Jill Kristen Rothar v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
JILL KRISTEN ROTHAR
MEMORANDUM OPINION * BY
v. Record No. 0964-00-3 JUDGE ROBERT P. FRANK
MAY 1, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Peter J. Schwartz (Walter F. Green, IV, on
brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jill Kristen Rothar (appellant) was convicted, in a bench
trial, of possession with the intent to manufacture marijuana, in
violation of Code § 18.2-248.1. On appeal, appellant contends the
trial court erred in denying her motion to suppress the drugs
seized. For the following reasons, we affirm the judgment of the
trial court.
I. BACKGROUND 1
Appellant was indicted for the possession of a firearm while
in possession of more than one pound of marijuana pursuant to Code
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
We do not recite the facts of the search because we do not
address the merits of that issue.
§ 18.2-308.4 and the possession of marijuana with the intent to
manufacture pursuant to Code § 18.2-248.1. Appellant filed a
motion to suppress the marijuana plants that were observed during
a warrantless search of her residence. After a hearing on January
20, 2000, the trial court denied the motion to suppress.
On February 9, 2000, pursuant to a plea agreement with the
Commonwealth, which was accepted by the trial court, appellant
entered an Alford plea of guilty and was convicted of violating
Code § 18.2-248.1. Appellant did not enter a conditional plea of
guilty pursuant to Code § 19.2-254. Further, in accordance with
the plea agreement, the trial court entered an order of nolle
prosequi to the charge of violating Code § 18.2-308.4. The trial
court determined appellant had entered into the plea agreement
freely, voluntarily, and intelligently. Appellant was sentenced
in accordance with the plea agreement.
Appellant appeals the trial court's denial of her motion to
suppress.
II. ANALYSIS
We have addressed the effect of an Alford plea in the context
of a waiver of appeal. In Perry v. Commonwealth, 33 Va. App. 410,
533 S.E.2d 651 (2000), we wrote:
"Under an Alford plea, a defendant
maintains innocence while entering a plea of
guilty because the defendant concludes that
his interests require entry of a guilty plea
and the record before the court contains
strong evidence of actual guilt . . . .
Guilty pleas must be rooted in fact before
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they may be accepted. Accordingly, courts
treat Alford pleas as having the same
preclusive effect as a guilty plea." Cortese
v. Black, 838 F. Supp. 485, 492 (D. Colo.
1993) (citing [North Carolina v.]Alford, 400
U.S. [25,] 37, 91 S. Ct. [160,] 167, [27
L. Ed. 2d 162 (1970)]). In Virginia, it is
well settled that a voluntary and intelligent
guilty plea by an accused is "'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.'" Dowell v.
Commonwealth, 12 Va. App. 1145, 1148, 408
S.E.2d 263, 265 (1991) (quoting Savino v.
Commonwealth, 239 Va. 534, 539, 391 S.E.2d
276, 278 (1990)), aff'd on reh'g en banc, 14
Va. App. 58, 414 S.E.2d 440 (1992). Thus,
under the circumstances of this case, by
freely and intelligently entering an Alford
plea to the breaking and entering charge,
appellant waived his right to appeal the
issue of whether the evidence was sufficient
to prove beyond a reasonable doubt that he
was guilty of that charge.
Id. at 412-13, 533 S.E.2d at 652-53.
A guilty plea further waives all preceding non-jurisdictional
defects, including Fourth Amendment claims. Terry v.
Commonwealth, 30 Va. App. 192, 197, 516 S.E.2d 233, 235-36 (1999)
(en banc) (citations omitted).
Appellant does not contend that her Alford plea was entered
involuntarily or unintelligently nor that she misunderstood the
effect of her plea. In fact, in the plea agreement, appellant
acknowledged that she waived her right to appeal. The trial court
found that the guilty plea was voluntarily and intelligently made.
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Thus, by freely and voluntarily entering a plea of guilty,
appellant waived her right to appeal the denial of the motion to
suppress.
Appellant acknowledges the substantial body of
jurisprudence that concludes that a guilty plea waives all
non-jurisdictional defenses. Yet, she contends the United
States Supreme Court's decision in Menna v. New York, 423 U.S.
61 (1975), requires a different result.
In Menna, Menna was convicted of contempt for failing to
testify before a grand jury and was sentenced to thirty days in
jail. Menna, 423 U.S. at 61. Subsequently, he was indicted for
his original refusal to answer questions before the grand jury.
Id. Menna pled guilty to the second charge and later challenged
his conviction under the Double Jeopardy Clause of the Fifth
Amendment. Id. at 61-62. The government argued that Menna's
guilty plea waived his constitutional challenge. Id. at 62.
The Supreme Court, in a per curiam opinion, held, "Where
the State is precluded by the United States Constitution from
haling a defendant into court on a charge, federal law requires
that a conviction on that charge be set aside even if the
conviction was entered pursuant to a counseled plea of guilty."
Id. (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)). The
Court expanded on its holding, writing:
Neither Tollett v. Henderson, 411 U.S.
258, 93 S. Ct. 1602, 36 L. Ed. 2d 235, nor our
earlier cases on which it relied, e.g.,
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Brady v. United States, 397 U.S. 742, 90
S. Ct. 1463, 25 L. Ed. 2d 747 and McMann v.
Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25
L. Ed. 2d 763, stand for the proposition that
counseled guilty pleas inevitably "waive"
all antecedent constitutional violations.
If they did so hold, the New York Court of
Appeals might be correct. However in
Tollett we emphasized that waiver was not
the basic ingredient of this line of cases,
id., 411 U.S. at 266, 93 S. Ct. at 1607.
The point of these cases is that a counseled
plea of guilty is an admission of factual
guilt so reliable that, where voluntary and
intelligent, it quite validly removes the
issue of factual guilt from the case. In
most cases, factual guilt is a sufficient
basis for the State's imposition of
punishment. A guilty plea, therefore,
simply renders irrelevant those
constitutional violations not logically
inconsistent with the valid establishment of
factual guilt and which do not stand in the
way of conviction if factual guilt is
validly established. Here, however, the
claim is that the State may not convict
petitioner no matter how validly his factual
guilt is established. The guilty plea,
therefore does not bar the claim. We do not
hold that a double jeopardy claim may never
be waived. We simply hold that a plea of
guilty to a charge does not waive a claim
that judged on its face the charge is one
which the State may not constitutionally
prosecute.
Id. at 62 n.2.
We conclude that Menna is limited to a double jeopardy
defense and not to all allegations of constitutional violations.
Therefore, our jurisprudence on the effect of a guilty plea is
unaffected by Menna. A double jeopardy violation
constitutionally bars prosecution of the second offense,
irrespective of the defendant's guilt. A violation of the
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defendant's Fourth Amendment right against unreasonable search
and seizure is not a bar against prosecution, but only against
the admission of certain evidence. A defendant, therefore, can
be prosecuted with other lawfully seized evidence. We conclude
appellant's reliance on Menna is misplaced.
We, therefore, affirm the judgment of the trial court.
Affirmed.
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