Robert Dwayne Armstrong v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Petty
ROBERT DWAYNE ARMSTRONG
MEMORANDUM OPINION* BY
v. Record No. 2102-05-3 JUDGE ROBERT J. HUMPHREYS
DECEMBER 28, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Henry A. Vanover, Judge
Bruce H. Russell, II (Bolling, Hearl & Russell, on brief), for
appellant.
J. Robert Bryden, II, Assistant Attorney General (Robert F.
McDonnell, Attorney General; Steven R. McCullough, Deputy State
Solicitor General, on brief), for appellee.
Robert Dwayne Armstrong (“Armstrong”) appeals1 his conviction of three counts of
unlawful carnal knowledge, in violation of Code § 18.2-63.2 Armstrong contends that the trial
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
This Court granted two of the issues Armstrong presented for appeal. The first question
was phrased as follows: “Did the trial court err in sentencing appellant on Case Nos. CR03-1624
and CR03-1625?” The court denied Armstrong’s petition for appeal as to the sentence for Case
No. CR04-1267. The second issue presented, on which we granted an appeal, was phrased as
follows: “Did the trial court err in convicting appellant of two counts of carnal knowledge of
[the victim], in violation of Code § 18.2-63, because [the victim] was fifteen (15) years of age at
the time of the offense?”
Although this Court granted the issue regarding Armstrong’s sentence, the brief
Armstrong subsequently submitted failed to present this Court with any argument, or citation to
authority, addressing this issue. Thus, this Court will not consider this issue on appeal. See
Jenkins v. Commonwealth, 244 Va. 445, 451, 423 S.E.2d 360, 364 (1992) (finding that the
defendant failed to brief or argue eight assignments of error, and thus, the Court declined to
consider them); see also Rule 5A:20(e) (“The opening brief of appellant shall contain . . . [t]he
principles of law, the argument, and the authorities relating to each question presented.”).
Accordingly, this Court is left with one question to decide. Specifically, this Court must
determine if the trial court erred in convicting Armstrong of two of the three counts of unlawful
carnal knowledge.
2
Code § 18.2-63 states, in pertinent part, “[i]f any person carnally knows, without the use
of force, a child thirteen years of age or older but under fifteen years of age, such person shall be
guilty of a Class 4 felony.”
court erred in convicting him of two counts of unlawful carnal knowledge because he now
claims that the victim testified at the preliminary hearing that she was actually fifteen years of
age at the time of the offense.3 Armstrong argues that because the statute “deals with children
who are ‘under the age of 15,’” it was “improper of the court to convict him of the offense.” For
the following reasons, we disagree and affirm the conviction.
BACKGROUND
On appeal, we view the evidence “in the light most favorable to the Commonwealth and
grant all reasonable inferences fairly deducible therefrom.” Ellis v. Commonwealth, 29 Va. App.
548, 551, 513 S.E.2d 453, 454 (1999). So viewed, the evidence established the following.
Armstrong was indicted on two counts of rape, in violation of Code § 18.2-61, and one
count of unlawful carnal knowledge, in violation of Code § 18.2-63. Pursuant to a plea
agreement, the Commonwealth agreed to amend the indictments to reflect three counts of
unlawful carnal knowledge, in violation of Code § 18.2-63. In return, Armstrong agreed to plead
guilty to all three counts.
On August 27, 2004, Armstrong pled guilty and stipulated to the Commonwealth’s
evidence as proffered by the prosecutor. Specifically, Armstrong agreed that the evidence
proved that both victims were between the ages of thirteen and fifteen at the time of the
offenses.4 The court sentenced Armstrong to serve a total of 30 years (10 years for each count),
with 20 years suspended. Armstrong now appeals.
3
The Commonwealth argues that this question is procedurally defaulted because in his
petition for appeal, Armstrong did not raise this assignment of error. However, this Court
granted in part, and denied in part, Armstrong’s petition for appeal. In granting part of the
petition, this Court directed the parties to address the question of whether the trial court erred in
convicting Armstrong of two counts of unlawful carnal knowledge. Thus, this issue is properly
before the Court, and is not procedurally barred.
4
At the preliminary hearing, one victim testified that she was fifteen at the time of the
offense.
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ANALYSIS
On appeal, Armstrong contends that because the victim’s testimony at the preliminary
hearing indicated that she was actually fifteen at the time of the offense, the trial court erred in
convicting him under Code § 18.2-63. We disagree.
We need not reach the question of whether Armstrong’s agreement to the evidentiary
stipulation, which he asserts is in conflict with the victim’s testimony at the preliminary hearing,
constitutes trial court error. Specifically, “the introduction of evidence to sustain a conviction
upon a guilty plea is [] unnecessary in any criminal case,” as a “‘plea of guilty, accepted and
entered by the court, is a conviction or the equivalent of a conviction of the offense to which it is
directed.’” Kibert v. Commonwealth, 216 Va. 660, 664, 222 S.E.2d 790, 793 (1976) (quoting
Crutchfield v. Commonwealth, 187 Va. 291, 296, 46 S.E.2d 340, 342 (1948)). Moreover, “it is a
waiver of all defenses other than those jurisdictional.” Peyton v. King, 210 Va. 194, 196, 169
S.E.2d 569, 571 (1969). Thus, “[w]here a conviction is rendered upon such a plea and the
punishment fixed by law is in fact imposed in a proceeding free of jurisdictional defect, there is
nothing to appeal.” Id.In this case, Armstrong contends that because the victim testified during the preliminary
hearing that she was fifteen at the time of the offense, the evidence failed to prove an element of
the offense for which he was convicted. Stated differently, Armstrong contends that the
evidence was insufficient to support his conviction for two counts of unlawful carnal knowledge,
in violation of Code § 18.2-63.5
However, Armstrong fails to recognize that by entering a knowing, voluntary, and
intelligent plea of guilty, he supplied all of the evidence necessary to support his conviction. See
Hobson v. Youell, 177 Va. 906, 912-13, 15 S.E.2d 76, 78 (1941) (“Generally no evidence of
5
Armstrong does not argue that the guilty plea was involuntarily or unintelligently made.
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guilt is required in order to proceed to judgment [upon a plea of guilty], for [the] accused has
himself supplied the necessary proof.”).6 He also fails to recognize that a voluntary and
intelligent guilty plea, accepted by the court, bars him from attacking his conviction based on
any non-jurisdictional grounds. See Beaver v. Commonwealth, 232 Va. 521, 526, 352 S.E.2d
342, 345 (1987). As such, Armstrong may not now appeal his conviction based on insufficiency
of the evidence. Accordingly, we hold that the trial court did not err in finding Armstrong guilty
of unlawful carnal knowledge, in violation of Code § 18.2-63.
Affirmed.
6
“In a proper case evidence may be heard as to the aggravation or mitigation of the
offense.” Youell, 177 Va. at 913, 15 S.E.2d at 78. In this context, “may” denotes discretion, not
direction. Kibert, 216 Va. at 665, 222 S.E.2d at 793.
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