                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Annunziata
Argued at Chesapeake, Virginia


JESSIE LOVELL SMITH
                                                          MEMORANDUM OPINION∗ BY
v.     Record No. 0106-04-1                           CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                               NOVEMBER 9, 2004
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                Louis R. Lerner, Judge

                Charles E. Haden for appellant.

                Steven A.Witmer, Assistant Attorney General (Jerry W. Kilgore,
                Attorney General, on brief) for appellee.


       Jessie Lovell Smith (appellant) was charged with robbery pursuant to Code § 18.2-58, and

pled guilty on February 4, 2003. Appellant moved to withdraw his guilty plea on November 24,

2003 on the basis that he “was under extreme emotional distress at the time of pleading guilty,” and

was “unable to realize his own best interests at the time of the guilty plea.” Following two

psychological evaluations of appellant’s competency to stand trial, the trial court overruled this

motion, and sentenced appellant to 20 years in prison, with 6 years suspended. Appellant contends

that the trial court erred in denying his motion to withdraw the plea. We hold that the trial court

properly denied the motion, and affirm.




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                      I. BACKGROUND

       Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

       So viewed, the evidence established that on September 2, 2002, appellant walked into

Michael Baker’s (Baker) Solo Food Market in Hampton. After giving Baker five dollars for his

purchase, appellant pulled a gun and told Baker to give him the money in the register. Baker

raised his hands and backed away, and told appellant to take the money. The store’s surveillance

camera captured the robbery, and was turned over to Hampton Detective Kunkel (Kunkel).

Kunkel discovered that similar robberies had recently occurred in Norfolk, and he went to the

Norfolk city jail to speak with appellant, who was incarcerated at the time. Kunkel obtained a

photograph of appellant and showed it to Baker at the Solo Food Mart. Baker positively

identified appellant as the person who robbed his store on September 2, 2002.

       Appellant pled guilty and had the following plea colloquy:

              THE CLERK: Jessie Smith, on or about September 22, 2002, did
              unlawfully [sic] and feloniously, in violation of Section 18.2-58,
              Code of Virginia, rob Michael Baker. How say you, are you guilty
              or not guilty?

              THE DEFENDANT: Guilty.

              THE COURT: There are additional questions for me to ask you,
              sir. If at any time you don’t understand the question, please ask
              me to repeat it and confer, if necessary, with Ms. Gerlach before
              you do respond. Do you fully understand the charge against you
              and the elements of the crime?

              THE DEFENDANT: Yes, sir.

              THE COURT: Are you entering this plea of guilty freely and
              voluntarily?

              THE DEFENDANT: Yes, sir.

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THE COURT: Are you entering this plea of guilty because you
are, in fact, guilty of the crime of which you are charged?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that by pleading guilty you
waive and give up certain rights including the right to a trial by
jury, the right to cross-examine witnesses and the right to remain
silent?

THE DEFENDANT: Yes, sir.

THE COURT: Has anyone connected with the state such as the
police or the Commonwealth’s attorney or any official threatened
you or forced you in any way to enter this plea of guilty?

THE DEFENDANT: No, sir.

THE COURT: Commonwealth’s attorney may have advised your
attorney as to what punishment would be recommended if you pled
guilty. Other than that, has there been any discussion or promise
of any leniency in your case?

THE DEFENDANT: No, sir.

THE COURT: Have you and Ms. Gerlach talked about the
maximum penalty that might be assessed in this case? Have you
and Ms. Gerlach talked?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had ample time to prepare any defense
that you might have to this charge?

THE DEFENDANT: Excuse me?

THE COURT: Have you had ample time to prepare any defense?

THE DEFENDANT: Yes, sir.

THE COURT: Have you discussed with your attorney whether
you should plead guilty or not guilty?

THE DEFENDANT: Yes, sir.

THE COURT: After that discussion, who made the decision to
plead guilty?

                                -3-
               THE DEFENDANT: I did.

               THE COURT: You understand that by pleading guilty, you waive
               and give up your right to appeal the decision of this court?

               THE DEFENDANT: Yes, sir.

               THE COURT: You understand all these questions that I’ve asked
               you?

               THE DEFENDANT: Yes, sir.

               THE COURT: Your plea of guilty is entered as given freely and
               voluntarily with knowledge of its elements. And you may be
               seated.

Based on stipulated evidence and appellant’s guilty plea, the trial court found appellant guilty of

the robbery, ordered a presentence report, and continued the sentencing hearing until April 1,

2003.

        Defense counsel requested a continuance on that date after learning that appellant had

charges pending in two other jurisdictions and that a psychological evaluation of appellant had

been ordered, which defense counsel in the instant case wished to review. The trial court

continued the case until June 18, 2003, pending these results.

