Cordaro Rayez Parham v. Commonwealth of Virginia ( 2013 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, Beales and Huff
    UNPUBLISHED
    Argued at Chesapeake, Virginia
    CORDARO RAYEZ PARHAM
    MEMORANDUM OPINION* BY
    v.     Record No. 0290-13-1                                      JUDGE GLEN A. HUFF
    DECEMBER 17, 2013
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
    David F. Pugh, Judge
    Charles E. Haden for appellant.
    Donald E. Jeffrey, III, Senior Assistant Attorney General
    (Kenneth T. Cuccinelli, II, Attorney General, on brief), for
    appellee.
    Cordaro Rayez Parham (“appellant”) appeals a ruling of the Circuit Court of the City of
    Newport News (“trial court”) denying appellant’s motion to withdraw his guilty pleas to twelve
    felony charges.1 Following a hearing, the trial court denied appellant’s motion and continued the
    matter for sentencing, where appellant was sentenced to an aggregate of 125 years’ incarceration
    in the Department of Corrections with 87 years suspended. On appeal, appellant contends that
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    Pursuant to a plea agreement, appellant pled guilty to the following twelve felony
    charges: three counts of abduction in violation of Code § 18.2-47, one count of statutory
    burglary with intent to commit murder, rape, or robbery while armed with a deadly weapon in
    violation of Code § 18.2-90, one count of robbery in violation of Code § 18.2-58, one count of
    attempted robbery in violation of Code §§ 18.2-26 and 18.2-58, one count of aggravated
    malicious wounding in violation of Code § 18.2-51.2, one count of possession of a firearm by a
    convicted felon in violation of Code § 18.2-308.2, and four counts of use of a firearm in the
    commission of a felony in violation of Code § 18.2-53.1.
    During the hearing on appellant’s motion to withdraw his guilty pleas, however, the
    Commonwealth decided to nolle prosequi one of the charges because it was identified by an
    incorrect case number in the plea agreement. Consequently, appellant was only convicted and
    sentenced on eleven felony charges.
    the trial court erred in refusing to allow him to withdraw his guilty pleas pursuant to Code
    § 19.2-296 because he was pressured into pleading guilty by his family, and the plea agreement
    contained material errors which demonstrated there was never a meeting of the minds. For the
    following reasons, this Court affirms the judgment of the trial court.
    I. BACKGROUND
    On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
    evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
    Williams v. Commonwealth, 
    49 Va. App. 439
    , 442, 
    642 S.E.2d 295
    , 296 (2007) (en banc)
    (quoting Jackson v. Commonwealth, 
    267 Va. 666
    , 672, 
    594 S.E.2d 595
    , 598 (2004)). So viewed,
    the evidence is as follows.
    On November 1, 2012, pursuant to a plea agreement, appellant entered guilty pleas to twelve
    felony charges, of which he was ultimately convicted on eleven. In accordance with the terms of
    the plea agreement, the Commonwealth moved to nolle prosequi another ten felony charges, but the
    parties did not have an agreed upon sentencing disposition. Instead, the Commonwealth reserved its
    right to recommend an active period of incarceration within the statutory limits. During the plea
    hearing colloquy, appellant represented that he understood the charges against him and the
    maximum statutory sentence he could receive for each charge. Further, appellant testified that he
    was pleading guilty freely and because he was in fact guilty. Accordingly, the trial court accepted
    appellant’s guilty pleas, finding they were entered freely, intelligently, and voluntarily with an
    understanding of the nature of the charges and the consequences.
    Thereafter, the trial court discovered an error in the plea agreement and heard a joint motion
    to amend this error on November 28, 2012. According to the plea agreement, the case number for
    one of the felony charges was “1676-12,” but the correct case number for this felony was actually
    “1679-12.” Otherwise, the original agreement was to remain unchanged. When the
    -2-
    Commonwealth asked the trial court to require appellant to sign the amended plea agreement with
    the corrected case number, however, appellant responded by stating that he never wanted to accept
    the plea agreement and was forced into doing so by his attorney. The trial court subsequently
    granted a motion by appellant’s attorney to withdraw as counsel and appointed James S. Ellenson
    (“Ellenson”) in his stead.
