Tushundi Omar Jonathan v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
TUSHUNDI OMAR JONATHAN
MEMORANDUM OPINION* BY
v. 	Record No. 1983-98-1 	JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
Oldric J. LaBell, Jr., for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Daniel J.
Munroe, Assistant Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On appeal from his conviction of possession of cocaine with
intent to distribute, in violation of Code § 18.2-248, Tushundi
Omar Jonathan contends that the trial court erred (1) in failing
to comply with his plea agreement as it was understood by him,
(2) in failing to follow the sentence recommendation of the
Commonwealth's Attorney, (3) in holding that the plea agreement
was no longer binding when he was sentenced, and (4) in allowing
the Commonwealth's Attorney to argue for a sentence inconsistent
with the plea agreement. 	Jonathan did not preserve the first

three grounds for appeal. 	We find no abuse of discretion as to
the fourth ground. 	We affirm the judgment of the trial court.
I.
On December 18, 1997, Jonathan pled guilty to possession of
cocaine with the intent to distribute, in violation of Code
§ 18.2-248. 	The plea was entered upon the Commonwealth's
agreement not to ask for more than two years imprisonment. 	The
agreement was informal and unwritten. 	This appears clearly from
the trial court's questioning of Jonathan at arraignment. 	At
that hearing, the following dialogue occurred:
[Trial] court: 	Now, sir, there is no
plea agreement, and the Commonwealth is not
recommending a specific sentence.
Therefore, while the Commonwealth will ask
for no more than two years, I'm not bound by
the Commonwealth's request.
Do you understand that?
[Jonathan nodded his head
affirmatively.]
[Trial] court: 	And if I don't follow
their request, you can't withdraw your plea
of guilty.
Do you understand that?
[Jonathan]: Yes, sir.
* 	* 	* 	* 	* 	* 	*
[Trial] court: 	And you understand that
I could sentence you to more years than the
Commonwealth requests or that's even found
in the guidelines?
[Jonathan]: Yes, sir.
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On January 21, 1998, Jonathan moved to withdraw his guilty
plea. 	The trial court warned defense counsel that:
"[Jonathan's] got two years. 	And if I grant the new trial, he
could be looking at a whole lot more than that. 	Because I'm
sure all deals are off at that point." 	The Commonwealth's
Attorney stated that she felt that the agreement would be
revoked if Jonathan were granted a new trial. 	The trial court
further said: 	"If I grant a new trial, if he's found guilty,
he's going to sure be looking at a whole lot more. 	He is going
to be looking at multiples of two years and not two years or
less. 	Do you understand what I am saying?" 	To which defense
counsel replied: 	"Yes, sir."
On June 30, 1998, Jonathan withdrew the motion to withdraw
his guilty plea. 	At a subsequent hearing, on July 17, 1998, the
Commonwealth argued that the sentencing agreement was
automatically revoked when Jonathan moved to withdraw his plea.
The trial court responded: 	"Well, the Commonwealth may be bound
by the recommendation. 	The [trial c]ourt isn't bound . . . by
the recommendation."
At sentencing on August 10, 1998, the trial court again
confirmed that there was no formal plea agreement and that it
was not bound by the understood agreement between Jonathan and
the Commonwealth:
[Trial] court: 	But there's no written
plea agreement?
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[Defense Counsel]: No, sir.
[Trial] court: 	And you would agree
that I don't have to follow that
recommendation?
[Defense Counsel]: 	That is correct,
Your Honor.
[Trial] court: 	Nor does he - - - nor
does he have a right to withdraw his plea if
I don't follow the recommendation?
[Defense counsel]: 	That is correct,
Judge.
Upon Jonathan's plea of guilty, the trial court found him guilty
and sentenced him to serve fifteen years imprisonment with
eleven of those years suspended.
II.
Jonathan contends that the trial court erred in refusing to
be bound by the agreement as he understood it and in failing to
follow the sentencing recommendation of the Commonwealth.
Jonathan concedes that these issues were not preserved properly
for appeal, see Rule 5A:18, but argues that the "ends of
justice" exception to the operation of the rule applies. 	Rule
5A:18 states:
No ruling of the trial court . . . will
be considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
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Id. 	For the "ends of justice" exception to apply, Jonathan must
prove that a miscarriage of justice has actually occurred. 	See
Redman v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269,
272-73 (1997). 	He has not done so. 	He understood the
consequences of his plea, as evidenced by his answers to the
trial court's questions. 	Further, the agreement was merely a
promise by the Commonwealth not to seek more than two years
imprisonment. 	Jonathan was never assured of his actual
sentence. 	The trial court never agreed to be bound by the
Commonwealth's recommendation, but, indeed, asserted repeatedly
that it would not be so bound.
The actual sentence imposed no injustice.
"[W]hen a statue prescribes a maximum
imprisonment penalty and the sentence does
not exceed that maximum, the sentence will
not be overturned as being an abuse of
discretion."
Fortune v. Commonwealth, 12 Va. App. 643, 651, 406 S.E.2d 47, 51
(1991) (citation omitted).
III.
Jonathan next contends that the trial court erred in ruling
at sentencing that the plea agreement was no longer binding. 	He
argues that at the June 30 hearing, the trial court told him
that he could "stick with" the original agreement, and that the
trial court thereby bound itself to comply with the
agreement. 	However, he never asserted this position before the
trial court and it is clear that the trial court never
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considered itself bound by the original agreement. 	Throughout
the proceedings, the trial court maintained and reiterated that
it would not be bound by the agreement and that Jonathan could
not withdraw his plea if the trial court imposed a more severe
sentence. 	The previously-recited dialogue between Jonathan's
attorney and the court shows plainly that Jonathan accepted this
ruling without objection. 	Thus, Jonathan did not preserve this
issue for appeal. 	See Rule 5A:18.
IV.
Finally, Jonathan contends that the Commonwealth failed to
comply with the agreement and sought a greater penalty than the
agreed two years imprisonment. 	At no time at the August 10,
1998 sentencing hearing, however, did the Commonwealth ask the
trial court to impose a more severe sentence. 	At that hearing,
the Commonwealth's Attorney reviewed Jonathan's prior criminal
record and the procedural history of the case. 	When defense
counsel inquired as to the purpose of the Commonwealth's
examination of those matters, the trial court acknowledged that
it had ruled on the matter previously and that the Commonwealth
would be bound by the agreed sentencing recommendation. 	The
Commonwealth's Attorney then conceded that the "original
recommendation was that the Commonwealth would agree that the
defendant would serve two years." 	Thus, the trial court did not
allow the Commonwealth to argue for a harsher punishment.
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The agreement between Jonathan and the Commonwealth was
informal. 	Jonathan clearly understood that the trial court was
not bound by it. 	We find no abuse of discretion in the
sentence. 	The sentence imposed no injustice.
The judgment of the trial court is affirmed.
Affirmed.
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