THE CIRCUIT COURT OF WYTHE COUNTY Josiah T. Showalter, Jr.,
Michael J. Sobey (The Sobey Law Firm, P.C., on brief), for
Elizabeth Kiernan Fitzgerald, Assistant Attorney General
(Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, Beales and O'Brien Argued at
GRACE O'BRIEN, JUDGE
Cameron Spencer ("appellant") entered nolo
contendere pleas to four felony charges: procuring a
minor for obscene material by communications system, in
violation of Code § 18.2-374.1; electronically
transmitting child pornography, in violation of Code §
18.2-374.1:1; possessing child pornography, in violation of
Code § 18.2-374.1:1; and soliciting a minor for child
pornography, in violation of Code § 18.2-374.1.
Appellant contends that the court erred in denying his motion
to withdraw his pleas. For the reasons below, we affirm
jury indicted appellant based on several nude photographs of
a sixteen-year-old girl found on his cell phone pursuant to a
search warrant. At trial, appellant waived formal arraignment
and entered pleas of nolo contendere ("no
contest") to each of the charges. Following a plea
colloquy, the court accepted the pleas, finding they were
made freely, voluntarily, and intelligently. The Commonwealth
made a proffer of the evidence, including appellant's
admission that he had taken "screen shot[s]" of the
photographs and saved them to his phone. Appellant agreed
that the Commonwealth's proffer was accurate, and the
court found him guilty of the offenses.
to sentencing, appellant obtained new counsel and filed a
motion to withdraw his pleas. At a hearing on the
motion, appellant's counsel explained that appellant
sought to withdraw his pleas because evidence obtained from
the search warrant should have been suppressed. He further
stated, "I think [appellant] was not advised" about
the potential motion to suppress prior to entering his pleas.
Counsel contended that evidence from the search warrant
should have been suppressed because the phone number listed
on the warrant was "for a different phone[, ] not
[appellant's]." Despite the fact that his prior
counsel was present in the courtroom, appellant offered no
evidence or testimony at the hearing.
court denied the motion and found that prior defense
counsel's failure to file a suppression motion was a
matter of "trial strategy." The court also held
that the plea colloquy established that appellant understood
the nature and consequences of his pleas.
review a court's decision to deny a motion to withdraw a
plea of guilty or nolo contendere under an abuse of
discretion standard. Pritchett v. Commonwealth, 61
Va.App. 777, 785, 739 S.E.2d 922, 926 (2013). The decision
whether to allow a defendant to withdraw his plea "rests
within the sound discretion of the trial court and is to be
determined by the facts and circumstances of each case."
Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d
872, 873 (1949). The court's ruling will be reversed
"only upon 'clear evidence that [the decision] was
not judicially sound."' Jefferson v.
Commonwealth, 27 Va.App. 477, 488, 500 S.E.2d 219, 225
(1998) (quoting Nat'l Linen Serv. v. Parker, 21
Va.App. 8, 19, 461 S.E.2d 404, 410 (1995)).
§ 19.2-296 provides:
A motion to withdraw a plea of guilty or nolo
contendere may be made only before sentence is imposed
or imposition of a sentence is suspended; but to correct
manifest injustice, the court within twenty-one days after
entry of a final order may set aside the ...