                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Felton
Argued at Chesapeake, Virginia


KODI JAMELLE WRIGHT
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2214-02-1                                  JUDGE WALTER S. FELTON, JR.
                                                                 DECEMBER 23, 2003
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                  Jerome James, Judge

                 Cheryl D. Footman-Banks for appellant.

                 Stephen R. McCullough, Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       Kodi Jamelle Wright was convicted of possession of marijuana with intent to distribute in

violation of Code § 18.2-248.1, and possession of a firearm while possessing drugs in violation

of Code § 18.2-308.4. Wright entered pleas of guilty to both charges as part of a proposed plea

agreement. On appeal, Wright contends that the trial court erred (1) by refusing to allow him to

put on evidence to show that he was not in breach of the plea agreement, and (2) by refusing to

allow him to file for a bond hearing1 pending his appeal. For the following reasons, we affirm.

                                        I. BACKGROUND

       On March 28, 2002, pursuant to a proposed plea agreement, Wright entered pleas of

guilty to indictments charging that he possessed marijuana with intent to distribute and that he

possessed a firearm while possessing more than a pound of marijuana. The trial court conducted


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
       Throughout his appeal, Wright refers to the court’s refusal to set a “bond hearing,”
which we understand to mean a “bail hearing,” to consider his release on bail pending appeal.
a lengthy colloquy with Wright concerning his pleas, and determined that he knowingly,

voluntarily, and intelligently entered those pleas. After hearing a recitation of the evidence that

the Commonwealth would present, without modification by Wright, the court accepted Wright’s

guilty pleas.

       The trial court was informed the pleas were made pursuant to a written plea agreement

signed by Wright and the prosecutor. See Rule 3A:8. The agreement provided that Wright

promised to cooperate “fully and completely with law enforcement.” The essential part of the

agreement provided:

                The parties agree that the appropriate disposition of this matter is
                for the defendant to plead as stated above and to request a
                presentence report (PSR). The Commonwealth agrees that if the
                defendant cooperates fully and completely, with law enforcement
                authorities between today and the PSR [presentence report] date,
                then the Commonwealth agrees to do the following: 1) amend the
                charge of § 18.2-308.4 to Concealed Weapon-misdemeanor for
                which the defendant shall be sentenced to a (six) (6) month active
                jail sentence for which the Commonwealth does not oppose work
                release; 2) sentence the defendant for the violation of § 18.2-248.1
                to five (5) years in the Virginia State Penitentiary with the
                execution of that sentence suspended conditioned upon the
                defendant paying a fine $200, and completing (5) years of
                probation of which an indeterminate period shall be supervised.

(Emphasis in original). Pursuant to the request for a presentence report in the agreement, the

court set a sentencing hearing date for it to receive and review the report, and to receive advice

as to whether Wright cooperated with the law enforcement authorities.2 Wright remained free on

bond until the sentencing hearing.


       2
         The written plea agreement bears the trial judge’s signature as being accepted on March
28, 2002, the date Wright entered his guilty pleas. The transcript reflects that Wright requested
the court to accept the plea agreement and that the court agreed to do so. However, after seeing
the request for the presentence report in the agreement, the trial court stated it would not say
anything further about the agreement. The court’s written order entered April 1, 2002, states the
following:

                                                -2-
       Approximately seven weeks prior to the sentencing hearing, the Commonwealth

informed Wright’s counsel by letter that Wright was not cooperating with law enforcement

authorities pursuant to his agreement. At the sentencing hearing, the Commonwealth informed

the court of Wright’s failure to cooperate with investigators pursuant to the terms of the plea

agreement. The Commonwealth also informed the court that police officers were present and

would testify to Wright’s failure to cooperate. Wright’s counsel argued that he had in fact

complied with the plea agreement by giving information to the police, but proffered that he

refused to make controlled buys because he thought that activity was too dangerous. Wright’s

counsel argued that:

               If the Commonwealth is of the position that he did not comply, and
               we are of the position that he did comply and gave the information
               relative to what he knew, then I think that he’s entitled to withdraw
               his plea and try the matter. I think for the Court to determine -
               well, I would ask the Court for a determination as to whether or not
               he substantially complied.

       The trial court determined that Wright had not cooperated, and then denied Wright’s

request to withdraw his guilty pleas. Wright objected to the court’s ruling. After considering the

presentence report, the court sentenced Wright on his pleas of guilty, imposing a term of five

years mandatory imprisonment on the firearm conviction, and five years imprisonment and a fine




               Whereupon the defendant was arraigned and tendered his plea of
               guilty to Indictments #1 and 2 as charged. The Court, having been
               advised by the defendant, his counsel, and the attorney for the
               Commonwealth that there has been a Plea Agreement in this case,
               it was filed herein. The Court, having heard the evidence and
               argument of counsel, finds the defendant guilty of same, and
               withholds acceptance of said Agreement until such time as a
               sentencing hearing is held.

(Emphasis in original). Because Wright does not raise on appeal whether the plea agreement
was accepted, we will not consider that question here. Rule 5A:12(c).

                                               -3-
of $3,000 on the possession of marijuana with intent to distribute conviction. The court

suspended the term of imprisonment for the latter conviction.

        At the sentencing hearing, following the court’s imposition of sentence, Wright did not

move the court to release him on bail pending appeal. Wright filed his notice of appeal with the

trial court on July 11, 2002.

