Virginia Lawyers Weekly VA Lawyers Weekly
Even though a written final order had not been entered, a woman seeking to withdraw a guilty plea could not do so after oral sentencing from the bench, the Supreme Court has ruled.
The woman claimed she did not realize fully the consequences of her guilty plea. But the court said that potential job or housing loss did not satisfy the “manifest injustice” standard it applied to an attempt to withdraw a plea after sentencing.
A veteran criminal defense lawyer observed that the case serves as a reminder to provide a full list of ramifications to a client who plans to plead guilty.
The case is Brown v. Commonwealth (VLW 019-6-029) with an opinion by Justice Stephen R. McCullough.
The case stems from allegations that Tamara F. Brown trespassed and attempted to shoplift from a Walmart after previously being banned from entering the store. She allegedly left the items behind before fleeing the scene when confronted by a loss-prevention officer.
She was charged with trespassing and felony petit larceny, third offense. On Jan. 30, 2017, she pleaded guilty to trespassing and the lesser offense of misdemeanor petit larceny, second offense, as part of an agreement. The circuit court then sentenced her to 12 months in jail, with 11 months suspended for the petit larceny charge and 12 months suspended for the trespassing charge. Two days later, before the circuit court could enter the final sentencing order, she filed a motion to withdraw her guilty plea to the petit larceny conviction.
McCullough wrote that there are two standards that govern motions to withdraw a guilty plea. To determine which standard to use, courts should look at when the motion was filed, he said. If the motion was filed before sentencing, courts should use a more forgiving standard, requiring that a defendant show that the motion was made in good faith based on a reasonable basis. If the motion was filed after sentencing, the stricter “manifest injustice” standard must be used, McCullough said.
Brown argued on appeal that because no final order had been entered at the time of her motion, she was entitled to the more lenient, pre-sentencing standard. The court disagreed, saying that the point of the more stringent standard is to avoid “buyers’ remorse” motions to withdraw. McCullough said failing to use such a standard after sentencing would defeat the purpose.
“Manifest injustice is a ‘more severe standard’ and it applies post-sentencing ‘to avoid motions for withdrawal based on disappointment in the terms of the sentence,’” McCullough said.
Brown also argued that such a standard should only be applied when sentencing felons. She rationalized that defendants being sentenced for misdemeanors are often sentenced on the spot, upon pleading guilty, whereas felons usually have days or weeks between their plea and sentence to consider the consequences of their decision. McCullough said the court saw “no reason to draw such a distinction.”
McCullough said that the two grounds Brown gave to explain her motion to withdraw were invalid because one was a non-viable defense and the other was a collateral consequence.
“To prove petit larceny, however, the Commonwealth is not required to establish that the merchandise left the store … In Bryant [v. Commonwealth (1994)] we sustained a larceny conviction despite the fact that the defendant had not left the store with merchandise,” McCullough said. “Brown’s defense is not viable as a matter of law.”
Also, McCullough explained that a lack of knowledge concerning collateral consequences—Brown said she did not know that taking the plea deal may lead to her losing her job or housing—does not justify vacating a guilty plea under the post-sentence manifest injustice standard.
“We have not previously addressed whether the prospect of loss of a job or housing can supply a basis for setting aside a guilty plea,” he said. “[We] conclude that actual or potential adverse employment or housing consequences that flow from Brown’s guilty plea do not satisfy the manifest injustice standard and, therefore, did not provide a basis upon which to set aside her guilty plea.”
William M. Powers of Portsmouth represented Brown on appeal. He could not be reached for comment. Eugene P. Murphy, an assistant attorney general, represented the state on appeal. A spokesperson from the attorney general’s office declined to comment.
Steven D. Benjamin, a criminal defense attorney in Richmond, reviewed the case at Virginia Lawyers Weekly’s request. He said that the Supreme Court’s decision solves a practical problem that would arise if the court allowed the use of the more lenient standard after sentencing.
“It would permit the defendant to plead guilty, learn the sentence …. not like the results and move to withdraw the guilty plea because they don’t like the results,” Benjamin said. “It would frustrate the efficiency of the trial courts.”
While Benjamin said that he agrees with the court’s holding, “it does not accommodate the reality of criminal practice in the often rushed plea decisions that are an every-day event.” Benjamin said that while it would be improper for the Supreme Court to consider policy in applying the law, the current system does not always allow enough time for proper deliberation before a defendant must decide to waive their rights to take a plea agreement.
“This illustrates the importance of due deliberation of any plea agreement,” Benjamin said. “Because once it’s done, it’s done, and can only be changed to correct a manifest injustice.”
Peter D. Greenspun, a criminal defense attorney from Fairfax, also reviewed the decision at VLW’s request. He said the opinion makes it clear that it is up to defense attorneys and prosecutors to ensure that defendants understand all of the possible consequences of a plea deal. He said this is especially important in a digital age when the nature of a conviction has more consequences than it used to.
“It’s their job to discuss the work ramifications, the family circumstances and the housing circumstances that convictions can have,” he said. “That’s the job of a defense attorney: to be aware of circumstances and advise the client accordingly.”
