                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia


KAVON ATABAKI
                                         MEMORANDUM OPINION * BY
v.   Record No. 1411-98-4             JUDGE JERE M. H. WILLIS, JR.
                                            FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Paul F. Sheridan, Judge

          Jerry M. Phillips (Phillips, Beckwith, Hall &
          Chase, on brief), for appellant.

          Thomas D. Bagwell, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     On appeal from his conviction of malicious wounding, Kavon

Atabaki contends that the trial court erred (1) in ruling that his

Alford guilty plea was voluntarily and intelligently made, (2) in

refusing to permit him to withdraw his Alford guilty plea, (3) in

ruling that his motion to withdraw his guilty plea was not timely

under Code § 19.2-296, and (4) in refusing to resentence him upon

the basis of newly discovered evidence.   We find no error and

affirm the judgment of the trial court.

     Atabaki, a seventeen-year-old juvenile whose case had been

certified to the circuit court, was charged with malicious


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
maiming, and his case was set for trial before a jury.   On the day

of trial, he moved for a continuance.    The motion was denied and,

following a recess at which he conferred with his counsel, Atabaki

tendered a plea of guilty pursuant to North Carolina v. Alford,

400 U.S. 25 (1970).    The plea was based on a plea agreement, which

provided, in pertinent part:

          8. . . . I understand that by pleading
          guilty I give up:

               A. The right to a speedy and public
               trial by a jury of twelve persons who
               know that I am presumed to be innocent
               and all twelve of whom must agree that
               I am guilty beyond a reasonable doubt
               and all twelve of whom must agree on a
               sentence before I could be convicted[.]

     Before accepting Atabaki's plea, the trial court engaged in

the following colloquy with him:

          THE COURT: I have before me a plea
          agreement memorandum under the terms of
          which an Alford-type plea is being rendered
          to the Court to the charge of malicious
          wounding; is that correct?

          [ATABAKI]:    Yes, sir.

          THE COURT: You understand that the
          Alford-type plea under the terms of that,
          you are permitted to utilize that advice and
          enter a plea according to the terms of
          Alford in the North Carolina case?

               It is, however, once received in by the
          law and in the Department of Corrections and
          otherwise received as a guilty plea, that
          is, that it amounts to a conviction. That
          is the result of the case under that plea is
          a conviction.

               Do you understand that?


                                - 2 -
           [ATABAKI]:   Yes, sir.

           THE COURT: All right. And the crime of
           malicious wounding, as I'm sure you have
           been told and understand, is a felony in
           Virginia?

           [ATABAKI]:   Yes, sir.

           THE COURT: And you've been certified by the
           Juvenile Court and found, the case have been
           found to be certified to the Circuit Court
           for trial as an adult.

                 And on that felony, there is a minimum
           penitentiary sentence of five years to a
           maximum of 20 years and a fine that could be
           as high as $100,000. Do you understand
           that?

           [ATABAKI]:   Yes, sir.

           THE COURT: Do you also understand that
           under the law when the case is certified,
           this would be true under a plea, in any
           event that the judge does the sentencing had
           you been tried even by a jury, they would
           have determined the guilt phase of the case,
           but the judge would have determined the
           sentencing phase of the case?

                You understood that, did you?

           [ATABAKI]:   Yes, sir.

           THE COURT: And that the judge in the
           sentencing phase of the case has available
           to him, not only all of the law that would
           be available to a person were he an adult,
           but retains that law that would be available
           to him for the treatment of the case as a
           juvenile. Do you understand that?

           [ATABAKI]:   Yes, sir.

The court thereupon accepted the plea and, upon hearing a

representation of the evidence, convicted Atabaki of malicious

maiming.   On Atabaki's motion, the court ordered a presentence

                                - 3 -
report and continued the case to March 27, 1998, for receipt of

that report and sentencing.    On April 9, 1998 the sentencing

hearing was held and by order entered April 30, 1998, Atabaki

was sentenced to serve twelve years in the Department of

Corrections with four years suspended.

     On May 20, 1998, Atabaki moved for reconsideration.     He

sought to withdraw his guilty plea or, alternatively, he asked

for reconsideration of his sentence in light of newly discovered

evidence concerning the propensity of the victim for violence.

