                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia


MERLIN McQUE HARRIS
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2917-02-1                                  JUDGE WILLIAM H. HODGES
                                                                 OCTOBER 14, 2003
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                             Charles D. Griffith, Jr., Judge

               Karl A. Doss, Deputy Public Defender, for appellant.

               Robert H. Anderson, III, Senior Assistant Attorney General
               (Jerry W. Kilgore, Attorney General, on brief), for appellee.


       Merlin McQue Harris, appellant, pled guilty to and was convicted of two counts of

attempted robbery, malicious wounding, and two counts of use of a firearm in the commission of a

felony. Appellant contends the trial court abused its discretion by refusing to permit him to

withdraw his guilty pleas that were based on his reliance on erroneous information provided by

defense counsel. Finding no error, we affirm the trial court's decision.

       On September 6, 2001, the trial judge questioned appellant, listened to the

Commonwealth's recitation of the evidence that would have been presented, reviewed the

document entitled "Advice to Defendants Pleading Guilty," and reviewed the plea agreement. In

the "Advice to Defendants Pleading Guilty" form, appellant represented that he had received no

promises other than that contained in the plea agreement, that his attorney had explained and

reviewed it with him "line by line," that he understood that the maximum punishment for the



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
offenses was forty-seven years, and that he had answered the questions truthfully. Appellant's

plea agreement stated that the appropriate disposition in this matter was "referral for

P.S.R.-Commonwealth agrees to active sentencing cap at high end of Guideline's as they are

correctly calculated by Probation Officer."       Appellant asked the trial judge to follow the

agreement. Defense counsel noted that the "plea agreement comes after also discussing it in its

entirety with the defendant's mother, who is present in court." The trial judge found that

evidence sufficient to support appellant's guilty pleas and found that appellant had freely and

voluntarily entered the guilty pleas.

       The sentencing guideline range for these convictions was from seven years two months to

sixteen years, with a range midpoint of thirteen years four months. Appellant received an active

sentence of thirteen years with an additional thirty years suspended.

       On April 11, 2002, defense counsel filed a motion to withdraw appellant's guilty pleas

alleging that appellant pled guilty believing the maximum sentence that would be imposed under

the guidelines would be about eight years. On October 4, 2002, the trial court conducted a

hearing on appellant's motion to withdraw his guilty pleas.             Appellant's defense counsel

explained that he had negotiated a "fairly reasonable plea agreement. The effect of which was to

cap the punishment at the high end of the guidelines which we erroneously communicated to

[appellant] as being eight years." Appellant's defense counsel also stated, "We didn't sit down

and calculate and go through the guidelines on the date of the plea. I think we both proceeded in

good faith thinking it was somewhere in that neighborhood. That was just a best guess at the

time." He further represented that appellant had a conviction in Chesapeake for a violent crime,

which neither he nor the Commonwealth's attorney knew about when they reached the plea

agreement. Appellant did not disclose the conviction to his counsel.




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          At the hearing, the prosecutor told the court the following:

                 Ms. Capotosto [the Commonwealth's attorney who handled the
                 case previously] had a note here where she wrote, "robbery '95, I
                 can't find." So there was some confusion on Ms. Capotosto's part
                 as to what the defendant's criminal record was. I can clearly see
                 that, and that's why she said, the correct calculations of the
                 guidelines. She obviously was not sure, Your Honor, of what
                 those guidelines were from what I can tell from her notes here.

          The trial court's ruling on a defendant's motion to withdraw a guilty plea is reviewable

only for abuse of discretion. See Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873

(1949).

                 "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."

Hoverter v. Commonwealth, 23 Va. App. 454, 463-64, 477 S.E.2d 771, 775 (1996) (quoting

Parris, 189 Va. at 324, 52 S.E.2d at 873).

          The trial court examined the circumstances surrounding appellant's guilty pleas. There

was no evidence of any official or implied agreement to an eight-year cap on the active sentence.

The plea agreement which appellant signed and asked the court to accept made no mention of an

eight-year cap. Rather the plea agreement said appellant agreed to "an active sentencing cap at

the high end of the guidelines as they are correctly calculated." Likewise, the guilty plea form

that appellant signed before trial did not indicate that appellant had a particular expectation

regarding what his sentence would be. Rather, appellant acknowledged that he could receive a

sentence of as much as forty-seven years. The trial judge specifically pointed out to appellant

that under the plea agreement, appellant would receive "an active sentence cap of the high end of


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the guidelines." Appellant said he understood the agreement and asked the court to follow the

plea agreement. The trial court found that appellant entered his pleas freely and voluntarily after

"indicating his complete and thorough understanding of exactly what it is that he is doing."

        The evidence indicates that appellant fully and completely understood the plea agreement

that he entered into when he voluntarily pled guilty. The trial court sentenced appellant to an

active sentence of thirteen years, below the midpoint of the guideline range and well below the

sixteen-year "high end of the Guidelines as they are correctly calculated by [the] Probation

Officer." The trial court did not abuse its discretion by denying appellant's motion to withdraw

his guilty plea.

        For these reasons, we affirm appellant's convictions.

                                                                                        Affirmed.




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