                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Petty and AtLee
UNPUBLISHED


              Argued at Lexington, Virginia


              ALBERT LEWIS FOWLER, III
                                                                            MEMORANDUM OPINION* BY
              v.      Record No. 0781-14-3                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                   JULY 14, 2015
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                               Stacey W. Moreau, Judge

                                 Gregory T. Casker, for appellant.

                                 Eugene Murphy, Senior Assistant Attorney General (Mark R.
                                 Herring, Attorney General, on brief), for appellee.


                      On January 22, 2014, a judge for the Circuit Court of Pittsylvania County convicted Albert

              Lewis Fowler, III (hereinafter “appellant”) of two counts of felony solicitation of a minor by use of

              a communications system. The court sentenced appellant to twenty years of imprisonment, with ten

              years suspended. On appeal, appellant argues that the trial court erred in finding that he used a

              communications system for purposes of Code § 18.2-374.3(D) when he handed the victim a note.

              The Commonwealth argues that we lack jurisdiction to hear the case because appellant’s

              conditional guilty plea only preserves the right to appeal pretrial motions. We agree with the

              Commonwealth to the extent that we do not reach appellant’s assignment of error. However,

              because appellant’s conditional guilty plea was not “knowingly and voluntarily entered,” it was

              not a valid waiver of his constitutional rights, and therefore we reverse and remand the case to

              the trial court.


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                       I.      Facts of the Case

       Appellant, then 49 years old, handed the victim, then 17 years old, a note while the victim

was working in a grocery store. The note read:

               I think you are one fine looking guy. Very hot. I would love to take
               you out to dinner or maybe buy you a drink. I am not trying to make
               you uncomfortable or scare you. If you are not interested I will not
               bother you anymore. But if you would like to be pleasured I would
               love to pleasure you. I can do things for you and to you that no girl
               could ever do. I live alone in a 3 bedroom brick house and can be
               very good for you. My name is Al. If you are interested in just
               laying back and being pleasured call or text me at [redacted]. No one
               knows I am gay except the guys I pleasure. I am straight acting and
               very descreet [sic]. Please do not just throw this away without
               thinking about my offer. This is not a joke, I am very serious. I hope
               you will take me up on my offer to pleasure you and call or text me.
               I know you will enjoy it as I am very good at what I do. So, think
               about my offer.

       After receiving the first note, the victim alerted his manager, who contacted the sheriff’s

office. Law enforcement placed the note into evidence. Over a month later, appellant delivered a

second note to the victim containing a substantially similar message. The victim reported this to his

mother, who also contacted the sheriff’s office. An investigator called the number provided in the

notes, pretending to be the victim. The investigator ran a trace on the phone number, eventually

located a picture of appellant, and confirmed with the victim that this was the individual who had

handed him the notes.

       Initially, appellant pleaded not guilty. The Commonwealth requested a jury trial. At the day

of trial, appellant’s counsel told the judge that after discussions with the Commonwealth, appellant

agreed to stipulate to the evidence the Commonwealth intended to proffer, relying solely on motions

to strike the evidence. Appellant’s counsel also explained on the record that if the trial court denied

the motions to strike, he would withdraw his plea of not guilty and enter a conditional guilty plea.

After hearing the evidence and appellant’s argument in favor of his motion, the trial court denied

appellant’s first motion to strike and renewed motion to strike.
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          As previously contemplated, appellant, with the consent of the Commonwealth and the trial

court, then amended his plea from not guilty to a conditional guilty plea. Specifically, appellant’s

counsel stated: “at this time the defendant would ask to change his plea from not guilty to a plea of,

conditional plea of guilty reserving his rights to appeal of the Court’s ruling on the issues raised at

the motion to, both at the, at the two motions to strike.” (App. at 65.) The judge conducted the plea

colloquy, during which she asked appellant “do you understand that by pleading guilty, the

conditional one, you may be waiving your right to appeal this Court’s decision except for the

objections that have been noted on the record in regard to the conditional plea?” (App. at 74.)

Appellant stated that he understood. The judge accepted the plea, and ultimately sentenced

appellant to ten active years in prison.

                   II.     Jurisdiction over Appeals from Conditional Guilty Pleas

          “Because the issue before us is a question of law involving the construction of Code

§ 19.2-254, we review the trial court’s determination de novo.” Cross v. Commonwealth, 49

Va. App. 484, 492, 642 S.E.2d 763, 767 (2007) (citing Ainslie v. Inman, 265 Va. 347, 352, 577

S.E.2d 246, 248 (2003)), vacated in part on other grounds, 52 Va. App. 598, 665 S.E.2d 861

(2008).

