Donnie Wayne Bowman v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
DONNIE WAYNE BOWMAN
MEMORANDUM OPINION * BY
v. Record No. 0952-00-2 JUDGE JAMES W. BENTON, JR.
AUGUST 14, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
J. William Watson, Jr. (Watson & Nelson,
P.C., on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
The sole issue raised by this appeal is whether the trial
judge abused his discretion when he denied Donnie Wayne Bowman's
post-sentence motion to withdraw his guilty pleas. We affirm the
judgment.
I.
The grand jury indicted Bowman for attempting to commit
capital murder of a law enforcement officer, using a firearm while
attempting to commit capital murder, and possessing a firearm
after having been convicted of a felony. At Bowman's jury trial
the evidence proved that on December 7, 1998, Bowman twice
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
telephoned Barbara Cunningham, a child protective service worker
in West Virginia, and asked to speak to his wife. When Cunningham
told Bowman that charges were pending against him in West
Virginia, Bowman told Cunningham he was coming to West Virginia
"fully dressed," that he had a shotgun, that he was not going to
go back to jail, and that he would "shoot any police officer that
[got] in [his] way until they shoot [him]."
At 1:40 a.m. the following day, South Boston Police Officer
Fletcher Daniels approached a car on the shoulder of a highway and
saw Bowman inside. After Bowman told Daniels that he had no fuel,
Daniels radioed for the assistance of another officer because
Bowman was "acting strange." When Officer Lovelace arrived at the
scene, Bowman "racked his 12-gauge [shotgun] and pointed it at
[Lovelace]." Lovelace drew his weapon, yelled for Daniels to get
away from Bowman's car, and ordered Bowman to drop the shotgun.
Bowman repeatedly told Lovelace to move away and said the only way
he would leave his car was with the shotgun in Lovelace's mouth.
Both officers retreated to their vehicles and relayed the
situation to their dispatcher. As other police officers arrived,
Bowman appeared agitated and was crying. He told the officers he
did not want to hurt anyone but himself. After three hours,
during which the officers sought to persuade Bowman to leave the
car, Bowman suddenly fired his shotgun through the roof of his
car. About an hour later, Bowman fired the shotgun through the
door of his car towards the pavement. One officer testified that
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after the second shot he heard pellets bouncing off of the
guardrail less than three feet from him and he believed Bowman was
shooting at him. Another officer testified that when Bowman shot
the second time, he "could see the smoke and dust and there were
particles striking the shield that [he] was behind." The
assembled officers then shot at Bowman's car. When the officers
stopped firing at Bowman's car, the officer in charge began
speaking with Bowman and eventually persuaded Bowman to exit his
car and surrender.
At the close of the Commonwealth's evidence, Bowman's
attorney argued that the evidence failed to prove a specific
intent to kill. The judge overruled the motion to strike the
evidence. Bowman's attorney then presented the testimony of a
forensic examiner, who testified that one of Bowman's shots
discharged into the ceiling of his car and exited through the
car's roof. Bowman's other shot went into the driver's door of
the car and exited the bottom of the door at a downward angle. At
the conclusion of this testimony, Bowman's attorney rested his
case and renewed his motion to strike the evidence. He again
argued that the evidence failed to prove a specific intent to kill
and, further, that the evidence did not exclude an accidental
discharge of the shotgun. The trial judge observed that the
evidence indicated "pellets or particles [from the shotgun] . . .
went into the direction of two officers," that Bowman's statements
tended to prove his intent, and that the evidence was sufficient
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for the jury to consider. The judge overruled the motion to
strike and recessed the proceedings to review jury instructions.
While the judge was reviewing jury instructions, the
prosecutor and Bowman's attorney conferred about a plea agreement.
Based on their discussions, a plea agreement was prepared and
presented to Bowman by his counsel. Bowman signed it, agreeing to
plead guilty to an amended charge of attempted malicious wounding
of a law enforcement officer, an amended charge of use of a
firearm while attempting to commit malicious wounding of a law
enforcement officer, and the original charge of possessing a
firearm after a felony conviction. The plea agreement indicated
that Bowman's attorney had explained to him the particulars of the
agreement and that Bowman had entered into the plea agreement
freely and voluntarily.
