Kavon Atabaki v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
KAVON ATABAKI
MEMORANDUM OPINION * BY
v. Record No. 1411-98-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Jerry M. Phillips (Phillips, Beckwith, Hall &
Chase, on brief), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of malicious wounding, Kavon
Atabaki contends that the trial court erred (1) in ruling that his
Alford guilty plea was voluntarily and intelligently made, (2) in
refusing to permit him to withdraw his Alford guilty plea, (3) in
ruling that his motion to withdraw his guilty plea was not timely
under Code § 19.2-296, and (4) in refusing to resentence him upon
the basis of newly discovered evidence. We find no error and
affirm the judgment of the trial court.
Atabaki, a seventeen-year-old juvenile whose case had been
certified to the circuit court, was charged with malicious
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
maiming, and his case was set for trial before a jury. On the day
of trial, he moved for a continuance. The motion was denied and,
following a recess at which he conferred with his counsel, Atabaki
tendered a plea of guilty pursuant to North Carolina v. Alford,
400 U.S. 25 (1970). The plea was based on a plea agreement, which
provided, in pertinent part:
8. . . . I understand that by pleading
guilty I give up:
A. The right to a speedy and public
trial by a jury of twelve persons who
know that I am presumed to be innocent
and all twelve of whom must agree that
I am guilty beyond a reasonable doubt
and all twelve of whom must agree on a
sentence before I could be convicted[.]
Before accepting Atabaki's plea, the trial court engaged in
the following colloquy with him:
THE COURT: I have before me a plea
agreement memorandum under the terms of
which an Alford-type plea is being rendered
to the Court to the charge of malicious
wounding; is that correct?
[ATABAKI]: Yes, sir.
THE COURT: You understand that the
Alford-type plea under the terms of that,
you are permitted to utilize that advice and
enter a plea according to the terms of
Alford in the North Carolina case?
It is, however, once received in by the
law and in the Department of Corrections and
otherwise received as a guilty plea, that
is, that it amounts to a conviction. That
is the result of the case under that plea is
a conviction.
Do you understand that?
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[ATABAKI]: Yes, sir.
THE COURT: All right. And the crime of
malicious wounding, as I'm sure you have
been told and understand, is a felony in
Virginia?
[ATABAKI]: Yes, sir.
THE COURT: And you've been certified by the
Juvenile Court and found, the case have been
found to be certified to the Circuit Court
for trial as an adult.
And on that felony, there is a minimum
penitentiary sentence of five years to a
maximum of 20 years and a fine that could be
as high as $100,000. Do you understand
that?
[ATABAKI]: Yes, sir.
THE COURT: Do you also understand that
under the law when the case is certified,
this would be true under a plea, in any
event that the judge does the sentencing had
you been tried even by a jury, they would
have determined the guilt phase of the case,
but the judge would have determined the
sentencing phase of the case?
You understood that, did you?
[ATABAKI]: Yes, sir.
THE COURT: And that the judge in the
sentencing phase of the case has available
to him, not only all of the law that would
be available to a person were he an adult,
but retains that law that would be available
to him for the treatment of the case as a
juvenile. Do you understand that?
[ATABAKI]: Yes, sir.
The court thereupon accepted the plea and, upon hearing a
representation of the evidence, convicted Atabaki of malicious
maiming. On Atabaki's motion, the court ordered a presentence
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report and continued the case to March 27, 1998, for receipt of
that report and sentencing. On April 9, 1998 the sentencing
hearing was held and by order entered April 30, 1998, Atabaki
was sentenced to serve twelve years in the Department of
Corrections with four years suspended.
On May 20, 1998, Atabaki moved for reconsideration. He
sought to withdraw his guilty plea or, alternatively, he asked
for reconsideration of his sentence in light of newly discovered
evidence concerning the propensity of the victim for violence.
Following a hearing, the trial court denied this motion.
