Jill Kristen Rothar v. Commonwealth of Virginia ( 2001 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Frank, Agee and Senior Judge Coleman
    Argued at Salem, Virginia
    JILL KRISTEN ROTHAR
    MEMORANDUM OPINION * BY
    v.   Record No. 0964-00-3                        JUDGE ROBERT P. FRANK
    MAY 1, 2001
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
    Porter R. Graves, Jr., Judge
    Peter J. Schwartz (Walter F. Green, IV, on
    brief), for appellant.
    Susan M. Harris, Assistant Attorney General
    (Mark L. Earley, Attorney General, on brief),
    for appellee.
    Jill Kristen Rothar (appellant) was convicted, in a bench
    trial, of possession with the intent to manufacture marijuana, in
    violation of Code § 18.2-248.1.     On appeal, appellant contends the
    trial court erred in denying her motion to suppress the drugs
    seized.   For the following reasons, we affirm the judgment of the
    trial court.
    I.   BACKGROUND 1
    Appellant was indicted for the possession of a firearm while
    in possession of more than one pound of marijuana pursuant to Code
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    1
    We do not recite the facts of the search because we do not
    address the merits of that issue.
    § 18.2-308.4 and the possession of marijuana with the intent to
    manufacture pursuant to Code § 18.2-248.1.       Appellant filed a
    motion to suppress the marijuana plants that were observed during
    a warrantless search of her residence.        After a hearing on January
    20, 2000, the trial court denied the motion to suppress.
    On February 9, 2000, pursuant to a plea agreement with the
    Commonwealth, which was accepted by the trial court, appellant
    entered an Alford plea of guilty and was convicted of violating
    Code § 18.2-248.1.   Appellant did not enter a conditional plea of
    guilty pursuant to Code § 19.2-254.       Further, in accordance with
    the plea agreement, the trial court entered an order of nolle
    prosequi to the charge of violating Code § 18.2-308.4.       The trial
    court determined appellant had entered into the plea agreement
    freely, voluntarily, and intelligently.        Appellant was sentenced
    in accordance with the plea agreement.
    Appellant appeals the trial court's denial of her motion to
    suppress.
    II.    ANALYSIS
    We have addressed the effect of an Alford plea in the context
    of a waiver of appeal.   In Perry v. Commonwealth, 
    33 Va. App. 410
    ,
    
    533 S.E.2d 651
     (2000), we wrote:
    "Under an Alford plea, a defendant
    maintains innocence while entering a plea of
    guilty because the defendant concludes that
    his interests require entry of a guilty plea
    and the record before the court contains
    strong evidence of actual guilt . . . .
    Guilty pleas must be rooted in fact before
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    they may be accepted. Accordingly, courts
    treat Alford pleas as having the same
    preclusive effect as a guilty plea." Cortese
    v. Black, 
    838 F. Supp. 485
    , 492 (D. Colo.
    1993) (citing [North Carolina v.]Alford, 400
    U.S. [25,] 37, 91 S. Ct. [160,] 167, [
    27 L. Ed. 2d 162
     (1970)]). In Virginia, it is
    well settled that a voluntary and intelligent
    guilty plea by an accused is "'a waiver of
    all defenses other than those
    jurisdictional . . . . Where 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.'" Dowell v.
    Commonwealth, 
    12 Va. App. 1145
    , 1148, 
    408 S.E.2d 263
    , 265 (1991) (quoting Savino v.
    Commonwealth, 
    239 Va. 534
    , 539, 
    391 S.E.2d 276
    , 278 (1990)), aff'd on reh'g en banc, 
    14 Va. App. 58
    , 
    414 S.E.2d 440
     (1992). Thus,
    under the circumstances of this case, by
    freely and intelligently entering an Alford
    plea to the breaking and entering charge,
    appellant waived his right to appeal the
    issue of whether the evidence was sufficient
    to prove beyond a reasonable doubt that he
    was guilty of that charge.
    Id. at 412-13, 533 S.E.2d at 652-53.
    A guilty plea further waives all preceding non-jurisdictional
    defects, including Fourth Amendment claims.   Terry v.