        On August 1, 2002, after the notice of appeal had been filed, Wright’s counsel sent a

letter to the trial court stating that Wright had:

                [R]equested permission to set a motion for a bond on your docket
                pending this appeal. Your Honor denied his request on July 10,
                2002. On July 11, 2002, I appeared in the Court’s Clerk’s Office
                and it was confirmed . . . that the defendant’s request was denied
                and that this Motion could not be heard before any other Judge.
                Accordingly, I ask that the Court file the defendant’s Post
                Objection with the Court’s records of the proceedings for appeal.

        Wright attached to his letter a pleading entitled “Objection to the Denial of Appeal

Bond,” stating “COMES NOW, the defendant, by counsel, and files an objection to the Court’s

ruling denying the defendant’s request to set a motion on the Court’s docket for an Appeal

Bond.” Apart from counsel’s avowal, the record does not contain any motion filed by Wright to

grant him bail pending appeal, and there is no order memorializing the trial court’s decision not

to set or hear any such motion.

                                                II. ANALYSIS

                        A. REFUSAL TO HEAR EVIDENCE ON COMPLIANCE

        On appeal, Wright contends that the trial court erred in not allowing him to present

evidence of his compliance with the terms of the plea agreement. When the Commonwealth

informed the court that Wright had failed to cooperate fully and completely with investigators,

Wright argued that he had cooperated and asked the judge to make a determination of his

compliance. He also argued that, if the court determined that he had failed to comply, he was
                                                     -4-
entitled to withdraw his guilty pleas as a matter of right.3 In his petition for appeal, Wright

limited his appeal to the following questions: 1) did the trial court commit reversible error by not

allowing him to present evidence to show that he was not in breach of the plea agreement, and 2)

did the trial court err by refusing to allow him permission to file for a bond hearing pending his

appeal.

          At the sentencing hearing, Wright did not call any witnesses or specifically ask to put on

evidence at that hearing. Nor did he seek an additional hearing at a later date in which to present

evidence. The trial court heard his proffer that he had talked with the officers, that he gave them

information of how he received the drugs and narcotics he sold, but that he refused to engage in

controlled buys at the street level. At the sentencing hearing, rather than asking the trial court for

the opportunity to present evidence on whether he complied, Wright merely asked the trial court

“for a determination as to whether or not he substantially complied” with the agreement after it

had heard proffers from the parties as to compliance.

          Pursuant to Rule 5A:18, “the Court of Appeals will not consider an argument on appeal

which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998). Rule 5A:18 states, “[n]o ruling of the trial court . . . will be considered

as a basis for reversal unless the objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the

ends of justice.” “Rule 5A:18 applies to bar even constitutional claims.” Ohree, 26 Va. App. at




          3
         We do not consider the question of whether the trial court erred in refusing Wright’s
request to withdraw his guilty pleas because he did not raise that question in his petition for
appeal, and no appeal was granted by this Court on that question. Rule 5A:12(c); see Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991).
                                               -5-
308, 494 S.E.2d at 488 (citing Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897,

900 (1992)). This Court will not consider an argument on appeal that was not presented to the

trial court. Id.

         The only objection that Wright presented at trial was that the trial court failed to allow

him to withdraw his guilty pleas based on noncompliance. The trial court expressly ruled on that

issue.

         In order for this Court to consider whether the trial court erroneously limited Wright’s

right to present evidence of his compliance with the plea agreement, the record must reflect that

he sought that opportunity and must contain a proffer of the evidence Wright sought to present.

The record in this case reflects that he did neither. By failing to alert the trial court to the

specific issue he now raises on appeal, and absent a specific proffer of the evidence, Rule 5A:18

bars our review of this question on appeal. Moreover, because the trial court accepted the

Commonwealth’s representation that Wright did not “fully and completely cooperate with law

enforcement” and made the determination requested by Wright as to compliance, the record does

not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.

                                  B. MOTION FOR “BOND HEARING”

         Wright also contends that the trial court erred by refusing to allow him permission “to file

for a bond hearing” (to grant him bail) pending this appeal. Wright argues that he never filed a

motion for an appeal bond because he was denied permission by the trial court to do so.

Rule 5A:18 bars our consideration of this question.

         The record before us does not reflect that, at the sentencing hearing, Wright requested

that he be released on bail pending appeal or that the court set a bail hearing for a later time. The

record contains no rulings by the trial court with respect to a bail hearing. Only the letter filed by

Wright’s counsel with the trial court on August 1, 2002 indicates the issue was ever raised before
                                                  -6-
the trial court. That letter contains an assertion by Wright’s counsel that she had orally

“requested permission to set a motion for a bond on your docket pending this appeal,” which the

court ostensibly orally denied on July 10, 2002. Apart from the avowal by counsel, there is

nothing in the record to reflect that the trial court ever was advised of Wright’s request, or that it

issued any ruling on it.

          Because there is nothing in the record to show that the trial court ever ruled on Wright’s

motion to set a hearing to consider his release on bail pending appeal, there is no ruling of the

trial court for this Court to review on appeal. See Ohree, 26 Va. App. at 308, 494 S.E.2d at 488;

Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993). Finally, the record

does not reflect nor does Wright argue any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of this question on

appeal.

          For the foregoing reasons, we affirm the rulings of the trial court.

                                                                                             Affirmed.




                                                  -7-
