Bethea v. Commonwealth

1

KEVIN LEE BETHEA v. COMMONWEALTH OF VIRGINIA

No. 1019-23-1

Court of Appeals of Virginia

August 13, 2024

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS GARY A. MILLS JUDGE

(Joshua A. Goff; Goff Voltin, PLLC, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Lucille M. Wall, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Present: Judges Athey, Ortiz and Chaney

MEMORANDUM OPINION ^[*]

CLIFFORD L. ATHEY, JR. JUDGE

In the Circuit Court of the City of Newport News ("circuit court"), on January 23, 2023, pursuant to a written plea agreement, Kevin Lee Bethea ("Bethea") pled guilty and was convicted of robbery causing serious bodily injury, malicious wounding, two counts of abduction, two counts of use of firearm in the commission of a felony, grand larceny, and possession of a firearm within ten years of having been adjudicated delinquent of a felony offense. The circuit court sentenced Bethea to a total of 90 years of incarceration with 63 years suspended, leaving Bethea an active sentence of 27 years to serve with 10 of those years being mandatory. On appeal, Bethea assigns error to the circuit court: 1) for finding his guilty pleas were voluntarily entered; 2) for conducting a deficient plea colloquy; and 3) for imposing a 27-year active sentence without properly weighing his mitigating evidence. Finding no error, we affirm the circuit court's judgment.

I. Background^[1]

In July of 2021, Bethea "broke up with" his girlfriend, Alyssa Williams ("Williams"). Williams resided with her 84-year-old grandfather, William Troy Wright ("Wright") in his home near a golf course in northern Newport News. During the night of July 7, 2021, Bethea, along with his friend, approached Williams as she stood on the front porch of her grandfather's home. Bethea brandished a firearm before subsequently "dragg[ing] her around" the golf course by her arm until Bethea's friend persuaded him to flee. After they fled, Williams called 911 and reported the incident. She subsequently obtained a protective order against Bethea and entered "into police custody for her safety."

On July 9, 2021, Bethea returned to Wright's home searching for Williams. Although Wright explained to Bethea that Williams was not at the house, Bethea responded by pointing a firearm at Wright and threatening to kill him. Wright then permitted Bethea to enter his home to verify that Williams was not present. Bethea then demanded to know Williams's whereabouts. Wright responded that, "she is not here[-] She's with the police[-] I don't know where she is[,]" whereupon Bethea attacked Wright, knocking him unconscious by repeatedly striking the "back of [his] head" and body. Bethea next took Wright's cell phone and sent messages to Williams, posing as Wright. Williams recognized that these messages deviated from Wright's usual phrasing and contacted the police to request a "welfare check" for Wright.

Police arrived at Wright's home in response to Williams's request, finding Wright on the floor, covered in blood, disoriented, and still bleeding from cuts on his head and arms. Wright informed law enforcement that his car, wallet, keys, and cell phone were missing before paramedics transported Wright to the hospital for treatment. As a result, Bethea was pursued and arrested. A grand jury subsequently indicted Bethea for robbery causing serious bodily injury, malicious wounding, two counts of abduction, five counts of use of firearm in the commission of a felony, carjacking, possession of a firearm within ten years of having been adjudicated delinquent of a felony offense, grand larceny, and two counts of assault and battery.

Before trial, at Bethea's request, the circuit court ordered a forensic examiner to evaluate Bethea's competency to stand trial and his sanity at the time of the offenses. The examiner interviewed Bethea and reviewed medical records obtained from the jail where he was held. During the interview, Bethea reported to the examiner that he had not been eating or sleeping well prior to their discussion as he had recently learned "that his brother had been shot and killed."

Bethea also disclosed to the examiner that he had received "special education services" in school "due to a learning disability" and subsequently dropped out of school in the ninth grade. Bethea also disclosed that he had previously received psychiatric treatment for anxiety and was "later diagnosed with schizophrenia and bipolar disorder," although he had "never been psychiatrically hospitalized." Bethea also advised that while incarcerated a doctor diagnosed him with "major depression disorder with psychosis and anxiety" and he was now receiving medications for those conditions.

