Ronald Patrick Cobbins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Clements, Kelsey and Beales
Argued at Richmond, Virginia
RONALD PATRICK COBBINS
v. 	Record No. 1771-07-2 	OPINION BY
JUDGE D. ARTHUR KELSEY
COMMONWEALTH OF VIRGINIA 	DECEMBER 2, 2008
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Leslie M. Osborn, Judge
Melissa Fraser (Gravitt & Gravitt, P.C. on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.
In the trial court, Ronald Patrick Cobbins pled guilty to various offenses and later
unsuccessfully sought to withdraw his pleas. He argues on appeal the trial court abused its
discretion in denying his motion to withdraw his pleas. Cobbins also argues the trial court made
erroneous rulings prior to his guilty pleas. Because the trial court did not abuse its discretion in
denying Cobbins’s motion to withdraw his pleas, we affirm his convictions without addressing
his challenge to the trial court’s prior rulings.
I.
In April 2006, the grand jury indicted Cobbins for robbery, use of a firearm during a
robbery, malicious discharge of a firearm in an occupied building, and possession of a firearm by
a convicted felon. Claiming indigency, Cobbins was appointed counsel. His first attorney quit
citing an irreconcilable “personality conflict between defense counsel and the accused” making it
impossible for the attorney to fulfill his duties. Cobbins again presented a claim of indigency,

and the trial court appointed substitute counsel. After various continuances, the case was
scheduled for a jury trial on February 5, 2007. A few days before trial, Cobbins’s counsel
represented to the court that the parties had entered into a written plea agreement and Cobbins
wished to address the court prior to signing the agreement. Counsel added that he did not know
what Cobbins intended to say. The court took a lengthy recess for counsel and Cobbins to
confer.
After the recess, Cobbins stated he wanted to retain private counsel. He recently entered
into an agreement to sell his house, Cobbins alleged, and would eventually have enough money
to hire counsel. He sought a continuance of the trial date for an indefinite time period to close
the house sale and hire new counsel. The court denied the motion to continue.
After again conferring with counsel, Cobbins decided to plead guilty to the charge of
possession of a firearm by a convicted felon and to offer Alford guilty pleas to the remaining
charges.1 Cobbins offered the Alford guilty pleas, counsel advised the court, because Cobbins
“does not wish to take the chance with a jury trial.”
The trial court conducted the routine colloquy to confirm that Cobbins offered the pleas
freely and voluntarily. Cobbins stated he understood “beyond a shadow of a doubt” what he was
doing. The prosecutor proffered evidence that Cobbins demanded money from the victim.
When she refused, Cobbins dragged the victim into his bedroom and fired a handgun into the
bedroom ceiling. The victim turned over the money and ran away. Police later arrested Cobbins
1 When offering an Alford plea, a defendant asserts his innocence but admits that
sufficient evidence exists to convict him of the offense. See North Carolina v. Alford, 400 U.S.
25, 37-38 (1970); see also Parson v. Carroll, 272 Va. 560, 565, 636 S.E.2d 452, 454-55 (2006)
(describing effect of Alford plea in Virginia). Virginia courts “treat Alford pleas as having the
same preclusive effect as a guilty plea.” Perry v. Commonwealth, 33 Va. App. 410, 412, 533
S.E.2d 651, 652 (2000) (citation omitted). As a result, they are often termed “‘Alford’ pleas of
guilty.” Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008); see also Zigta
v. Commonwealth, 38 Va. App. 149, 151, 562 S.E.2d 347, 348 (2002) (using the phrase “Alford
plea of guilty”).
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and found a handgun in his possession, a spent shell casing on his bedroom floor, and a bullet
hole in his bedroom ceiling. The prosecutor also proffered Cobbins’s prior felony conviction
order.
When the trial court questioned Cobbins about the Alford pleas, Cobbins said he did not
“want to take a chance” on a jury trial given his displeasure with counsel and the weight of the
evidence against him. The trial court accepted the Alford pleas, ruling that “the evidence as
presented by the Commonwealth would be overwhelming and substantially negates the
defendant’s claim of innocence” leading Cobbins to rightly conclude “it was in his best interest
to enter this Alford plea of guilty.” The trial court entered a conviction order, ordered a
presentence report, and scheduled a sentencing hearing.
