                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


DONNIE WAYNE BOWMAN
                                           MEMORANDUM OPINION * BY
v.   Record No. 0952-00-2                JUDGE JAMES W. BENTON, JR.
                                              AUGUST 14, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     William L. Wellons, Judge

            J. William Watson, Jr. (Watson & Nelson,
            P.C., on brief), for appellant.

            Robert H. Anderson, III, Senior Assistant
            Attorney General (Mark L. Earley, Attorney
            General, on brief), for appellee.


     The sole issue raised by this appeal is whether the trial

judge abused his discretion when he denied Donnie Wayne Bowman's

post-sentence motion to withdraw his guilty pleas.     We affirm the

judgment.

                                 I.

     The grand jury indicted Bowman for attempting to commit

capital murder of a law enforcement officer, using a firearm while

attempting to commit capital murder, and possessing a firearm

after having been convicted of a felony.   At Bowman's jury trial

the evidence proved that on December 7, 1998, Bowman twice


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
telephoned Barbara Cunningham, a child protective service worker

in West Virginia, and asked to speak to his wife.   When Cunningham

told Bowman that charges were pending against him in West

Virginia, Bowman told Cunningham he was coming to West Virginia

"fully dressed," that he had a shotgun, that he was not going to

go back to jail, and that he would "shoot any police officer that

[got] in [his] way until they shoot [him]."

       At 1:40 a.m. the following day, South Boston Police Officer

Fletcher Daniels approached a car on the shoulder of a highway and

saw Bowman inside.   After Bowman told Daniels that he had no fuel,

Daniels radioed for the assistance of another officer because

Bowman was "acting strange."   When Officer Lovelace arrived at the

scene, Bowman "racked his 12-gauge [shotgun] and pointed it at

[Lovelace]."   Lovelace drew his weapon, yelled for Daniels to get

away from Bowman's car, and ordered Bowman to drop the shotgun.

Bowman repeatedly told Lovelace to move away and said the only way

he would leave his car was with the shotgun in Lovelace's mouth.

       Both officers retreated to their vehicles and relayed the

situation to their dispatcher.    As other police officers arrived,

Bowman appeared agitated and was crying.   He told the officers he

did not want to hurt anyone but himself.   After three hours,

during which the officers sought to persuade Bowman to leave the

car, Bowman suddenly fired his shotgun through the roof of his

car.   About an hour later, Bowman fired the shotgun through the

door of his car towards the pavement.    One officer testified that

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after the second shot he heard pellets bouncing off of the

guardrail less than three feet from him and he believed Bowman was

shooting at him.    Another officer testified that when Bowman shot

the second time, he "could see the smoke and dust and there were

particles striking the shield that [he] was behind."   The

assembled officers then shot at Bowman's car.   When the officers

stopped firing at Bowman's car, the officer in charge began

speaking with Bowman and eventually persuaded Bowman to exit his

car and surrender.

     At the close of the Commonwealth's evidence, Bowman's

attorney argued that the evidence failed to prove a specific

intent to kill.    The judge overruled the motion to strike the

evidence.   Bowman's attorney then presented the testimony of a

forensic examiner, who testified that one of Bowman's shots

discharged into the ceiling of his car and exited through the

car's roof.   Bowman's other shot went into the driver's door of

the car and exited the bottom of the door at a downward angle.     At

the conclusion of this testimony, Bowman's attorney rested his

case and renewed his motion to strike the evidence.    He again

argued that the evidence failed to prove a specific intent to kill

and, further, that the evidence did not exclude an accidental

discharge of the shotgun.   The trial judge observed that the

evidence indicated "pellets or particles [from the shotgun] . . .

went into the direction of two officers," that Bowman's statements

tended to prove his intent, and that the evidence was sufficient

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for the jury to consider.   The judge overruled the motion to

strike and recessed the proceedings to review jury instructions.

     While the judge was reviewing jury instructions, the

prosecutor and Bowman's attorney conferred about a plea agreement.

Based on their discussions, a plea agreement was prepared and

presented to Bowman by his counsel.     Bowman signed it, agreeing to

plead guilty to an amended charge of attempted malicious wounding

of a law enforcement officer, an amended charge of use of a

firearm while attempting to commit malicious wounding of a law

enforcement officer, and the original charge of possessing a

firearm after a felony conviction.     The plea agreement indicated

that Bowman's attorney had explained to him the particulars of the

agreement and that Bowman had entered into the plea agreement

freely and voluntarily.

