Robert Lee Jeffrey, Jr. v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Athey and Fulton
UNPUBLISHED
Argued at Lexington, Virginia
ROBERT LEE JEFFREY, JR.
MEMORANDUM OPINION* BY
v. Record No. 1257-22-3 JUDGE CLIFFORD L. ATHEY, JR.
DECEMBER 12, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
David B. Carson, Judge
Melvin L. Hill for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
In the Circuit Court for the City of Roanoke (“trial court”), Robert Lee Jeffrey, Jr.
(“Jeffrey”) was convicted by a jury of two counts of obtaining money by false pretenses and
subsequently pled no contest to one count of embezzlement. On appeal, Jeffrey assigns error to the
trial court for denying his motion to: (1) withdraw his no contest plea in order to raise the issue of a
fatal variance between the named victim in the indictment and the proof the Commonwealth
presented; (2) withdraw his no contest plea to raise the issue of his being denied the opportunity to
call a witness in his defense; (3) continue the sentencing hearing; and (4) set aside the verdict on the
charges of obtaining money by false pretenses because Jeffrey was not allowed to testify on his own
behalf. For the reasons to follow, the judgment of the trial court is affirmed.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
I. BACKGROUND
Beginning in 2019, Jeffrey worked for the Northwest Neighborhood Environmental
Organization (“NNEO”). In July of 2020, NNEO hired Jeffrey as the property manager for two
apartment complexes it owns: Gilmer Housing Associates Apartments (“Gilmer Housing”) and
McCray Court Housing (“McCray Court”). Even before being hired as property manager,
NNEO had given Jeffrey access to certain bank accounts; he had debit cards and checkbooks for
those accounts. Later, Jeffrey also opened two more accounts, one for McCray Court and one
for Gilmer Housing, and NNEO gave Jeffrey authority to make any needed expenditures for the
apartment complexes out of those accounts.
Jeffrey used funds from these checking accounts for the benefit of himself and others.
Specifically, he paid for $3,836.67 worth of construction work at his mother’s home with a
McCray Court check. He also used the McCray Court debit card to purchase a stove which was
delivered to his mother’s house. He also paid with NNEO funds for lawn care services at his
residence. He wrote two McCray Court checks to a construction company, one for $25,000 and
the other for $4,000, for work not related to either apartment complex. He purchased various
appliances and furniture with McCray Court funds; these expenditures were in excess of $6,000.
A grand jury indicted Jeffrey on two counts of embezzlement on July 6, 2021. The first of
the two indictments alleged:
The accused, [Jeffrey], on or between May 1, 2020 and October 31,
2020 in the City of Roanoke, Virginia, did unlawfully, feloniously,
and fraudulently use, dispose of, conceal, or embezzle money or
other personal property, tangible or intangible, in the amount of One
thousand Dollars ($1000) or more, which he had received by virtue
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of his employment, position of trust, or agency relationship with
Northwest Neighborhood Environmental Organization, Inc.1
Jeffrey was subsequently indicted in October 2021 on two additional counts of obtaining money by
false pretenses.
A jury tried and convicted Jeffrey on the two indictments alleging that he obtained money
by false pretenses. Jeffrey was also subsequently tried by a jury on the embezzlement indictments.
On the second day of the embezzlement jury trial, Jeffrey withdrew his not guilty plea and entered a
no contest plea to one count of embezzlement pursuant to a plea agreement with the
Commonwealth. In exchange for his no contest plea, the Commonwealth requested that the trial
court enter an order of nolle prosequi dismissing the second count of embezzlement. During the
guilty plea colloquy, the Commonwealth proffered evidence of Jeffrey’s relationship with NNEO
and his purchasing construction services, lawn care, appliances, and furniture with funds from
McCray Court’s account as summarized above. After the proffer, Jeffrey, through counsel, agreed
that such would have been the Commonwealth’s evidence against him, had the trial proceeded.
Jeffrey also asserted that he had decided for himself to plead no contest and that he was “freely and
voluntarily” entering the plea. He told the trial court that he understood that his no contest plea was
essentially the same as a guilty plea. He indicated that he understood he was waiving his right to a
jury trial and his right to defend himself. Jeffrey also told the trial court that he was “entirely
satisfied” with his counsel’s representation of him.
The trial court originally scheduled sentencing for June 7, 2022, but the Commonwealth and
Jeffrey each moved for a continuance. On that date, the trial court entered an order of substitution,
1
The record only contains the indictment on the count he pled guilty to. As discussed
below, the second count of embezzlement was dismissed by order of nolle prosequi upon the
Commonwealth’s motion pursuant to a plea agreement; the indictment associated with that
second count is not part of the record.