The forensic examiner opined that Bethea was competent to stand trial because he "possesse[d] a capacity for rational and factual understanding of court and the ability to assist counsel in his own defense."^[2] She also noted that during the interview, Bethea's "speech was clear and coherent" and that he displayed a logical thought process "without any signs of psychotic disorganization" or "mental illness." She further observed that although Bethea reported that he "heard 'voices' talking to him 'about the case,'" Bethea's "description of the voices" was "more consistent with negative internal dialogue" than "genuine auditory hallucinations." In addition, she opined that Bethea exhibited a "relatively strong knowledge of court-related information," based on him correctly identifying his charges, describing the roles of the circuit court and counsel, and "rationally discuss[ing]" his plea options, trial rights, and legal strategy. As a result, the examiner concluded that Bethea possessed sufficient fitness to stand trial for his charged offenses.

Several weeks later, Bethea's initial defense counsel withdrew, and a second attorney was appointed to represent Bethea. After conferring with Bethea, his new counsel moved for a second evaluation of Bethea's competency to stand trial as well as his sanity at the time of the offenses. During the hearing on this motion, Bethea's counsel justified a second mental evaluation based on Bethea not having been "fully invested in cooperating with the examiner the first time" because of his brother's recent death. Counsel for Bethea also provided the circuit court with a copy of an earlier forensic examination report previously ordered by the general district court, suggesting that Bethea had significant underlying psychiatric conditions that "call[] into question [his] mental status at the time of the offense." During argument on the motion, Bethea's counsel further clarified that he only sought examination to re-evaluate Bethea's sanity at the time of the offenses; he "[was] not concerned about [Bethea's] competency to stand trial."

The circuit court denied the motion for a second evaluation of Bethea's sanity at the time of the offenses and set a trial date.

Approximately one month before trial, Bethea informed the circuit court that he had retained a private forensic examiner to re-evaluate his sanity at the time of the offense and moved for a continuance of the trial date to accommodate his examiner's schedule. The circuit court also denied this motion on November 28, 2022, by written order, reasoning that Bethea was neither constitutionally nor statutorily entitled to seek "new, different medical opinions" and that due to a "backlog of jury trials pending due to the COVID-19 pandemic" justice would not be served by the continuance Bethea sought.

On December 6, 2022, the morning of Bethea's scheduled jury trial, his counsel proffered that Bethea wished to "address the Court directly about some concerns that he has." Bethea then again requested a continuance to allow him to obtain a second evaluation of his sanity at the time of the offenses and to subpoena witnesses who could corroborate his insanity defense. At that time, Bethea proffered that "three days ago," he had provided the names of two witnesses who would confirm that he was not "in [his] right state of mind" during the offenses. Bethea continued to maintain that his first sanity evaluation was deficient because he had been distracted during the forensic interview due to his brother's death.

In support of the third motion for a continuance, Bethea's counsel proffered that he recently had received a plea offer from the Commonwealth that he had "attempt[ed]" to discuss with Bethea, but he had been unable to do so as Bethea told him that "he was nervous and just d[id]n't understand what's going on." Bethea's counsel further clarified that he needed the additional time to review the plea offer with Bethea and discuss his trial rights because "I just haven't gotten really firm answers to any of those questions, which makes it really difficult." The Commonwealth objected to this request, arguing that Bethea was trying to use a delay tactic that would unfairly prejudice the prosecution. The Commonwealth proffered that one of the victims was elderly and in deteriorating health and as a result would likely be unable to attend a later trial date. The Commonwealth also proffered that while incarcerated, Bethea had attempted to call his now-deceased brother so that he could "coach" Bethea regarding his "mental health and how it would affect his case."

The circuit court then denied Bethea's third continuance request. The circuit court noted that Bethea had already undergone evaluations of his sanity and competency and been found competent to stand trial. And the court concluded that Bethea was "trying to manipulate the system" by delaying the trial. The court then took a recess to allow the parties to discuss a proposed plea...