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January 8, 1999
Record No. 980460




Present: All the Justices

In this appeal, we consider whether a criminal
defendant may enforce the terms of an agreement that he executed
with a Commonwealth’s Attorney.

E. Christopher Sandy was indicted by a
Westmoreland County grand jury for 32 charges of
"intentionally and feloniously issu[ing] . . .
fraudulent grain receipts" in violation of Code
Sect. 3.1-722.28. Sandy’s counsel and the Commonwealth’s
Attorney, Peggy E. Garland, held plea negotiations which
culminated in the execution of an agreement signed by Sandy,
Garland, and W. R. Sanford, a representative of the Virginia
Department of Agriculture.

Pursuant to the terms of the agreement, Sandy
agreed to meet with, and answer fully any questions posed to him
by the Commonwealth’s Attorney. The agreement provided that Sandy
would receive "full and complete" transactional
immunity for any and all acts related to the information that he
provided the Commonwealth’s Attorney during the meetings. The
agreement also contained the following paragraphs pertinent to
this proceeding:

"3. That if after the meetings
referenced in paragraph (1), Garland is reasonably satisfied
that the information provided by Sandy is full and complete,
Garland will move the Court to amend seven of the indictments
. . . to petty larceny and that she will move the
Court to nol pros or dismiss all of the other

"4. That Garland will recommend to the
Court that Sandy be fined Five Hundred Dollars ($500.00) on
each of the no more than seven (7) misdemeanor charges for
which he is convicted, and be sentenced to six (6) months in
jail on each such charge, to run concurrently, all suspended
on the condition that the fines be paid."

After the agreement was signed, the
Commonwealth’s Attorney and her designees had four meetings with
Sandy. After the meetings, Sandy’s counsel asked the
Commonwealth’s Attorney whether Sandy had complied with the terms
of the agreement. She replied that she had not "made up
[her] mind." A few days later, the Commonwealth’s Attorney
contacted Sandy’s counsel by telephone and told him that she was
"reluctantly going to go along with the plea
agreement." The next day, however, the Commonwealth’s
Attorney went to the office of Sandy’s counsel and stated that
she did not intend to honor the agreement.

Subsequently, the Commonwealth’s Attorney
forwarded a letter to Sandy’s counsel which stated in relevant

"After I last talked to you, I
received information that verifies that [Mr. Sandy] actually
lied to me.

"Please remember that the idea to talk
to me came from [Mr. Sandy] in the first place, that the
assumption was that he would tell me something of value
regarding other criminal offenses. As I’ve said before,
beyond the granary dealings, he actually told me less than I
told him. It was only when I told him what I knew that he
gave any significant information. That’s why I hesitated.
Now, I find that he was not even honest then.

"I cannot abide by the agreement. I
know you may want to take the issue before the court and you
certainly have that right. You need to think about whether
you want our arguments to be made in public. I must say that
I feel sorry for [Mr. Sandy]. It appears he’s trying to
protect the people who have hurt him the most."

Sandy filed a petition in the circuit court and
requested that the court enforce the agreement that the
Commonwealth had repudiated. The Commonwealth’s Attorney opposed
the petition. The trial court conducted an ore tenus
hearing and held that there was no agreement between the
defendant and the Commonwealth that could be enforced by the

The defendant was subsequently tried by a jury
and was found guilty of intentionally and feloniously issuing
fraudulent grain receipts as charged in seven indictments and
sentenced to serve time in jail and required to pay a fine for
each conviction. The trial court entered judgments on each
conviction, and the defendant appealed the judgments to the Court
of Appeals. There, the defendant contended that he had a
contractual relationship with the Commonwealth, that the
Commonwealth’s Attorney could not unilaterally withdraw her
acceptance of the agreement, and that he was entitled to specific
performance of the agreement. A panel of the Court of Appeals
agreed with the defendant, reversed the judgments, and ordered
specific performance of the agreement. Sandy v. Commonwealth,
25 Va. App. 1, 486 S.E.2d 102 (1997). The Court of Appeals, upon
a rehearing en banc, agreed with the panel, Sandy
v. Commonwealth, 26 Va. App. 724, 496 S.E.2d 167 (1998),
and the Commonwealth appeals.

The Commonwealth argues that the Court of
Appeals erred in holding that the Commonwealth’s Attorney had
breached the agreement with the defendant. Continuing, the
Commonwealth states that the agreement is without constitutional
significance and is unenforceable because the trial court had not
approved any plea agreement. Responding, the defendant states
that even though "there is no plea agreement and
. . . one never existed," he executed a
"cooperation agreement" with the Commonwealth, he fully
complied with the so-called cooperation agreement and, hence, he
is entitled to specific performance of that agreement.

First, we hold that the Court of Appeals erred
in concluding that the defendant and the Commonwealth’s Attorney
entered into a plea agreement in accordance with Rule
3A:8(c)(1)(C)(2). Sandy, 26 Va. App. at 725, 496 S.E.2d at
168. This Rule, which governs plea agreements in this
Commonwealth in criminal proceedings, states in relevant part
that "[i]f a plea agreement has been reached by the parties,
it shall, in every felony case, be reduced to writing, signed by
the attorney for the Commonwealth, the defendant, and, in every
case, his attorney, if any, and presented to the court."
This Rule also requires that the circuit court approve the plea
agreement. The Commonwealth correctly points out, and the
defendant concedes, that the agreement in this case was never
approved by the circuit court as required by Rule 3A:8.

In Mabry v. Johnson, 467 U.S. 504
(1984), the United States Supreme Court considered whether a
defendant, who had accepted a prosecutor’s proposed plea bargain,
has a constitutional right to have that plea bargain specifically
enforced. Answering that issue in the negative, the Supreme Court

"A plea bargain standing alone is
without constitutional significance; in itself it is a mere
executory agreement which, until embodied in the judgment of
a court, does not deprive an accused of liberty or any other
constitutionally protected interest. It is the ensuing guilty
plea that implicates the Constitution. Only after [the
defendant] pleaded guilty was he convicted, and it is that
conviction which gave rise to the deprivation of [the
defendant’s] liberty at issue here." Id. at
507-08 (footnotes omitted).

Here, just as in Mabry, the agreement at
issue has no constitutional significance because it was not
embodied in the judgment of a court.

We hold that a Commonwealth’s Attorney may
withdraw from a proposed plea agreement at any time before the
actual entry of a guilty plea by a defendant or any other change
of position by the defendant resulting in prejudice to him
because of reliance upon the agreement. See Shields
v. State, 374 A.2d 816, 820 (Del.), cert. denied,
434 U.S. 893 (1977); State v. Edwards, 279 N.W.2d
9, 11 (Iowa 1979); State v. Collins, 265 S.E.2d
172, 176 (N.C. 1980); State v. Wheeler, 631 P.2d
376, 378-79 (Wash. 1981). Absent judicial approval or prejudice
to a criminal defendant, a proposed plea agreement cannot be
binding upon the Commonwealth because the defendant has suffered
no harm, and the defendant is free to reject the proposed
agreement before it is submitted to a court in spite of any
prejudice that the Commonwealth may have incurred. Applying this
rule, we hold that the Commonwealth’s Attorney was entitled to
withdraw from the proposed plea agreement she had executed with
Sandy because the evidence of record reveals that he was not
prejudiced. When asked by the circuit court to identify any
prejudice that the defendant suffered because of the
Commonwealth’s Attorney’s withdrawal from the proposed plea
agreement, the defendant’s counsel was unable to do so.

Accordingly, we will reverse the judgment of
the Court of Appeals, and we will reinstate the judgments of the
circuit court.

Reversed and final judgment.