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making Melvin L. Hill (“Hill”) counsel for Jeffrey. Hill had been retained by Jeffrey on May 19,
2022. On August 12, 2022, Jeffrey’s counsel filed a motion to continue the sentencing hearing
scheduled for August 22, 2022. On August 17, 2022, the trial court held a hearing on Jeffrey’s
motion to continue. The trial court denied the motion, and no transcript or statement of facts
concerning the August 17, 2022 hearing was made a part of the record on appeal.
On August 12, 2022, Jeffrey also filed a motion requesting the trial court to allow him to
withdraw his no contest plea. He asserted that “[a] fatal variance existed between the allegations in
the indictment and the proof of the crime.” Jeffrey also alleged that he had “intended to call
Evangeline Jeffrey, [his] mother, as a witness on his behalf,” but he “was advised by previous
counsel that Ms. Jeffrey could possibly face criminal charges if she testified[,]” so he “plead[ed] no
contest to avoid the possibility of his mother being charged.” Jeffrey also asserted that he “only had
ten (10) minutes to decide whether to enter into a plea agreement[.]”
This motion was followed on August 19, 2022, with a motion to set aside the verdict of the
jury in his trial for obtaining money by false pretenses. He asserted that his counsel had prevented
him from testifying in his own defense. Jeffrey claimed that had it not been for this interference he
would have taken the stand and expressly denied allegations made by several of the
Commonwealth’s witnesses.
On August 22, 2022, the trial court held a hearing before denying Jeffrey’s motions to
withdraw his plea and set aside the jury verdict. The trial court explained that granting Jeffrey’s
motion to withdraw his guilty plea would prejudice the Commonwealth for multiple reasons. In
addition to prejudice “in the form of additional work, coordination and location of witnesses[,]” and
“delay,” the trial court noted “that the trial of this case, in which Mr. Jeffrey seeks to withdraw his
plea was going entirely in the Commonwealth’s favor.”
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The trial court addressed whether there was any reasonable basis for the motion to withdraw
his plea. The trial court stated “[n]ot once during the trial and not once during the recitation of the
facts by the Commonwealth that supported his conviction during his plea colloquy in the middle of
trial was there any mention of these newly asserted defenses or even a hint of those defenses.”
Thus, the trial court stated, “from where this Court sits there is a strong suggestion of buyer’s
remorse from Mr. Jeffrey about the defenses he chose at that trial before deciding to voluntarily
plead guilty.” The trial court “[found] and conclude[d] that . . . [Jeffrey’s] legal basis for his motion
[wa]s specious at best.” The trial court also “note[d] that the alleged deficiencies in the indictments
could have been remedied at trial if necessary by a motion to amend the indictments to conform to
the evidence, which the Court readily would have granted to promote the ends of justice.”
Evaluating whether the motion to withdraw his plea was made in good faith, the trial court
found that neither Jeffrey’s assertion that he was forced to plead to spare his mother potential
criminal charges nor his claim that he did not have enough time to decide what to do was made in
good faith. The trial court noted that he had asked Jeffrey “if he was tricked, threatened, or forced
to enter his plea in any way” and that Jeffrey had responded under oath that he had not. The trial
court “asked Mr. Jeffrey under oath, if he was entering his plea freely and voluntarily[,]” and “his
sworn testimony was, yes.” As to Jeffrey’s claim that he had only had ten minutes to decide
whether to plead or continue with the trial, the trial court noted that the record reflected that the trial
had been scheduled to resume at 9:00 a.m. on March 17, but that counsel had come to the trial court
shortly before then requesting a delay in starting the trial to facilitate settlement negotiations. The
trial court further noted that they had not convened until 12:51 p.m. to take his plea, so “Mr. Jeffrey
had three hours and fifty-one minutes to consider his pleas and its ramifications, a far cry from the
ten minutes that Mr. Jeffrey announced that he had to consider his plea.”
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The trial court concluded, “Jeffrey has demonstrated, at best, a casual relationship with the
truth” and “[t]hat his efforts to withdraw his plea are a subterfuge to manipulate this Court and to
manipulate a trial that Mr. Jeffrey saw on March 17th was going very badly for him.” Finding that
“Jeffrey’s motion to withdraw his plea is made in bad faith,” the trial court denied the motion.
