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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
Record No. 0606-02-2
RONNIE L. JONES, S/K/A
RONNIE LEE JONES
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY JUDGE JAMES W. BENTON, JR.
MAY 6, 2003
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Upon Ronnie Lee Jones’s plea of “no contest,” the trial judge convicted him of distribution of cocaine. Jones contends the record fails to establish the circuit court had jurisdiction. For the reasons that follow, we reverse the conviction and remand to the circuit court.
Following Jones’s plea of “no contest” to the indictment, the Commonwealth’s attorney presented the testimony of police officer Raymond Ramos, who said that on the day of the charged event he was employed as a City of Petersburg police officer. Ramos testified that Petersburg law enforcement agents and an undercover officer arranged, via a confidential informant, for the purchase of $200 worth of crack cocaine from Jones. Jones agreed to meet the informant at “2178 County Drive, trailer number N43.” When Jones arrived at the trailer, he met the informant and sold him cocaine in the presence of the undercover officer. The Commonwealth introduced a certificate of analysis, which indicated the officer received one gram of cocaine.
The trial judge accepted Jones’s “no contest” plea and convicted him. This appeal followed the conviction.
Jones contends no evidence established the transaction occurred within Virginia. The Commonwealth asserts that Jones raised no jurisdictional claim in the circuit court and, furthermore, that the record is adequate to establish the offense occurred in the circuit court’s jurisdiction.
Code ??19.2-254 provides that “[a]n accused may plead . . . nolo contendere” and that “the court shall not refuse to accept a plea of nolo contendre.”
We recognize that a plea of nolo contendere is not a confession of guilt and has no effect beyond permitting the court to impose sentence in a particular case. Nonetheless, by entering a plea of nolo contendere, the defendant “implies a confession . . . of the truth of the charge . . . [and] agrees that the court may consider him guilty” for the purpose of imposing judgment and sentence. Thus, while not an admission of guilt, neither is a plea of nolo contendere a declaration of innocence equivalent to a plea of not guilty.
Commonwealth v. Jackson, 255 Va. 552, 555, 499 S.E.2d 276, 278 (1998). By entering a plea of nolo contendre, the accused “‘means literally “I do not contest it,”‘” Clauson v. Commonwealth, 29 Va. App. 282, 289, 511 S.E.2d 449, 452-53 (1999) (citation omitted), and waives all defenses except the lack of jurisdiction. Id. at 294, 511 S.E.2d at 455.
The rule is well settled that subject matter jurisdiction cannot be conferred upon the court by consent, waiver, or acquiescence of the parties. Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 894 (1947). Furthermore, “subject matter jurisdiction ‘must affirmatively appear on the face of the record, that is, the record must show affirmatively that the case is one of a class of which the court rendering the judgment was given cognizance.'” Owusu v. Commonwealth, 11 Va. 671, 673, 401 S.E.2d 431, 432 (1991) (citation omitted). Because a court’s power to act presupposes subject matter jurisdiction, the lack of subject matter jurisdiction “may be raised at any time, in any manner, before any court, or by the court itself.” Humphreys, 186 Va. at 772, 43 S.E.2d at 893.
“‘Every crime to be punished in Virginia must be committed in Virginia.'” Moreno v. Baskerville, 249 Va. 16, 18, 452 S.E.2d 653, 655 (1995) (quoting Farewell v. Commonwealth, 167 Va. 475, 479, 189 S.E. 321, 323 (1937)). This principle implicates the subject matter jurisdiction of the circuit court. Moreno, 249 Va. at 20, 452 S.E.2d at 655; Owusu, 11 Va. App. at 672-73, 401 S.E.2d at 431.
In many respects, the deficiency in this record parallels the deficiency that we observed in Owusu. There we noted the following:
After a careful review of the record, we find no direct or circumstantial evidence tending to prove that the offenses occurred within the Commonwealth of Virginia. No street address, town, or locality was mentioned with respect to the location of the offenses.
In addition, we find the circumstantial evidence of subject matter jurisdiction was insufficient. The Commonwealth presented evidence that [an officer] of the Prince William County, Virginia Police Department had been assigned to investigate the robbery. However, the mere fact that a Prince William County officer investigated the robbery cannot support an inference that the crime occurred within his jurisdiction.
Owusu, 11 Va. App. at 673, 401 S.E.2d at 432.
