Fred Cardwell v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
FRED CARDWELL OPINION BY
v. 	Record No. 2709-97-4 	JUDGE JERE M. H. WILLIS, JR.
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Fred Cardwell contends that the trial court abused its
discretion by allowing the Commonwealth to reopen its case on a
lesser-included offense after a motion to strike had been
granted. 	We find no error and affirm the judgment of the trial
court.
I. 	BACKGROUND
Upon investigation of allegations that he had sexually
abused his four-year-old daughter, Cardwell admitted both to his
wife and to a Loudoun County investigator that he had been
sexually abusing his daughter for several months. 	He was
indicted for aggravated sexual battery, in violation of Code
§ 18.2-67.3 (Count I) and forcible sodomy (cunnilingus), in
violation of Code § 18.2-67.1 (Count II).
At the conclusion of the Commonwealth's case-in-chief,

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Cardwell moved to strike both counts on the ground of
insufficient evidence. 	The trial court denied the motion to
strike the aggravated sexual battery count (Count I). 	Holding
the evidence insufficient to prove penetration, the trial court
granted the motion to strike the forcible sodomy count, but upon
motion of the Commonwealth, amended Count II to charge a
lesser-included offense of aggravated sexual battery.1 See
Gorham v. Commonwealth, 15 Va. App. 673, 678, 426 S.E.2d 493, 496
(1993). 	Thus, Cardwell faced two counts of aggravated sexual
battery. 	Before the jury was instructed, Cardwell changed his
pleas and pled guilty to both counts of aggravated sexual
battery.
Before sentencing, Cardwell moved to withdraw his guilty
plea to Count II. 	He conceded that his guilty plea was not
induced by force or coercion, but argued that the amendment of
Count II subjected him to double jeopardy and was an abuse of
discretion, causing manifest injustice. 	The trial court denied
Cardwell's motion to withdraw his guilty plea. 	Cardwell contends
on appeal that the trial court abused its discretion in allowing
the Commonwealth to reopen its case2 after the motion to strike
1Cardwell did not raise before the trial court, and has not
raised in this appeal, the question whether aggravated sexual
battery is a lesser offense included in a charge of forcible
sodomy. 	Therefore, we do not have that question before us and do
not address it.
2The Commonwealth did not reopen its case. 	It submitted the
amended charge on the evidence previously presented. 	We consider
Cardwell's contention on appeal to be that the trial court erred
in permitting the amendment of Count II and in permitting the

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had been granted.
II. 	WAIVER OF APPEAL THROUGH GUILTY PLEA
Cardwell contends that his guilty plea did not waive his
right to appeal and that the trial court abused its discretion in
denying his motion to withdraw his guilty plea to Count II.
[W]hether or not an accused should be allowed
to withdraw a plea of guilty for the purpose
of submitting one of not guilty is a matter
that rests within the sound discretion of the
trial court and is to be determined by the
facts and circumstances of each case. . . .
[T]he motion should not be denied, if timely
made, and if it appears from the surrounding
circumstances that the plea of guilty was
submitted in good faith under an honest
mistake of material fact or facts, or if it
was induced by fraud, coercion, or undue
influence and would not otherwise have been
made.
Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873
(1949).
The evidence presented at the June 23, 1997 hearing
discloses no honest mistake, fraud, coercion, or undue influence
underlying Cardwell's plea. 	His counsel conceded that the trial
court asked Cardwell questions that included: 	"Is this what you
want to do? 	Are you doing this freely and voluntarily? 	Are you
doing this because you are, in fact, guilty?" and that "Cardwell
answered all of them in the affirmative, including the question
that he understands that he loses certain rights and that
includes the right to appeal."
(..continued)
Commonwealth to go forward on that amended count.

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The evidence supports the finding that Cardwell's guilty
plea was made freely, voluntarily, and without fear or coercion.
The trial court did not abuse its discretion in denying his
motion to withdraw his guilty plea. 	See Hoverter v.
Commonwealth, 23 Va. App. 454, 464-65, 477 S.E.2d 771, 775-76
(1996).
Cardwell's guilty plea controls this appeal. 	He pled guilty
without raising a double jeopardy issue and has waived his right
to appeal that issue. 	"Because [the appellant] failed to raise
his double jeopardy claim until after his conviction, the claim
was not timely raised and was therefore waived." 	See Essex v.
Commonwealth, 18 Va. App. 168, 174, 442 S.E.2d 707, 711 (1994)
(citation omitted).
The judgment of the trial court is affirmed.
Affirmed.