The trial court then proceeded to the sentencing phase of the hearing. For each conviction,
the trial court imposed a sentence of eight years’ incarceration with five years and six months
suspended. The three sentences were to run concurrently. Jeffrey appealed.
II. ANALYSIS
A. Standard of Review
“Trial courts possess ‘sound discretion’ to determine whether to allow a defendant to
withdraw a pre-sentencing guilty plea, and the exercise of that discretion will of course turn on ‘the
facts and circumstances of each case.’” Brown v. Commonwealth, 297 Va. 295, 299-300 (2019)
(quoting Parris v. Commonwealth, 189 Va. 321, 324 (1949)).
[W]hen the defendant makes a motion to withdraw a guilty plea prior
to the imposition of sentence, the decision whether to grant that
motion is committed to the discretion of the trial court, “[b]ut such a
discretion will rarely, if ever, be exercised in aid of an attempt to rely
upon a merely dilatory or formal defense.”
Justus v. Commonwealth, 274 Va. 143, 153 (2007) (second alteration in original) (quoting Parris,
189 Va. at 323-24). “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, 512 (1999).
“A motion for a continuance . . . is addressed to the sound discretion of the trial court whose
decision will not be reversed unless the record affirmatively shows an abuse of such discretion.”
Smith v. Commonwealth, 68 Va. App. 399, 420 (alteration in original) (quoting Smith v.
Commonwealth, 16 Va. App. 630, 634 (1993)), aff’d, 296 Va. 450 (2018). “When a criminal
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defendant argues on appeal that the trial court erred by denying his continuance motion . . . we
apply a ‘two-pronged test’ asking whether ‘the court abused its discretion’ and whether the
defendant ‘was prejudiced by the court’s decision.’” Bolden v. Commonwealth, 49 Va. App. 285,
290 (2007) (quoting Lebedun v. Commonwealth, 27 Va. App. 697, 712-13 (1998)).
As a question of law, appellate courts apply a de novo standard of review to the question of
whether a defendant was deprived of his constitutional right to testify on his own behalf at trial. See
Gallagher v. Commonwealth, 284 Va. 444, 449 (2012) (citing Montgomery Cnty. v. Va. Dep’t of
Rail & Pub. Trans., 282 Va. 422, 435 (2011)). “This Court ‘will reverse a trial court’s refusal to set
aside a jury verdict only if that verdict was plainly wrong or without evidence to support it.’”
Brown v. Commonwealth, 68 Va. App. 746, 795 (2018) (quoting Banks v. Commonwealth, 67
Va. App. 273, 288 (2017)).
B. The trial court did not err in denying Jeffrey’s motion to withdraw his no contest
plea.
Jeffrey argues he was prevented from calling his mother as a witness to testify on his behalf
and that he did not have sufficient time to consider whether or not to change to his plea. He claims
that by such he was coerced into making a plea he did not wish to make and therefore the trial court
should have permitted him to withdraw his no contest plea. We disagree.
Code § 19.2-296 states:
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.
While the statute itself articulates the “manifest injustice” standard for evaluating motions to
withdraw guilty pleas made after sentencing, that is of no use here as Jeffrey made his motion
before he was sentenced. Despite the absence of any articulated standard in the statute, it is well
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settled that to withdraw a guilty plea before sentencing, a defendant must “establish a good-faith
basis for making the guilty plea and later seeking to withdraw it, and . . . proffer evidence of a
reasonable basis for contesting guilt.” Hernandez v. Commonwealth, 67 Va. App. 67, 75 (2016)
(quoting Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008)). “The ‘good faith’ prong of the
test requires proof that the plea was submitted ‘under an honest mistake of material fact’ or ‘was
induced by fraud, coercion or undue influence and would not otherwise have been made.’” Id. at 76
(quoting Parris, 189 Va. at 324).
The Supreme Court has explained that a defendant should generally be allowed to withdraw
a guilty plea when it was made by “mistake or under a misconception of the nature of the charge;
through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was
made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable
ground is offered for going to the jury.” Parris, 189 Va. at 325 (citation omitted). This Court has
previously stated that “[t]he object of the Parris standard is to allow a defendant to withdraw his
guilty plea in situations where the defendant would not have pled guilty but for some external
circumstance such as coercion, or poor or erroneous advice from counsel[,]” but “[t]he Supreme
Court . . . did not . . . set about to enable gamesmanship or mere regret.” Pritchett v
Commonwealth, 61 Va. App. 777, 788 (2013). “Determining 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 he [or she] pleaded to the charge.’” Jones, 29
Va. App. at 512 (alterations in original) (quoting Parris, 189 Va. at 322). And a defendant claiming
his plea was the product of coercion bears the burden of providing “proof that the plea . . . ‘was
induced by . . . coercion . . . and would not otherwise have been made.’” Hernandez, 67 Va. App. at
76 (quoting Parris, 189 Va. at 324). Finally, “courts should consider what prejudice withdrawing
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the plea might cause to the Commonwealth.” Brown, 297 Va. at 299 (citing Pritchett, 61 Va. App.
at 787).
