                                           COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Felton, Judges Alston and McCullough
PUBLISHED


            Argued at Alexandria, Virginia


            WILLIAM GABRIEL STARRS
                                                                                    OPINION BY
            v.      Record No. 2516-11-4                                 CHIEF JUDGE WALTER S. FELTON, JR.
                                                                                  OCTOBER 23, 2012
            COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                              Randy I. Bellows, Judge

                             Cary S. Greenberg (Caroline E. Costle; Timothy R. Bradley;
                             GreenbergCostle, PC, on briefs), for appellant.

                             Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
                             Cuccinelli, II, Attorney General, on brief), for appellee.


                    William Gabriel Starrs (“appellant”) appeals his convictions of possession with intent to

            distribute methylenedioxymethamphetamine (“ecstasy”) and possession with intent to distribute

            lysergic acid diethylamide (“LSD”), in violation of Code § 18.2-248(A). Appellant contends that

            the Circuit Court of Fairfax County (“trial court”) erred by not withholding a finding of guilt and

            deferring disposition of his charges for future dismissal.

                                                    I. BACKGROUND

                    On March 21, 2011, a Fairfax County grand jury indicted appellant for possession with

            intent to distribute ecstasy and possession with intent to distribute LSD. 1 At a hearing before the

            trial court on June 15, 2011, appellant pled guilty to both indictments. The trial court accepted

            appellant’s “pleas of guilty and made them a part of the record after making specific inquiries of

            [appellant] and determining that the pleas were made voluntarily and with full understanding of the


                    1
                        Ecstasy and LSD are Schedule I controlled substances. See Code § 54.1-3446(3).
nature of the charges and the consequences of the pleas.” The trial court found there was

“overwhelming and sufficient evidence for a finding of guilt.” However, at appellant’s request, the

trial court “withheld a finding of guilt pending sentencing . . . to permit [c]ounsel for [appellant] to

make an argument related to the Supreme Court of Virginia’s decision in [Hernandez v.

Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011)].” The trial court continued the case to

October 28, 2011 for argument and sentencing.

        Two days prior to the sentencing hearing, appellant filed a memorandum seeking “to not

become a convicted felon.” Specifically, appellant requested that the trial court “withhold a

finding of guilt on the charges in this matter and continue this case for a period of time, place

[appellant] on terms of release, and upon review, consider whether to dismiss the case without

any convictions.”

        At his sentencing hearing on October 28, 2011, appellant confirmed that his “entire

purpose” in seeking a deferred disposition was “in the hope that, based on [his] good behavior

and other proof of rehabilitation, that [the trial court] would ultimately dismiss the charges.” The

trial court found that, pursuant to Hernandez, it “[u]nquestionably” had the authority to continue

the disposition of the case. However, the trial court concluded it had “no authority now or later

to dismiss the case.” (Emphasis added). The trial court stated:

                        I want to be absolutely clear that I am not exercising my
                discretion here; I find I do not have discretion. I have discretion to
                continue this; I can absolutely continue this for two years.
                        But at the end of two years, my only option would be to
                sentence [appellant] on the charges in which he entered pleas of
                guilty. And, as [appellant’s counsel] has confirmed, the whole
                purpose in seeking the deferral is ultimately to obtain a dismissal.

        The trial court, citing Taylor v. Commonwealth, 58 Va. App. 435, 440, 445, 449, 710

S.E.2d 518, 520, 523, 525 (2011), concluded that:

                     [I]n my view I do not have the authority, absent a
                Commonwealth motion, ever to dismiss a case where the defendant
                                                  -2-
               has entered a plea of guilty. Taylor is on point because in Taylor
               the evidence established the defendant’s guilt, and here
               [appellant’s] plea establishes [his] guilt.

                           *       *       *       *       *       *       *

                       Given that [appellant] has admitted his guilt and has
               entered a guilty plea and the Commonwealth has proffered
               sufficient evidence in support of his plea, I could not find that the
               evidence was lacking and warranted dismissal. And if dismissal is
               not an option, there’s no bona fide reason to defer disposition.

       Accordingly, the trial court entered a finding of guilt and convicted appellant of

possession with intent to distribute ecstasy and possession with intent to distribute LSD, in

violation of Code § 18.2-248(A). The trial court sentenced appellant to five years’ imprisonment

on each charge, ordered the sentences to run concurrently, and suspended the entire length of

confinement for each sentence.

                                          II. ANALYSIS 2

       Appellant contends that the trial court erred by finding it did not “ha[ve] the authority to

withhold a finding of guilt and defer adjudication in [appellant’s] case for possible future dismissal

of the charges.” Opening Br. at 3.


