                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Huff
UNPUBLISHED


              Argued at Salem, Virginia


              TYSHAWN TERREL BYRD
                                                                               MEMORANDUM OPINION* BY
              v.     Record No. 1426-12-3                                      JUDGE RANDOLPH A. BEALES
                                                                                     MARCH 18, 2014
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF SMYTH COUNTY
                                              Isaac St. Clair Freeman, Judge

                               Matthew L. Felty (Snodgrass Law Firm, on briefs), for appellant.

                               Craig W. Stallard, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Tyshawn Terrel Byrd (appellant) entered pleas of no contest to several offenses, and the trial

              court sentenced appellant to a total of forty years and twelve months imprisonment, with twenty-six

              years and six months suspended. Appellant argues, the Attorney General concedes, and we agree

              that the sentences for two of the offenses must be reversed and vacated because they exceeded the

              maximum sentence permitted by law.1 Appellant also challenges for the first time on appeal the


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        The Attorney General concedes that appellant’s sentence of ten years (with five years
              suspended) under Code § 18.2-308.2(A) for possessing a firearm after having been convicted of
              a violent felony and appellant’s sentence of five years (with two years suspended) under Code
              § 18.2-53.1 for using a firearm in the commission of a felony exceeded the maximum sentence
              permitted by law for those offenses. We accept the Attorney General’s concession as
              appropriate, in light of the Supreme Court’s decision in Rawls v. Commonwealth, 272 Va. 334,
              634 S.E.2d 697 (2006), and this Court’s decision in Hines v. Commonwealth, 59 Va. App. 567, 721
              S.E.2d 792 (2012). See Rawls, 272 Va. at 348, 634 S.E.2d at 703 (holding that the five-year
              “mandatory minimum sentence for a defendant convicted of possession of a firearm after a
              previous violent felony” under Code § 18.2-308.2(A) “equals the statutory maximum sentence”
              for that offense); Hines, 59 Va. App. at 580, 721 S.E.2d at 798 (holding that “Code § 18.2-53.1
              authorizes the imposition of only a three-year mandatory term of incarceration” for a first offense
validity of his pleas of no contest that he entered in the trial court. Concluding that the ends of

justice exception to Rule 5A:18 does not apply to appellant’s challenge of his no contest pleas, we

affirm appellant’s convictions for the reasons stated below. Thus, we remand the matter to the trial

court solely for resentencing (as addressed in footnote 1).

                                           I. BACKGROUND

        Under settled principles of appellate review, we view “the evidence in the light most

favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court.

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004). On February 8, 2012,

appellant and appellant’s court-appointed trial counsel appeared in the trial court after appellant was

charged with seven felonies and a misdemeanor.2 Trial counsel informed the trial court that

appellant wished to plead no contest to all of the charges against him. Appellant confirmed that he

wished to plead no contest rather than go to trial.

        During the plea colloquy with the trial court, appellant acknowledged, inter alia, that he

understood the elements of the charged offenses, that the Commonwealth was required to prove all

of the required elements of each offense beyond a reasonable doubt, that he had discussed possible

under that statute); see also Batts v. Commonwealth, 30 Va. App. 1, 12-13, 515 S.E.2d 307, 313
(1999) (“‘Where the sentence imposed is in excess of that prescribed by law, that part of the
sentence which is excessive is invalid.’” (quoting Deagle v. Commonwealth, 214 Va. 304, 305, 199
S.E.2d 509, 510 (1973))).
         Accordingly, on remand, the trial court is instructed to impose a mandatory term of five
years imprisonment for the conviction under Code § 18.2-308.2(A), as required by Rawls, and a
mandatory term of three years imprisonment for the conviction under Code § 18.2-53.1, as required
by Hines. Given that these are the only sentences permitted by law for appellant’s convictions
under Code § 18.2-308.2(A) and Code § 18.2-53.1, “a new sentencing hearing is unnecessary.”
Hines, 59 Va. App. at 581 n.7, 721 S.E.2d at 798 n.7. Furthermore, the sentences imposed by the
trial court for appellant’s other offenses remain unaffected by the result here.
        2
          Specifically, appellant was charged with (and entered no contest pleas for) statutory
burglary, in violation of Code § 18.2-91; attempted malicious wounding, in violation of Code
§§ 18.2-26 and 18.2-51; three counts of abduction, in violation of Code § 18.2-47; possession of
a firearm after having been convicted of a violent felony, in violation of Code § 18.2-308.2; use
of a firearm in the commission of a felony or attempted felony, in violation of Code § 18.2-53.1;
and misdemeanor assault and battery, in violation of Code § 18.2-57.
                                               -2-
theories of defense with his trial counsel, that he was entirely satisfied with his counsel’s services,

