Antonio Ewall Thompson v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Alston
Argued at Richmond, Virginia
ANTONIO EWALL THOMPSON
MEMORANDUM OPINION * BY
v. Record No. 0893-08-2 JUDGE ROBERT J. HUMPHREYS
JULY 14, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge
Shaun R. Huband (Office of the Public Defender, on brief), for
appellant.
Virginia B. Theisen, Senior Assistant Attorney General (William C.
Mims, Attorney General; Kathleen B. Martin, Senior Assistant
Attorney General, on brief), for appellee.
Antonio Ewall Thompson (“Thompson”) appeals his conviction for distribution of a
controlled substance, in violation of Code § 18.2-248. Thompson argues that the circuit court
abused its discretion by denying his motion to withdraw his guilty plea. For the following
reasons, we disagree and affirm.
Code § 19.2-296 states that “A motion to withdraw a plea of guilty . . . may be made . . .
before sentence is imposed.” “[W]hether or not an accused should be allowed to withdraw a plea
of guilty for the purpose of submitting one of not guilty 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.”
Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873 (1949). Thompson argues that
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the circuit court abused its discretion by denying his motion to withdraw his guilty plea because
he “has a reasonable defense.”
In determining whether a motion to withdraw a guilty plea should be accepted, there is
“[n]o fixed or definite rule applicable to and determinative of all cases.” Id. However,
“the withdrawal of a plea of guilty should not be denied in any
case where it is in the least evident that the ends of justice will be
subserved by permitting not guilty to be pleaded in its place. The
least surprise or influence causing a defendant to plead guilty when
he has any defense at all should be sufficient grounds for
permitting a change of plea from guilty to not guilty. Leave should
ordinarily be given to withdraw a plea of guilty if it was entered 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.”
Justus v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007) (quoting Parris, 189 Va.
at 324, 52 S.E.2d at 873).
In Justus, the Supreme Court of Virginia emphasized that “the motion [to withdraw a
guilty plea] should be granted even if the guilty plea was merely entered ‘inadvisedly’ when the
evidence supporting the motion shows that there is a reasonable defense to be presented to the
judge or jury trying the case.” Id. at 154, 645 S.E.2d at 289. In that case, the defendant pled
guilty to breaking and entering and malicious wounding. Subsequently, the defendant sought to
withdraw her plea because “she could not be guilty of breaking and entering her own home and
unlawfully causing damage to it and that she had a reasonable claim of self-defense against the
malicious wounding charges.” Id. at 155, 645 S.E.2d at 289. At a hearing on the issue, the
defendant proffered evidence to support those assertions. The trial court ultimately denied the
defendant’s request to withdraw her pleas. The Supreme Court reversed, holding that “[t]he
record supports the conclusion that her motion to withdraw her guilty pleas was made in good
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faith and premised upon a reasonable basis for substantive, and not ‘merely dilatory or formal,’
defenses to the charges.” Id. at 155-56, 645 S.E.2d at 290.
Subsequent to the decision in Justus, we held that the standard used to determine whether
a motion to withdraw a guilty plea should be granted “requires the defendant (i) to establish a
good-faith basis for making the guilty plea and later seeking to withdraw it, and (ii) to proffer
evidence of a reasonable basis for contesting guilt.” Cobbins v. Commonwealth, 53 Va. App.
28, 34, 668 S.E.2d 816, 819 (2008) (citing Justus, 274 Va. at 155-56, 645 S.E.2d at 289-90). We
explained: “The first requirement protects the integrity of the judicial process by precluding
defendants from using a guilty plea as a subterfuge to manipulate the court. The second
requirement defeats motions to withdraw which would result in an essentially futile trial.” Id.
Thus, it is not enough that a defendant “proffers[] evidence of a reasonable basis for contesting
guilt.” Id. To prevail on a motion to withdraw a guilty plea, the defendant must also “establish a
good-faith basis for making the guilty plea and later seeking to withdraw it.” Id.
Here, Thompson argues only that the motion should have been allowed because he “has a
reasonable defense.” He does not offer a good-faith basis for seeking to withdraw the plea. The
only basis that Thompson offered below was that “his guidelines have come out extremely high,
much higher than we expected.” The reason that the guidelines required a higher sentence than
Thompson expected is that he failed to tell his attorney that he had a criminal record as a
juvenile. Thompson did so, despite the fact that the court informed him that his juvenile record
would be used to compute his recommended sentence under the guidelines.
Prior to accepting Thompson’s guilty plea, the circuit court asked Thompson a series of
questions to ensure that he fully understood the charge against him and that he had had sufficient
time to discuss any possible defense with his attorney. At one point during the colloquy, the
following exchange took place:
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[Court]: The recommendation is that you be sentenced to the
low end of the sentencing guidelines. Have they
been explained to you?
[Thompson]: Yes, sir.
[Court]: Do you know how they are calculated?
[Thompson]: Yes, sir.
[Court]: You understand whatever they come back, the
Court will stay within this range if I accept this
plea, which you may think you know what the
actual figure is today, but if we find any more
records, either here or any other state, and it will be
factored in –
[Thompson]: Yes.
[Court]: – to the guidelines. You understand that? That
includes any juvenile record as well.
[Thompson]: Yes.
[Court]: That is what you have agreed to?
[Thompson]: Yes, sir.
In light of that exchange, Thompson’s claim that “his guidelines have come out
extremely high, much higher than we expected” is not a good faith reason to withdraw his guilty
plea. As such, Thompson has failed to establish a good-faith basis as to why he pled guilty and
later sought to withdraw his plea. Thus, the circuit court did not abuse its discretion by denying
Thompson’s motion.
For the foregoing reasons, we hold that the circuit court did not abuse its discretion by
denying Thompson’s motion to withdraw his guilty plea and affirm Thompson’s conviction.
Affirmed.
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