                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued by teleconference


BRANDON CLAY NICHOLS, S/K/A
 BRANDON CLAY NICHOLAS
                                           MEMORANDUM OPINION * BY
v.   Record No. 2331-01-1                   JUDGE LARRY G. ELDER
                                             SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                 Charles D. Griffith, Jr., Judge

          Cynthia D. Garris (The Law Office of Cynthia
          D. Garris, P.C., on brief), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Jerry W. Kilgore, Attorney
          General, on brief), for appellee.


     Brandon Clay Nicholas (appellant) appeals from his

convictions for first-degree murder and use of a firearm in the

commission of murder.    On appeal, he contends the trial court

erroneously refused, under Rule 3A:8, to consider a plea

agreement tendered during the sentencing phase of the bifurcated

trial, before the jury completed its deliberations on

appellant's sentence.    The Commonwealth contends the trial court




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
lacked authority to consider the agreement. 1   We hold the trial

court lacked authority to entertain a guilty plea after the

sentencing phase had begun.    Thus, the court did not err in

refusing to consider the terms of the agreement under the facts

of this case, and we affirm.

                                 I.

                           BACKGROUND

     Appellant was charged in separate indictments with the

capital murder, first-degree murder and robbery of Stephen

Jordan, robbery of Jordan's companion, and four related counts

of using a firearm during the commission of those offenses.

Appellant entered pleas of not guilty to those charges and

requested trial by jury.   Appellant also was indicted for

possession of a firearm by a convicted felon.    Proceedings on

that indictment were continued for trial at a later date.




     1
       The Commonwealth argues it is not prevented from taking an
inconsistent position on appeal because the Commonwealth's
attorney lacked authority to enter into a plea agreement which
the trial court had no authority to consider. See In re
Department of Corrections, 222 Va. 454, 465, 281 S.E.2d 857, 863
(1981) (relying on Segaloff v. City of Newport News, 209 Va.
259, 261, 163 S.E.2d 135, 137 (1968), and WANV v. Houff, 219 Va.
57, 62-63, 244 S.E.2d 760, 763-64 (1978), zoning cases holding
that public official cannot bind his agency or the state to do
something the agency has no authority to do, to conclude that
"the Commonwealth may not be estopped from repudiating the
earlier position erroneously taken by the Commonwealth's
Attorney . . ."). This procedural bar issue is inextricably
linked to the merits of the appeal, and we must, therefore,
reach the substantive issue of the trial court's authority to
entertain the proffered agreement.

                                - 2 -
     The jury found appellant guilty of first degree murder and

the use of a firearm in the commission of murder.   Following

several hours of deliberations in the penalty phase of the

trial, the parties notified the court they had reached a plea

agreement.   Before the trial court announced a decision about

whether it would consider the terms of the plea agreement, the

jury indicated it had reached a verdict on the appropriate

sentence, and the court said, "I'm going to let the jury verdict

be in this case."

     At appellant's request, the trial court marked the plea

agreement as an exhibit, but noted it had not read the agreement

and would not consider it for the reasons it stated in the

record.    The agreement listed only three offenses--the two

offenses for which appellant already had been convicted and the

felon-in-possession-of-a-firearm offense for which appellant had

not yet been tried.   It indicated appellant agreed the facts

were sufficient to prove his guilt for the first two offenses

and that he was pleading guilty because he "[was] in fact

guilty."   The document also provided that, in exchange for

appellant's guilty pleas, the parties agreed as to the

appropriate sentences for those two offenses and indicated what

those sentences were.

     The trial court sentenced appellant in accordance with the

jury's recommendation, giving him an active sentence greater

than that contained in the proposed plea agreement.

                                - 3 -
                                II.

                            ANALYSIS

     A plea agreement usually involves a defendant's pleading

guilty in "exchange[] for sentencing concessions," a process in

which "each side may obtain advantages."    Mabry v. Johnson, 467

U.S. 504, 508, 104 S. Ct. 2543, 2547, 81 L. Ed. 2d 437 (1984).

Here, the parties proffered the agreement pursuant to Rule

3A:8(c), which provides as follows:

               (1) The attorney for the Commonwealth
          and the attorney for the defendant or the
          defendant when acting pro se may engage in
          discussions with a view toward reaching an
          agreement that, upon entry by the defendant
          of a plea of guilty . . . to a charged
          offense, or to a lesser or related offense,
          the attorney for the Commonwealth will do
          any of the following:

            *     *     *       *       *   *    *

               (C) Agree that a specific sentence is
          the appropriate disposition of the case.

     As we held in Daye v. Commonwealth, 21 Va. App. 688, 467

S.E.2d 287 (1996), in which the defendant sought to change his

plea to guilty after the jury had already returned its verdict,

"a plea of guilty" offered "following publication of a guilty

verdict and its acceptance by the trial court" is "untimely and

may not upset the procedural course of a bifurcated trial."     Id.

at 692-93, 467 S.E.2d at 289.   Here, the trial court implicitly

accepted the jury's verdicts when it proceeded to the sentencing




                                - 4 -
phase of the trial.   Thus, it lacked authority to accept the

guilty pleas which are an integral part of any plea agreement. 2

     For these reasons, we hold the trial court did not err in

refusing to consider the proffered agreement on its merits under

the facts of this case, and we affirm.

                                                         Affirmed.




     2
       We do not address whether the trial court had inherent
authority, outside the authority granted by Rule 3A:8(c), to
entertain a sentence agreement between the parties dealing
solely with the appropriate sentence to be imposed on the
offenses for which the jury already had convicted appellant.

                               - 5 -