Before accepting the plea agreement, the judge made extensive
inquiries of Bowman. He asked Bowman if he had conferred with his
attorney, if his attorney explained the nature of the pleas he was
entering into, if he was "freely and voluntarily" entering pleas
of guilty to the charges, if he understood his pleas would waive
various constitutional rights, if he had been forced or threatened
into entering the plea, if his attorney explained the maximum
punishment that could be imposed and if he was satisfied with the
services rendered by his attorney. Bowman answered affirmatively
to all of these questions and others posed by the judge. Bowman's
attorney also said the following:
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[The agreement] reflects . . . [a] verbal
agreement we had reached in which Mr. Bowman
had agreed to as well. When I received the
written plea agreement and I met in the back
room with Mr. Bowman and we went over that
together and he was in agreement with that
and I was in agreement as well. We both
signed it and I believe that he understands
it fully as do I.
The judge accepted the plea agreement, which contained "no
agreement as to any sentence recommendation," and he granted the
Commonwealth's motion to dismiss the two misdemeanor charges of
obstruction of justice and brandishing a firearm. The agreement
is dated December 9, 1999, the date of the trial.
The sentencing hearing occurred nine weeks later on February
29, 2000. Before sentencing, Bowman "apologize[d] to the town of
South Boston and the County of Halifax," said he "was completely
wrong," and made other statements of contrition. The judge
sentenced Bowman to a total of sixteen years in prison and
suspended eleven years of that sentence upon specified
conditions.
A week later, Bowman filed a pro se motion to withdraw his
guilty plea and to vacate the sentence. In part, he alleged
that his trial attorney rendered him ineffective assistance, did
not allow him to read the agreement, did not fully advise him of
the nature of the agreement, advised him that he would serve
only three years, and did not call as witnesses persons Bowman
wanted to testify. At the evidentiary hearing, Bowman's trial
attorney testified, however, that he had interviewed several
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potential witnesses prior to trial and had decided their
testimony was damaging to Bowman's case. For example, he
indicated Bowman had wanted to use testimony of relatives who
heard Bowman talk of shooting police officers.
Bowman's trial attorney also testified that he believed the
evidence at trial had "gone fairly well" and that he told Bowman
he believed Bowman had a reasonable chance the jury would find
him not guilty of attempted capital murder but that, if the jury
convicted him, a conviction would carry a minimum twenty-year
sentence. In any event, he told Bowman he likely faced a
conviction and prison sentence on the firearm charge. He
advised Bowman that under the plea agreement he faced a maximum
sentence of eighteen years, a minimum sentence of three years,
and that his opinion was that Bowman would receive a sentence
greater than three years. He recommended that Bowman take the
plea agreement.
Bowman's trial attorney testified that when he initially
explained the plea agreement and his view of the case, Bowman
was willing to accept the plea agreement. At Bowman's request,
he asked Sherry Kindler, who had been working as Bowman's
therapist for the past year, and John Laroo, a long-time friend
of Bowman's, to talk to Bowman. He testified that, after he
left the room to confer with the prosecutor and while Kindler
and Laroo were talking to Bowman, Bowman had an angry, verbal
exchange with a West Virginia social services worker. Bowman
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became irrational and told Kindler he was not going to accept
the deal. Bowman's trial attorney became concerned about
Bowman's ability to make an informed decision at that point
because Bowman was basing his decision on a fit of anger brought
on by what the social services worker had said, and not basing
it on what had transpired in the courtroom. After he calmed
Bowman, he reviewed the agreement with Bowman. He testified
that he felt Bowman had calmed and was making a rational
decision when he signed the agreement.
Bowman's attorney also testified that prior to sentencing
Bowman mentioned the possibility of seeking to withdraw the
plea. He testified, however, that when he "explained to
[Bowman] that it meant that he could reface serious charges[,
Bowman] decided to not do that and go with sentencing." Prior
to sentencing, he told Bowman that he felt that there had
probably been a 70% chance of that jury finding him not guilty.
He testified, however, that he based these odds on information
he received about a juror who had spoken to one of Bowman's
family members after the trial.
According to Kindler, Bowman became agitated by the West
Virginia social worker statement that "social services had
removed his children and put them in foster care." She said
Bowman became angry and "shut down." Although Kindler said that
the plea agreement seemed like a good deal to her and that she
recommended Bowman take the deal, Kindler admitted that she was
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not present at the trial, had not heard the evidence, and relied
solely upon Bowman's attorney's opinion in advising Bowman to
take the deal. Kindler indicated that in the year or so that
she had been treating Bowman he had been relying on her advice
as a mental health expert and they had been working on a trust
issue. Kindler said she told Bowman it was her professional
opinion that he should accept the plea agreement, but that it
was up to him and he needed to make his own decision.