that he was aware that the legal effect of a no contest plea was the same as that of a guilty plea, and

that he was entering his pleas of no contest freely and voluntarily. Appellant also told the trial court

that he was aware of the maximum punishments for each charged offense and that he had reviewed

the sentencing guidelines range with his trial counsel. In addition, when the trial court stated that

one of the charged offenses carried a five-year mandatory minimum term of imprisonment,

appellant said that he understood. Trial counsel also told the trial judge that “the defense would

stipulate” that the Commonwealth’s proffered evidence “could prove each and every element” of

the charged offenses beyond a reasonable doubt. The trial court found that appellant entered his

“pleas of no contest freely and voluntarily and with the full knowledge of the consequence” of those

pleas. The trial court then found appellant guilty of all charged offenses beyond a reasonable doubt.

        On June 4, 2012, appellant appeared again with his trial counsel for sentencing by the trial

court. Trial counsel told the trial court at the outset of the sentencing hearing that, at appellant’s

request, she was moving to withdraw from the representation and was also moving to continue the

sentencing until new counsel could be appointed. Trial counsel said that she felt ready to proceed

with sentencing – but she explained that appellant had become dissatisfied with her services due to a

lack of contact following the February 8, 2012 hearing.3 In response to the trial court’s questions

concerning the nature of these motions, trial counsel said that she attempted to review the contents


        3
           Appellant was represented in the trial court by Jessica Jones, Esq. It is undisputed from
the record that, due to an illness that required surgery, Ms. Jones did not meet with or communicate
with appellant after the February 8, 2012 plea hearing until apparently shortly before the June 4,
2012 sentencing hearing. Due to her hospitalization, Ms. Jones did not respond to correspondence
from appellant, who learned of her illness for the first time at the sentencing hearing. Appellant
testified at the sentencing hearing that he was “caught off guard as far as coming to Court today”
and was “clueless” because Ms. Jones had not communicated with him since the plea hearing.
Ms. Jones told the trial court that appellant indicated to her that he had filed a complaint against her
with the Virginia State Bar, but Ms. Jones stated that she was unaware of any actual such complaint.
After appellant’s notice of appeal was filed, a different attorney, Matthew L. Felty, Esq., was
appointed to represent appellant in this appeal.
                                                   -3-
of the presentence report with appellant shortly before the sentencing hearing, but she indicated that

appellant was not fully cooperative because he was upset with her. Trial counsel informed the trial

court that she “explained to him the Guidelines as well as the mandatory minimums” adding, “I

believe he understood, Your Honor, but he did not agree with what I was saying.” Appellant did

not appeal the trial court’s decision to deny trial counsel’s motion to withdraw from the

representation and motion for a continuance.

         At the sentencing hearing, appellant was permitted to read aloud a letter that he had prepared

in anticipation of sentencing. In his letter, appellant contended that he had matured since compiling

an extensive prior juvenile record in New Jersey – including the offenses of robbery and conspiracy

to commit murder – and asked the trial court for leniency at sentencing. Appellant’s trial counsel,

the prosecutor, and the trial court also examined appellant on the witness stand. However, neither

appellant nor his trial counsel ever requested that the no contest pleas be withdrawn.

                                              II. ANALYSIS

                                A. Withdrawing the Pleas of No Contest

         Appellant argues on appeal that the trial court “erred in not allowing” appellant to withdraw

his pleas of no contest. The phrasing of this assignment of error presumes that the issue of

“allowing” appellant to withdraw his no contest pleas was ever before the trial court. However, as

appellant acknowledges, no request to withdraw appellant’s no contest pleas was ever raised in the

trial court. Accordingly, appellate consideration of this assignment of error is barred by Rule

5A:18.

