Prince A. McKinny, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Annunziata and Senior Judge Hodges
Argued at Richmond, Virginia
PRINCE A. McKINNY, JR., S/K/A
PRINCE A. McKINNEY, JR.
v. 	Record No. 0775-95-1 	MEMORANDUM OPINION* BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA 	MAY 14, 1996
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Fred C. Hardwick, II (Eusner & Hardwick,
P.C., on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The appellant, Prince A. McKinney, Jr., contends that the
trial judge erred in refusing to allow him to withdraw his pleas
of guilty. 	For the reasons that follow, we find no error and
affirm.
I.
Appellant was indicted on the following six charges:
robbery of a McDonald's Restaurant employee on January 14, 1994,
and threatening to bomb that restaurant; robbery of a Burger King
Restaurant employee on January 24, 1994, and threatening to bomb
that restaurant; and attempted robbery of a Taco Bell Restaurant
employee on February 20, 1994, and threatening to bomb that
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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restaurant.
Trial was initially scheduled for October 12, 1994, however,
on that date, the case was continued until November 15, 1994, on
appellant's motion. 	On November 15, 1994, appellant again moved
for and was granted a continuance until January 10, 1995. 	On
January 10, 1995, appellant was arraigned. 	The following
colloquy took place:
THE COURT: 	Have you had enough time to
confer with [your attorney] to prepare
yourself for these trials?
APPELLANT: 	Yes, sir.
* 	* 	* 	* 	* 	* 	*
THE COURT: 	And have you talked with [your
attorney] about what plea that you are going
to make to these charges and whether you want
to be tried by the Court or by a jury?
APPELLANT: 	Yes, sir.
THE COURT: 	Has he explained to you the legal
elements of these offenses and what must be
proven by the Commonwealth beyond a
reasonable doubt?
APPELLANT: 	Yes, Your Honor.
The prosecutor then asked the trial judge to arraign
appellant on only two charges: 	the McDonald's robbery and the
Taco Bell attempted robbery. 	Appellant pled guilty to both
charges. 	Before the trial judge accepted appellant's pleas, the
following dialogue occurred:
THE COURT: 	What grade did you last finish in
school?
APPELLANT: 	Twelfth.

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THE COURT: 	And do you understand that you
have the right to plead not guilty?
APPELLANT: 	Yes, sir.
THE COURT: 	Do you understand that if you
plead guilty that is a judicial admission of
your guilt? 	You're admitting that you are
guilty.
APPELLANT: 	Yes, sir.
THE COURT: 	And whose decision was it to
plead guilty, yours or your attorney?
APPELLANT: 	Mine.
THE COURT: 	And before you came to that
decision, did you first confer with your
attorney and go over the case and talk about
it?
APPELLANT: 	Yes, sir.
THE COURT: 	Is your plea of guilty made
completely freely and voluntarily in each
case?
APPELLANT: 	Yes, sir.
THE COURT: 	Has anyone promised you anything
or used any force or threats on your person
or mind to get you to plead guilty?
APPELLANT: 	No, sir.
THE COURT: 	Are you pleading guilty because
you are in fact guilty of these two offenses?
APPELLANT: 	Yes, sir.
THE COURT: 	And do you understand that if you
plead guilty that you waive your right to a
trial by jury?
APPELLANT: 	Yes, sir.
THE COURT: 	You also may waive your right to
appeal the decision of this Court. 	You do
waive your right not to incriminate yourself.
That is, you waive your right to remain

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silent. 	You waive your right to be
confronted by your accusers.
These are felonies. 	If you are
convicted you will lose your right to vote,
to hold public office. 	And if you testify
at a trial your credibility could be
tested by asking you if you have ever been
convicted of a felony. 	Do you understand all
of that?
APPELLANT: 	Yes, sir.
THE COURT: 	And has your attorney advised you
as to the minimum and maximum sentence you
could receive on each of these?
APPELLANT: 	Yes, sir.
The trial judge was told that there was a plea agreement,
after which defense counsel stipulated to the evidence. 	The
prosecutor summarized the evidence as follows:
Your Honor, if presented, the evidence
would show with regard to the robbery of
McDonald's on January 14th, of 1994, the
Defendant went to the McDonald's Restaurant
located at 236 South Mallory Street here in
the City of Hampton. 	He presented a note to
the clerk there, Phyllis LeBoeuf, which
stated that he was armed and told her to give
him money.
Ms. LeBoeuf gave him five hundred and
eighty-eight dollars of McDonald's money
based on his note claiming that he was armed.
The Defendant subsequently gave a statement
to Detective Browning admitting to that
robbery.
With regard to the Taco Bell, the
evidence would show that on February 20th, of
1994, the Defendant presented a similar note
as in the McDonald's case to Charles Rainey
at the Taco Bell store . . . . That note
indicated that there was a bomb that Mr.
McKinny [sic] had planted and that if he
didn't give him the money that he would set
the bomb off. 	At the time the Defendant gave
Mr. Rainey the demand note, the Defendant was
standing outside the door. 	After Mr. Rainey
got the note he slammed the door and locked

