                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Decker and AtLee
PUBLISHED


            Argued at Chesapeake, Virginia


            JEROME ALEXANDER GRIFFIN
                                                                                OPINION BY
            v.     Record No. 0499-14-1                                 JUDGE RICHARD Y. ATLEE, JR.
                                                                             JANUARY 12, 2016
            COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                           James C. Hawks, Judge

                           Stephen B. Plott (Law Office of Stephen B. Plott, PLC, on brief), for
                           appellant.

                           Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Appellant Jerome Alexander Griffin entered pleas of guilty, pursuant to North Carolina v.

            Alford, 400 U.S. 25 (1970),1 to charges of second-degree murder and use of a firearm in the

            commission of a felony. On appeal, he alleges the trial court erred by not allowing him to

            withdraw his guilty pleas. We hold that the court did not err in denying the motion to withdraw

            the pleas. Accordingly, we affirm the convictions.

                                                     I. BACKGROUND

                   Griffin faced charges of first-degree murder, two counts of attempted robbery, three

            counts of use of a firearm in the commission of a felony, and possession of a firearm by a

            convicted felon. In exchange for Griffin’s pleas of guilt to a lesser-included charge of


                   1
                      By tendering an Alford plea, Griffin acknowledged the evidence was sufficient to
            convict him but maintained his innocence. See Alford, 400 U.S. at 37-38; see also Parson v.
            Carroll, 272 Va. 560, 565, 636 S.E.2d 452, 454-55 (2006). His Alford plea had “the same
            preclusive effect as a guilty plea.” Perry v. Commonwealth, 33 Va. App. 410, 412, 533 S.E.2d
            651, 652 (2000).
second-degree murder and one count of use of a firearm in the commission of a felony, the

Commonwealth agreed to move for entry of an order of nolle prosequi as to all remaining

charges and recommend a maximum fifteen-year sentence. In the plea agreement, Griffin

expressly agreed that “he cannot withdraw his guilty plea at a future date as it would prejudice

the Commonwealth.”

         The trial court accepted Griffin’s guilty pleas on September 16, 2013, the day before his

scheduled trial date. Prior to the trial court accepting the plea agreement, the Commonwealth

represented that it was prepared for trial the following day. When the trial court said it planned

to defer acceptance or rejection of the agreement until sentencing, the Commonwealth indicated

that, in the event the trial court was not then willing to accept the plea agreement, it had to go

forward with trial as scheduled or suffer prejudice. The Commonwealth proffered Griffin’s

criminal history, which the trial court required, so that it could accept the plea agreement without

delay.

         During the hearing, the trial court reviewed the plea agreement on the record with Griffin,

and reminded him that the agreement provided he “c[ould] not and w[ould] not withdraw [his]

guilty plea at a future date since it would prejudice the Commonwealth.” Griffin acknowledged

that he understood and agreed to these provisions. Griffin further confirmed that he entered the

guilty pleas of his “own free will and volition,” that he was not forced, tricked, or enticed to do

so, and that he understood the consequences of entering guilty pleas. The trial court entered the

order memorializing the plea on October 2, 2013.

         On October 9, 2013, Griffin sent the trial court a request to withdraw his pleas so he

could present an alibi defense at trial.2 The trial court forwarded the letter to defense counsel,


         2
          Griffin stated that, after he entered his Alford pleas, his alibi witness told him she would
testify that she was with him at the time of the crimes. Though Griffin had not spoken with his
alibi witness before entering his pleas, both defense counsel and the Commonwealth had
                                                   -2-
and on January 14, 2014,3 defense counsel filed a motion on behalf of Griffin to withdraw his

pleas. By the time the trial court heard the motion, the Commonwealth’s key witnesses were no

longer available or were uncooperative.4 The trial court denied Griffin’s motion, holding that it

was “not made in good faith” and that the Commonwealth would suffer “severe prejudice” if the

motion was granted. The trial court also found that Griffin had “no real new evidence” in

support of his motion, emphasizing that Griffin presented no evidence as to what his alibi

witness would testify to at trial. The trial court sentenced Griffin to fifteen years in prison.

                                             II. ANALYSIS

                        A. Express Waiver of Right to Withdraw Guilty Plea

       “Code § 19.2-296 allows a defendant to withdraw a guilty plea before sentence is

imposed.” Jones v. Commonwealth, 29 Va. App. 503, 511, 513 S.E.2d 431, 435 (1999).