    Ellenson filed a motion to withdraw appellant’s guilty pleas, which was heard on January 7,
    2013. At this hearing, appellant first argued that the entire plea agreement should be jettisoned
    because there was never a true “meeting of the minds.” In support of this argument, appellant
    asserted that the mistyped case number in the plea agreement was a material error and the plea
    agreement should therefore be set aside. Second, appellant argued he should be allowed to
    withdraw his pleas because he was pressured into accepting the plea agreement by his family and
    attorney. In support of his second argument, appellant testified that after he initially decided not to
    accept the plea agreement, his attorney became upset and convinced appellant’s family to pressure
    appellant into accepting the plea agreement. Appellant’s grandmother similarly testified that after
    speaking with appellant’s attorney, she met appellant in the jail and convinced him to accept the
    plea agreement.
    The trial court rejected appellant’s first argument regarding the error in the plea agreement,
    finding that the mistyped case number was a non-material, scrivener’s error.2 Nevertheless, the
    Commonwealth decided to nolle prosequi the charge which contained the scrivener’s error. In
    regards to appellant’s second argument, the trial court initially assumed, without deciding, that the
    guilty pleas were entered in good faith and as a result of undue influence. The trial court still denied
    2
    A scrivener’s error is “[a]n error resulting from a minor mistake . . . . Among the
    boundless examples of [scrivener’s] errors are . . . typing an incorrect number . . . .” Black’s
    Law Dictionary 622 (9th ed. 2009).
    -3-
    appellant’s motion, however, on the ground that appellant never proffered evidence of a reasonable
    defense to justify withdrawing his guilty pleas under Code § 19.2-296. This appeal followed.
    II. ANALYSIS
    On appeal, appellant argues that the trial court erred in refusing to allow appellant to
    withdraw his guilty pleas pursuant to Code § 19.2-296. In support of this argument, appellant
    alleges that he was pressured into pleading guilty by his family and the error in the plea
    agreement demonstrated that there was never a meeting of the minds. The Commonwealth
    responds by arguing that the trial court did not err because appellant never proffered evidence of
    a reasonable defense to justify going to a trial on the merits.
    The decision to allow a defendant to withdraw his guilty plea rests “within the sound
    discretion of the trial court and is to be determined by the facts and circumstances of each case.”
    Parris v. Commonwealth, 
    189 Va. 321
    , 324, 
    52 S.E.2d 872
    , 873 (1949). “‘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.’” Zigta v. Commonwealth, 
    38 Va. App. 149
    , 153, 
    562 S.E.2d 347
    , 349
    (2002) (quoting 
    Parris, 189 Va. at 325
    , 52 S.E.2d at 874). Appellate review under an abuse of
    discretion standard, “if nothing else, means that the trial judge’s ruling will not be reversed
    simply because an appellate court disagrees.” Thomas v. Commonwealth, 
    44 Va. App. 741
    , 753,
    
    607 S.E.2d 738
    , 743, adopted upon reh’g en banc, 
    45 Va. App. 811
    , 
    613 S.E.2d 870
    (2005).
    “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.”
    Tynes v. Commonwealth, 
    49 Va. App. 17
    , 21, 
    635 S.E.2d 688
    , 689 (2006).
    Code § 19.2-296 provides that
    [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.
    -4-
    The “Supreme Court in Parris v. Commonwealth, 
    189 Va. 321
    , 
    52 S.E.2d 872
    (1949),
    made the ‘seminal statement’ of Virginia law governing ‘the denial by a trial court of a motion to
    withdraw a guilty plea.’” Williams v. Commonwealth, 
    59 Va. App. 238
    , 245, 
    717 S.E.2d 837
    ,
    840 (2011) (quoting Justus v. Commonwealth, 
    247 Va. 143
    , 152, 
    645 S.E.2d 284
    , 288 (2007)).
    In Parris, the Supreme Court held that a timely motion should not be denied “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” so long as “any reasonable ground is offered for going to
    the jury.” 
