Destin Dominique Moore v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Fulton and White
Argued by videoconference
DESTIN DOMINIQUE MOORE
MEMORANDUM OPINION* BY
v. Record No. 0669-22-1 JUDGE JUNIUS P. FULTON, III
MARCH 14, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
Jeffrey W. Shaw, Judge
Jonathan P. Sheldon (Sheldon & Flood, PLC, on brief), for
appellant.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Pursuant to a written plea agreement, the Circuit Court of Gloucester County convicted
Destin Dominique Moore of second-degree murder and sentenced him to twenty-two years of active
incarceration. On appeal, Moore argues that the trial court erred in denying his motion to withdraw
his guilty plea. For the following reasons, we affirm the trial court’s judgment.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
*
This opinion is not designated for publication. See Code § 17.1-413.
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
Moore and two co-defendants, Amier Wynn and Collins Turner, were charged with the
attempted robbery and murder of Hezekiah Fauntleroy, Jr. After Wynn and Turner entered into
“cooperation agreements” with the Commonwealth, Moore pleaded guilty to second-degree
murder pursuant to a written plea agreement, admitting that he was in fact guilty. In exchange
for his plea, the Commonwealth moved to nolle prosequi Moore’s remaining charges.
Before accepting Moore’s guilty plea, the trial court conducted a thorough colloquy to
ensure the plea was given freely, intelligently, and voluntarily. Moore confirmed that he had
discussed the charge, its elements, and any possible defenses with his attorney. After that
discussion, Moore decided to plead guilty because he was “in fact guilty.” Moore understood that
by pleading guilty he waived certain constitutional rights, including the rights to a trial by jury, to
remain silent, and to confront and cross-examine the witnesses against him. He confirmed that he
had not been forced or threatened to plead guilty and, other than what was contained in the plea
agreement, had received no promises in exchange for his guilty plea. Moore represented that he
was satisfied with the services provided by his attorney. At the conclusion of the colloquy, the trial
court found that Moore’s plea was made freely, intelligently, and voluntarily.
After the court accepted Moore’s guilty plea, the Commonwealth made a proffer of its
evidence against Moore. The Commonwealth proffered that on May 15, 2020, Moore, Turner,
Wynn, and Jennifer Zuckerman conspired to rob Fauntleroy at gunpoint, under the pretext of selling
him marijuana. After Moore arranged the meeting with Fauntleroy, Zuckerman drove the group to
meet him at an apartment complex. Once there, Wynn exited the vehicle and Fauntleroy sat in
Wynn’s seat to discuss the transaction. Moore, Wynn, and Turner all brandished firearms and
demanded Fauntleroy’s money. Fauntleroy refused, pushed Moore’s gun away, exited the vehicle,
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and made his way toward his own vehicle. Wynn again demanded Fauntleroy’s money and then
shot Fauntleroy numerous times at close range, causing his death. Moore, Wynn, Turner, and
Zuckerman then fled the scene, running over Fauntleroy’s body as they drove away.
Moore agreed that the proffer of evidence was sufficient to sustain a conviction. Based on
Moore’s plea and the Commonwealth’s proffer, the trial court convicted him of second-degree
murder and continued the matter for sentencing. On September 29, 2021, Moore moved to
withdraw his guilty plea, arguing that he had a good faith defense to the charges. Moore
disputed his co-defendants’ assertion of an agreement to rob the victim and argued that the
co-defendants’ statements did not match each other and had changed over time. Nevertheless,
Moore subsequently withdrew his motion to withdraw his plea.
After withdrawing his motion, Moore, though still represented by counsel, filed a pro se
letter again asking to withdraw his plea. The trial court struck Moore’s “pleading” from the
record as it was not signed by him or counsel. Moore then properly filed another motion to
withdraw his guilty plea through counsel.
In that motion to withdraw his plea, Moore contested the facts presented by the
Commonwealth that established his guilt as a principal in the second degree. Moore also argued
that his prior counsel did not properly explain “that presence or awareness of a crime is insufficient
to constitute guilt under the doctrine of principle [sic] in second degree” and that prior counsel told
him “[t]hat he cannot win this case.” Moore also asserted that the Commonwealth would not be
substantially prejudiced by the withdrawal because the Commonwealth’s ability to locate the
witnesses was “no more difficult now that it would have been a few months ago.” The
Commonwealth countered that Moore did not file the motion in good faith and it would suffer
prejudice if the motion were granted. Specifically, the Commonwealth argued that it no longer had
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leverage over Moore’s co-defendants because they pleaded guilty after Moore withdrew his first
motion to withdraw his plea.
The trial court found that Moore failed to offer sufficient evidence of a good faith basis to
withdraw the guilty plea or a good faith basis to contest guilt. The trial court also found that the
Commonwealth would suffer prejudice if the court allowed the withdrawal because it “lost the
benefit of two cooperating codefendants who have since pled guilty pursuant to plea agreements and
been sentenced.” After further evidence and argument by counsel, the trial court sentenced Moore
to twenty-two years’ incarceration, with no time suspended. Moore appeals.
ANALYSIS
Moore argues that the trial court erred by denying his motion to withdraw his guilty plea.
Moore asserts that he had a good faith basis to withdraw his guilty plea because he was not aware of
the plan to shoot the victim, made no overt act to support that plan, and was not aware that this was
a required element of his charge. In addition, he contends that his co-defendants’ statements
“contradicted each other.” Moore also argues that the Commonwealth would not experience
substantial prejudice by the withdrawal because it does not need leverage over Moore’s
co-defendants, who could be compelled to testify truthfully under threat of perjury.