     Before accepting the plea agreement, the judge made extensive

inquiries of Bowman.   He asked Bowman if he had conferred with his

attorney, if his attorney explained the nature of the pleas he was

entering into, if he was "freely and voluntarily" entering pleas

of guilty to the charges, if he understood his pleas would waive

various constitutional rights, if he had been forced or threatened

into entering the plea, if his attorney explained the maximum

punishment that could be imposed and if he was satisfied with the

services rendered by his attorney.     Bowman answered affirmatively

to all of these questions and others posed by the judge.    Bowman's

attorney also said the following:

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            [The agreement] reflects . . . [a] verbal
            agreement we had reached in which Mr. Bowman
            had agreed to as well. When I received the
            written plea agreement and I met in the back
            room with Mr. Bowman and we went over that
            together and he was in agreement with that
            and I was in agreement as well. We both
            signed it and I believe that he understands
            it fully as do I.

The judge accepted the plea agreement, which contained "no

agreement as to any sentence recommendation," and he granted the

Commonwealth's motion to dismiss the two misdemeanor charges of

obstruction of justice and brandishing a firearm.    The agreement

is dated December 9, 1999, the date of the trial.

     The sentencing hearing occurred nine weeks later on February

29, 2000.   Before sentencing, Bowman "apologize[d] to the town of

South Boston and the County of Halifax," said he "was completely

wrong," and made other statements of contrition.    The judge

sentenced Bowman to a total of sixteen years in prison and

suspended eleven years of that sentence upon specified

conditions.

     A week later, Bowman filed a pro se motion to withdraw his

guilty plea and to vacate the sentence.   In part, he alleged

that his trial attorney rendered him ineffective assistance, did

not allow him to read the agreement, did not fully advise him of

the nature of the agreement, advised him that he would serve

only three years, and did not call as witnesses persons Bowman

wanted to testify.   At the evidentiary hearing, Bowman's trial

attorney testified, however, that he had interviewed several

                                - 5 -
potential witnesses prior to trial and had decided their

testimony was damaging to Bowman's case.    For example, he

indicated Bowman had wanted to use testimony of relatives who

heard Bowman talk of shooting police officers.

     Bowman's trial attorney also testified that he believed the

evidence at trial had "gone fairly well" and that he told Bowman

he believed Bowman had a reasonable chance the jury would find

him not guilty of attempted capital murder but that, if the jury

convicted him, a conviction would carry a minimum twenty-year

sentence.   In any event, he told Bowman he likely faced a

conviction and prison sentence on the firearm charge.   He

advised Bowman that under the plea agreement he faced a maximum

sentence of eighteen years, a minimum sentence of three years,

and that his opinion was that Bowman would receive a sentence

greater than three years.   He recommended that Bowman take the

plea agreement.

     Bowman's trial attorney testified that when he initially

explained the plea agreement and his view of the case, Bowman

was willing to accept the plea agreement.   At Bowman's request,

he asked Sherry Kindler, who had been working as Bowman's

therapist for the past year, and John Laroo, a long-time friend

of Bowman's, to talk to Bowman.   He testified that, after he

left the room to confer with the prosecutor and while Kindler

and Laroo were talking to Bowman, Bowman had an angry, verbal

exchange with a West Virginia social services worker.   Bowman

                               - 6 -
became irrational and told Kindler he was not going to accept

the deal.    Bowman's trial attorney became concerned about

Bowman's ability to make an informed decision at that point

because Bowman was basing his decision on a fit of anger brought

on by what the social services worker had said, and not basing

it on what had transpired in the courtroom.    After he calmed

Bowman, he reviewed the agreement with Bowman.    He testified

that he felt Bowman had calmed and was making a rational

decision when he signed the agreement.

        Bowman's attorney also testified that prior to sentencing

Bowman mentioned the possibility of seeking to withdraw the

plea.    He testified, however, that when he "explained to

[Bowman] that it meant that he could reface serious charges[,

Bowman] decided to not do that and go with sentencing."      Prior

to sentencing, he told Bowman that he felt that there had

probably been a 70% chance of that jury finding him not guilty.

He testified, however, that he based these odds on information

he received about a juror who had spoken to one of Bowman's

family members after the trial.

        According to Kindler, Bowman became agitated by the West

Virginia social worker statement that "social services had

removed his children and put them in foster care."    She said

Bowman became angry and "shut down."     Although Kindler said that

the plea agreement seemed like a good deal to her and that she

recommended Bowman take the deal, Kindler admitted that she was

                                 - 7 -
not present at the trial, had not heard the evidence, and relied

solely upon Bowman's attorney's opinion in advising Bowman to

take the deal.   Kindler indicated that in the year or so that

she had been treating Bowman he had been relying on her advice

as a mental health expert and they had been working on a trust

issue.    Kindler said she told Bowman it was her professional

opinion that he should accept the plea agreement, but that it

was up to him and he needed to make his own decision.

