PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy,
S.J.


IRVING THOMAS SMALL
                                                              OPINION BY
v. Record No. 150965                                    JUSTICE CLEO E. POWELL
                                                              July 14, 2016
COMMONWEALTH OF VIRGINIA




                      FROM THE COURT OF APPEALS OF VIRGINIA

       Irving Thomas Small (“Small”) was charged with possession of a firearm after conviction

of a felony, in violation of Code § 18.2-308.2. He entered a guilty plea on November 10, 2010.

Small thereafter moved to withdraw his guilty plea prior to sentencing. The trial court denied the

motion and the Court of Appeals affirmed the judgment of the trial court. On appeal, Small

argues that the trial court and Court of Appeals erred because he made a material mistake of fact

in pleading guilty and should have asserted the defense of necessity.

                                       I. BACKGROUND

       At Small’s guilty plea hearing, the Commonwealth offered the following stipulated facts:

                       On May 27, 2010 detectives went to 1746 Melon Street to
               execute a search warrant on [Small’s] person for buccal swabs.
               Upon seeing the officers, Small ran. Detective Reyes from the
               Norfolk Police Department’s homicide squad gave chase and was
               able to stay steps behind Small. As Small exited the back door
               Detective Reyes heard a loud noise. Reyes looked out of the
               kitchen window and saw a garbage container. Inside of that
               container was a Lorcin .380 caliber semi-automatic handgun.
               Small was immediately taken into custody while standing near the
               trash can.

                      The weapon was taken to the bureau of forensic science
               laboratory for analysis. Small’s DNA was present on the weapon.
       Small was scheduled to be sentenced on nine separate occasions. Each of the nine

sentencing hearings were continued on joint motion due to Small testifying in another trial. On

June 18, 2013, almost 2 years and 8 months after entering his plea, Small filed a presentence

motion to withdraw his guilty plea. His motion stated:

                        After [Small] entered his guilty plea to possession of a gun
               he testified at the trial of a man that shot him four . . . days prior to
               the possession of a gun. [Small] insists he was in justifiable fear
               for his life due to the shooter having not been arrested yet. The
               shooter also shot and killed [his] friend at the time [Small] was
               shot and hospitalized. [Small’s] possession of a gun at his sister’s
               home was clearly necessary for his own self defense from the man
               who recently shot [Small] and killed [his] friend in [Small’s]
               presence.

       The hearing on the motion to withdraw his guilty plea was held on August 7, 2014, over a

year after it was filed. The only explanation given by Small’s counsel for the length of time

prior to filing the motion to withdraw guilty plea was that he “made the decision that perhaps

[he] would have been better off presenting” a defense of “fear of being shot” and possessed the

gun out of necessity. Small’s counsel stated he erroneously advised Small to enter the guilty

plea. Small also argued that

               had the shooter not been convicted and had we come forward on
               this as a defense, as a necessity defense, if . . . in another case if a
               defendant had said, I was afraid of somebody coming and shooting
               me, then a court could not believe that and convict anyway.
               However, waiting for the conviction and his testimony to provide
               evidence that this man had shot him and killed the other man,
               that’s proof that he had a reason to be afraid, and we haven’t had
               that proof until very recently when that man was convicted.

       The trial court denied Small’s motion to withdraw his guilty plea. The trial court found

that the Commonwealth would be unduly prejudiced in trying Small due to the length of time,

four and a half years, since the incident. The trial court found that the passage of time, standing

alone, prejudiced the Commonwealth. Further, in contemplating whether the nature of the



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defense could potentially obviate the prejudice to the Commonwealth, and whether a stipulation

to the evidence would be practical, the trial court noted that it could not

               rule out that the circumstances and something that happened
               during the offense might actually relate to the Court determining
               whether to believe the defendant’s affirmative defense or not.
               There might be some details of how it happened, how the
               defendant acted at the time, what the defendant said, something of
               that nature that would now become very material and important at
               the trial.