         Rule 5A:18 states that no ruling of the trial court “will be considered as a basis for reversal

unless an objection was stated with reasonable certainty at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends of justice.” The purpose of Rule

5A:18 is “to alert the trial judge to possible error so that the judge may consider the issue

                                                   -4-
intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and

mistrials.” Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc).

“In addition, a specific, contemporaneous objection gives the opposing party the opportunity to

meet the objection at that stage of the proceeding.” Weidman v. Babcock, 241 Va. 40, 44, 400

S.E.2d 164, 167 (1991).

        Appellant relies on the ends of justice exception to Rule 5A:18.4 However, the ends of

justice exception “‘is narrow and is to be used sparingly.’” Bazemore v. Commonwealth, 42

Va. App. 203, 219, 590 S.E.2d 602, 609 (2004) (en banc) (quoting Redman v. Commonwealth, 25

Va. App. 215, 220, 487 S.E.2d 269, 272 (1997)). “Thus, the ‘ends of justice’ provision may be used

when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely

shows that a miscarriage might have occurred.” Mounce v. Commonwealth, 4 Va. App. 433, 436,

357 S.E.2d 742, 744 (1987). In short, the ends of justice exception to Rule 5A:18 only applies when

the record establishes that the trial court has erred and when “failure to apply the ends of justice

provision would result in a grave injustice.” Howard v. Commonwealth, 281 Va. 455, 462, 706

S.E.2d 885, 888-89 (2011).

        In support of his argument that the ends of justice exception to Rule 5A:18 applies here,

appellant contends on brief that the trial court should have intervened at the sentencing hearing by

withdrawing appellant’s no contest pleas because appellant claims that he “was confused and was

not informed about the process of his plea and sentencing” by his trial counsel. However, this

argument that appellant raises for the first time on appeal misperceives the trial court’s role. A

criminal defendant’s decision concerning which plea to enter is a deeply personal one that is

reached with the advice of counsel. See, e.g., Coleman v. Commonwealth, 51 Va. App. 284, 290,

        4
         On appeal, appellant does not rely on the good cause exception to Rule 5A:18. See
Perry v. Commonwealth, 58 Va. App. 655, 667, 712 S.E.2d 765, 771 (2011) (explaining that the
good cause exception does not apply when there was an opportunity for the objection or
argument to be raised in the trial court).
                                               -5-
657 S.E.2d 164, 167 (2008) (“Each defendant considers the ‘pros’ and ‘cons’ of his or her plea and

makes a decision based on the factors, or ‘influences,’ that are important to that person.”). Contrary

to appellant’s argument on appeal, a trial court cannot be expected to impose its own will by altering

a criminal defendant’s chosen plea sua sponte.5

       Instead, it is the role of the trial court to assess a defendant’s motion to withdraw a plea of

guilty or nolo contendere that is actually raised pursuant to Code § 19.2-296.

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

Code § 19.2-296; see also Rule 1:1. At no point during the sentencing hearing did appellant even

suggest that he wished to withdraw his pleas of no contest. Furthermore, no motion to withdraw the

no contest pleas was raised “to correct manifest injustice” after the sentence was imposed but while

the trial court still retained jurisdiction. See Code § 19.2-296. Thus, the trial court was never asked

to rule on any issues that would accompany a motion under Code § 19.2-296 – such as whether the

motion was made in good faith, whether any plausible defenses existed, or whether the

Commonwealth would be prejudiced if relief were granted under Code § 19.2-296. See e.g., Justus

v. Commonwealth, 274 Va. 143, 153-54, 645 S.E.2d 284, 288 (2007); Howell v. Commonwealth,

60 Va. App. 737, 746-49, 732 S.E.2d 722, 726-28 (2012).

       5
          On direct appeal, we cannot address appellant’s argument that his trial counsel should
have moved to withdraw the no contest pleas at the sentencing hearing or otherwise while the
trial court still retained jurisdiction over the criminal charges, which is essentially an argument
alleging ineffective assistance of counsel, which can no longer be made on direct appeal. See
Blevins v. Commonwealth, 267 Va. 291, 296, 590 S.E.2d 365, 368 (2004) (“Additionally,
Blevins contends that he was denied his right to effective assistance of counsel. This contention,
however, is not cognizable on direct appeal.”); Browning v. Commonwealth, 19 Va. App. 295,
297 n.2, 452 S.E.2d 360, 362 n.2 (1994) (“Claims of ineffective assistance of counsel may no
longer be raised on direct appeal. Code § 19.2-317.1, which allowed direct appeal of such claims
under certain circumstances, was repealed in 1990.”); see also Roach v. Commonwealth, 251 Va.
324, 335 n.4, 468 S.E.2d 98, 105 n.4 (1996).
                                                    -6-
        Appellant’s request now – on appeal – to withdraw his pleas of no contest has come far too