    Commonwealth, 
    30 Va. App. 192
    , 197, 
    516 S.E.2d 233
    , 235-36 (1999)
    (en banc) (citations omitted).
    Appellant does not contend that her Alford plea was entered
    involuntarily or unintelligently nor that she misunderstood the
    effect of her plea.   In fact, in the plea agreement, appellant
    acknowledged that she waived her right to appeal.   The trial court
    found that the guilty plea was voluntarily and intelligently made.
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    Thus, by freely and voluntarily entering a plea of guilty,
    appellant waived her right to appeal the denial of the motion to
    suppress.
    Appellant acknowledges the substantial body of
    jurisprudence that concludes that a guilty plea waives all
    non-jurisdictional defenses.       Yet, she contends the United
    States Supreme Court's decision in Menna v. New York, 
    423 U.S. 61
     (1975), requires a different result.
    In Menna, Menna was convicted of contempt for failing to
    testify before a grand jury and was sentenced to thirty days in
    jail.     Menna, 423 U.S. at 61.    Subsequently, he was indicted for
    his original refusal to answer questions before the grand jury.
    Id.     Menna pled guilty to the second charge and later challenged
    his conviction under the Double Jeopardy Clause of the Fifth
    Amendment.     Id. at 61-62.   The government argued that Menna's
    guilty plea waived his constitutional challenge.       Id. at 62.
    The Supreme Court, in a per curiam opinion, held, "Where
    the State is precluded by the United States Constitution from
    haling a defendant into court on a charge, federal law requires
    that a conviction on that charge be set aside even if the
    conviction was entered pursuant to a counseled plea of guilty."
    Id. (citing Blackledge v. Perry, 
    417 U.S. 21
    , 30 (1974)).         The
    Court expanded on its holding, writing:
    Neither Tollett v. Henderson, 
    411 U.S. 258
    , 
    93 S. Ct. 1602
    , 
    36 L. Ed. 2d 235
    , nor our
    earlier cases on which it relied, e.g.,
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    Brady v. United States, 
    397 U.S. 742
    , 
    90 S. Ct. 1463
    , 
    25 L. Ed. 2d 747
     and McMann v.
    Richardson, 
    397 U.S. 759
    , 
    90 S. Ct. 1441
    , 
    25 L. Ed. 2d 763
    , stand for the proposition that
    counseled guilty pleas inevitably "waive"
    all antecedent constitutional violations.
    If they did so hold, the New York Court of
    Appeals might be correct. However in
    Tollett we emphasized that waiver was not
    the basic ingredient of this line of cases,
    id., 411 U.S. at 266, 93 S. Ct. at 1607.
    The point of these cases is that a counseled
    plea of guilty is an admission of factual
    guilt so reliable that, where voluntary and
    intelligent, it quite validly removes the
    issue of factual guilt from the case. In
    most cases, factual guilt is a sufficient
    basis for the State's imposition of
    punishment. A guilty plea, therefore,
    simply renders irrelevant those
    constitutional violations not logically
    inconsistent with the valid establishment of
    factual guilt and which do not stand in the
    way of conviction if factual guilt is
    validly established. Here, however, the
    claim is that the State may not convict
    petitioner no matter how validly his factual
    guilt is established. The guilty plea,
    therefore does not bar the claim. We do not
    hold that a double jeopardy claim may never
    be waived. We simply hold that a plea of
    guilty to a charge does not waive a claim
    that judged on its face the charge is one
    which the State may not constitutionally
    prosecute.
    Id. at 62 n.2.
    We conclude that Menna is limited to a double jeopardy
    defense and not to all allegations of constitutional violations.
    Therefore, our jurisprudence on the effect of a guilty plea is
    unaffected by Menna.   A double jeopardy violation
    constitutionally bars prosecution of the second offense,
    irrespective of the defendant's guilt.   A violation of the
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    defendant's Fourth Amendment right against unreasonable search
    and seizure is not a bar against prosecution, but only against
    the admission of certain evidence.    A defendant, therefore, can
    be prosecuted with other lawfully seized evidence.   We conclude
    appellant's reliance on Menna is misplaced.
    We, therefore, affirm the judgment of the trial court.
    Affirmed.
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