Carlisle Rawles Zimmer v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
CARLISLE RAWLES ZIMMER
MEMORANDUM OPINION * BY
v. Record No. 2623-00-2 JUDGE LARRY G. ELDER
DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Jason P. Livingston (J. Thompson Cravens &
Associates, on brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Carlisle Rawles Zimmer (appellant) appeals from his
convictions for taking indecent liberties with children pursuant
to Code § 18.2-370, aggravated sexual battery pursuant to Code
§ 18.2-67.3, and solicitation to commit forcible sodomy pursuant
to Code §§ 18.2-29 and 18.2-67.1. On appeal, he contends the
trial court erroneously denied his motion to suppress statements
he made during a custodial interrogation which occurred before
he was Mirandized. The Commonwealth contends he waived his
right to challenge the trial court's suppression ruling on
appeal when he entered a guilty plea pursuant to North Carolina
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
We hold appellant's entry of an Alford plea constituted a waiver
of his right to appeal all non-jursidictional defects, and we
dismiss the appeal.
In Virginia, "[a]n accused may plead not guilty, guilty or
nolo contendere." Code § 19.2-254. The right of an accused to
enter a nolo contendere plea, "a plea of guilty without an
express admission of guilt[,] was firmly established in North
Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970)." Smith v. Commonwealth, 27 Va. App. 357, 361, 499
S.E.2d 11, 13 (1998).
Code § 19.2-254 also permits an accused charged with a
felony, "[w]ith the approval of the court and the consent of the
Commonwealth," to enter a conditional plea of guilty which
preserves the right of the accused to "appeal . . . the adverse
determination of any specified pretrial motion." Code
§ 19.2-254. However, an ordinary guilty plea which is voluntary
and intelligent constitutes "'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.'" Savino v. Commonwealth, 239 Va.
534, 539, 391 S.E.2d 276, 278 (1990) (citation omitted). Thus,
a guilty plea waives all preceding non-jurisdictional defects,
including constitutional claims, Terry v. Commonwealth, 30 Va.
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App. 192, 197, 516 S.E.2d 233, 235-36 (1999) (en banc), and an
Alford plea "'ha[s] the same preclusive effect as a guilty
plea'" for purposes of appeal, Perry v. Commonwealth, 33 Va.
App. 410, 412, 533 S.E.2d 651, 652-53 (2000) (quoting Cortese v.
Black, 838 F. Supp. 485, 492 (D. Colo. 1993)); see Clauson v.
Commonwealth, 29 Va. App. 282, 294, 511 S.E.2d 449, 455 (1999).
Here, during an extended colloquy between appellant and the
trial court, appellant expressly acknowledged that by entering
pleas of guilty, he "[gave] up both [his] right to be tried by a
jury, as well as [his] right to appeal the decision of [the
trial] court." The court concluded, "after questioning," that
appellant's Alford pleas were "made knowingly, intelligently,
and voluntarily after advice from competent counsel," and it
convicted appellant of the charged offenses. In this appeal,
appellant does not contend that he entered his Alford pleas
involuntarily or unintelligently or that he misunderstood the
effect of his pleas.
Thus, by knowingly, intelligently and voluntarily entering
the Alford pleas, appellant waived his right to appeal the
denial of the motion to suppress his statement, and we dismiss
this appeal.
Appeal dismissed.
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