late. Accordingly, the ends of justice exception to Rule 5A:18 simply does not apply to this

assignment of error.

                                B. Accepting the Pleas of No Contest

        Appellant also argues that the trial court erred in accepting his pleas of no contest at the

February 8, 2012 plea hearing. However, appellant acknowledges that he did not raise this

argument in the trial court, including at the June 4, 2012 sentencing hearing or even in the period

after the sentencing hearing while the trial court still retained jurisdiction over the case. See Rule

5A:18; Rule 1:1. Thus, appellant again relies on the ends of justice exception to Rule 5A:18.

        On brief, appellant actually acknowledges that the trial court “went to great lengths” in order

to “ensure that Appellant’s pleas were made knowingly, voluntarily and intelligently” – adding that

the trial court “asked all of the appropriate questions and the Appellant made all the appropriate

responses to ensure the pleas were knowing and voluntary.” Nevertheless, appellant asserts that the

trial court erred during the plea colloquy by mentioning that the charge of possessing a firearm after

having been convicted of a violent felony (under Code § 18.2-308.2(A)) carried a mandatory term

of five years imprisonment, but not mentioning that the charge of using a firearm in the commission

of a felony (under Code § 18.2-53.1) also carried a mandatory term of three years imprisonment.

Appellant now claims that there was a “mutual misunderstanding” between appellant, his trial

counsel, and the trial court concerning the number of mandatory minimum terms of imprisonment

that appellant faced. Consequently, appellant asserts for the first time on appeal that he was misled

by the trial court concerning the punishment he faced after pleading no contest to all of the charges

against him.




                                                  -7-
        The record in this case simply does not present the rare case of a grave injustice that the

ends of justice exception to Rule 5A:18 serves to prevent as a last resort. 6 See Howard, 281 Va. at

462, 706 S.E.2d at 888-89; see also Jimenez v. Commonwealth, 241 Va. 244, 249, 402 S.E.2d 678,

680 (1991) (explaining that “[i]t is a rare case in which, rather than invoke [the Supreme Court’s

version of Rule 5A:18], we rely upon the exception and consider an assignment of error [that was]

not preserved at trial”). Clearly, appellant said at the February 8, 2012 plea hearing that he

recognized the trial court’s statement that he faced a mandatory minimum term of five years

imprisonment on one of the eight charges against him. Pertaining to this particular sentence, the

prosecutor had also stated during the plea hearing, “It’s a mandatory five years, which is

unsuspendable and may not run concurrent with any other sentence is my understanding.” Thus,

appellant acknowledged at the plea hearing that he faced at least a five-year mandatory term of

imprisonment – which could not run concurrently with his sentences for the seven other charges to

which he was pleading no contest. In addition, appellant told the trial court that he was aware of the

maximum punishments he faced for each offense – and that he had actually reviewed the sentencing

guidelines with his trial counsel.

        Any alleged failure to inform appellant that he faced a second mandatory sentence of three

years should have been brought to the trial court’s attention. The effect, if any, of that particular

sentence on appellant’s decision to plead no contest cannot now be determined on appeal. On this


        6
           In support of appellant’s contention that a grave injustice occurred here, appellant’s
counsel emphasized during oral argument before this Court that appellant had asked the trial court at
the June 4, 2012 sentencing hearing to impose probation in lieu of an active prison sentence.
However, appellant’s request that the trial court sentence him only to probation does not mean that
the trial court misled appellant into entering his pleas of no contest simply by mentioning one of the
mandatory terms of imprisonment but not the other one. On the contrary, the undisputed fact that
the trial court advised appellant at the February 8, 2012 plea hearing that he faced a mandatory term
of imprisonment – which appellant then acknowledged at the plea hearing – actually undercuts the
argument made by appellant’s counsel. The record amply demonstrates that appellant had every
reason to be aware by the time of the sentencing hearing that imposing a term of probation was
simply not an option for the trial court.
                                                   -8-
record, we certainly cannot conclude that the trial court committed the rare “clear, substantial and

material” error that the ends of justice exception to Rule 5A:18 serves to correct. See Brown v.

Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989) (requiring the litigant “to

affirmatively show” that the error was “clear, substantial and material”).

        Moreover, this Court’s recent decision in Winslow v. Commonwealth, 62 Va. App. 539, 749

S.E.2d 563 (2013), is highly instructive on the analysis here. There, Winslow did not seek to

withdraw his guilty plea or otherwise seek to challenge it in the trial court. For the first time on

appeal, Winslow argued that the trial court erred in accepting the guilty plea because the plea

agreement had not been reduced to writing and signed by the parties, as was required under Rule

3A:8(c)(2). This Court disagreed with Winslow’s argument that the ends of justice exception to

Rule 5A:18 applied, holding:

                The ends-of-justice doctrine is a narrow exception that should be
                used sparingly. It is never enough for the defendant to merely assert
                a winning argument on the merits – for if that were enough
                procedural default would never apply, except when it does not
                matter. Taken to its logical conclusion, such an approach would
                mean that only losing arguments could be waived and every issue
                would be subject to appellate review regardless of whether the issue
                was properly preserved.

                To prevent the exception from swallowing the rule, Virginia courts
                applying the ends-of-justice exception require a defendant to present
                not only a winning argument on appeal but also one demonstrating
                that the trial court’s error results in a grave injustice or a wholly
                inexcusable denial of essential rights. In criminal cases, this usually
                requires a showing that the defendant was convicted for conduct that
                was not a criminal offense or the record must affirmatively prove
                that an element of the offense did not occur. Winslow’s arguments in
                this case fall far short of meeting this standard.

Id. at 546-47, 749 S.E.2d at 567 (internal quotation marks and citations omitted) (emphasis added).

        In this case, the Commonwealth proffered at the February 8, 2012 plea hearing in the trial

court that its evidence, inter alia, would prove that appellant and two other men participated in a

home invasion, that a male victim was taken away from the home against his will while the other
                                                  -9-
two victims (including an eighteen-month-old child) were held at gunpoint in a bathroom, that

appellant was armed with a handgun, that appellant engaged in a struggle with the male victim

when they arrived at a different residence, and that appellant then fired a shot at the male victim.

Appellant’s trial counsel then stipulated that “the Commonwealth could prove each and every

element of the offenses charged beyond a reasonable doubt,” and appellant also acknowledged at

the sentencing hearing, “In the eyes of the law, I am guilty, yes.”7 Appellant clearly fails to

establish that his conduct was not criminal or that the record affirmatively shows that an element of

any of the eight offenses for which he was convicted is missing. Id. at 546-47, 749 S.E.2d at 567.

Accordingly, appellant fails to show that relief under the ends of justice exception to Rule 5A:18 is

appropriate.

                                           III. CONCLUSION

        Appellant’s arguments challenging his pleas of no contest were not raised in the trial court,

and the ends of justice exception to Rule 5A:18 does not apply to those arguments. Accordingly,

we affirm appellant’s convictions. We reverse and vacate the sentences that were imposed for the

offenses of possessing a firearm after being convicted of a violent felony under Code

§ 18.2-308.2(A) and using a firearm in the commission of a felony under Code § 18.2-53.1. On

remand, the trial court is instructed to enter a mandatory sentence of five years for the Code

§ 18.2-308.2(A) offense and a mandatory sentence of three years for the Code § 18.2-53.1 offense.

                                                                        Affirmed in part, reversed and
                                                                                      vacated in part,
                                                                                       and remanded.




        7
          Appellant points out on brief that a witness testified at the sentencing hearing that
appellant’s gun “went off.” Appellant claims – for the first time on appeal – that this testimony
would support a defense theory that appellant did not actually intend to shoot the male victim.
Appellant’s reliance on this testimony is clearly untimely, given that our review is limited to the
ends of justice exception to Rule 5A:18.
                                                 - 10 -
