PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Lacy, S.J.
E. POWELL JUSTICE
THE COURT OF APPEALS OF VIRGINIA
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
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
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
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.
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
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 ...