Jeffrey argues that he only pleaded guilty to avoid the potentiality that his mother, whom he
desired to call in his defense, would also be prosecuted and that he only had ten minutes in which to
consider his plea. Despite bearing the burden to provide “proof that the plea . . . ‘was induced by
. . . coercion . . . and would not otherwise have been made,’” Hernandez, 67 Va. App. at 76 (quoting
Parris, 189 Va. at 324), Jeffrey did no more than assert that his trial counsel advised him his mother
could face charges if she testified, that he had been unable to discuss this with her, and that he had
only ten minutes to consider his plea. The trial court weighed this testimony evidencing coercion
and found it wanting. The trial court, taking notice of its own file and recollection of the events of
the trial and plea hearing, stated, “Mr. Jeffrey had three hours and fifty-one minutes to consider his
pleas and its ramifications, a far cry from the ten minutes that Mr. Jeffrey announced that he had to
consider his plea.” Further the trial court found that, based upon its observation of all the
proceedings and each trial, “Mr. Jeffrey ha[d] demonstrated, at best, a casual relationship with the
truth.” The trial court concluded that Jeffrey’s “efforts to withdraw his plea [were] a subterfuge to
manipulate this Court and to manipulate a trial that Mr. Jeffrey saw on March 17th was going very
badly for him” and “Jeffrey’s motion to withdraw his plea [was] made in bad faith.” To withdraw a
guilty plea a defendant must “establish a good-faith basis for making the guilty plea and later
seeking to withdraw it[.]” Cobbins, 53 Va. App. at 34 (emphasis added) (citing Justus, 274 Va. at
155-56). We cannot say that the trial court’s determination to discredit Jeffrey’s claims was plainly
wrong, and the record supports the trial court’s determination. Because we shall not second guess
factual findings of the trial court supported by the record, we cannot say the trial court abused its
discretion in finding Jeffrey’s motion to withdraw his guilty plea was not made in good faith.
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C. There was no variance between the indictment and the Commonwealth’s proffer.
Jeffrey contends that a variance existed between the indictments for embezzlement and the
Commonwealth’s proffer given during the plea colloquy and therefore he should have been allowed
to withdraw his no contest plea. We disagree.
“A variance occurs when the criminal pleadings differ from the proof at trial.” Purvy v.
Commonwealth, 59 Va. App. 260, 266 (2011).
[A] fatal variance occurs where the indictment charges a wholly
different offense than the one proved—like charging theft of money
by false pretenses from one victim, while proving only theft by false
pretenses from another victim, Gardner v. Commonwealth, 262 Va.
18 (2001), or charging a defendant with shooting into one person’s
residence, but proving instead that he shot into the residence of
someone else, Etheridge v. Commonwealth, 210 Va. 328 (1969).
Id. at 266-67. “[A] variance will be deemed fatal ‘only when the proof is different from and
irrelevant to the crime defined in the indictment and is, therefore, insufficient to prove the
commission of the crime charged.’” Id. (quoting Stokes v. Commonwealth, 49 Va. App. 401, 406
(2007)).
Jeffrey argues that the indictment alleges he “embezzled funds belonging to [NNEO]” and
that because the Commonwealth’s proffer indicated he took funds from accounts belonging to
Gilmer Housing and McCray Court, a fatal variance exists. The indictment simply does not state
what Jeffrey alleges it does. The indictment reads:
The accused, [Jeffrey], on or between May 1, 2020 and October 31,
2020 in the City of Roanoke, Virginia, did unlawfully, feloniously,
and fraudulently use, dispose of conceal, or embezzle money or other
personal property, tangible or intangible, in the amount of One
thousand Dollars ($1000) or more, which he had received by virtue
of his employment, position of trust, or agency relationship with
Northwest Neighborhood Environmental Organization, Inc.