Shortly thereafter, Cobbins retained private counsel and filed a motion to withdraw his
guilty pleas. In support of his motion, Cobbins testified that he entered those pleas because “that
was the only way that I felt that I could buy time in order to get a lawyer to try to fight this thing
properly.” He was simply “buying time,” Cobbins explained, so he could circuitously get the
continuance the trial court had denied him.
Asked about his defense to the charges, Cobbins stated only that some evidence (which
he did not disclose) would impeach the victim’s testimony and “other issues” might also help
exonerate him. The trial court denied Cobbins’s motion to withdraw his guilty pleas and
imposed sentences on his four convictions.
II.
On appeal, Cobbins claims the trial court erred in not allowing him to withdraw his guilty
pleas and not granting his earlier motion for a continuance for the purpose of securing private
counsel. We hold the trial court did not err in refusing Cobbins’s motion to withdraw his pleas
and, consequently, the trial court’s ruling prior to the pleas cannot be appealed.
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A. 	MOTION TO WITHDRAW GUILTY PLEAS
The Virginia Supreme Court in Parris v. Commonwealth, 189 Va. 321, 52 S.E.2d 872
(1949), made the “seminal statement” of Virginia law governing “the denial by a trial court of a
motion to withdraw a guilty plea.” Justus v. Commonwealth, 274 Va. 143, 152, 645 S.E.2d 284,
288 (2007). Parris held that a timely motion should not be denied “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” so long as “any reasonable ground is offered for going to
the jury.” Parris, 189 Va. at 324-25, 52 S.E.2d at 873-74 (emphasis added). To warrant
withdrawal of the guilty plea, therefore, the motion must be “made in good faith and sustained by
proofs” justifying a trial on the merits. Justus, 274 Va. at 153-54, 645 S.E.2d at 288 (quoting
Parris, 189 Va. at 325-26, 52 S.E.2d at 874); Coleman v. Commonwealth, 51 Va. App. 284, 289,
657 S.E.2d 164, 166 (2008).2
The Parris standard thus requires the defendant (i) to establish a good-faith basis for
making the guilty plea and later seeking to withdraw it, and (ii) to proffer evidence of a
reasonable basis for contesting guilt. Justus, 274 Va. at 155-56, 645 S.E.2d at 289-90. The first
requirement protects the integrity of the judicial process by precluding defendants from using a
guilty plea as a subterfuge to manipulate the court. The second requirement defeats motions to
withdraw which would result in an essentially futile trial. As Parris explained, a trial court’s
discretion to grant the motion “will rarely, if ever, be exercised in aid of an attempt to rely upon
2 Parris does not require a showing that the guilty plea was involuntary in any
constitutional sense or the result of ineffective assistance of counsel. As a result, the
“presumptions that would favor the Commonwealth in a habeas proceeding” do not apply “when
the case remains within the jurisdiction of the trial court to permit the withdrawal of a guilty
plea.” Justus, 274 Va. at 154, 645 S.E.2d at 289. For this reason, a good-faith guilty plea could
be entered ill-advisedly (but nevertheless voluntarily) and still be a permissible candidate for a
motion to withdraw so long as the Parris criteria are satisfied. Id.
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a merely dilatory or formal defense.” Id. at 153, 645 S.E.2d at 288 (quoting Parris, 189 Va. at
323-34, 52 S.E.2d at 873-74).3
The decision to allow a defendant to withdraw his guilty plea rests “within the sound
discretion of the trial court and is to be determined by the facts and circumstances of each case.”
Parris, 189 Va. at 324, 52 S.E.2d at 873. “As in other cases of discretionary power, no general
rule can be laid down as to when a defendant will be permitted to withdraw his plea.” Zigta v.
Commonwealth, 38 Va. App. 149, 153, 562 S.E.2d 347, 349 (2002) (quoting Parris, 189 Va. at
325, 52 S.E.2d at 874). Appellate review under an abuse-of-discretion standard, “if nothing else,
means that the trial judge’s ‘ruling will not be reversed simply because an appellate court
disagrees.’” Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (citation
omitted), adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005). “Only when
reasonable jurists could not differ can we say an abuse of discretion has occurred.” Tynes v.
Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation omitted).
Applied to this case, these principles support the trial court’s discretionary decision to
deny Cobbins’s motion to withdraw his guilty pleas. By his own admission, Cobbins pled guilty
in an attempt to “buy time” to get what he really wanted: yet another continuance of his trial so
he could dismiss his second lawyer and hire a third. The guilty pleas served as a subterfuge
designed to manipulate the court, against its better judgment, into unwittingly continuing the trial
3 Cobbins asserts that requiring him to proffer a reasonable defense in support of a
motion to withdraw his pleas violated his “right to due process” under the United States and
Virginia Constitutions. See Appellant’s Br. at 8. Cobbins, however, never made this argument
in the trial court. Rule 5A:18 precludes appellants from raising for the first time on appeal
“grounds asserted as a ‘basis for reversal’ of the trial court’s judgment.” Blackman v.
Commonwealth, 45 Va. App. 633, 642, 613 S.E.2d 460, 465 (2005). Cobbins does not argue
that any exception to Rule 5A:18 applies, and we will not invoke one sua sponte. See Edwards
v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc), aff’d by
unpublished order, SCV No. 040019 (Va. Oct. 15, 2004).
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date. Because Cobbins acted in bad faith, he could not justly expect the trial court to reward his
duplicitous conduct. The trial court, therefore, did not err in denying his motion to withdraw his
pleas.4
B. DENIAL OF M OTION TO CONTINUE
Cobbins argues the trial court violated Code § 19.2-159.1(B) by failing to grant his
continuance so that he could secure private counsel. See generally London v. Commonwealth,
49 Va. App. 230, 236, 638 S.E.2d 721, 724 (2006). That issue, however, is not properly before
us on appeal.
An “Alford plea is a variation of a guilty plea,” United States v. Morrow, 914 F.2d 608,
611 (4th Cir. 1990), and has “the same preclusive effect as a guilty plea” for purposes of appeal,
Perry v. Commonwealth, 33 Va. App. 410, 412, 533 S.E.2d 651, 652-53 (2000) (citation
omitted); see Clauson v. Commonwealth, 29 Va. App. 282, 294, 511 S.E.2d 449, 455 (1999).
Because guilty pleas constitute “a waiver of all defenses other than those jurisdictional,” Savino
v. Commonwealth, 239 Va. 534, 539, 391 S.E.2d 276, 278 (1990) (citation omitted), absent a
jurisdictional defect, “no appeal will lie because there is nothing to appeal,” Mason v.
Commonwealth, 219 Va. 1091, 1098, 254 S.E.2d 116, 121 (1979).
Consequently, no appellant can “complain of any non-jurisdictional defects that occurred
prior to his guilty plea.” Walton v. Commonwealth, 256 Va. 85, 91, 501 S.E.2d 134, 138 (1998);
Terry v. Commonwealth, 30 Va. App. 192, 197, 516 S.E.2d 233, 235-36 (1999) (en banc). We
thus decline to decide whether the trial court abused its discretion in denying Cobbins’s motion
4 The Commonwealth also argues Cobbins failed to proffer any “reasonable defense” to
the charges, Justus, 274 Va. at 154, 645 S.E.2d at 289, because he presented “no affidavits, alibi
witnesses, or even any explanation” in support of his requested not-guilty plea, Coleman, 51
Va. App. at 293, 657 S.E.2d at 168. We need not address this issue, however, because Cobbins
fails to satisfy the threshold good-faith requirement under Parris. “In this case, as in all others,
we seek to decide cases ‘on the best and narrowest ground available’ from the record.” Kirby v.
Commonwealth, 50 Va. App. 691, 702 n.2, 653 S.E.2d 600, 693 n.2 (2007) (citations omitted).
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for a continuance. Cobbins waived appellate review of this issue by pleading guilty to the charge
of possession of a firearm by a convicted felon and by offering Alford guilty pleas to the
remaining charges.
III.
The trial court did not abuse its discretion in denying Cobbins’s motion to withdraw his
guilty pleas. The entry of those pleas precludes Cobbins from challenging the trial court’s earlier
denial of his motion for a continuance. For these reasons, we affirm his convictions.
Affirmed.