THE COURT OF APPEALS OF VIRGINIA
All the Justices
W. LEMONS, CHIEF JUSTICE.
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.
Facts and Proceedings
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.
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
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
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
Please note my intentions to appeal.
Thank you (gracias).
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.
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."
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, ...