     Laroo also testified that Bowman was angry and irrational

after the exchange with the social services worker.   According

to Laroo, the exchange caused Bowman to change his mind about

accepting the plea agreement.   Laroo "felt it was advisable to

get [Bowman] calm and consider this thing, and that was not easy

to do."   He said Bowman wanted to go to trial, take the stand,

and tell the judge what the social services worker had said.

Laroo also indicated that after Bowman became calm he "sort of

reluctantly" signed the plea agreement.

     Bowman testified that he repeatedly told his attorney he

did not want to accept the plea agreement.   He said Kindler's

intervention caused him to accept the plea agreement and to feel

he was "boxed in."   He said his attorney told him to take it or

he would receive life in prison.   Further, Bowman claims that he

did not understand the plea agreement, that he had not taken his

medicine on the day he was considering the plea agreement, and

that he lied to the judge when he responded affirmatively to the

                                - 8 -
judge's questions pertaining to the plea agreement.    Bowman said

that he lied in order to get out of the courtroom.

     In denying the motion, the trial judge found that Bowman

had not expressed any reluctance to accept the plea, that the

evidence did not establish that the plea was not entered into

freely and voluntarily, that Bowman gave no indication at trial

that he did not understand the plea agreement, and that no

mistake of fact or fraud existed.   The judge also said that the

evidence indicated that Bowman's trial attorney had spent a

"great deal of time in preparation for the trial of the case"

and fully explained the agreement to Bowman.     Although the trial

judge found that Bowman "vacillated" over whether to sign the

agreement, he also found that Bowman fully understood it.    The

judge also pointed out that Bowman had a significant amount of

time in which to consider his plea options and that the sentence

was a factor in Bowman's decision to file the motion.

                              II.

     Code § 19.2-296 provides as follows:

          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.

Applying this statute we have held as follows:

          "'Whether or not an accused should be
          allowed to withdraw a plea of guilty for the

                              - 9 -
           purpose of submitting a not guilty plea 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.'" The court's finding as to the
           credibility of witnesses and the weight of
           the evidence in support of a motion to
           withdraw a guilty plea will not be disturbed
           unless plainly wrong or without evidence to
           support it.

Jones v. Commonwealth, 29 Va. App. 503, 511-12, 513 S.E.2d 431,

435 (1999) (citations omitted).   We have also held that

"[d]etermining whether a court erred in declining to allow

withdrawal of a guilty plea 'requires an examination of the

circumstances confronting [the] accused immediately prior to and

at the time [the accused] pleaded to the charge.'"    Id. at 512,

513 S.E.2d at 436 (citation omitted).

     Bowman essentially contends that his guilty plea was the

product of coercion and undue influence.   He claims that his

trial counsel, Kindler, and Laroo prevailed on him to plead

guilty despite his own wishes.    As in Jones, however, the trial

judge thoroughly examined Bowman before accepting the guilty

pleas.   Although Bowman later claimed he was lying when he said

that he entered the pleas freely and voluntarily and that he

understood the agreement, the trial judge chose to believe his

earlier assertions.   The judge also believed that Bowman was

given a full explanation of the agreement and of the exposure he

faced by having the jury consider the evidence.




                              - 10 -
     The evidence that Bowman produced at the evidentiary

hearing does not compel us to overturn these findings.    In fact,

testimony at the hearing indicated that Bowman initially

discussed the agreement with his attorney and accepted it.

Later, Bowman became upset over his confrontation with the

social worker about his children.   The evidence showed that

Bowman's discussions with his friends apparently related more to

his reaction to the social worker and their efforts to refocus

him on the agreement that he had before him.

     In short, the trial judge's findings were not plainly wrong

or without evidence to support them.   The weight that the trial

judge accorded to Bowman's differing testimony and that of the

other witnesses was within his discretion.   The record contains

sufficient evidence that Bowman's plea was "without semblance of

coercion and without fear or duress of any kind."     Parris v.

Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874 (1949).

     Although Bowman has asked to withdraw his guilty pleas

after sentencing, the evidence before the trial judge did not

establish a "manifest injustice" resulting from the

circumstances surrounding the plea agreement.   Code § 19.2-296.

The trial judge could find on the record that Bowman's motion

was prompted by his disappointment in the sentence that he

received.   As the judge found, Bowman had two months between

re-arraignment and sentencing to ask to withdraw the guilty

pleas.   His failure to act earlier is evidence of a settled

                              - 11 -
commitment to plead guilty.   We hold, therefore, that the trial

judge did not abuse his discretion by denying Bowman the

opportunity to withdraw his guilty pleas and that the record

fails to establish any manifest injustice.   We affirm the

judgment.

                                                   Affirmed.




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