9.7 Pleas

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

9.7 PLEAS

9.701 Permissible Pleas.

A. In General. An accused may plead not guilty, guilty, or nolo contendere, whether to a misdemeanor or felony. ³⁴⁸ The court may not refuse to accept a plea of guilty to the whole of an indictment tendered at any time before verdict. ³⁴⁹ Nor may the court refuse to accept a plea of nolo conten-dere. ³⁵⁰

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B. Failure to Plead. If the accused fails to plead in a felony case, the court must enter a plea of not guilty. ³⁵¹ It is thus not possible to make a nolo contendere plea to a felony charge by having the accused stand mute when asked how he or she pleads. Nor does the absence of the accused charged with a felony empower the court to enter a plea for him or her, since the defendant must be personally present at every stage of his or her felony trial. ³⁵² In misdemeanor cases, if the defendant does not appear, or makes no plea, the case is tried as upon a plea of not guilty. ³⁵³

C. Effect of No Proper Plea. In a felony case when no proper plea has been made (for example, when the court neglects to enter a plea for a silent defendant), the judgment is void and on a habeas corpus petition it will be vacated. ³⁵⁴ It has long been held that no plea is necessary in a misdemeanor case. ³⁵⁵

D. Plea to a Lesser Offense. The court may refuse to accept a plea of guilty to a lesser-included offense. ³⁵⁶ This is true even when the commonwealth's attorney consents, since the acceptance of the plea is in the discretion of the court and is tantamount to an amendment of the indictment.

E. Conditional Plea of Guilty. With the consent of the court and the commonwealth's attorney, an accused may enter a conditional plea of guilty in a misdemeanor or felony case, reserving the right on appeal to review an adverse ruling on any specified pretrial motion. If successful on appeal, the accused may withdraw the plea of guilty. ³⁵⁷ However, defense counsel must make sure that the Commonwealth's statutorily required consent to a conditional plea is express. Where defense counsel notified the trial judge of his intent to appeal a suppression ruling, and the Commonwealth was silent, the court ruled that there was no conditional plea, and appeal was waived. ³⁵⁸ If the court enters a conditional plea without the

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express consent of the Commonwealth, the defendant's appeal will be dismissed. ³⁵⁹

9.702 Procedure for Entering Guilty Plea. In felony cases, the guilty plea must be made personally by the accused, after advice of counsel. ³⁶⁰ However, this statutory requirement is waived if the accused is actually present in court with his or her attorney and, under circumstances that show he or she is aware of the import of what is being done, acquiesces when his or her attorney enters a plea of guilty. ³⁶¹ A plea of guilty may be made to a misdemeanor charge by the accused in person or by his or her attorney. ³⁶²

9.703 Requirement That Plea Be Voluntary and Intelligent.

A. Constitutional Standard. Because it is a waiver of various constitutional rights, the plea of guilty must be made voluntarily, knowingly, and intelligently. Consequently, an involuntary plea must be stricken and the defendant allowed to plead anew. ³⁶³ Each of these elements of a valid guilty plea must be examined, and a court is required to engage in a certain ritual before accepting a plea of guilty. Moreover, the procedure is complicated by the fact that many of the United States Supreme Court cases dealing with guilty pleas were rendered in federal criminal cases and involve the application, at least in part, of the Federal Rules of Criminal Procedure. Whether these decisions also state the constitutional standard is unclear.

B. Court Rules Requirements. The Rules of the Supreme Court of Virginia prohibit a court of record from accepting a plea of guilty (whether to a felony or a misdemeanor) or nolo contendere until it has determined that the plea is made voluntarily and that the defendant understands the nature of the charge and the consequences of the plea. ³⁶⁴ Compliance with

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this mandate must appear on the record and normally is ensured by interrogation of the accused by judge, counsel, or both. ³⁶⁵

The United States Supreme Court held, in United States v. Vonn, ³⁶⁶ that Rule 11 of the Federal Rules of Criminal Procedure does not require evidence of compliance with the elements of a voluntary plea to appear exclusively in the record of the plea proceeding but can be satisfied by considering the record as a whole, including notifications of the right to counsel that had been given earlier.