Following a hearing, the trial court denied this motion.

                   I.   Withdrawal of Guilty Plea

     Code § 19.2-296 provides:

           A motion to withdraw a plea of guilty or
           nollo contendere may be made only before
           sentence is imposed or imposition of
           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.

Atabaki's motion was filed twenty days after entry of the final

order imposing his sentence.   Thus, he was permitted to withdraw

his guilty plea only upon a showing of manifest injustice.        See

Lilly v. Commonwealth, 218 Va. 960, 963, 243 S.E.2d 208, 210-11

(1978).   We review the trial court's denial of the motion only

for an abuse of discretion.    Atabaki asserts two grounds for the

withdrawal of his plea.




                                 - 4 -
     First, he asserts that he understood that had he proceeded

before a jury on a not guilty plea, the jury, upon finding him

guilty, would have determined his sentence.   He argues that

fearful of this, he elected to plead guilty as the only way to

have the trial judge fix his sentence.    His contention is

refuted by the record of the trial court's advice to him in

determining whether to accept his plea.   The trial court's

determination that Atabaki understood that advice is supported

by the record and will not be disturbed on appeal.

     Furthermore, even were Atabaki's alleged misunderstanding

genuine, his reluctance to submit to normal legal procedure

cannot be deemed the basis for declaring a manifest injustice.

     Second, Atabaki contends that the trial court erroneously

gave him a false understanding that he might be eligible for

disposition as a juvenile.   The record belies this assertion.

The trial court advised him that it retained the option of

imposing a juvenile disposition.   This advice was correct.    See

Code § 16.1-272(A)(1).

            II.   Timeliness of the Motion to Withdraw

     The trial court did not refuse to entertain Atabaki's

motion to withdraw his guilty plea.    It correctly applied Code

§ 19.2-296 in ruling that the plea could be withdrawn only upon

a showing of manifest injustice.




                               - 5 -
                   III.   Reconsideration of Sentence

        The allegedly after-discovered evidence of the victim's

propensity for turbulence did not bear on the merits of the case

in the context of a guilty plea.     Such evidence, if received,

would have been cumulative.     Atabaki's contention that he acted

in defense of a friend was already before the court.    We find no

abuse of discretion in the trial court's refusal to reopen the

case.

        The judgment of the trial court is affirmed.

                                                          Affirmed.




                                  - 6 -
Benton, J., dissenting.

     In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the

Supreme Court held that where an accused "voluntarily,

knowingly, and understandingly" concludes that his interests

require entry of a guilty plea, a plea may be accepted even if

the accused "is unwilling or unable to admit his participation

in the acts constituting the crime."   400 U.S. at 37.   "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 Kavon Atabaki's plea was

not knowingly and understandingly made.

     Atabaki, a seventeen year old, appeared with his counsel

for a jury trial in the circuit court on a charge of malicious

wounding in violation of Code § 18.2-51.   Atabaki testified that

his defense was self-defense in defense of another.   Atabaki and

his parents testified that on the day of trial they were

prepared for a jury trial.   When they arrived for trial,

however, Atabaki's counsel informed them that one witness was

not willing to testify, that she was not prepared to go forward

without the witness, and that she would request a continuance.

When the trial judge denied the continuance, Atabaki's counsel

advised Atabaki and his parents that Atabaki should not risk a

trial because, if convicted, the jury, which was composed of

                               - 7 -
older, conservative retired people, would sentence him.

Accepting his counsel's advice, Atabaki agreed to enter a guilty

plea pursuant to Alford.     See 400 U.S. at 37 (ruling that an

accused may plead guilty even if the accused has a bona fide

defense or a claim of innocence).    He signed a plea agreement

that contained the following recital:

           8. . . . I understand that by pleading
           guilty I give up:

                  A. The right to a speedy and public
                  trial by a jury of twelve persons who
                  know that I am presumed to be innocent
                  and all twelve of whom must agree that
                  I am guilty beyond a reasonable doubt
                  and all twelve of whom must agree on a
                  sentence before I could be convicted[.]

(Emphasis added).

