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No deferred disposition after guilty plea, appeals panel says

The Virginia Court of Appeals today upheld a Fairfax circuit judge’s decision that it had no authority to vacate a guilty finding for a drug defendant, suspend sentencing and allow for a final disposition that would avoid a conviction.

Brandon P. Epps pleaded guilty to possession of a controlled drug in violation of Va. Code § 18.2-250. Between the date of his guilty plea and before sentencing, Epps was convicted of marijuana possession, which made him ineligible for a deferred disposition under Va. Code § 18.2-251.

But he asked the judge to vacate the guilty finding and suspend imposition of sentencing pursuant to Va. Code § 19.2-303, so he could ultimately avoid a conviction. Fairfax Circuit Judge Robert J. Smith said he had no authority to do what Epps requested. A panel of the Court of Appeals – Judges William G. Petty and Rossie D. Alston Jr. and Senior Judge Sam W. Coleman III – upheld Smith’s decision.

Petty’s panel opinion said the appellate court already recognized in Taylor v. Commonwealth that a trial court has no authority to refuse to convict a guilty defendant based on “subjective, legally extraneous reasons,” such as a belief that a certain defendant deserved leniency. It follows that a trial court cannot vacate a previously entered conviction for such reasons, Petty reasoned.

Epps’ case presented a slight variation from Taylor, because Epps cited Va. Code § 19.2-303 as the statutory authority for the trial court. Petty found no statutory language that authorized a trial court to vacate a prior conviction upon a defendant’s compliance with conditions placed upon him for the suspension of imposition of sentence.

“Avoiding sentencing and punishment is not the same as avoiding adjudication of guilt and a record of conviction,” Petty wrote.

The Virginia Supreme Court’s controversial decision in Hernandez v. Commonwealth was no help to Epps, the appellate panel said. Hernandez involved a trial court’s authority to take a matter under advisement before a finding of guilt, not vacating a prior adjudication of guilt.

“Code § 19.2-303 does not authorize a trial court that has previously entered an order of conviction based upon the defendant’s plea of guilty to vacate that conviction solely as an act of judicial clemency,” the panel concluded.
By Deborah Elkins

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