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it, so ultimately the Defendant did not get
any money from Taco Bell.
The Defendant also gave a statement
admitting to that attempted robbery. . . .
Based on the Defendant's plea [sic] of guilty
to these two charges, I would ask the Court
to nol-pros[equi] the remainder.
The trial judge directed counsel to put the agreement in
writing. 	After a brief recess, a written agreement was
presented, and the trial judge accepted it. 	The remaining four
charges were nolle prosequied on motion of the prosecutor.
At the March 2, 1995 sentencing hearing, appellant moved to
withdraw his pleas. 	Defense counsel (Smith) explained that,
after pleading guilty to the two charges, appellant
stood before the Isle of Wight County Court
on similar charges. 	The Judge in that case
reduced the, I believe, attempted robbery
charge -- the facts were similar to the one
that was before this Court -- reduced it to
an extortion charge and the Defendant, I
believe, was upset that he entered pleas of
guilty to this.
The Commonwealth's Attorney objected, arguing that the pleas
were knowing and voluntary and that other charges were dropped
based on his pleas. 	The trial judge indicated that he was
"inclined to grant the motion" if the Commonwealth was not
prejudiced by appellant's actions. 	The trial judge directed the
prosecutor to determine whether the witnesses necessary to
prosecute the original six charges were still available. 	Defense
counsel (Smith) moved to withdraw, and the trial judge granted
that request.
On March 8, 1995, the prosecutor made the following

6
representation to the trial judge:
Your Honor, this case involves three separate
robberies or attempted robberies involving
different victims. 	One of the victims is
still available, ready to come to court;
that's the January 14th case. 	Karin Gimple
no longer has a listed phone number, and the
work number that we had for her is now a fax
or a modem computer type line. 	We have no
way of reaching her. 	And Charles Rainy
[sic], on the February 20th offense date, is
apparently in the area but is not very
cooperative and does not want -- obviously
does not want to come to court again.
So we would have witness problems on two
out of three underlying offenses and we would
again object to the defendant being allowed
to withdraw his pleas . . . . And I don't
think the justification that he stated to the
Court last week . . . would be sufficient to
understanding his knowing, and voluntary,
plea of guilty to the two robberies and the
attempted robbery.
Defense counsel (Hardwick) argued that the witnesses were
still available and could be ordered to appear, therefore,
appellant "ought to be able to withdraw the guilty plea [sic]."
The trial judge made the following ruling:
The Court finds from the evidence that
the Commonwealth's position is different than
what it was when this matter was originally
set for trial. 	The witnesses at that point,
as the Court recalls, were available and were
ready to proceed with trial. 	The plea
agreement was worked out without any duress
or any pressure against the defendant. 	And
the Court does not know the reason for the
defendant wanting to withdraw.
Having found that the Commonwealth's
position has now been altered and that they
would be placed at an -- the Court rules that
they would be placed at a disadvantage now to
proceed on this matter, and the motion to
withdraw his guilty plea [sic] is denied.

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On March 31, 1995, the trial judge imposed a ten-year
sentence for the robbery and a five-year sentence for the
attempted robbery.

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II.
A defendant has no absolute right to withdraw a plea of
guilty or nolo contendere; rather, such privilege is permissive.
See Code § 19.2-296 (providing that "a motion to withdraw a plea
of guilty or nolo contendere may be made" before sentence is
imposed). [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. 	No
fixed or definite rule applicable to and
determinative of all cases can be laid down.
However, the 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, 324-25, 52 S.E.2d 872,
873-74 (1949) (emphasis added).
Virginia case law requires liberal allowance to withdraw
pleas before sentencing as long as there is some basis for
believing that the defendant is in fact innocent or "the ends of
justice will be subserved." 	Id. at 325, 52 S.E.2d at 874. 	But
if the motion to withdraw the plea is intended to delay or
present a "formal" defense, the trial judge should deny the
motion. 	Id. 	Moreover, the United States Supreme Court has held
that a plea is not compelled merely because an accused enters it
to avoid the possibility of more severe punishment. 	North

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Carolina v. Alford, 400 U.S. 25, 31, 37 (1970). 	Where the
prosecution fails to honor any terms of the plea agreement, a
defendant has a right to withdraw a guilty plea, if such motion
is timely made. 	Lilly v. Commonwealth, 218 Va. 960, 963, 243
S.E.2d 208, 210 (1978); Johnson v. Commonwealth, 214 Va. 515,
518, 201 S.E.2d 594, 597 (1974).
The trial judge thoroughly examined appellant to ensure that
his guilty pleas were entered freely, knowingly, and voluntarily.
The record shows that appellant admitted that he committed the
acts for which he was convicted. 	Moreover, the Commonwealth
complied with the terms of the agreement and nolle prosequied the
remaining four charges.
On appeal, appellant contends that he had a right to
withdraw his pleas (1) because the Commonwealth failed to show
that its witnesses were unavailable; and (2) because the pleas
were entered "under an honest mistake on his part as to the
nature of the charges and the crimes which he truly committed."
The law in Virginia does not require the trial court to
allow an accused to withdraw a guilty plea merely because
witnesses and evidence are still available. 	The availability of
evidence is a factor for the trial court to consider in
determining how to exercise its discretion, but the prosecution
is not required to establish that such evidence is unavailable
before a trial court may exercise its discretion.
Appellant failed to show that his pleas were entered "under

10
an honest mistake of material fact" or through any misconduct by
the Commonwealth. 	Appellant did not show that his pleas were
induced by fraud, coercion, or undue influence. 	Moreover, he
failed to show that, since conferring with counsel and pleading
guilty, he gained any additional evidence relating to this case
that would have affected his decision to plead guilty or that
supported a valid defense to his admitted acts.
Appellant does not contest the proffered evidence presented
to the trial court. 	We cannot say that the proffered,
uncontested evidence did not support the robbery and attempted
robbery charges. 	The fact that another trial court allegedly
found appellant guilty of a reduced charge for a different,
unrelated crime does not establish that appellant was innocent of
these crimes or that he could not have been tried for robbery.
Viewing the entire record, including the evidence and the
facts surrounding the agreement and pleas, we cannot say that the
trial judge abused his discretion in refusing to allow appellant
to withdraw his pleas of guilty. 	Accordingly, we affirm
appellant's convictions.
Affirmed.