                      So I simply believe that the delay in bringing this motion is
               such that the Court should not grant it, especially when throughout
               the two-year-[and]-eight-month delay – well, even on the date the
               defendant pled guilty and throughout the two years [and] eight
               months between the guilty plea and the motion being file[d], the
               defendant was always aware that this was his explanation, that this
               would have been his available defense.

       On October 3, 2014, the trial court sentenced Small to the mandatory sentence of five

years’ incarceration. Small appealed to the Court of Appeals which denied his petition for

appeal by per curiam order. See Small v. Commonwealth, Record No. 2030-14-1

(June 15, 2015) (unpublished). This appeal followed.

                                          II. ANALYSIS

       Small argues that the trial court erred in denying his motion to withdraw his guilty plea

because he made an honest mistake of fact in that he had a reasonable basis for arguing he

possessed the firearm out of necessity. He further argues that the trial court erred in determining

that allowing him to withdraw his guilty plea would prejudice the Commonwealth. Finally,

Small asserts that the Court of Appeals erred in affirming the trial court’s judgment. We

disagree.

       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


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               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.


       This Court previously addressed the applicable standard for reviewing a motion to

withdraw a guilty plea in Parris v. Commonwealth, 189 Va. 321, 52 S.E.2d 872 (1949).

               [W]hether 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. No fixed
               or definite rule applicable to and determinative of all cases can be
               laid down. However, the 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.

Id. at 324, 52 S.E.2d at 873.

               [T]he statute does not expressly provide the standard by which a
               trial court is to determine whether to grant a motion to withdraw a
               guilty plea when, as in this case, the motion is made before
               sentence has been imposed. However, logic dictates that the
               standard must be more liberal than the requirement of showing a
               manifest injustice. Cf. Lilly v. Commonwealth, 218 Va. 960, 965,
               243 S.E.2d 208, 211 (1978) (quoting Paradiso v. United States,
               482 F.2d 409, 416 (3d Cir. 1973)) (holding that where the
               defendant “waited until after sentence had been imposed to move
               to withdraw his guilty plea,” it was appropriate to apply the “‘more
               severe standard’” of requiring a finding of a manifest injustice).

Justus v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007).

                                           A. Prejudice

       Small waited almost three years after his guilty plea to file a motion to withdraw his plea.

During that three-year period, the person who shot him was found guilty of the offense and

Small argued that he would not have had the necessity defense without evidence of his shooter’s

conviction. “The reasons given by the movant for ‘delaying’ assertion of his defenses by means


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of an intervening guilty plea must be weighed according to the circumstances of his particular

case.” United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975).

       While we have not specifically addressed the prejudice caused by a delayed motion, and

whether prejudice is a relevant factor for courts to consider in this context, the Court of Appeals

of Virginia and the Fourth Circuit have often considered the resulting prejudice to the

prosecution as one of the factors in determining whether a defendant should be allowed to

withdraw a guilty plea. In United States v. Moore, 931 F.2d 245 (4th Cir. 1991), an unpublished

Fourth Circuit case still applied by that Court, the Fourth Circuit considered a motion to

withdraw a guilty plea and noted as relevant factors, inter alia, “whether there has been a delay

between entering of the plea and the filing of the motion” and “whether withdrawal will cause

prejudice to the government.” Id. at 248. See Howell v. Commonwealth, 60 Va. App. 737, 749,

732 S.E.2d 722, 728 (2012) (“Moreover, the Commonwealth would have been prejudiced if the

trial court had permitted appellant to withdraw his guilty plea since the victim’s elderly mother

would likely have been unavailable to testify at a new trial.”); Hubbard v. Commonwealth, 60

Va. App. 200, 211 n.4, 725 S.E.2d 163, 168 n.4 (2012) (noting that a pre-sentencing motion to

withdraw a guilty plea “may be appropriately denied where the record indicates that there has

been some form of significant prejudice to the Commonwealth”).