     Both Atabaki's counsel's statement about jury sentencing

and paragraph (8)(A) of the plea agreement materially misstated

the law.   Code § 16.1-272(A), which was applicable because

Atabaki was a juvenile being tried in the circuit court,

provides that "[u]pon a finding of guilty of any charge other

than capital murder, the [trial judge] shall fix the sentence

without the intervention of a jury."

     The majority notes that the trial judge asked the following

question during the colloquy that preceded his acceptance of

Atabaki's plea:

           Do you also understand that under the law
           when the case is certified, this would be
           true under a plea, in any event that the
           judge does the sentencing had you been tried

                                 - 8 -
            even by a jury, they would have determined
            the guilt phase of the case, but the judge
            would have determined the sentencing phase
            of the case?

That question, however, is so multifarious that it could not

reasonably be said to convey to Atabaki, a seventeen year old,

that the jury would not have recommended a sentence at the

conclusion of a jury trial.   Even if Atabaki had parsed the

inquiry, it is doubtful that he could have understood that

concept from the phrase "under the law when the case is

certified, this would be true under a plea, in any event that

the judge does the sentencing had you been tried even by a

jury."    Indeed, the trial judge's qualification that "this would

be true under a plea" would have compounded Atabaki's difficulty

in understanding the inquiry.    Even the phrase "they [, the

jury,] would have determined the guilt phase of the case, but

the judge would have determined the sentencing phase of the

case" does not clearly convey that, at the conclusion of a jury

trial, the judge, without a recommendation from the jury, would

have sentenced Atabaki.   The words "determined the sentencing

phase of the case" have significance only to a legally trained

person.

     Furthermore, at no time during the colloquy did the trial

judge inform Atabaki that the plea agreement was faulty because

it contained the misstatement.    Indeed, the trial judge




                                 - 9 -
seemingly relied upon and buttressed the agreement's

misstatement when he asked the following:

          THE [JUDGE]: I have before me a plea
          agreement memorandum under the terms of
          which an Alford-type plea is being tendered
          to the Court to the charge of malicious
          wounding; is that correct?

          THE DEFENDANT:    Yes, sir.

          THE [JUDGE]: You understand that the
          Alford-type plea under the terms of that,
          you are committed to utilize that advice and
          enter a plea according to the terms of
          Alford in the North Carolina case?

               It is, however, once received in by the
          law and in the Department of Corrections and
          otherwise received as a guilty plea. That
          is, that it amounts to a conviction. That
          is the result of the case under that plea is
          a conviction.

               Do you understand that?

          THE DEFENDANT:    Yes, sir.

          *      *      *       *       *     *        *

          THE [JUDGE]: All right. And you understand
          that by signing the agreement you agree to
          enter that plea, the implication of which I
          think I've explained to you, and in so doing
          that you waive your right to have a jury
          trial and you also waive your right to
          appeal your case in the event there had been
          a conviction with the jury? Do you
          understand that?

          THE DEFENDANT:    Yes, sir.

     Thus, Atabaki's counsel misstated the law to him; the plea

agreement Atabaki signed contained the same misstatement; and

the trial judge reinforced both misstatements, buttressing the

very inducement that caused Atabaki to plead guilty while

                               - 10 -
proclaiming his innocence.    "From the information at hand,

[Atabaki] labored under a mistake and misapprehension of a

material fact or facts which induced a plea that would otherwise

not have been made."    Parris v. Commonwealth, 189 Va. 321, 326,

52 S.E.2d 872, 874 (1949).

       The long standing principle in Virginia is that a motion to

withdraw a plea "should not be denied, if timely made, and if it

appears from the surrounding circumstances that the plea of

guilty was submitted in good faith under an honest mistake of

material fact or facts."     Parris, 189 Va. at 324, 52 S.E.2d at

873.   Elaborating on that principle, the Supreme Court stated

the following:

               "As in other cases of discretionary
            power, no general rule can be laid down as
            to when a defendant will be permitted to
            withdraw his plea. The decision in each
            case must depend to a great extent on the
            particular attendant circumstances.
            Generally, however, it may be said that the
            withdrawal of a plea of guilty should not be
            denied in any case where it is in the least
            evident that the ends of justice will be
            subserved by permitting not guilty to be
            pleaded in its place. The least surprise or
            influence causing a defendant to plead
            guilty when he has any defense at all should
            be sufficient grounds for permitting a
            change of plea from guilty to not guilty.
            Leave should ordinarily be given to withdraw
            a plea of guilty if it was entered by
            mistake or under a misconception of the
            nature of the charge; through a
            misunderstanding as to its effect; through
            fear, fraud, or official misrepresentation;
            was made involuntarily for any reason; or
            even where it was entered in-advisedly, if


                                - 11 -
            any reasonable ground is offered for going
            to the jury."