I. Withdrawal of Guilty Plea
Code § 19.2-296 provides:
A motion to withdraw a plea of guilty or
nollo contendere may be made only before
sentence is imposed or imposition of
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.
Atabaki's motion was filed twenty days after entry of the final
order imposing his sentence. Thus, he was permitted to withdraw
his guilty plea only upon a showing of manifest injustice. See
Lilly v. Commonwealth, 218 Va. 960, 963, 243 S.E.2d 208, 210-11
(1978). We review the trial court's denial of the motion only
for an abuse of discretion. Atabaki asserts two grounds for the
withdrawal of his plea.
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First, he asserts that he understood that had he proceeded
before a jury on a not guilty plea, the jury, upon finding him
guilty, would have determined his sentence. He argues that
fearful of this, he elected to plead guilty as the only way to
have the trial judge fix his sentence. His contention is
refuted by the record of the trial court's advice to him in
determining whether to accept his plea. The trial court's
determination that Atabaki understood that advice is supported
by the record and will not be disturbed on appeal.
Furthermore, even were Atabaki's alleged misunderstanding
genuine, his reluctance to submit to normal legal procedure
cannot be deemed the basis for declaring a manifest injustice.
Second, Atabaki contends that the trial court erroneously
gave him a false understanding that he might be eligible for
disposition as a juvenile. The record belies this assertion.
The trial court advised him that it retained the option of
imposing a juvenile disposition. This advice was correct. See
Code § 16.1-272(A)(1).
II. Timeliness of the Motion to Withdraw
The trial court did not refuse to entertain Atabaki's
motion to withdraw his guilty plea. It correctly applied Code
§ 19.2-296 in ruling that the plea could be withdrawn only upon
a showing of manifest injustice.
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III. Reconsideration of Sentence
The allegedly after-discovered evidence of the victim's
propensity for turbulence did not bear on the merits of the case
in the context of a guilty plea. Such evidence, if received,
would have been cumulative. Atabaki's contention that he acted
in defense of a friend was already before the court. We find no
abuse of discretion in the trial court's refusal to reopen the
case.
The judgment of the trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the
Supreme Court held that where an accused "voluntarily,
knowingly, and understandingly" concludes that his interests
require entry of a guilty plea, a plea may be accepted even if
the accused "is unwilling or unable to admit his participation
in the acts constituting the crime." 400 U.S. at 37. "A
well-accepted definition of 'knowingly' is '[a]n act . . . done
voluntarily and intentionally, and not because of mistake or
accident or other innocent reason.'" United States v. Jones,
735 F.2d 785, 789 (4th Cir. 1984) (citation omitted). The
record contains abundant evidence that Kavon Atabaki's plea was
not knowingly and understandingly made.
Atabaki, a seventeen year old, appeared with his counsel
for a jury trial in the circuit court on a charge of malicious
wounding in violation of Code § 18.2-51. Atabaki testified that
his defense was self-defense in defense of another. Atabaki and
his parents testified that on the day of trial they were
prepared for a jury trial. When they arrived for trial,
however, Atabaki's counsel informed them that one witness was
not willing to testify, that she was not prepared to go forward
without the witness, and that she would request a continuance.
When the trial judge denied the continuance, Atabaki's counsel
advised Atabaki and his parents that Atabaki should not risk a
trial because, if convicted, the jury, which was composed of
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older, conservative retired people, would sentence him.
Accepting his counsel's advice, Atabaki agreed to enter a guilty
plea pursuant to Alford. See 400 U.S. at 37 (ruling that an
accused may plead guilty even if the accused has a bona fide
defense or a claim of innocence). He signed a plea agreement
that contained the following recital:
8. . . . I understand that by pleading
guilty I give up:
A. The right to a speedy and public
trial by a jury of twelve persons who
know that I am presumed to be innocent
and all twelve of whom must agree that
I am guilty beyond a reasonable doubt
and all twelve of whom must agree on a
sentence before I could be convicted[.]
(Emphasis added).