Laroo also testified that Bowman was angry and irrational
after the exchange with the social services worker. According
to Laroo, the exchange caused Bowman to change his mind about
accepting the plea agreement. Laroo "felt it was advisable to
get [Bowman] calm and consider this thing, and that was not easy
to do." He said Bowman wanted to go to trial, take the stand,
and tell the judge what the social services worker had said.
Laroo also indicated that after Bowman became calm he "sort of
reluctantly" signed the plea agreement.
Bowman testified that he repeatedly told his attorney he
did not want to accept the plea agreement. He said Kindler's
intervention caused him to accept the plea agreement and to feel
he was "boxed in." He said his attorney told him to take it or
he would receive life in prison. Further, Bowman claims that he
did not understand the plea agreement, that he had not taken his
medicine on the day he was considering the plea agreement, and
that he lied to the judge when he responded affirmatively to the
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judge's questions pertaining to the plea agreement. Bowman said
that he lied in order to get out of the courtroom.
In denying the motion, the trial judge found that Bowman
had not expressed any reluctance to accept the plea, that the
evidence did not establish that the plea was not entered into
freely and voluntarily, that Bowman gave no indication at trial
that he did not understand the plea agreement, and that no
mistake of fact or fraud existed. The judge also said that the
evidence indicated that Bowman's trial attorney had spent a
"great deal of time in preparation for the trial of the case"
and fully explained the agreement to Bowman. Although the trial
judge found that Bowman "vacillated" over whether to sign the
agreement, he also found that Bowman fully understood it. The
judge also pointed out that Bowman had a significant amount of
time in which to consider his plea options and that the sentence
was a factor in Bowman's decision to file the motion.
II.
Code § 19.2-296 provides as follows:
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.
Applying this statute we have held as follows:
"'Whether or not an accused should be
allowed to withdraw a plea of guilty for the
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purpose of submitting a not guilty plea is a
matter that rests within the sound
discretion of the trial court and is to be
determined by the facts and circumstances of
each case.'" The court's finding as to the
credibility of witnesses and the weight of
the evidence in support of a motion to
withdraw a guilty plea will not be disturbed
unless plainly wrong or without evidence to
support it.
Jones v. Commonwealth, 29 Va. App. 503, 511-12, 513 S.E.2d 431,
435 (1999) (citations omitted). We have also held that
"[d]etermining whether a court erred in declining to allow
withdrawal of a guilty plea 'requires an examination of the
circumstances confronting [the] accused immediately prior to and
at the time [the accused] pleaded to the charge.'" Id. at 512,
513 S.E.2d at 436 (citation omitted).
Bowman essentially contends that his guilty plea was the
product of coercion and undue influence. He claims that his
trial counsel, Kindler, and Laroo prevailed on him to plead
guilty despite his own wishes. As in Jones, however, the trial
judge thoroughly examined Bowman before accepting the guilty
pleas. Although Bowman later claimed he was lying when he said
that he entered the pleas freely and voluntarily and that he
understood the agreement, the trial judge chose to believe his
earlier assertions. The judge also believed that Bowman was
given a full explanation of the agreement and of the exposure he
faced by having the jury consider the evidence.
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The evidence that Bowman produced at the evidentiary
hearing does not compel us to overturn these findings. In fact,
testimony at the hearing indicated that Bowman initially
discussed the agreement with his attorney and accepted it.
Later, Bowman became upset over his confrontation with the
social worker about his children. The evidence showed that
Bowman's discussions with his friends apparently related more to
his reaction to the social worker and their efforts to refocus
him on the agreement that he had before him.
In short, the trial judge's findings were not plainly wrong
or without evidence to support them. The weight that the trial
judge accorded to Bowman's differing testimony and that of the
other witnesses was within his discretion. The record contains
sufficient evidence that Bowman's plea was "without semblance of
coercion and without fear or duress of any kind." Parris v.
Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874 (1949).
Although Bowman has asked to withdraw his guilty pleas
after sentencing, the evidence before the trial judge did not
establish a "manifest injustice" resulting from the
circumstances surrounding the plea agreement. Code § 19.2-296.
The trial judge could find on the record that Bowman's motion
was prompted by his disappointment in the sentence that he
received. As the judge found, Bowman had two months between
re-arraignment and sentencing to ask to withdraw the guilty
pleas. His failure to act earlier is evidence of a settled
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commitment to plead guilty. We hold, therefore, that the trial
judge did not abuse his discretion by denying Bowman the
opportunity to withdraw his guilty pleas and that the record
fails to establish any manifest injustice. We affirm the
judgment.
Affirmed.
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