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Defendant can withdraw murder guilty plea

Virginia Lawyers Weekly//July 9, 2020

Defendant can withdraw murder guilty plea

Virginia Lawyers Weekly//July 9, 2020

Where it appears that defendant may not have been advised that his mere presence and consent to a robbery in which the victim was shot and killed did not make him a principle in the second degree, the court grants his motion to withdraw his guilty pleas to second-degree murder, using a firearm in commission of a felony, attempted robbery and conspiracy to commit robbery.


Taylor pleaded guilty to second-degree murder, related robbery charges and a firearm charge pursuant to a plea agreement. Taylor signed a stipulation of facts that constituted the evidence the commonwealth would have presented at trial.

The stipulation provided that the victim was alive and conscious when police arrived at the scene. He advised police he was shot by two young males. Erin Kirby described an overheard conversation in which her brother, Jessie, said that their cousin, Poff, who was Taylor’s co-defendant, and Taylor were trying to rob the victim.

Taylor admitted he was present when the plan was discussed. He also said that Jessie Taylor, Poff and Myricks picked him up. While driving to the Kirby residence, Taylor saw two guns and knew that Jessie Kirby had set up a marijuana buy with the victim. Taylor said he knew about the plan to rob the victim and that Poff was armed. He accompanied Poff to the meeting location. Taylor denied shooting the victim.

At the plea hearing, the court confirmed that Taylor had consulted with Seemar, his attorney about possible defenses and whether he should plead guilty. Seemar said she discussed accomplice liability with Taylor. The court asked Taylor if there was anything about accomplice liability that he did not understand. Taylor responded, “No, Your Honor.”

The court accepted Taylor’s guilty plea to all charges. Before sentencing, Seemar withdrew from the case and Reed was appointed as Taylor’s counsel. Reed filed a motion to allow Taylor to withdraw his plea “because he ‘was never advised by counsel or the court th[at] mere presence and consent alone does not constitute one a principle in the second degree.’”

Reed argued that the commonwealth’s evidence would prove, at best, that Taylor was present when others discussed robbing the victim and that Taylor was present when the victim was shot and killed.

Legal standard

“To succeed on a motion to withdraw a guilty plea: (1) a defendant must demonstrate a good-faith basis for seeking to withdraw the guilty plea; (2) a defendant must proffer a reasonable defense he intends to assert at trial; and (3) granting the motion must not substantially prejudice the Commonwealth.”


Seemar’s testimony at the evidentiary hearing on Taylor’s motion “does not clearly or definitively establish that she misadvised Taylor,” but “it does suggest that she considered Taylor’s admitted knowledge of the robbery as sufficient to establish his guilt. Virginia law does not support holding a non-participant with mere knowledge of a crime criminally liable as an accomplice. …

“The Court is not satisfied that Taylor received that legal advice. Based on Ms. Seemar’s testimony, it appears that Taylor might have been advised that his foreknowledge of the robbery meant he was guilty. Mr. Reed correctly argues that such advice is contrary to the law. Thus, the Court concluded Taylor made his motion in good faith.”

Taylor has proffered a reasonable defense. Even if the commonwealth proves everything in the stipulation of facts, “Taylor has proffered a prima facie defense of mere knowledge of and presence at the crime scene.

“First, the victim’s identification of two light-skinned males does not definitively identify Taylor. Second, Erin Kirby’s statement proves only Jessie Kirby’s thoughts about Taylor’s and Poff’s plans. It does not conclusively prove that Taylor planned the robbery. Third, a jury could find Taylor’s testimony that Poff shot the victim more credible than Poff’s testimony to the contrary. …

“Therefore, Taylor has asserted a facially reasonable defense.”

The commonwealth asserts prejudice from the passage of time. The commonwealth notes Taylor waited eight months to file his motion and that it has been two years since the offense date. “The Commonwealth did not, however, prove the unavailability of any witness or identify the specific prejudice other than the mere passage of time.”

Taylor’s motion to withdraw his guilty plea is granted.

Commonwealth v. Taylor., Case No. CR18-2055 (Order). June 29, 2020; Norfolk City Cir. Ct. (Hall). VLW 020-8-065, 11 pp.

VLW 020-8-065

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