C. Test of Voluntariness. The general test for voluntariness formulated by the United States Supreme Court provides that:

[a] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g., bribes). ³⁶⁷

One major element of voluntariness is the extent to which the plea is entered of the accused's own free will, that is, free from impermissible pressures, mental as well as physical. A number of decisions indicate that this question must be approached from the perspective of the defendant—the pressures that the defendant perceives to be upon him or her. The defendant's belief that he or she was subjected to coercive threats or promises is sufficient to negate voluntariness. ³⁶⁸ The accused's belief, however, must be reasonable and have some objective foundation. ³⁶⁹ In addition, the guilty plea must be entered by an accused who is mentally competent. Competency to

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stand trial is the same as competency to enter a guilty plea or to waive other constitutional rights. ³⁷⁰

Another element of voluntariness is the requirement that the plea be entered with a full understanding of its consequences. In Boykin v. Alabama, ³⁷¹ the Supreme Court held that the record must demonstrate that the defendant was informed that by pleading guilty, he or she was waiving certain constitutional rights: (i) the privilege against self-incrimination; (ii) the right to trial by jury; and (iii) the right to confront his or her accusers. The degree to which these rights must be spelled out by the court before accepting the plea is unclear. A defendant need not be informed of the collateral consequences of a plea unless otherwise mandated by law. A guilty plea is not rendered constitutionally infirm simply because the defendant was not informed of the immigration consequences (possible deportation) of the plea, ³⁷² but this question has been added to Form 6, which details the Virginia Supreme Court's standard questions for the defendant and now includes this. ³⁷³

In addition, the accused must plead with a full understanding of the charge. ³⁷⁴ Normally, the explanation of the elements of the offense is made by the court, although a representation by counsel that he or she has explained the charge may be sufficient, and in some cases, it may be presumed that counsel has performed this function. ³⁷⁵ Moreover, the accused must be informed of the range of punishment for the offense charged. ³⁷⁶

Another consideration is the extent to which the court must determine: (i) that the guilty plea has a basis in fact, or (ii) the propriety of accepting a guilty plea when the accused claims to be innocent. With respect to the first issue, the Federal Rules of Criminal Procedure require that the court determine that there is a "factual basis" for the plea, that is, that the conduct that the defendant admits constitutes the offense to which he or she has pled

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guilty. Virginia has no similar rule or statutory mandate. Whether this is a constitutional requirement is unclear. On the question of propriety of accepting a plea from an accused who persists in a claim of innocence, the Supreme Court, in North Carolina v. Alford, ³⁷⁷ held that an admission of guilt is not a constitutional prerequisite to a finding of a voluntary plea. However, the Court in Alford also stated that in those circumstances it would be permissible for a court to refuse to accept the plea. ³⁷⁸ The Virginia Court of Appeals has ruled that an Alford plea should not be accepted by the trial court unless the court finds that a factual basis for the plea exists, even though evidence is not required to be introduced to sustain a conviction based on a guilty plea. ³⁷⁹

A plea may be vacated as involuntary based on misrepresentations by a law enforcement officer. In United States v. Fisher, ³⁸⁰ a law enforcement officer's intentionally false statement in a search warrant affidavit led to evidence forming the basis of the charge to which the defendant pleaded guilty, and the prosecution provided the affidavit to the defendant in deciding whether to plead guilty or face trial. Fisher held that to set aside a plea as involuntary, a defendant who was fully aware of the direct consequences of the plea must show that (i) some egregiously impermissible conduct by government agents predated the entry of the plea, and (ii) the misconduct influenced his or her decision to plead guilty.

Finally, the problem of determining the voluntariness of a plea cannot be separated from the impact of plea-bargaining. Most guilty pleas are the product of plea-bargaining and, at least under one view, plea-bargaining implicates the element of free will. The existence of a plea-bargain made with the full knowledge and consent of the defendant in no way vitiates the volun-tariness of the plea. In fact, the Virginia Supreme Court has recognized that "[d]isposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons." ³⁸¹ However, a plea is...