       2
          The Commonwealth initially contends that appellant waived his challenge to the trial
court’s ruling by pleading guilty to the charges against him. “Where a conviction is rendered
upon a voluntary and intelligent guilty plea and a punishment fixed by law is in fact imposed in a
proceeding free of jurisdictional defect, there is nothing to appeal.” Smith v. Commonwealth, 59
Va. App. 710, 725, 722 S.E.2d 310, 317 (2012). However, “[a] guilty plea waives all objections
to non-jurisdictional defects that occurred before the [entry of the guilty] plea.” Williams v.
Commonwealth, 33 Va. App. 725, 728, 536 S.E.2d 916, 918 (2000) (emphasis added); see also
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (when defendant has admitted in open court that
he is guilty of the offense charged, he may not thereafter raise independent claims regarding
deprivation of constitutional rights that occurred prior to entry of guilty plea); Beaver v.
Commonwealth, 232 Va. 521, 527, 352 S.E.2d 342, 345 (1987) (accused appealing death
sentence may not complain of non-jurisdictional defects that occurred prior to guilty plea); Hill
v. Commonwealth, 47 Va. App. 667, 673-74, 626 S.E.2d 459, 462-63 (2006) (accused appealing
conviction may not challenge denial of motion to suppress that occurred prior to entry of guilty
plea). Here, appellant assigns error to a ruling of the trial court that occurred after he entered his
guilty pleas. Accordingly, he did not waive his challenge on appeal to the trial court’s adverse
ruling.
                                                 -3-
        Whether the trial court erred by concluding it did not have the authority to withhold a

finding of guilt and to defer appellant’s adjudication in order to dismiss the indictment against him

is a pure question of law that this Court reviews de novo. Moreau v. Fuller, 276 Va. 127, 133, 661

S.E.2d 841, 845 (2008).

        As recognized by this Court in Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151

(2011), the Supreme Court in Hernandez held that

                “during the interval between the conclusion of the evidence and the
                entry of a written order adjudicating the defendant guilty, the circuit
                court ha[s] the inherent power, in the exercise of its discretion, to
                take the matter under advisement and to continue the case for future
                disposition, subject to such lawful conditions as the court might
                prescribe.”

Id. at 81, 717 S.E.2d at 156 (emphasis added) (quoting Hernandez, 281 Va. at 226, 707 S.E.2d at

275). The Supreme Court expressly held that “the mere statement by a judge that the evidence was

sufficient to support a conviction” did not preclude deferred disposition because it did not constitute

a “formal adjudication of guilt.” Hernandez, 281 Va. at 225-26, 707 S.E.2d at 275. Appellant

contends the trial court erred by not deferring his disposition for future dismissal, arguing that,

pursuant to Hernandez, “a trial court has the inherent authority to withhold a written order of

adjudication, take the matter under advisement, and defer disposition to another date in

contemplation of a dismissal.” Opening Br. at 5-6 (emphasis added).

        Contrary to appellant’s assertion, however, the Supreme Court in Hernandez explicitly

declined to address “the question whether a court may defer judgment and continue a case with a

promise of a particular disposition at a later date.” Hernandez, 281 Va. at 225, 707 S.E.2d at 274

(emphasis added). In Taylor, this Court emphasized “the limited scope of . . . Hernandez”:

                        In short, Moreau and Hernandez merely hold a trial court has
                the discretion to continue a case for a future disposition. Neither case
                addresses what future disposition the court has authority to impose.
                In other words, neither Moreau nor Hernandez addressed whether the
                decision ultimately made by the trial court, after the discretionary
                                                  -4-
                continuance, could be one acquitting a criminal defendant whose
                guilt was proved beyond a reasonable doubt.

Taylor, 58 Va. App. at 449-50, 710 S.E.2d at 525 (emphasis added).

        This Court, addressing the question left open in Hernandez, concluded that a trial court

“ha[s] no authority –constitutional, common law, or statutory-- to acquit” a defendant “after finding

the evidence proved [his] guilt beyond a reasonable doubt.” Id. at 450, 710 S.E.2d at 525.

        As a practical matter, in the wake of Hernandez and Taylor, trial courts may,

notwithstanding a finding of guilt, take a matter under advisement for a variety of long-accepted

purposes. For example, courts may, before entering a written order of guilt, examine cases cited

by the parties, consider motions for a new trial, or review testimony or notes taken on the bench,

in order to ensure the conclusion the court has reached on a point of law or on the facts is correct.

What courts may not do, in the absence of a statutory grant of authority, is defer disposition upon

set terms and, upon satisfaction of those terms, later acquit a defendant who was determined to

be guilty of the offense.

