                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued by teleconference


EZELL TORONTO GREENE, S/K/A
 EZELL TORONTO GREEN
                                      MEMORANDUM OPINION * BY
v.        Record No. 1137-97-3     JUDGE JERE M. H. WILLIS, JR.
                                          APRIL 28, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
                  Rudolph Bumgardner, III, Judge
          William E. Bobbitt, Jr., Public Defender, for
          appellant.

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



     On appeal from his conviction for robbery, Ezell Toronto

Greene contends that he did not enter his guilty plea

voluntarily, knowingly and intelligently and that the

Commonwealth's attorney breached the plea agreement by failing to

recommend the sentence contained in the agreement.   Because

Greene failed to preserve these issues in the trial court, we

will not consider them on appeal.
               No 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.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     The primary function of the contemporaneous objection rule

is to advise the trial court of the action or ruling complained

of so that the trial court may consider the issue intelligently

and, if warranted, take timely corrective action to avoid

unnecessary appeals, reversals and mistrials.    See generally

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2

(1991) (en banc).    To hold otherwise would invite parties to

remain silent at trial, thereby building error into the record

and causing needless appeals.
     Greene tendered no objection to the rulings or procedures of

the trial court.    He made no objection to the actions of the

Commonwealth's attorney.   He moved neither to withdraw his plea

of guilty nor to set aside the sentence.   Thus, he failed to

preserve these issues properly for appeal.

     "Under Rule 5A:18, we do not consider trial court error as a

basis for reversal where no timely objection was made except in

extraordinary situations to attain the ends of justice."     Redman
v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272

(1997).   We find no reason to invoke that exception in this case.
           "[T]he ends of justice exception is narrow
           and is to be used sparingly . . . ." "[I]t
           is a rare case in which, rather than invoke
           Rule [5A:18], we rely upon the exception and
           consider an assignment of error not preserved
           at trial . . . ." In order to avail oneself
           of the exception, a defendant must
           affirmatively show that a miscarriage of
           justice has occurred, not that a miscarriage
           of justice might have occurred. The trial
           error must be "clear, substantial and
           material."



                                - 2 -
Id. at 220-21, 487 S.E.2d at 272 (emphasis in original)

(citations omitted).

                               A.

     Indicted for robbery, Greene entered into a plea agreement,

which provided, in part:
               The Commonwealth of Virginia . . .
          pursuant to Rule 3A:8(c)(1)(B) of the Rules
          of the Supreme Court, agrees following a plea
          of guilty by Defendant to recommend as
          follows:

               Defendant is to be found guilty as
          charged in the indictment and is to be
          sentenced to confinement in the penitentiary
          for a period of five years and shall pay
          the Court costs. The five years penitentiary
          sentence is to be suspended for a period
          of five years upon the following
          conditions . . . .
               Defendant, and Counsel for Defendant, as
          evidenced by their signatures hereinbelow,
          agree to the terms of such recommendation if
          the recommendation is accepted by the Court.


     At his arraignment, Greene pled guilty.     Responding to

questions from the trial court, Greene acknowledged that he had

entered his plea voluntarily and understanding the consequences.

The trial court entered the plea agreement into the record and

examined Greene's understanding of its effect.    Greene affirmed:

(1) that the written plea agreement reflected the entire

agreement; (2) that he had read and discussed the plea agreement

fully with his attorney; and (3) that he understood the agreement

and had signed it of his own free will.   The following dialogue

ensued:



                              - 3 -
          COURT: Tell me in your own words what you
          understand to be the sentence that you would
          receive if the plea agreement is followed.

          MR. GREENE: Five years' prison time, and the
          prison time be suspended on the condition
          that I be on five years' supervised
          probation, and obey my probation.


(Emphasis added).

     The trial court found that Greene had entered his plea

knowingly, voluntarily and intelligently.     It memorialized this

finding in its written order.    Greene contests this finding

because the trial court failed to advise him that he could not

withdraw his plea if the court did not accept the sentencing

recommendation.     See Rule 3A:8(c)(2).   This argument is moot.

Greene never sought to withdraw his plea.     Therefore, he was not

prejudiced by the trial court's failure to advise him that he

could not do so.

                                  B.

     Greene contends also that the Commonwealth's attorney

breached the plea agreement, which required the Commonwealth to

recommend that Greene receive a suspended five-year sentence.
See Rule 3A:8(c)(1)(B).

     At the sentencing hearing, a probation officer presented a

presentence report prepared at the order of the trial court.        The

probation officer testified that an appropriate sentence under

the guidelines would include a period of incarceration.     The

Commonwealth's attorney stated that he was presented with a

"novel situation" because of:



                                 - 4 -
             [T]he vast difference in the sentencing
             guidelines prepared by [the probation
             officer] and the original guidelines from
             which the plea agreement was prepared.
                  The Presentence Investigation Report,
             again[] is not a good report, as far as this
             Defendant is concerned. The Commonwealth, of
             course, is perplexed because of the
             difference in the sentencing guidelines, as
             I've alluded to.
                  For all of these reasons, the
             Commonwealth simply submits the matter to the
             Court at this point.


     The trial court sentenced Greene to five years in the

penitentiary, and suspended two years and six months of the

sentence upon certain conditions.
               When there is noncompliance, whether
          intentional or inadvertent, by the prosecutor
          with the plea bargain agreement as the
          defendant understands it, the defendant must
          promptly call such noncompliance to the
          court's attention and request that he be
          allowed to withdraw his guilty plea,
          otherwise it will be deemed to have been
          waived.


Johnson v. Commonwealth, 214 Va. 515, 518-19, 201 S.E.2d 594, 597

(1974).

     At the hearing, Greene's counsel acknowledged that

sentencing lay within the discretion of the trial court.     Despite

the omission of a recommendation by the Commonwealth's attorney,

Greene did not complain.     See Holler v. Commonwealth, 220 Va.

961, 967, 265 S.E.2d 715, 718 (1980).    Thus, he waived objection

to the Commonwealth's attorney's noncompliance with the plea

agreement.

     Under the terms of the agreement, the trial court was



                                 - 5 -
permitted to impose a sentence at variance with the plea

agreement.    Greene was not convicted of a crime for which he was

not guilty.   We find no miscarriage of justice.   We affirm the

conviction.   The motion for bail is denied.

                                                         Affirmed.




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