The indictment never alleges that Jeffrey took funds from the NNEO. The
Commonwealth’s proffered evidence indicated that Jeffery had worked for NNEO in some capacity
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since 2019 and that NNEO had made him property manager of McCray Court and Gilmer Housing
in July 2020; clearly Jeffrey enjoyed at least a position of trust with NNEO. The Commonwealth’s
proffer also clearly indicated Jeffrey spent money from McCray Court’s accounts for his and his
mother’s benefit in a manner that had absolutely nothing to do with either McCray Court or Gilmer
Housing. Since there is no variance, let alone a fatal variance, between the indictments and the
proffered facts, Jeffrey’s claimed variance does not amount to “a reasonable basis for contesting
guilt.” Hernandez, 67 Va. App. at 75 (quoting Cobbins, 53 Va. App. at 34).2 Therefore the trial
court did not err in finding that the “legal basis for [Jeffrey’s] motion [was] specious at best.”
D. Jeffrey has failed to preserve his assignment of error regarding the trial court’s
denial of his motion to continue his sentencing hearing.
Jeffrey argues that the trial court abused its discretion when it denied his motion to continue
the sentencing hearing. Because Jefferey has failed to present an adequate record for this Court to
evaluate his claim, we do not consider this assignment of error.
“[O]n appeal the judgment of the lower court is presumed to be correct[,] and the burden is
on the appellant to present to [the appellate court] a sufficient record from which [it] can determine
whether the lower court has erred in the respect complained of.” Smith, 16 Va. App. at 635 (quoting
Justis v. Young, 202 Va. 631, 632 (1961)). “When the appellant fails to ensure that the record
contains transcripts or a written statement of facts necessary to permit resolution of appellate issues,
any assignments of error affected by such omission will not be considered.” Rule 5A:8(b)(4)(ii).
2
The Commonwealth argues that a variance is a definitional impossibility here because a
plea of guilty is by definition an agreement by the defendant that he is guilty of the charge
articulated in the indictment. Because we are to reach decisions “on the best and narrowest
grounds available,” Theologis v. Weiler, 76 Va. App. 596, 603 (2023) (quoting Esposito v. Va.
State Police, 74 Va. App. 130, 134 (2022)), and Jeffrey’s assertions about the contents of the
indictment are simply untrue, we refrain from commenting upon the possibility of a variance in
the context of a guilty plea.
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The trial court held a hearing on Jeffrey’s motion to continue his sentencing hearing on
August 17, 2022. Jeffrey’s failure to make a transcript or written statement of facts from that
hearing a part of the record leaves this Court “unable to fully review the parties’ evidence and
arguments below” regarding Jeffrey’s motion to continue the sentencing hearing. Dixon v. Dixon,
71 Va. App. 709, 716 (2020). At oral argument on appeal, Jeffrey acknowledged that he did not
make a transcript of the August 17, 2022 hearing part of the record and conceded that such would
be necessary for this Court to evaluate his claims. Therefore, we do not consider this assignment of
error.
E. Jeffrey has failed to preserve his assignment of error regarding the trial court’s
denial of his motion to set aside the jury’s verdict convicting him of taking
money by false pretenses.
Jeffrey asserts that the trial court erred in denying his motion to set aside the jury’s verdict
convicting him of two counts of obtaining money by false pretenses. However, this argument is
waived, and we do not consider it.
Rule 5A:20(e) requires that briefs contain argument including principles of law and
authority. However, Jeffrey’s brief does no more than make the bare assertion that he was
prevented from testifying. He provides no citation to any authority besides the relevant standard of
review. He states that had he been allowed to testify, he would have denied allegations made by
witnesses for the Commonwealth. However, he cites no authority whatsoever and presents no
argument supporting his bare assertion that he was denied an opportunity to testify in his own
defense. At oral argument, Jeffrey conceded this assignment of error and stated he did not wish to
address it. Because his brief contains bare assertions, rather than argument, and lacks any citations
to authority, we find this assignment of error is waived. Bartley v. Commonwealth, 67 Va. App.
740, 746 (2017) (“[W]here a party fails to develop an argument in support of his or her contention
or merely constructs a skeletal argument, the issue is waived.” (citation omitted)).
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III. CONCLUSION
Because the trial court did not abuse its discretion in denying Jeffrey’s motion to withdraw
his no contest plea, and because Jeffrey has not preserved his arguments regarding the denial of his
motions for a continuance and to set aside the jury’s verdict, the judgment of the trial court is
affirmed.
Affirmed.
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