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Spencer v. Commonwealth

Court of Appeals of Virginia

November 14, 2017

DAMIEN CAMERON SPENCER
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF WYTHE COUNTY Josiah T. Showalter, Jr., Judge

          Michael J. Sobey (The Sobey Law Firm, P.C., on brief), for appellant.

          Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Beales and O'Brien Argued at Lexington, Virginia

          OPINION

          MARY GRACE O'BRIEN, JUDGE

         Damien 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 appellant's convictions.

         BACKGROUND

         A grand 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.

         Prior 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.

         The 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.

         ANALYSIS

         We 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)).

         Code § 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 ...

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