Irrespective of whether Code § 19.2-296 confers a statutory “right” or simply describes a

procedural milestone, a defendant can expressly waive its provisions. “Generally, a party may

waive by contract any right conferred by law or contract. If the party being charged with

relinquishment of a right had knowledge of the right and intended to waive it, the waiver will be

enforced.” Burke v. Burke, 52 Va. App. 183, 188, 662 S.E.2d 622, 624 (2008) (quoting

Gordonsville Energy, L.P. v. Va. Elec. & Power Co., 257 Va. 344, 355-56, 512 S.E.2d 811, 818

(1999)). Once accepted, courts generally treat plea agreements as binding contracts (subject to



interviewed this witness. Although her story varied between interviews, in both statements his
alibi witness stated only generally that she was with him the evening of the crimes, not during
the exact time the crimes took place.
       3
           Griffin’s attorney had been out of the office for personal reasons in the interim.
       4
         The Commonwealth identified three primary witnesses, all of whom were then unable
or unwilling to testify. One was Griffin’s co-defendant, whose appeal was pending before this
Court when the trial court heard the motion. A second had fled after Griffin entered guilty pleas.
The third had decided he was dissatisfied with the consideration the Commonwealth offered in
exchange for his testimony.
                                               -3-
constitutional considerations not present here). See Wright v. Commonwealth, 49 Va. App. 58,

62, 636 S.E.2d 489, 491 (2006) (“[B]asic rules of contract law apply to plea agreements.”); see

also, e.g., United States v. Britt, 917 F.2d 353, 359 (8th Cir. 1990) (“A plea agreement is

contractual in nature and generally governed by ordinary contract principles.”).

       Virginia’s appellate courts have not directly addressed whether a defendant, through a

plea agreement, can expressly or impliedly waive the ability to withdraw a guilty plea. However,

we have previously held that a defendant can waive other statutory rights. See, e.g., Congdon v.

Commonwealth, 57 Va. App. 692, 705 S.E.2d 526 (2011) (holding that a juvenile waived his

statutory right to appeal via a plea agreement); Mitchell v. Commonwealth, 30 Va. App. 520,

528, 518 S.E.2d 330, 334 (1999) (upholding express waiver of statutory right to speedy trial

incorporated into continuance order). Here, only express waiver is at issue. An express waiver

is a “voluntary action or inaction with intent to surrender a right in esse with knowledge of the

facts and circumstances which gave birth to the right.” Employers Commercial Union Ins. Co. v.

Great Am. Ins. Co., 214 Va. 410, 412, 200 S.E.2d 560, 562 (1973). Express waivers can be

made through a writing, an oral statement, or a combination of both. See Mitchell, 30 Va. App.

at 528, 518 S.E.2d at 334.

       Here, Griffin signed a plea agreement that expressly waived any right to withdraw his

plea once it was accepted by the trial court. Before accepting the plea, the trial court engaged in

an extensive colloquy pursuant to Boykin v. Alabama, 395 U.S. 238 (1969), during which the

trial court reviewed the agreement terms with Griffin in detail. Griffin confirmed that he read

and understood the agreement, that he signed the agreement, and that he was entering his guilty

pleas freely and voluntarily. He confirmed that he understood and agreed to the express waiver

provision. Even though the trial court only expressly ruled that Griffin knowingly and

voluntarily entered his guilty pleas (not that he waived his right to withdraw them), the transcript

                                                -4-
of the plea colloquy demonstrates that Griffin expressly agreed to waive any ability to withdraw

his guilty pleas. Accordingly, the trial court did not err in holding Griffin to the terms of the plea

agreement.

                                  B. Prejudice to Commonwealth

       “It is well established that a defendant’s knowing and voluntary pretrial decisions may

preclude him from exercising certain rights in the future, including constitutional rights, if they

result in prejudice to the Commonwealth . . . .” Hubbard v. Commonwealth, 60 Va. App. 200,

211 n.4, 725 S.E.2d 163, 168 n.4 (2012). “[A] 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.” Ramsey v. Commonwealth, 65 Va. App. 593, 600, 779 S.E.2d

241, ___ (2015) (quoting Hubbard, 60 Va. App. at 211 n.4, 725 S.E.2d at 168 n.4); see also

Pritchett v. Commonwealth, 61 Va. App. 777, 787, 739 S.E.2d 922, 927 (2013).

       Here, Griffin’s plea agreement not only waived any right to withdraw his guilty pleas, but

further stipulated that such a withdrawal would prejudice the Commonwealth. In addition to that

express stipulation, the record shows that the Commonwealth would have suffered actual

prejudice if forced to try the case. The three primary witnesses against Griffin were all unable or

unwilling to testify by the time the trial court heard Griffin’s motion to withdraw his pleas. One

of the witnesses fled after Griffin pled guilty. Additionally, “prejudice may exist where the

record reflects that the Commonwealth has partially or fully fulfilled its obligations in a plea

agreement by dismissing or amending charges.” Ramsey, 65 Va. App. at 600, 779 S.E.2d at ___

(quoting Hubbard, 60 Va. App. at 211 n.4, 725 S.E.2d at 168 n.4). Pursuant to the agreement,

the Commonwealth moved for the trial court to enter an order of nolle prosequi for numerous

charges against Griffin. Such prejudice to the Commonwealth, which was both expressly

stipulated and supported in the record, if Griffin were permitted to withdraw his guilty pleas,

                                                -5-
bolsters the trial court’s decision to enforce the terms of the plea agreement and deny Griffin’s

motion.

                                         III. CONCLUSION

       Griffin expressly waived his ability to withdraw the plea, both through a written plea

agreement and orally before the trial court. We find no error in the trial court holding Griffin to

the terms of an agreement he entered knowingly and voluntarily. Accordingly, the trial court did

not abuse its discretion by denying Griffin’s motion to withdraw his pleas.

                                                                                          Affirmed.




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