Both Atabaki's counsel's statement about jury sentencing
and paragraph (8)(A) of the plea agreement materially misstated
the law. Code § 16.1-272(A), which was applicable because
Atabaki was a juvenile being tried in the circuit court,
provides that "[u]pon a finding of guilty of any charge other
than capital murder, the [trial judge] shall fix the sentence
without the intervention of a jury."
The majority notes that the trial judge asked the following
question during the colloquy that preceded his acceptance of
Atabaki's plea:
Do you also understand that under the law
when the case is certified, this would be
true under a plea, in any event that the
judge does the sentencing had you been tried
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even by a jury, they would have determined
the guilt phase of the case, but the judge
would have determined the sentencing phase
of the case?
That question, however, is so multifarious that it could not
reasonably be said to convey to Atabaki, a seventeen year old,
that the jury would not have recommended a sentence at the
conclusion of a jury trial. Even if Atabaki had parsed the
inquiry, it is doubtful that he could have understood that
concept from the phrase "under the law when the case is
certified, this would be true under a plea, in any event that
the judge does the sentencing had you been tried even by a
jury." Indeed, the trial judge's qualification that "this would
be true under a plea" would have compounded Atabaki's difficulty
in understanding the inquiry. Even the phrase "they [, the
jury,] would have determined the guilt phase of the case, but
the judge would have determined the sentencing phase of the
case" does not clearly convey that, at the conclusion of a jury
trial, the judge, without a recommendation from the jury, would
have sentenced Atabaki. The words "determined the sentencing
phase of the case" have significance only to a legally trained
person.
Furthermore, at no time during the colloquy did the trial
judge inform Atabaki that the plea agreement was faulty because
it contained the misstatement. Indeed, the trial judge
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seemingly relied upon and buttressed the agreement's
misstatement when he asked the following:
THE [JUDGE]: I have before me a plea
agreement memorandum under the terms of
which an Alford-type plea is being tendered
to the Court to the charge of malicious
wounding; is that correct?
THE DEFENDANT: Yes, sir.
THE [JUDGE]: You understand that the
Alford-type plea under the terms of that,
you are committed to utilize that advice and
enter a plea according to the terms of
Alford in the North Carolina case?
It is, however, once received in by the
law and in the Department of Corrections and
otherwise received as a guilty plea. That
is, that it amounts to a conviction. That
is the result of the case under that plea is
a conviction.
Do you understand that?
THE DEFENDANT: Yes, sir.
* * * * * * *
THE [JUDGE]: All right. And you understand
that by signing the agreement you agree to
enter that plea, the implication of which I
think I've explained to you, and in so doing
that you waive your right to have a jury
trial and you also waive your right to
appeal your case in the event there had been
a conviction with the jury? Do you
understand that?
THE DEFENDANT: Yes, sir.
Thus, Atabaki's counsel misstated the law to him; the plea
agreement Atabaki signed contained the same misstatement; and
the trial judge reinforced both misstatements, buttressing the
very inducement that caused Atabaki to plead guilty while
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proclaiming his innocence. "From the information at hand,
[Atabaki] labored under a mistake and misapprehension of a
material fact or facts which induced a plea that would otherwise
not have been made." Parris v. Commonwealth, 189 Va. 321, 326,
52 S.E.2d 872, 874 (1949).
The long standing principle in Virginia is that a motion to
withdraw a plea "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." Parris, 189 Va. at 324, 52 S.E.2d at
873. Elaborating on that principle, the Supreme Court stated
the following:
"As in other cases of discretionary
power, no general rule can be laid down as
to when a defendant will be permitted to
withdraw his plea. The decision in each
case must depend to a great extent on the
particular attendant circumstances.
Generally, however, it may be said that the
withdrawal of a plea of guilty should not be
denied in any case where it is in the least
evident that the ends of justice will be
subserved by permitting not guilty to be
pleaded in its place. The least surprise or
influence causing a defendant to plead
guilty when he has any defense at all should
be sufficient grounds for permitting a
change of plea from guilty to not guilty.