        At the next hearing, appellant submitted a psychological evaluation prepared by Dr. D.H.

Killian (Killian) for a different criminal matter. Killian summarized his letter to the trial court in

that case as follows:

               To summarize, I do not think that this man can cooperate with his
               defense attorney and I do not think that he can understand the
               proceedings against him. I do believe that he is acutely mentally
               ill, and he is probably possessed of a psychiatric disorder such as
               schizophrenia. However, he is obviously quite depressed, and he
               is currently functioning intellectually at a retarded level, though it
               is unclear if this is a permanent issue or a temporary one secondary
               to his psychiatric disturbance.

               I do think that he should be sent to Eastern or Central State
               Hospital for further evaluation, treatment as indicated, and
               re-evaluation of his Competency to stand trial and his mental status
                                                 -4-
               at the time of the alleged offense when the hospital staff believe
               that his competency has been restored.

At the June 18 hearing, the trial court continued the case again until September 12, 2003,

because appellant had been sent to Central State Hospital for evaluation in accord with Killian’s

recommendation. On that date the sentencing hearing was again continued until November 19,

2003. On November 19, the hearing was again continued until December 22, 2003, pending

appellant’s motion to withdraw his guilty plea.

       In its discharge report, and in contrast to Killian’s analysis, Central State Hospital

described appellant’s symptoms as “minor depressive symptoms that did not meet criteria [sic]

for a major depressive disorder.” The report stated that “[t]he patient appeared to be able to

interact with others and had no major cognitive deficits,” and “he was found competent to stand

trial.” The hospital diagnosed appellant with “depressive disorder, not otherwise specified,” and

“polysubstance dependance.”

       Appellant moved to withdraw his guilty plea on November 21, 2003, citing his “extreme

emotional distress at the time of pleading guilty,” and argued that “the Defendant was unable to

realize his own best interest at the time of the guilty plea.” At the hearing on December 22,

2003, the trial court denied appellant’s request:

               I find nothing in the materials presented to me having to do with
               Mr. Smith’s capacity that would indicate that in any way he was
               not fully competent to waive the preliminary hearing and waive his
               right to a Grand Jury indictment. And we proceed to try him on
               the arrest warrant to which he pled guilty, and it’s normal practice
               in this court to ask a number of questions about whether or not one
               understands what’s going on. He has indicated that he did.
               Therefore, I deny your motion . . . .

The trial court sentenced appellant to 20 years in prison, with 6 years suspended for 30 years

conditioned upon good behavior.




                                                -5-
                                            II. ANALYSIS

       Appellant contends the trial court erred in denying his motion to withdraw his guilty plea.

Appellant contends that he was incompetent to plead guilty and, thus, he should be allowed to

withdraw his plea. We disagree.

       We review this appeal for an abuse of discretion. See Hoverter v. Commonwealth, 23

Va. App. 454, 465, 477 S.E.2d 771, 776 (1996).

               In the absence of statutory regulation or established practice,
               whether or not an accused should be allowed to withdraw a plea of
               guilty for the purpose of submitting one of not guilty is a matter
               that rests within the sound discretion of the trial court and is to be
               determined by the facts and circumstances of each case. . . . [T]he
               motion 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, or if it was induced by fraud, coercion or undue influence
               and would not otherwise have been made.

Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873 (1949). Code

§ 19.2-296 provides:

               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.1

       Further,

               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
               unadvisably when application therefor is duly made in good faith
               and sustained by proofs . . . .

Parris, 189 Va. at 325, 52 S.E.2d at 874.


       1
        The timeliness of appellant’s motion is not at issue on appeal. Appellant moved to
withdraw the plea before sentencing.
                                              -6-
       Credible evidence supports the trial court’s denial of appellant’s motion to withdraw his

guilty plea. Appellant sufficiently demonstrated his competence when answering the trial court’s

questions during the colloquy. The mental evaluation submitted from Central State determined

that appellant was competent to stand trial, and formed no basis to show appellant was

incompetent at the time he entered his plea. The hospital diagnosed appellant as depressed and

suffering from polysubstance dependence, but stated that he “appeared to be able to interact with

others and had no major cognitive deficits.” The record reflects no “honest mistake of material

fact” nor was the plea “induced by fraud, coercion, or undue influence.” Id. at 324, 52 S.E.2d at

873. We therefore cannot say that the trial court was plainly wrong in ruling that appellant could

not withdraw his guilty plea.

       Accordingly, we affirm the judgment of the trial court.

                                                                                         Affirmed.




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