“The decision whether to allow a defendant to withdraw his plea ‘rests within the sound
discretion of the trial court and is to be determined by the facts and circumstances of each case.’”
Spencer v. Commonwealth, 68 Va. App. 183, 186 (2017) (quoting Parris v. Commonwealth, 189
Va. 321, 324 (1949)). The trial court’s ruling should be reversed “only upon ‘clear evidence that
[the decision] was not judicially sound.’” Id. (alteration in original) (quoting Jefferson v.
Commonwealth, 27 Va. App. 477, 488 (1998)). That standard of review presupposes “that, for
some decisions, conscientious jurists could reach different conclusions based on exactly the same
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facts—yet still remain entirely reasonable.” Thomas v. Commonwealth, 62 Va. App. 104, 111
(2013) (quoting Hamad v. Hamad, 61 Va. App. 593, 607 (2013)).
Motions to withdraw a guilty plea are governed by two separate standards depending on
when the motion is made. “A motion to withdraw a guilty plea made after sentencing is
governed by the ‘manifest injustice’ standard.” Brown v. Commonwealth, 297 Va. 295, 300
(2019) (emphasis omitted). In contrast, motions made before a defendant is sentenced should be
granted if the plea 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.” Pritchett v. Commonwealth, 61 Va. App. 777, 786
(2013) (quoting Parris, 189 Va. at 325).
To satisfy the “more forgiving” pre-sentence standard, Moore was required to establish
two requirements. Brown, 297 Va. at 299. First, he had “the burden of establishing that his
motion is made in good faith.” Spencer, 68 Va. App. at 187 (citing Ramsey v. Commonwealth,
65 Va. App. 593, 600 (2015)). “[B]oth the guilty plea and the motion to withdraw the . . . plea
must be made in good faith.” Pritchett, 61 Va. App. at 787 (emphasis omitted). Second, Moore
was required to “proffer evidence of a reasonable basis for contesting guilt.” Spencer, 68
Va. App. at 187. The proffered defense must be “‘substantive’ and ‘reasonable,’ not ‘merely
dilatory or formal.’” Id. at 188 (quoting Justus v. Commonwealth, 274 Va. 143, 155-56 (2007));
see also Ramsey, 65 Va. App. at 600. “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.” Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008). The trial court also must
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consider whether the Commonwealth would be prejudiced by granting the motion. Pritchett, 61
Va. App. at 787; Hubbard v. Commonwealth, 60 Va. App. 200, 211 n.4 (2012).
Because Moore failed to present any substantive evidence of a reasonable basis for
contesting his guilt, we need not consider Moore’s arguments that his motion was made in good
faith and the Commonwealth would not be prejudiced. “To meet the burden of introducing prima
facie evidence of a reasonable defense, a defendant is required to ‘proffer[] . . . sufficient facts to
support the asserted defense, such that it is reasonable to present it to the judge or jury trying the
case.’” Spencer, 68 Va. App. at 189 (alterations in original) (quoting Hernandez v.
Commonwealth, 67 Va. App. 67, 79 (2016)). Bare assertions that a defendant has a defense are not
sufficient, and a trial court’s “discretion [to grant the motion] will rarely, if ever, be exercised in
aid of an attempt to rely upon a merely dilatory or formal defense.” Parris, 189 Va. at 324-25.
Instead, “[a] reasonable defense sufficient to withdraw a guilty plea is ‘one based upon a
proposition of law . . . or one supported by credible testimony, supported by affidavit.’”
Spencer, 68 Va. App. at 188 (second alteration in original) (quoting Williams v. Commonwealth,
59 Va. App. 238, 249 (2011)). Indeed, the defense must be “sustained by proofs.” Williams, 59
Va. App. at 249 (quoting Justus, 274 Va. at 153). Accordingly, we have held that “a bare
challenge to the credibility of a victim or witness” is not a reasonable defense that would “permit
the withdrawal of a plea of guilty.” Thomason v. Commonwealth, 69 Va. App. 89, 96 (2018)
(quoting Williams, 59 Va. App. at 249). Indeed, “potential impeachment of witness testimony” is
not a reasonable defense even when “newly discovered impeachment evidence is potentially
exculpatory” under Brady v. Maryland, 373 U.S. 83 (1963),1 because whether evidence is
1
There is no allegation in this case that the Commonwealth failed to comply with its
obligation to disclose exculpatory evidence under Brady.
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exculpatory “is not the proper standard for setting aside a guilty plea.” Thomason, 69 Va. App. at
96.
Here, Moore failed to provide a reasonable basis for contesting his guilt. At best, he
points to evidence, his own version of events, that contradicts the statements of other witnesses
and argues that various witnesses’ statements contradict each other. Moore, however, failed to
proffer sufficient facts to support his claim or any evidence at all during the hearing on his
motion to withdraw his plea. Instead, his alleged defense was limited to conclusory assertions
made on brief and during argument that he made no overt act sufficient to render him liable as a
principal in the second degree. Coleman v. Commonwealth, 51 Va. App. 284, 293 (2008)
(affirming denial of motion to withdraw guilty plea when defendant “presented no affidavits,
alibi witnesses, or even any explanation of his ‘mistaken identity’ defense”). To be sure,
Moore’s alleged defense amounts to an unsupported credibility challenge and is not a reasonable
defense, sustained by proofs, sufficient to justify withdrawing his guilty plea. See Booker v.
Commonwealth, 61 Va. App. 323, 335 (2012) (holding that a defendant had not established a
reasonable basis for contesting guilt when he “did not proffer any defense beyond simply making
the prosecution prove its case”). Accordingly, the trial court did not abuse its discretion in
denying Moore’s motion to withdraw his guilty plea.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
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