Brandon Clay Nichols, s/k/a v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued by teleconference
BRANDON CLAY NICHOLS, S/K/A
BRANDON CLAY NICHOLAS
MEMORANDUM OPINION * BY
v. Record No. 2331-01-1 JUDGE LARRY G. ELDER
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
Cynthia D. Garris (The Law Office of Cynthia
D. Garris, P.C., on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Brandon Clay Nicholas (appellant) appeals from his
convictions for first-degree murder and use of a firearm in the
commission of murder. On appeal, he contends the trial court
erroneously refused, under Rule 3A:8, to consider a plea
agreement tendered during the sentencing phase of the bifurcated
trial, before the jury completed its deliberations on
appellant's sentence. The Commonwealth contends the trial court
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
lacked authority to consider the agreement. 1 We hold the trial
court lacked authority to entertain a guilty plea after the
sentencing phase had begun. Thus, the court did not err in
refusing to consider the terms of the agreement under the facts
of this case, and we affirm.
I.
BACKGROUND
Appellant was charged in separate indictments with the
capital murder, first-degree murder and robbery of Stephen
Jordan, robbery of Jordan's companion, and four related counts
of using a firearm during the commission of those offenses.
Appellant entered pleas of not guilty to those charges and
requested trial by jury. Appellant also was indicted for
possession of a firearm by a convicted felon. Proceedings on
that indictment were continued for trial at a later date.
1
The Commonwealth argues it is not prevented from taking an
inconsistent position on appeal because the Commonwealth's
attorney lacked authority to enter into a plea agreement which
the trial court had no authority to consider. See In re
Department of Corrections, 222 Va. 454, 465, 281 S.E.2d 857, 863
(1981) (relying on Segaloff v. City of Newport News, 209 Va.
259, 261, 163 S.E.2d 135, 137 (1968), and WANV v. Houff, 219 Va.
57, 62-63, 244 S.E.2d 760, 763-64 (1978), zoning cases holding
that public official cannot bind his agency or the state to do
something the agency has no authority to do, to conclude that
"the Commonwealth may not be estopped from repudiating the
earlier position erroneously taken by the Commonwealth's
Attorney . . ."). This procedural bar issue is inextricably
linked to the merits of the appeal, and we must, therefore,
reach the substantive issue of the trial court's authority to
entertain the proffered agreement.
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The jury found appellant guilty of first degree murder and
the use of a firearm in the commission of murder. Following
several hours of deliberations in the penalty phase of the
trial, the parties notified the court they had reached a plea
agreement. Before the trial court announced a decision about
whether it would consider the terms of the plea agreement, the
jury indicated it had reached a verdict on the appropriate
sentence, and the court said, "I'm going to let the jury verdict
be in this case."
At appellant's request, the trial court marked the plea
agreement as an exhibit, but noted it had not read the agreement
and would not consider it for the reasons it stated in the
record. The agreement listed only three offenses--the two
offenses for which appellant already had been convicted and the
felon-in-possession-of-a-firearm offense for which appellant had
not yet been tried. It indicated appellant agreed the facts
were sufficient to prove his guilt for the first two offenses
and that he was pleading guilty because he "[was] in fact
guilty." The document also provided that, in exchange for
appellant's guilty pleas, the parties agreed as to the
appropriate sentences for those two offenses and indicated what
those sentences were.
The trial court sentenced appellant in accordance with the
jury's recommendation, giving him an active sentence greater
than that contained in the proposed plea agreement.
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II.
ANALYSIS
A plea agreement usually involves a defendant's pleading
guilty in "exchange[] for sentencing concessions," a process in
which "each side may obtain advantages." Mabry v. Johnson, 467
U.S. 504, 508, 104 S. Ct. 2543, 2547, 81 L. Ed. 2d 437 (1984).
Here, the parties proffered the agreement pursuant to Rule
3A:8(c), which provides as follows:
(1) The attorney for the Commonwealth
and the attorney for the defendant or the
defendant when acting pro se may engage in
discussions with a view toward reaching an
agreement that, upon entry by the defendant
of a plea of guilty . . . to a charged
offense, or to a lesser or related offense,
the attorney for the Commonwealth will do
any of the following:
* * * * * * *
(C) Agree that a specific sentence is
the appropriate disposition of the case.
As we held in Daye v. Commonwealth, 21 Va. App. 688, 467
S.E.2d 287 (1996), in which the defendant sought to change his
plea to guilty after the jury had already returned its verdict,
"a plea of guilty" offered "following publication of a guilty
verdict and its acceptance by the trial court" is "untimely and
may not upset the procedural course of a bifurcated trial." Id.
at 692-93, 467 S.E.2d at 289. Here, the trial court implicitly
accepted the jury's verdicts when it proceeded to the sentencing
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phase of the trial. Thus, it lacked authority to accept the
guilty pleas which are an integral part of any plea agreement. 2
For these reasons, we hold the trial court did not err in
refusing to consider the proffered agreement on its merits under
the facts of this case, and we affirm.
Affirmed.
2
We do not address whether the trial court had inherent
authority, outside the authority granted by Rule 3A:8(c), to
entertain a sentence agreement between the parties dealing
solely with the appropriate sentence to be imposed on the
offenses for which the jury already had convicted appellant.
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