    Parris, 189 Va. at 324-25
    , 52 S.E.2d at 873-74. To warrant withdrawal of a guilty
    plea, a defendant’s motion must be “‘made in good faith and sustained by proofs’” justifying a
    trial on the merits. 
    Justus, 274 Va. at 153-54
    , 645 S.E.2d at 288 (quoting 
    Parris, 189 Va. at 325
    -26, 52 S.E.2d at 874).
    Accordingly, “[t]he Parris standard . . . requires [a] defendant (i) to establish a good-faith
    basis for making the guilty plea and later seeking to withdraw it, and (ii) to proffer evidence of a
    reasonable basis for contesting guilt.” Cobbins v. Commonwealth, 
    53 Va. App. 28
    , 34-35, 
    668 S.E.2d 816
    , 819 (2008) (citing 
    Justus, 274 Va. at 155-56
    , 
    645 S.E.2d 289-90
    ). “The first
    requirement protects the integrity of the judicial process by precluding defendants from using a
    guilty plea as a subterfuge to manipulate the court. The second requirement defeats motions to
    withdraw which would result in an essentially futile trial.” 
    Id. Indeed, a
    trial court’s discretion
    to grant the motion “‘will rarely, if ever, be exercised in aid of an attempt to rely upon a merely
    dilatory or formal defense.’” Id. (quoting 
    Parris, 189 Va. at 324-25
    , 52 S.E.2d at 873-74).
    Appellant argues that he should have been permitted to withdraw his pleas under Code
    § 19.2-296 because he faced undue pressure from his family and attorney and there was an error
    in the plea agreement. In so arguing, appellant seizes upon the following language from Parris:
    -5-
    Withdrawal of a guilty plea should not be denied when 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.
    
    Parris, 189 Va. at 325
    , 52 S.E.2d at 874.
    In the present case, appellant testified that after he informed his attorney that he was not
    going to plead guilty, his attorney became “upset with his decision-making” and convinced
    appellant’s family to pressure appellant into accepting the plea agreement. Indeed, appellant’s
    grandmother testified that after talking with appellant’s attorney, she met with appellant and
    convinced him to plead guilty.3 Assuming, without deciding, that appellant entered his pleas in
    good faith because he was unduly influenced by his family, the trial court still did not abuse its
    discretion in denying appellant’s motion to withdraw his guilty pleas because appellant failed to
    proffer a reasonable defense to justify a trial on the merits.
    Indeed, appellant does not even argue in the alternative that he has a reasonable defense
    to justify going to trial. Instead, appellant argues that he is not required under Parris to proffer
    evidence of a reasonable defense in order to withdraw his guilty pleas. This argument fails,
    however, because it is contradicted by a long line of cases interpreting Parris, from both the
    Supreme Court and this Court, that have consistently required defendants to proffer evidence of a
    reasonable defense before a motion to withdraw a guilty plea will be granted. E.g. Bottoms v.
    Commonwealth, 
    281 Va. 23
    , 
    704 S.E.2d 406
    (2011); Justus, 
    274 Va. 143
    , 
    645 S.E.2d 284
    ;
    Bailey v. Commonwealth, 
    193 Va. 814
    , 
    71 S.E.2d 368
    (1952); Booker v. Commonwealth, 
    61 Va. App. 323
    , 
    734 S.E.2d 729
    (2012); Williams, 
    59 Va. App. 238
    , 
    717 S.E.2d 837
    .
    3
    Appellant does not argue, or cite any authority in support of the proposition, that the
    scrivener’s error in the plea agreement constitutes an independent basis for reversing the trial
    court’s decision. Rather, appellant refers to the scrivener’s error in support of his assertion that
    his guilty pleas were entered in “good faith” for the purposes of Code § 19.2-296.
    -6-
    III. CONCLUSION
    Therefore, this Court holds that the trial court did not abuse its discretion in denying
    appellant’s motion to withdraw his guilty pleas under Code § 19.2-296 because appellant failed
    to proffer evidence of a reasonable defense to justify going to a trial on the merits. Accordingly,
    we affirm the trial court.
    Affirmed.
    -7-