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Small v. Commonwealth

Supreme Court of Virginia

July 14, 2016

IRVING THOMAS SMALL
v.
COMMONWEALTH OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy, S.J.

          OPINION

          CLEO E. POWELL JUSTICE

         FROM THE COURT OF APPEALS OF VIRGINIA

         Irving Thomas Small ("Small") was charged with possession of a firearm after conviction of a felony, in violation of Code § 18.2-308.2. He entered a guilty plea on November 10, 2010. Small thereafter moved to withdraw his guilty plea prior to sentencing. The trial court denied the motion and the Court of Appeals affirmed the judgment of the trial court. On appeal, Small argues that the trial court and Court of Appeals erred because he made a material mistake of fact in pleading guilty and should have asserted the defense of necessity.

         I. BACKGROUND

         At Small's guilty plea hearing, the Commonwealth offered the following stipulated facts:

On May 27, 2010 detectives went to 1746 Melon Street to execute a search warrant on [Small's] person for buccal swabs. Upon seeing the officers, Small ran. Detective Reyes from the Norfolk Police Department's homicide squad gave chase and was able to stay steps behind Small. As Small exited the back door Detective Reyes heard a loud noise. Reyes looked out of the kitchen window and saw a garbage container. Inside of that container was a Lorcin .380 caliber semi-automatic handgun. Small was immediately taken into custody while standing near the trash can.
The weapon was taken to the bureau of forensic science laboratory for analysis. Small's DNA was present on the weapon.

         Small was scheduled to be sentenced on nine separate occasions. Each of the nine sentencing hearings were continued on joint motion due to Small testifying in another trial. On June 18, 2013, almost 2 years and 8 months after entering his plea, Small filed a presentence motion to withdraw his guilty plea. His motion stated:

After [Small] entered his guilty plea to possession of a gun he testified at the trial of a man that shot him four . . . days prior to the possession of a gun. [Small] insists he was in justifiable fear for his life due to the shooter having not been arrested yet. The shooter also shot and killed [his] friend at the time [Small] was shot and hospitalized. [Small's] possession of a gun at his sister's home was clearly necessary for his own self defense from the man who recently shot [Small] and killed [his] friend in [Small's] presence.

         The hearing on the motion to withdraw his guilty plea was held on August 7, 2014, over a year after it was filed. The only explanation given by Small's counsel for the length of time prior to filing the motion to withdraw guilty plea was that he "made the decision that perhaps [he] would have been better off presenting" a defense of "fear of being shot" and possessed the gun out of necessity. Small's counsel stated he erroneously advised Small to enter the guilty plea. Small also argued that

had the shooter not been convicted and had we come forward on this as a defense, as a necessity defense, if . . . in another case if a defendant had said, I was afraid of somebody coming and shooting me, then a court could not believe that and convict anyway. However, waiting for the conviction and his testimony to provide evidence that this man had shot him and killed the other man, that's proof that he had a reason to be afraid, and we haven't had that proof until very recently when that man was convicted.

         The trial court denied Small's motion to withdraw his guilty plea. The trial court found that the Commonwealth would be unduly prejudiced in trying Small due to the length of time, four and a half years, since the incident. The trial court found that the passage of time, standing alone, prejudiced the Commonwealth. Further, in contemplating whether the nature of the defense could potentially obviate the prejudice to the Commonwealth, and whether a stipulation to the evidence would be practical, the trial court noted that it could not

rule out that the circumstances and something that happened during the offense might actually relate to the Court determining whether to believe the defendant's affirmative defense or not. There might be some details of how it happened, how the defendant acted at the time, what the defendant said, something ...

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