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Reyes v. Commonwealth

Court of Appeals of Virginia

January 9, 2018

MIGUEL ANTONIO REYES
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF FAIRFAX COUNTY John M. Tran, Judge

          Kathryn C. Donoghue, Senior Assistant Public Defender, for appellant.

          Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Beales and Decker Argued at Alexandria, Virginia

          OPINION

          RANDOLPH A. BEALES, JUDGE

         I. Background

         Miguel Antonio Reyes ("appellant") was indicted for robbery stemming from an incident that occurred on June 27, 2015 involving M.G. ("the victim").[1]Due to appellant's indigent status, Roger Nord, Esquire, was appointed as counsel for appellant.

         On February 23, 2016, appellant entered an Alford guilty plea to the robbery charge pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).[2] After appellant entered his plea, the Commonwealth summarized the evidence that it would have presented at trial.[3] According to the written plea agreement, there was no agreement regarding appellant's sentence. The agreement noted that the Commonwealth had disposed of another charge at the preliminary hearing by nolle prosequi and that the Commonwealth agreed not to indict appellant on another count of robbery. Pursuant to the agreement, appellant would pay restitution in the amount of $1, 850 "for this victim and the victim of the uncharged case." After engaging in a plea colloquy, the trial court accepted appellant's guilty plea and entered an order finding him guilty of robbery.

         On May 13, 2016, the parties appeared before the trial court for sentencing. Appellant's appointed counsel, Mr. Nord, asked for a continuance in order to determine whether appellant was eligible for the Youthful Offender Program. The Commonwealth objected to the continuance based on the late timing of the motion, arguing that the victim was present and ready to testify. The Commonwealth also argued that the program would be inappropriate based on the violent nature of the crime and appellant's history. The trial court granted the continuance and rescheduled the sentencing hearing to July 15, 2016. After the court granted the continuance, the Commonwealth requested that there be no future continuances, or if there were, requested that appellant's "Counsel let us know so we don't have the victim take time out of her day to come here yet again." The trial court declined to forbid future continuances, but requested that Mr. Nord inform the Commonwealth about any additional requests to continue prior to the date of the sentencing to allow the Commonwealth to inform the victim. Following the hearing, appellant was declared not suitable for the Youthful Offender Program.

         On July 14, 2016, the day before the rescheduled sentencing hearing, Charles J. Swedish, Esquire filed a "Notice and Motion to Substitute Counsel." The motion stated that appellant's "financial circumstances have changed since his incarceration and that he is now able to retain private counsel." In addition to the request to substitute counsel, Mr. Swedish asked that "a reasonable continuance be granted for new counsel to prepare." On the same date, Mr. Swedish also filed a "Notice and Motion to Continue, " stating that he was requesting a "reasonable continuance pursuant to Section 19.2-159.1 Code of Virginia."

         On July 15, 2016, the parties appeared before the trial court for the previously scheduled sentencing hearing and to address Mr. Swedish's motions to substitute counsel and to continue the case. Mr. Swedish informed the trial court that he was "representing a family member and he asked me to look into the case and they want me to take over Mr. Reyes' case." Mr. Swedish told the trial court that the family spoke to him three weeks ago, but they did not pay him "until quite recently" at which point he immediately filed the motions. Mr. Swedish argued that Code § 19.2-159.1 "says when there is a change of financial circumstances for somebody who is represented by court-appointed counsel the Court shall grant a reasonable continuance." Mr. Swedish also informed the trial court that appellant "might want to withdraw" his guilty plea, to which the court replied, "That's so unlikely as to make it insufficient cause to continue the matter."

         The Commonwealth objected to the continuance because the victim was again present to testify at the hearing and the case had previously been continued. The trial court denied the motion to continue because it had previously granted a continuance and because, it noted, an additional continuance would be a burden on the victim. However, the trial court stated that it would permit Mr. Swedish to enter his appearance and represent appellant alongside Mr. Nord. Mr. Swedish declined to represent appellant with Mr. Nord, and Mr. Nord continued with the representation. On July 21, 2016, the trial court entered a final sentencing order sentencing appellant to forty-five years in prison with all but eighteen years suspended.

         On August 9, 2016, Mr. Nord filed a "Motion to Reconsider, to Withdraw Alford Plea and to Set a Trial Date."[4] On September 20, 2016, the trial court entered an order denying the motion to reconsider and deeming all other motions moot. On October 4, 2016, Mr. Nord filed a "Supplemental Motion to Reconsider, to Withdraw Alford Plea and to Set a Trial Date, " claiming in his supplemental motion that new information had become available because he was finally able to locate at least one alibi witnesses and possibly two others.

         On October 5, 2016, the trial court entered an order stating that appellant was to be held at the Adult Detention Center in Fairfax County and not transferred to the Department of Corrections "until further notice of this Court." On October 7, 2016, the parties appeared before the trial court on Mr. Nord's motion. Mr. Nord argued that appellant had told him that he was in other places during the crime, but Mr. Nord had been unable to locate witnesses and he did not have a staff investigator to help him locate them. When asked by the trial court if there was a petition for habeas corpus coming, Mr. Nord responded, "I do not know that, Your Honor. I think that there are some grounds that may justify such an action." The trial court did not rule on appellant's supplemental motion, and instead requested that the Public Defender's ...


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