.       For the reasons that follow, we

affirm his convictions.

                            I.    BACKGROUND

     Appellant was charged with three crimes occurring on

February 14, 1995.    Those crimes included malicious wounding,

shooting into an occupied dwelling, and using a firearm in the

commission of a felony.    On February 26, 1996, appellant and his

court-appointed attorney, Robert Bohannon, appeared before Judge

Poston.   Appellant entered Alford pleas to malicious wounding and
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
shooting into an occupied dwelling.   The parties presented Judge

Poston with a plea agreement indicating that "the sentence for

these charges shall run concurrently with" sentences from other

pending charges.   It was agreed that Judge Taylor would sentence

appellant on these convictions and other pending charges in one

proceeding.

     On March 4, 1996, appellant appeared before Judge Taylor on

charges of first degree murder, malicious wounding, conspiracy to

commit murder, and two counts of using a firearm.   These crimes

occurred February 18, 1995.   Court-appointed counsel, Robert M.

Smith, III, represented appellant on those charges. 1   Appellant

entered Alford pleas to the murder, malicious wounding, and

firearm charges.   The parties presented a plea agreement to Judge

Taylor under which the Commonwealth agreed to nolle prosequi the

conspiracy charge in exchange for guilty pleas to the murder,

malicious wounding, and firearm charges.   Also, the agreement

stated that, "active incarceration shall not exceed fifty-five

(55) years."

     On April 26, 1996, Judge Taylor sentenced appellant to a

total of forty-five years active incarceration on all charges.

Following sentencing, appellant moved to withdraw his guilty

     1
      Bohannon initially represented appellant on both sets of
charges, however, after he withdrew from the murder case due to a
conflict of interest, the trial judge appointed Smith.
     In addition, appellant's grandmother retained C. Lydon
Harrell, Jr., to assist appellant's family and the two
court-appointed attorneys.




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pleas.   On June 6, 1996, following an evidentiary hearing, Judge

Taylor denied the motion. These appeals followed.

                           II.    THE LAW

           A motion to withdraw a plea of guilty or nolo

           contendre 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.
Code § 19.2-296 (emphasis added).

     Post-sentence motions to withdraw a guilty plea "involve

judicial discretion."   Holler v. Commonwealth, 220 Va. 961, 967,

265 S.E.2d 715, 719 (1980).     See also Lilly v. Commonwealth, 218

Va. 960, 965, 243 S.E.2d 208, 211 (1978) (applying federal

standard, explaining that post-sentence motions under Code

§ 19.2-296 require application of "'[t]he more severe [manifest

injustice] standard to avoid motions for withdrawal based on

disappointment in the terms of the sentence'") (quoting Paradiso
v. United States, 482 F.2d 409, 416 (3rd Cir. 1973)).      But see

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

(1949) (explaining that case law requires liberal allowance to

withdraw pleas before sentencing as long as there is some basis

for believing that the defendant is, in fact, innocent or that




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ends of justice will be subserved).

                          III.   ANALYSIS

     In his appeal, Stephens raises no claim that his Alford

pleas were entered involuntarily or that he entered them under

fear, duress, coercion, fraud, or official misrepresentation.

There is also no claim that appellant misunderstood the effect of

the pleas.   Appellant's claim is that he mistakenly agreed to the

plea agreement because he was led to believe by one or more of

his attorneys that he would not receive as lengthy a sentence as
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he actually did receive from the trial court.       As a result,

appellant claims that the sentence he received was a "shocking

departure" from what his attorneys advised him he could receive.

 The real question in this case, therefore, is whether, in the

exercise of sound judicial discretion, the trial court should

have granted the motion to withdraw to correct some manifest

injustice resulting from the circumstances concerning the entry

of the pleas and presentation of the plea agreement.

     During the March 4, 1996 hearing, Judge Taylor thoroughly

questioned appellant to assure herself that he was entering his

pleas knowingly, freely, and voluntarily.   The trial judge

carefully explained the consequences and ramifications of
     2
      To the extent that appellant characterizes his argument as
an ineffective assistance of counsel claim, we are precluded from
hearing such claims. Claims of ineffective assistance of counsel
may no longer be raised on direct appeal. Code § 19.2-317.1,
which allowed direct appeal of such claims under certain
circumstances, was repealed in 1990. 1990 Va. Acts, c. 74. See
also Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983).




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pleading guilty, she reviewed the evidence against him, and

explained the maximum sentence that she could impose under the

agreement.   Following this colloquy, appellant assured the trial

judge that the decision was, indeed, his, and that he was

satisfied with his attorneys.

     Appellant admits that he was aware of the fifty-five year

cap on active incarceration contained in the plea agreement and

that he received "very sound advice" from Smith.   He contends,

however, that this advice was substantially in conflict with that

offered by Harrell.
     Smith testified that he and Bohannon discussed the

advantages of having one presentence report and sentencing event

under the plea agreement.   Smith admitted telling appellant that

he could expect to receive a twenty-five to thirty year sentence.

However, he also testified that he advised appellant that the

decision would be up to the judge and that the limit of active

incarceration in the plea agreement was fifty-five years.

     Harrell testified that he did not recall advising appellant

that he would likely receive a sentence ranging between eight and

fifteen years.   However, if he did so, Harrell stated that he

gave that advice when he was first retained by the family, before

he was familiar with all the facts of the case, and that any

reference to specific sentences was initiated by appellant.

Harrell further testified that he told appellant that the

sentence would be entirely at the trial judge's discretion.




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     At the June 6, 1996 post-sentence hearing on the motion to

withdraw his pleas, the trial judge listened to testimony from

the attorneys, appellant, and appellant's mother.   The trial

judge found the testimony of the attorneys to be credible and

rejected the testimony of appellant and his mother.   The mother

recalled that Smith discussed with her and explained the

advantages of a sentencing guideline range computed for a single

sentencing event and how that range contrasted with the higher

range were appellant separately sentenced for the two unrelated

sets of crimes.   As a result, the trial judge found that

appellant was fully and completely informed about the law

applicable to his case, that he received competent advice from

counsel, and that he was fully informed by his attorneys of the

possible consequences of the plea agreement.   The trial judge

also found Harrell's role merely advisory as a family counselor.

It is also well established throughout the record that appellant

was aware of the possible consequences of his plea.   "The weight

which should be given to evidence and whether the testimony of a

witness is credible are questions which the fact finder must

decide."   Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).   Reviewing the entire record and applying

a deferential standard of review to the trial judge's findings,

we are unable to say that such findings were plainly wrong.

     Appellant's shocked reaction to the sentence received and

the arguments presented to the trial court and to this Court




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amount to no more than expressions of disappointment in the

outcome of his plea agreement.   See Lilly, 218 Va. at 965, 243

S.E.2d at 211.   The trial judge's findings following extensive

testimonial evidence are clearly supported by the record.   As a

result, we find no Code § 19.2-296 "manifest injustice" requiring

correction based on the advice given appellant regarding the

guilty pleas or the plea agreement.   We, therefore, conclude that

the trial court did not abuse its discretion in denying the

appellant's motion to withdraw his guilty pleas.   Accordingly,

the judgments of the trial court are affirmed.
                                                   Affirmed.




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