The evidence in this case proved that Jones sold cocaine to an informant, but it failed to reveal whether that act occurred in Virginia. The officer’s testimony that the offense occurred outside a trailer at “2178 County Drive” does not prove Jones committed the offense within the jurisdiction of the circuit court. See Thomas v. Commonwealth, 36 Va. App. 326, 333, 549 S.E.2d 648, 651 (2001) (noting that although the evidence “mentions a street address and ‘Bragg Hill’ . . . , nothing . . . ties either location to a locality within the Commonwealth”). The record discloses neither that the trial judge took judicial notice of the location nor that the “address is, as a matter of common knowledge,” located within the City of Petersburg, Virginia. Id. at 332, 549 S.E.2d at 651.
As in Owusu, we do not dismiss the indictment because “subject matter jurisdiction is not part of the crime, and therefore, does not go to the merits of the case.” 11 Va. App. at 674, 401 S.E.2d at 432. We, therefore, reverse the conviction and remand for further proceedings, if the Commonwealth be so advised.
Reversed and remanded.
Coleman, J., dissenting.
The majority holds that because the Commonwealth failed, at the time the trial court accepted appellant’s nolo contendre plea, to provide testimonial evidence that he distributed cocaine within the Commonwealth, the record fails to establish the court possessed subject matter jurisdiction to hear the matter. I disagree. In my opinion, appellant’s plea of nolo contendre “implie[d] a confession .?.?. of the truth of the charge” that the crime was committed “within the jurisdiction of the court,” as alleged in the indictment, which, of course, was Petersburg, Virginia. Thus, the plea of nolo contendre was a concession that the crime was committed in the Commonwealth, which enabled the court to exercise its jurisdiction. Therefore, I dissent.
As the majority notes, “by entering a plea of nolo contendre, the defendant ‘implies a confession .?.?. of the truth of the charge .?.?. [and] agrees that the court may consider him guilty for the purpose of imposing judgment and sentence.'” Commonwealth v. Jackson , 255 Va. 552, 555, 499 S.E.2d 276, 278 (1998) (citation omitted) (emphasis added). A no contest plea “‘ha[s] the same preclusive effect as a guilty plea'” for purposes of appeal. Perry v. Commonwealth, 33 Va. App. 410, 412, 533 S.E.2d 651, 652-53 (2000) (citation omitted). “In accepting a plea of guilty, any Virginia trial judge is, of course, free to hear the evidence he deems necessary to an understanding of the case and to the fixing of an appropriate sentence. This does not mean, however, that evidence must be heard upon a plea of guilty.” Kibert v. Commonwealth , 216 Va. 660, 664, 222 S.E.2d 790, 793 (1976). Because the plea of nolo contendre “implies a confession .?.?. of the truth of the charge,” the trial court may not be required to hear evidence when accepting appellant’s plea of nolo contendre. In any event, the indictment charged that appellant distributed cocaine within the City of Petersburg and “within the jurisdiction,” which was Petersburg, Virginia. Furthermore, the court found appellant entered his plea “with the understanding .?.?. that the evidence by the Commonwealth would be sufficient for a finding of guilt.” The court also accepted the plea, “find[ing] [appellant] guilty as charged in the indictment.” (Emphasis added). The indictment charged appellant with violating Code ??18.2-248 “against the peace and dignity of the Commonwealth of Virginia,” and appellant’s plea conceded that fact. In summary, the indictment charged that the offense occurred in Petersburg “and within the jurisdiction of the court,” which was the Circuit Court for the City of Petersburg, Virginia, and appellant, by admitting the “truth of the charge,” admitted the fact that the crime occurred within the Commonwealth.
The case is distinguishable from and not controlled by the holding in Moreno v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995). In Moreno, the record clearly showed that the crime had occurred in Arizona, not in Virginia. Thus, the record in Moreno affirmatively showed that subject matter jurisdiction was not in Virginia. In contrast, nothing in this record indicates the offense occurred outside the state. If in fact the crime occurred beyond the jurisdiction of the court, that jurisdictional requisite is also subject to direct or collateral attack. See id. at 20, 452 S.E.2d at 655. Nothing in the record suggests that the crime occurred outside Virginia.
The indictment charges the distribution occurred in Petersburg “within the jurisdiction of the court,” and “against the peace and dignity of the Commonwealth.” The Petersburg police arranged the controlled buy at a stated address, and the defendant did not contest the allegations in the indictment. “The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact.” Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Although the officer did not specifically testify he observed appellant distribute cocaine in the Commonwealth, based upon the uncontested allegations in the indictment, the reasonable inference to be drawn from the facts presented in the record is that the offense occurred in Petersburg in the Commonwealth of Virginia. I would find that subject matter jurisdiction
“affirmatively appear[s] on the face of the record.” Shelton v. Sydnor, 126 Va. 625, 630, 102 S.E. 83, 85 (1920).
Therefore, I dissent.
* Pursuant to Code ??17.1-413, this opinion is not designated for publication.