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Minor v. Commonwealth

Court of Appeals of Virginia

November 8, 2016


         FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate

          Peter T. Hansen for appellant.

          Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

          Present: Judges Petty, O'Brien and Russell Argued at Alexandria, Virginia



         Franklin Minor, appellant, was convicted of five counts of aggravated sexual battery by a stepparent in violation of Code § 18.2-67.3 and four counts of rape of a child in violation of Code § 18.2-61. On appeal, he contends the trial court abused its discretion in denying his request to withdraw his guilty pleas. Finding that the trial court lacked jurisdiction to consider appellant's motion to withdraw his guilty pleas, we lack jurisdiction, and accordingly dismiss the appeal.


         Appellant was indicted on twenty-one separate charges in multiple cases alleging sexual offenses against his stepdaughter; eighteen of those charges were consolidated to be tried in one proceeding. Prior to trial, appellant moved the court for a competency evaluation and an evaluation for sanity at the time of the offense. The court granted the motions and subsequently conducted a hearing to determine whether appellant was competent to stand trial.[1]

         At the hearing, the trial court accepted Dr. Kenneth Showalter as an expert in the area of forensic clinical psychology. Prior to testifying, Dr. Showalter interviewed appellant and conducted an evaluation for his competency to stand trial. He testified that, in general, during evaluations, he assesses whether an individual has a factual understanding of the legal process, or a "grasp of the facts" and an ability to engage with counsel to prepare a defense. In his first interview of appellant, he performed an IQ test and determined that appellant's verbal reasoning skills were in the low to average range. He also found that appellant knew the basic roles of the judge, defense counsel, and the attorney for the Commonwealth. Dr. Showalter further testified that, after explaining the concept of a plea agreement to appellant, appellant "had a very concrete rudimentary understanding of a plea bargain."

         During a rare second interview inspired by concerns raised by appellant's counsel, Dr. Showalter conducted a personality test and found no evidence that appellant was trying to fake the results of the testing. A prominent finding was that appellant wants to please authority figures. Dr. Showalter concluded that appellant does not like to face unpleasant reality and may engage in "wishful or magical thinking" in order to make "all the bad stuff in life [to] go away." Dr. Showalter opined that appellant was competent to stand trial, and the trial court so found.

         On August 21, 2015, appellant and the Commonwealth entered into a written plea agreement. Specifically, appellant agreed "to plead guilty to, pursuant to North Carolina v. Alford, [2] and be found guilty of" five counts of aggravated sexual battery and four counts of rape. Of particular importance for the issues raised in his appeal, appellant, by the express terms of the agreement, pled guilty to the rape charge in Case No. CR15-56. In exchange for appellant's guilty pleas, the Commonwealth agreed to seek dismissal of the remaining counts.

         At a hearing on August 21, 2015, appellant appeared before the trial court and entered the guilty pleas specified in the written plea agreement. Prior to accepting the guilty pleas, the trial court and appellant engaged in a routine colloquy related to the guilty pleas. Specifically, appellant stated that he understood the charges against him, had discussed them with his lawyer, and had entered his pleas freely and voluntarily.

         After this colloquy, the trial court asked the prosecution to summarize the evidence, and the prosecution did so regarding all of the charges to which appellant was pleading guilty. Regarding Case No. CR15-56, the Commonwealth indicated that the victim would testify that appellant "first had sexual intercourse with her when she was five years old. She reported that he told her that he wanted to try something new and took her into his bedroom where he had sexual intercourse with her."

         After hearing the prosecution's recitation of the facts, the court inquired whether appellant's counsel agreed that the Commonwealth's recitation of the facts was consistent with what the Commonwealth's evidence would have been if the matters were tried. After appellant's counsel responded in the affirmative, the trial court engaged in a further colloquy with appellant. Appellant indicated to the trial court that he did not want to risk being tried by a jury and that he understood that, by entering the Alford pleas, he was, among other things, waiving his right to a jury trial, waiving his right against self-incrimination, waiving his right to confront and cross-examine his accusers, waiving his right to defend himself, and waiving his right of appeal. Appellant also confirmed that he was not under the influence of drugs or alcohol, that no one had coerced him to enter the guilty pleas, that he was aware of the sentencing guidelines and had discussed them with his attorney, and that he was aware that there was no parole in Virginia.

         At the conclusion of the colloquy, the trial court accepted appellant's guilty pleas. Consistent with the plea agreement, the court ordered a presentence report and an evaluation pursuant to Code § 19.2-300. The trial court memorialized its acceptance of the guilty pleas in an August 21, 2015 order that specifically referenced the trial court's acceptance of the guilty pleas, including the guilty plea with respect to Case No. CR15-56.

         A sentencing hearing was held on November 19, 2015. At the hearing, the trial court received the presentence report, the results of the evaluation performed pursuant to Code § 19.2-300, and evidence regarding appropriate sentences for the crimes to which appellant had pled guilty. In addition to imposing a post-release period of probation and fines for some of the offenses, the trial court sentenced appellant to 155 years of incarceration, but suspended eighty-five years, leaving appellant with seventy years to serve. Regarding Case No. CR15-56, the trial court specifically stated that "the court is going to sentence you to 20 years in the state penitentiary. I'll suspend 10 of the 20 years. And upon release, you will be placed on 10 years probation."

         On November 23, 2015, the trial court entered an order that purported to memorialize the rulings from the November 19, 2015 sentencing hearing. As the parties acknowledge, the November 23, 2015 order, in its concluding portion, correctly states that appellant was sentenced to 155 years of incarceration with eighty-five years suspended, fined $50, 000, and was subject to a period of ten ...

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