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Thomason v. Commonwealth

Court of Appeals of Virginia

July 17, 2018



          Jim D. Childress, III (Childress Law Firm PC, on brief), for appellant.

          Rachel L. Yates, Assistant Attorney General (Mark R Herring, Attorney General; Craig W. Stallard, Assistant Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Chafin and Senior Judge Clements Argued at Lexington, Virginia



         Franklin Lee Thomason, Jr. ("Thomason") appeals the judgment of the Circuit Court of Campbell County ("circuit court") denying his motion to withdraw his January 18, 2017 guilty pleas to second-degree murder, possession of a firearm by a convicted felon, and use of a firearm in the commission of a felony. Thomason argues the circuit court abused its discretion by denying his pre-sentencing motion to withdraw his guilty pleas and by sentencing him too harshly, given proper consideration of the facts.

         I. BACKGROUND

         On January 24, 2016, Thomason was at his home with his girlfriend and two guests, D.W. Grubbs ("D.W."), and D.W.'s wife Amy Grubbs ("Amy"). The trio began drinking alcohol in the kitchen. While drinking, D.W. showed Thomason a gun he had stolen and attempted to trade it to Thomason for methamphetamine. D.W. left the room temporarily, leaving the stolen gun on the table. Thomason and Amy continued to consume alcohol until Thomason "snapped," pushing Amy up against the clothes dryer while holding a knife to her throat and demanding to know "what she took." When Amy replied that she did not know what Thomason was talking about, Thomason backed off, sitting down at the table again, and apologized. Thomason told Amy to go get D.W. When D.W. subsequently entered the room, Thomason picked up the gun off the table and pointed it at Amy's head, threatening to "blow [her] away" unless D.W. told Thomason what he had taken. D.W. likewise responded that he did not know what Thomason was talking about. Thomason then turned the gun on D.W., shooting him between the eyes, killing him. Amy called the police. When police arrived, Thomason made statements regretting that he had not fled or killed Amy as well. Thomason made additional conflicting statements, claiming that he had committed manslaughter but not murder and that the gun had gone off accidentally.

         Thomason pleaded guilty pursuant to a written plea agreement with the Commonwealth. However, on the day of the sentencing hearing, April 13, 2017, Thomason learned of an additional witness, Andrew Palaisa ("Palaisa"), who had discussed the incident with Amy. Thomason moved for a continuance, which was granted. On May 19, 2017, Thomason moved to withdraw his guilty pleas, arguing that the existence of exculpatory evidence provided by Palaisa constituted a material mistake of fact at the time of his plea. A hearing regarding this motion occurred on July 27, 2017, during which Palaisa testified that he had spoken with Amy and that she had relayed two different versions of D.W.'s death to him, one which substantially accorded with the facts as laid out by the Commonwealth, and another in which D.W. threatened to rob Thomason leading to an altercation during which the gun discharged when Thomason claimed he had no drugs. Palaisa could not recall when he talked to Amy, or whether he had first discussed the incident with Amy or Thomason, conceding "I was on a lot of drugs at that time." The circuit court denied Thomason's motion to withdraw his guilty pleas, finding Palaisa "clearly not very credible" and his testimony insignificant when compared to the other evidence and Thomason's own statements. The circuit court also specifically noted that, pursuant to the plea agreement, the Commonwealth had nolle prosequied one charge and reduced another, and would be prejudiced by allowing Thomason to withdraw his plea. The circuit court also held that Thomason was bound to his plea agreement by contract principles.

         The circuit court proceeded with sentencing, imposing forty years' incarceration, with eighteen suspended for the murder charge, with eight years' incarceration for the gun charges, totaling thirty years' incarceration. This appeal follows.

         II. ANALYSIS

         A. Standard of Review

         Though Code § 19.2-296 governs the withdrawal of a guilty plea, it does not provide a standard for a pre-sentencing guilty plea withdrawal. Without such guidance, a trial court's decision on the pre-sentencing withdrawal of a guilty plea is reviewed under an abuse of discretion standard, with insight provided by the Virginia Supreme Court's "seminal" case on the matter, Parris v. Commonwealth, 189 Va. 321, 52 S.E.2d 872 (1949). See Justus v. Commonwealth, 274 Va. 143, 152, 645 S.E.2d 284, 288 (2007) ("Parris is the seminal statement of the law . . . [and] remains the standard for consideration and review of a motion made under the statutory provision.").

         Parris holds ...

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