Leave should ordinarily be given to withdraw
a plea of guilty if it was entered by
mistake or under a misconception of the
nature of the charge; through a
misunderstanding as to its effect; through
fear, fraud, or official misrepresentation;
was made involuntarily for any reason; or
even where it was entered in-advisedly, if
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any reasonable ground is offered for going
to the jury."
* * * * * * *
"The plea of guilty to a serious criminal
charge should be freely and voluntarily
made, and entered by the accused, without a
semblance of coercion, and without fear or
duress of any kind, and the accused should
be permitted to withdraw a plea of guilty
entered unadvisedly when application
therefor is duly made in good faith and
sustained by proofs and a proper offer is
made to go to trial on a plea of not
guilty."
Id. at 325-26, 52 S.E.2d at 874 (citations omitted).
The circumstances proved that Atabaki entered his plea
under a mistake of material fact. I would hold, therefore, that
the trial judge erred in refusing to allow Atabaki to withdraw
his plea. As the Court noted in Parris, "[t]he circumstances
presented and the belief thereby induced in [Atabaki's] mind
constituted a strong, if not controlling, reason for the
character of the plea interposed." 189 Va. at 326, 52 S.E.2d at
874.
I also agree with Atabaki's argument that the trial judge
misstated the law on another material issue or, at the least,
stated the law in a way that was unclear. That misstatement
occurred when the trial judge stated the following prior to
accepting the plea:
THE [JUDGE]: And that the judge in the
sentencing phase of the case has available
to him, not only all of the law that would
be available to a person were he an adult,
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but retains that law that would be available
to him for the treatment of the case as a
juvenile. Do you understand that?
THE DEFENDANT: Yes, sir.
THE [JUDGE]: Have you been before the
Courts before?
THE DEFENDANT: No, sir.
Atabaki was charged with malicious wounding, which is
statutorily defined as an offense qualifying as a violent
juvenile felony. See Code §§ 16.1-228 and 16.1-269.1. As
pertinent to this issue, Code § 16.1-272 provides as follows:
A. In any case in which a juvenile is
indicted, the offense for which he is
indicted and all ancillary charges shall be
tried in the same manner as provided for in
the trial of adults, except as otherwise
provided with regard to sentencing. Upon a
finding of guilty of any charge other than
capital murder, the court shall fix the
sentence without the intervention of a jury.
1. If a juvenile is convicted of a violent
juvenile felony, the sentence for that
offense and for all ancillary crimes shall
be fixed by the court in the same manner as
provided for adults, but the sentence may be
suspended conditioned upon successful
completion of such terms and conditions as
may be imposed in a juvenile court upon
disposition of a delinquency case.
Upon Atabaki's conviction for malicious wounding, the trial
judge was required by statute to fix his sentence "in the same
manner as provided for adults." Code § 16.1-272(A)(1). Thus,
the judge erroneously stated that "in the sentencing phase of
the case [, the judge] has available to him, not only all of the
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law that would be available to a person were he an adult, but
retains that law that would be available to him for the
treatment of the case as a juvenile." That statement would be
true only if Atabaki was not convicted as a violent juvenile
offender. See Code § 16.1-272(A)(2).
Atabaki was before the trial judge to tender a plea on an
offense that statutorily labelled him as a "violent juvenile
offender." Thus, the trial judge was required by statute to
sentence him as an adult. The judge's power to suspend the
adult sentence upon "terms and conditions as may be imposed in a
juvenile court upon disposition of a delinquency case" does not
equate to the representation the trial judge made to Atabaki.
He was required to convict and sentence Atabaki as an adult,
having discretion only to condition a suspension of that
sentence using juvenile court remedies.
For all of these reasons, I would hold that Atabaki's plea
was not knowingly and understandingly made and that the trial
judge erred in denying Atabaki's motion to withdraw his plea.
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