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Velazquez v. Commonwealth

Supreme Court of Virginia

October 27, 2016

GERMAN CORTES VELAZQUEZ
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

         PRESENT: All the Justices

          OPINION

          DONALD W. LEMONS, CHIEF JUSTICE.

         In this appeal, we consider whether the Court of Appeals erred in holding that the trial court lacked jurisdiction to consider a defendant's motion to withdraw his guilty plea and whether, in an alternative holding by the trial court, it abused its discretion by denying the motion on its merits.

         I. Facts and Proceedings

         On October 30, 2014, in the Circuit Court of the City of Staunton ("trial court"), German Cortes Velazquez ("Velazquez") pleaded guilty to the charge of computer solicitation of a child in violation of Code § 18.2-374.3. During the October 30 hearing, Velazquez, who spoke limited English, was aided by a Spanish interpreter and represented by counsel. Upon conferring with his attorney, Velazquez signed a guilty plea questionnaire and a written plea agreement. After a thorough plea colloquy, in which Velazquez was fully advised of his rights, the trial court accepted his guilty plea pursuant to the plea agreement. The court advised Velazquez that he would be sentenced to 15 years' imprisonment with 10 years suspended. Velazquez had also been indicted on a charge of attempted indecent liberties with a minor in violation of Code § 18.2-370. In consideration of his guilty plea to the charge of computer solicitation, the Commonwealth agreed to nolle prosequi the charge of attempted indecent liberties.

         Shortly after he entered his guilty plea, Velazquez submitted a pro se notice of appeal in the form of a handwritten letter to the trial court. The letter was dated November 4, 2014, and stated:

         Dear Mr. Thomas Roberts, Clerk

I have notified my attorney Michael J. Hallahan as of today that I do wish to appeal my conviction in the Staunton Circuit Court on October 30th, 2014 and its sentence of 5 years.
I am appealing because I am Hispanic and there is a language barrier that I did have an interpreter for, however they (my attorney and interpreter) both spoke very fast and I feel I was forced to sign a plea deal out of fear and anxiety derived from this problem.
I did not understand I was signing a plea bargain for five years.
Please note my intentions to appeal.
Thank you (gracias).
German C.V.

         On November 17, 2014, the trial court entered an order sentencing Velazquez in accordance with the plea agreement. Because of Velazquez' pro se filing, on November 18, 2014, the trial court appointed new counsel to represent Velazquez on appeal. Shortly thereafter, on November 25, 2014, Velazquez' new attorney simultaneously filed a notice of appeal and a Motion to Withdraw Guilty Plea pursuant to Code § 19.2-296. In a December 3, 2014 filing, the Commonwealth opposed the withdrawal motion, arguing that Velazquez made his guilty plea "freely, voluntarily and intelligently with an understanding of the nature of the charge and an awareness of the consequences." The Commonwealth further argued that Velazquez "had the benefit of a certified interpreter through all the proceedings" and that "a withdrawal of the plea would be prejudicial to the Commonwealth." On December 5, 2014, the trial court heard argument on Velazquez' motion to withdraw his guilty plea. At the beginning of the hearing, Velazquez' attorney explained:

I wanted the Court to understand . . . that the reason that this motion came after the Notice of Appeal was to preserve [Velazquez'] appeal rights. And I've learned of his . . . desire to withdraw his plea subsequent to my appointment, so that's why we are here today. [T]he only evidence I will put on today will be . . . testimony from Mr. Velazquez.

         Velazquez then testified that he had only five minutes to review the plea agreement with his first attorney. He stated that he became confused because his first attorney and the translator each spoke quickly and that he was trying to "tend to both of them at the same time." Velazquez also said that he "really wanted to go to trial" even though he could face a significantly greater period of incarceration. On cross-examination the Commonwealth attempted to show that Velazquez fully understood the consequences of the plea agreement at the time he entered his plea. Velazquez responded, "I don't have a good memory" and "I was afraid and confused."

         At the conclusion of Velazquez' testimony but before the parties presented their arguments, the trial court raised a concern regarding its jurisdiction to consider the motion:

Mr. Velazquez filed on his own behalf with the Court on November 10th [which] the Court treated as a Notice of Appeal. You also, Mr. Cormier, on . . . December the -- let me see, November 25th filed a Notice of Appeal. My understanding that that [sic] -- by filing a Notice of Appeal, perfects the appeal, ...

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