            *      *      *      *        *       *      *

               "The plea of guilty to a serious criminal
            charge should be freely and voluntarily
            made, and entered by the accused, without a
            semblance of coercion, and without fear or
            duress of any kind, and the accused should
            be permitted to withdraw a plea of guilty
            entered unadvisedly when application
            therefor is duly made in good faith and
            sustained by proofs and a proper offer is
            made to go to trial on a plea of not
            guilty."

Id. at 325-26, 52 S.E.2d at 874 (citations omitted).

       The circumstances proved that Atabaki entered his plea

under a mistake of material fact.    I would hold, therefore, that

the trial judge erred in refusing to allow Atabaki to withdraw

his plea.   As the Court noted in Parris, "[t]he circumstances

presented and the belief thereby induced in [Atabaki's] mind

constituted a strong, if not controlling, reason for the

character of the plea interposed."      189 Va. at 326, 52 S.E.2d at

874.

       I also agree with Atabaki's argument that the trial judge

misstated the law on another material issue or, at the least,

stated the law in a way that was unclear.     That misstatement

occurred when the trial judge stated the following prior to

accepting the plea:

            THE [JUDGE]: And that the judge in the
            sentencing phase of the case has available
            to him, not only all of the law that would
            be available to a person were he an adult,

                               - 12 -
          but retains that law that would be available
          to him for the treatment of the case as a
          juvenile. Do you understand that?

          THE DEFENDANT:   Yes, sir.

          THE [JUDGE]: Have you been before the
          Courts before?

          THE DEFENDANT:   No, sir.

     Atabaki was charged with malicious wounding, which is

statutorily defined as an offense qualifying as a violent

juvenile felony.   See Code §§ 16.1-228 and 16.1-269.1.    As

pertinent to this issue, Code § 16.1-272 provides as follows:

          A. In any case in which a juvenile is
          indicted, the offense for which he is
          indicted and all ancillary charges shall be
          tried in the same manner as provided for in
          the trial of adults, except as otherwise
          provided with regard to sentencing. Upon a
          finding of guilty of any charge other than
          capital murder, the court shall fix the
          sentence without the intervention of a jury.

          1. If a juvenile is convicted of a violent
          juvenile felony, the sentence for that
          offense and for all ancillary crimes shall
          be fixed by the court in the same manner as
          provided for adults, but the sentence may be
          suspended conditioned upon successful
          completion of such terms and conditions as
          may be imposed in a juvenile court upon
          disposition of a delinquency case.

     Upon Atabaki's conviction for malicious wounding, the trial

judge was required by statute to fix his sentence "in the same

manner as provided for adults."   Code § 16.1-272(A)(1).   Thus,

the judge erroneously stated that "in the sentencing phase of

the case [, the judge] has available to him, not only all of the



                              - 13 -
law that would be available to a person were he an adult, but

retains that law that would be available to him for the

treatment of the case as a juvenile."     That statement would be

true only if Atabaki was not convicted as a violent juvenile

offender.    See Code § 16.1-272(A)(2).

     Atabaki was before the trial judge to tender a plea on an

offense that statutorily labelled him as a "violent juvenile

offender."   Thus, the trial judge was required by statute to

sentence him as an adult.   The judge's power to suspend the

adult sentence upon "terms and conditions as may be imposed in a

juvenile court upon disposition of a delinquency case" does not

equate to the representation the trial judge made to Atabaki.

He was required to convict and sentence Atabaki as an adult,

having discretion only to condition a suspension of that

sentence using juvenile court remedies.

     For all of these reasons, I would hold that Atabaki's plea

was not knowingly and understandingly made and that the trial

judge erred in denying Atabaki's motion to withdraw his plea.




                               - 14 -