        Appellant seeks to distinguish the holding in Taylor from the facts presented in the record

on appeal by noting that Taylor moved the trial court to defer disposition and dismiss the felony

charge against her after the court entered a written order finding her guilty. Id. Here, appellant

moved the trial court to defer disposition and to dismiss the charges against him prior to the trial

court’s entry of a written order adjudicating him guilty. Appellant contends this distinction afforded

the trial court the discretion, prior to the entry of a written order adjudicating him guilty, to defer

disposition and dismiss the charges against him. See Hernandez, 281 Va. at 226, 707 S.E.2d at 275.

        Appellant correctly states that Taylor held that a trial court has no discretion “to acquit a

criminal defendant after finding the evidence proved [his] guilt.” Taylor, 58 Va. App. at 443,

710 S.E.2d at 522 (emphasis added). Similarly, this Court in Epps held that a trial court does not

have discretion, after entering a written order adjudicating the defendant guilty, to later “vacate
                                                   -5-
[the defendant’s] conviction solely as an act of judicial clemency.” 59 Va. App. at 84, 717

S.E.2d at 157. However, appellant disregards the rationale articulated by the Court in Taylor and

Epps, namely, that “nothing in the separation-of-powers doctrine suggests a court has the

inherent power to acquit a defendant of a crime that the evidence proved beyond a reasonable

doubt [he] committed.” Taylor, 58 Va. App. at 440, 710 S.E.2d at 520; see also id. at 441, 710

S.E.2d at 521 (“[A] court simply has no ‘authority to free guilty defendants,’ whose guilt was

proved in a lawful trial.” (quoting Sorrells v. United States, 287 U.S. 435, 449 (1932))); Epps, 59

Va. App. at 77, 717 S.E.2d at 154 (“‘[A] Virginia court cannot refuse to convict a guilty

defendant merely because it questions the category of offense assigned by the legislature,

considers the range of statutory punishment too harsh, or believes certain guilty offenders

undeserving of a criminal conviction.’” (quoting Taylor, 58 Va. App. at 442, 710 S.E.2d at 521

(emphasis added))).

       Here, appellant’s “‘voluntary and intelligent plea[s] of guilty . . . [were], in reality, a

self-supplied conviction authorizing imposition of the punishment fixed by law.’” Kibert v.

Commonwealth, 216 Va. 660, 664, 222 S.E.2d 790, 793 (1976) (quoting Peyton v. King, 210 Va.

194, 196, 169 S.E.2d 569, 571 (1969)). Appellant’s guilty pleas “‘[were] a conviction or the

equivalent of a conviction of the highest order, the effect of which [was] to authorize the

imposition of the sentence prescribed by law on a verdict of guilty of the crime sufficiently

charged in the indictment or information.’” Hobson v. Youell, 177 Va. 906, 912, 15 S.E.2d 76,

78 (1941) (quoting 14 Am. Jur. 952); see also Crutchfield v. Commonwealth, 187 Va. 291, 296,

46 S.E.2d 340, 342 (1948) (a “plea of guilty, accepted and entered by the court, is a conviction or

the equivalent of a conviction of the offense to which it is directed”). When the trial court

accepted appellant’s knowing and voluntary guilty pleas and entered his guilty pleas on the

record, it thereafter had no discretion to dismiss the charges against him. See Taylor, 58

                                                 -6-
Va. App. at 445, 710 S.E.2d at 523 (neither the Virginia Constitution, the common law, nor

Virginia statutes “authorize courts to refuse to convict a criminal defendant (for reasons wholly

unrelated to guilt or innocence) where the defendant’s guilt was proved beyond a reasonable

doubt”).

       More broadly, appellant’s argument urges us,

               [i]n effect, . . . to enter the domain of penology, and more
               particularly that tantalizing aspect of it, the proper apportionment
               of punishment. Whatever views may be entertained regarding
               severity of punishment, whether one believes in its efficacy or its
               futility . . . these are peculiarly questions of legislative policy.

Gore v. United States, 357 U.S. 386, 393 (1958). The legislature is best situated to make the

broad and complex value judgments necessary to fix the type and maximum length of sentences

for particular crimes. Under our state and federal constitutions, it is also the proper branch to do

so. We have previously noted the elementary fact that, in Virginia, “[t]rial and appellate courts

‘do not sit as a “super legislature” to second-guess’ legislative choices concerning penological

policy and sentencing ranges.” Jackson v. Commonwealth, 44 Va. App. 218, 226, 604 S.E.2d

122, 126 (2004) (quoting Ewing v. California, 538 U.S. 11, 28 (2003)). Consequently, we must

decline appellant’s invitation to rewrite a host of statutes.

       For the reasons stated above, we conclude that the trial court did not err by finding it

lacked the authority to defer appellant’s disposition solely in order to dismiss the charges against

him. Accordingly, we affirm the judgment of the trial court.

                                                                                          Affirmed.




                                                 -7-
