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Trial Court Could Rule on Plea Withdrawal Motion

The Court of Appeals and the trial court erred in holding that the trial court lacked jurisdiction to consider a defen­dant’s motion to withdraw his guilty plea within 21 days after the trial court’s sen­tencing order, as the motion was time­ly under Va. Code § 19.2-296; however, defendant, who claimed a “language bar­rier,” failed to show a manifest injustice that would allow him to withdraw his guilty plea, and the Supreme Court af­firms the Court of Appeals judgment as the right result for the wrong reason.

Guilty plea

On Oct. 30, 2014, defendant pleaded guilty to the charge of computer solici­tation of a child in violation of Va. Code § 18.2-374.3. During the Oct. 30 hearing, defendant, who spoke limited English, was aided by a Spanish interpreter and represented by counsel. The trial court accepted defendant’s plea pursuant to the plea agreement. In exchange for the guilty plea, the commonwealth dropped a charge of attempted indecent liberties.

On Nov. 4, 2014, defendant submitted a pro se notice of appeal in the form of a handwritten letter to the trial court, stating there was a language barrier, the lawyer and interpreter both spoke very fast and that he did not understand he was signing a plea bargain for five years. On Nov. 17, the court sentenced defen­dant to five years in accordance with the plea agreement. On Nov. 18, the court appointed new counsel to represent de­fendant on appeal. The new attorney filed a notice of appeal and a motion to withdraw guilty plea pursuant to Va. Code § 19.2-296. The court heard tes­timony from defendant. After hearing argument from counsel on the jurisdic­tional issue, the trial court held that in light of defendant’s notice of appeal, it no longer had jurisdiction to consider de­fendant’s motion to withdraw his guilty plea, and that no manifest injustice oc­curred in the case.

Trial court jurisdiction

Under the express terms of Code § 19.2-296, within 21 days of the entry of a final order imposing a sentence, a de­fendant may seek to withdraw a guilty plea to correct a manifest injustice. Code § 19.2-296 reflects Virginia’s well-estab­lished 21-day rule, Supreme Court Rule 1:1.

The trial court entered defendant’s final sentencing order on Nov. 17, 2014. On Dec. 5, 2014, at the hearing on his motion to withdraw his guilty plea, only 18 days had elapsed from entry of the final sentencing order. The trial court still had three days to consider and rule on defendant’s motion. Instead, the trial court erroneously concluded that it had lost jurisdiction the moment defendant noted his appeal through new counsel on Nov. 25, 2014. Filing the notice of appeal did not divest the trial court of jurisdiction; the plain language of § 19.2- 296 gave the trial court 21 days from the entry of its final order to consider any motions to withdraw a guilty plea and to set aside the judgment of conviction and permit withdrawal of a guilty plea.

In support of its erroneous ruling that the trial court lost jurisdiction to de­cide the withdrawal motion, the Court of Appeals cited Ghameshlouy v. Com­monwealth, 279 Va. 379 (2010), which addressed an entirely different question. Here, the relevant question is not when the Court of Appeals obtained jurisdic­tion, but whether the trial court lost ju­risdiction over the motion to withdraw a plea. The commonwealth also relied on language from our decision in Walton v. Commonwealth, 256 Va. 85 (1998), which is inapplicable to this controversy. The fact that an appellate court has ob­tained jurisdiction over an appeal does not necessarily divest a trial court of all jurisdiction to act upon certain matters. Under Code § 19.2-296, regardless of when a notice of appeal is filed, a trial court retains jurisdiction for 21 days af­ter entry of its final order to consider a motion to withdraw a guilty plea.

No ‘manifest injustice’

Here, defendant sought to withdraw his guilty plea one week after the trial court entered the final sentencing order. As a result, he needed to prove that his motion to withdraw his guilty plea was necessary to correct manifest injustice.

There is no evidence in this case to indicate a miscarriage of justice. De­fendant admitted at the hearing on this withdrawal motion that his answers during the plea colloquy were truthful. He has not asserted that his plea was in­voluntary. He has not claimed the trial court or the commonwealth violated any terms of the plea agreement or that the plea agreement was rescinded. The trial court found that defendant understood the charges and voluntarily entered into the plea agreement. Defendant failed to carry his burden of proof and the trial court correctly held that the record did not reflect any manifest injustice.

Because this appeal is from the Court of Appeals and it did not address the question of manifest injustice, we will affirm the Court of Appeals judgment as the right result for the wrong reason.

Judgment affirmed.

Velazquez v. Commonwealth (Lemons) No. 150849, Oct. 27, 2016; Va. Ct. App.; Dana R. Cormier for appellant; Lauren C. Campbell, AAG; Mark R. Herring, AG, for appellee. VLW 016-6-082, 13 pp.

VLW 016-6-082