       Today we specifically recognize prejudice to the Commonwealth as a relevant factor that

should be considered when reviewing a motion to withdraw a guilty plea. We cannot say that the

trial court erred by weighing the equities and considering the resulting prejudice to the

Commonwealth due to the lengthy delay between Small’s entry of his guilty plea and his motion

to withdraw that plea. Nor can we say that the trial court abused its discretion in finding that the

prejudice to the Commonwealth outweighed any equities that favored granting the motion.




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                                    B. No Reasonable Defense

       The Court of Appeals also found that Small did not have a reasonable defense to the

charge against him. The Court of Appeals has held that in order to use the defense of duress or

necessity, the offender must show

               “(1) a reasonable belief that the action was necessary to avoid an
               imminent threatened harm; (2) a lack of other adequate means to
               avoid the threatened harm; and (3) a direct causal relationship that
               may be reasonably anticipated between the action taken and the
               avoidance of the harm.”

Humphrey v. Commonwealth, 37 Va. App. 36, 45, 553 S.E.2d 546, 550 (2001) (quoting Buckley

v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)). See also McGhee v.

Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978) (“The law of self-defense is the

law of necessity, and the necessity relied upon must not arise out of defendant’s own

misconduct. Accordingly, a defendant must reasonably fear death or serious bodily harm to

himself at the hands of his victim.”) We agree with the articulation of the duress standard as

announced by the Court of Appeals in Buckley and reiterated in Humphrey. Accordingly, we

adopt the standard and apply it to the facts of this case and to the facts in Edmonds v.

Commonwealth, 292 Va. __, ___ S.E.2d ___ (2016) (this day decided).

       In order to show an imminent danger, a defendant must demonstrate “‘an immediate, real

threat to one’s safety’” Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001)

(quoting Black’s Law Dictionary 399 (7th ed. 1999)). See United States v. Crittendon, 883 F.2d

326, 330 (4th Cir. 1989) (finding no evidence to show present or imminent threat of death or

injury despite a generalized fear of danger generated by a shooting that occurred eight months

prior); Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E. 727, 729 (1893) (finding no error in the

jury instructions concerning imminent danger where the threat had subsided and the aggressor

had walked away); Byrd v. Virginia, 89 Va. 536, 539, 16 S.E. 727, 729 (1993) ("There must be


                                                 6
some act menacing present peril . . . [and] the act . . . must be of such a character as to afford a

reasonable ground for believing there is a design . . . to do some serious bodily harm, and

imminent danger of carrying such design and immediate execution."); Byers v. Commonwealth,

37 Va. App. 174, 185, 554 S.E.2d 714, 719 (2001) (affirming denial of motion to withdraw

guilty plea where defendant was shot three weeks prior and threats were made to “finish the job,”

but there was no evidence of imminent threat to defendant at time he possessed the firearm);

Humphrey, 37 Va. App. 36, 553 S.E.2d 546 (allowing defense of necessity to charge of

possession of a firearm by a convicted felon where the defendant was presently under direct

attack by gunfire).

       Here, Small has not shown that there was “imminent threatened harm” which led to him

possessing a firearm. Id. at 45, 533 S.E.2d at 550 (citations omitted). Unlike the defendant in

Humphrey, Small was not under a present threat of death or serious bodily injury. Nor was

Small in a situation where he was forced to carry a firearm. The record shows that Small had

been shot four days prior to being arrested for possessing the firearm and that his shooter was

still at large. However, the record is devoid of any threats made by the shooter or any other

imminent threat to Small’s life. While we do not discount the sincerity of Small’s fear, a

generalized fear will not support the defense of justification. See Crittendon, 883 F.2d at 330.

Accordingly, the Court of Appeals did not err in finding that Small did not have a reasonable

defense to the charge of possession of a firearm after conviction of a felony. *




       *
         Small also argued at trial and on appeal that his plea was entered inadvisedly. Because
we find that there was no reasonable defense, we need not address whether his plea was entered
inadvisedly.

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                                     III. CONCLUSION

       For the foregoing reasons, we will affirm the judgment of the Court of Appeals, affirming

the judgment of the trial court.

                                                                                      Affirmed.




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