          “[A]lthough an accused has the constitutional right to enter a guilty plea, an accused does

not have a constitutional right to enter a conditional guilty plea. Rather, this right—established

by Code § 19.2-254—is a statutory one.” Hill v. Commonwealth, 47 Va. App. 667, 671, 626

S.E.2d 459, 461 (2006). Code § 19.2-254 states, in pertinent part:

                 With the approval of the court and the consent of the
                 Commonwealth, a defendant may enter a conditional plea of guilty
                 in a misdemeanor or felony case in circuit court, reserving the
                 right, on appeal from the judgment, to a review of the adverse
                 determination of any specified pretrial motion. If the defendant
                 prevails on appeal, he shall be allowed to withdraw his plea.



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Code § 19.2-254 (emphasis added). In interpreting a statute, “we apply the well-established

principle that ‘words in a statute are to be construed according to their ordinary meaning, given

the context in which they are used.’” Cross, 49 Va. App. at 493, 642 S.E.2d at 767 (quoting

Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)). We also follow a

fundamental principle of statutory construction that “‘where a statute speaks in specific terms, an

implication arises that omitted terms were not intended to be included within the scope of the

statute.’” Conkling v. Commonwealth, 45 Va. App. 518, 522, 612 S.E.2d 235, 237 (2005)

(quoting Commonwealth v. Brown, 259 Va. 697, 704–05, 529 S.E.2d 96, 100 (2000)). Here, the

legislature explicitly limited the scope of appeals from conditional pleas to pretrial motions. To

permit an appeal of the denial of a motion to strike would impermissibly expand the scope of the

statute beyond what the legislature intended. Accordingly, appellant has no right to appeal the

denials of his motions to strike.

                       III.    Validity of the Plea: Knowing and Voluntary

       Although a conditional guilty plea is a statutory, not constitutional right, a defendant

entering such a plea nonetheless waives several of the defendant’s constitutional rights,

including the right to a jury trial, the right to confront witnesses, and the protection against

self-incrimination. Graham v. Commonwealth, 11 Va. App. 133, 139, 397 S.E.2d 270, 273

(1990) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). “‘Waivers of constitutional rights

not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness

of the relevant circumstances and likely consequences.’” Cross, 49 Va. App. at 495, 642 S.E.2d

at 768 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). In other words, for a

conditional guilty plea to be a valid waiver of a defendant’s constitutional rights, he or she must

have entered the plea “‘freely, intelligently, and knowingly.’” Id. (quoting Hill, 47 Va. App. at

674, 626 S.E. 2d at 463). Furthermore, “to withstand scrutiny on appeal, the record must contain

                                                 -4-
an ‘affirmative showing’ that the guilty plea was entered voluntarily and intelligently.” Hill, 47

Va. App. at 674, 626 S.E.2d at 463 (citing Boykin, 395 U.S. at 243).

       Here, appellant clearly did not enter his plea intelligently and knowingly. His counsel

unequivocally stated that appellant was entering a conditional plea for the express purpose of

retaining his right to appeal the denial of his motions to strike. The Commonwealth did not

object. The judge did not clarify that this was not allowed under Code § 19.2-254. Everyone

present appeared to share the same mistaken understanding of Code § 19.2-254.

       We faced a remarkably similar set of facts in Cross v. Commonwealth, 49 Va. App. 484,

642 S.E.2d 763 (2007). In that case, appellant entered a conditional guilty plea to misdemeanor

charges, despite the fact that at the time, Code § 19.2-254 only permitted conditional pleas to

felony charges. We concluded that the defendant “did not knowingly and intelligently enter a

constitutionally valid plea of guilty,” where “he specifically informed the trial court that he

wished to preserve his right to appeal the denial of his motion to suppress” as it related to his

misdemeanor charge and “entered his guilty plea based upon the understanding that he could

appeal that issue.” Id. at 495–96, 642 S.E.2d at 768. As in the case before us, “the trial court

never advised [him] that a conditional guilty plea was not permitted,” and “all parties were acting

under the mistaken assumption that [he] was entering a valid conditional guilty plea.” Id. at 496,

642 S.E.2d at 768–69.

                                         IV.    Conclusion

       Because appellant did not enter a constitutionally valid guilty plea, we reverse his

conviction, vacate his plea, and remand for proceedings consistent with this memorandum

opinion.

                                                                            Reversed and remanded.




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