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White v. Commonwealth

Court of Appeals of Virginia

December 17, 2013

LARRY MAURICE WHITE
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge.

B. Cullen Gibson for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and Huff Argued at Chesapeake, Virginia.

MEMORANDUM OPINION [*]

GLEN A. HUFF, JUDGE.

Larry Maurice White ("appellant") appeals a ruling of the Circuit Court of the City of Norfolk ("trial court") denying appellant's motion to withdraw his guilty plea. The trial court found appellant guilty of robbery, in violation of Code § 18.2-58, and sentenced him to fourteen years' incarceration in the Department of Corrections with ten years suspended. On appeal, appellant asserts that the trial court abused its discretion in refusing to allow appellant to withdraw his guilty plea prior to sentencing. For the following reasons, this Court affirms the judgment of the trial court.

I. BACKGROUND

On appeal, "'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

Just after midnight on May 5, 2010, appellant encountered the victim walking home from work. Appellant demanded that the victim give him $20 and said that he would use a .380 caliber handgun if the victim did not cooperate. The victim gave appellant two $20 bills, two packs of cigarettes, and his cell phone. Appellant then took the victim's wallet.

After the encounter, the victim ran two blocks to Officer D.M. Chaney ("Chaney"), who had just initiated a traffic stop, and reported the robbery. Chaney broadcasted a description of appellant over the radio. As the information was being broadcasted, K-9 Officer J.M. Losee ("Losee") saw appellant crossing Princess Anne Road heading south. When appellant ignored Losee's commands to stop, Losee released his dog to subdue appellant. The police found $140 cash and one pack of the victim's cigarettes on appellant's person. They also recovered the victim's cell phone in the bushes next to where appellant was apprehended. The police then retraced appellant's flight path where they found the victim's wallet, but they did not find a gun on appellant's person or in the vicinity of his flight path.

Shortly after appellant was taken into custody, the police conducted a show up of appellant with the victim, who immediately identified appellant as the person who robbed him. Appellant was charged with one count of robbery, one count of use of a firearm in the commission of a felony, and one count of possession of a firearm by a convicted felon.

The trial court appointed Duncan St. Clair ("St. Clair") to represent appellant. St. Clair and the Commonwealth's attorney reached a plea agreement whereby appellant would plead guilty to the robbery charge, and the Commonwealth would move to nolle prosequi the two remaining charges. Additionally, the Commonwealth agreed that appellant would not receive an active jail sentence above the midpoint of the sentencing guidelines. Along with signing the plea agreement, appellant signed a form entitled "Advice to Defendants Pleading Guilty, " wherein appellant represented that he was pleading guilty freely and because he was in fact guilty.

At the plea hearing colloquy, appellant testified that he was pleading guilty freely and because he was in fact guilty. Appellant also testified that he understood the plea agreement called for an active sentence of no more than the midpoint of the sentencing guidelines and that he was satisfied with the services of St. Clair. After this colloquy, the trial court accepted appellant's guilty plea, finding that it was entered freely, voluntarily, and intelligently with an understanding of the charge and consequences of the plea.

Thereafter, the trial court discussed the possibility of combining the sentencing hearing with appellant's pending revocation proceeding. During this discussion, the Commonwealth's attorney represented to the trial court that the midpoint of the sentencing guidelines would be "[a]pproximately [nineteen] years and three months." The trial court then ...


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