Commonwealth v. Taylor

COMMONWEALTH OF VIRIGNIA v. KYDON D. TAYLOR

Criminal Docket NO. CR18-2055

Criminal Docket NO. CR19-258

CIRCUIT COURT FOR THE CITY OF NORFOLK

June 29, 2020

ORDER PERMITTING WITHDRAWAL OF GUILTY PLEA

This matter comes before the Court on Defendant Kydon Taylor's motion to withdraw his guilty plea to Second Degree Murder, Use of a Firearm in Commission of a Felony, Attempt to Commit Robbery, and Conspiracy to Commit Robbery. On June 10, 2020, the Court conducted an evidentiary hearing on the matter. After reviewing the hearing transcript and the parties' briefs, the Court GRANTS the motion for the reasons stated herein.

Background

On April 11, 2019, eighteen-year-old Kydon Taylor pleaded guilty to two counts of Use of a Firearm in Commission of a Felony, Attempted Robbery, Conspiracy to Commit Robbery, and Second-Degree Murder pursuant to a Plea Agreement with the Commonwealth. Along with the Plea Agreement, Taylor signed a Stipulation of Facts that set forth the following evidence that the Commonwealth would have presented at trial: When police arrived at the scene of the crime, the victim "was conscious and advised he was shot by 2 young males while across the street." (Commonwealth's Stipulation of Facts 1.) "Erin Kirby described a conversation she overheard earlier [on the evening of the alleged crime] in which her brother Jessie said that their cousin 'C.J[.]' [Charles Poff, Taylor's codefendant] and his friend [Taylor] were trying to rob Moochie [the victim]." (Id.) Taylor "confessed to being present when the plan was discussed" and "said he had been picked up by Poff, Jessie Kirby and Trevon Myricks." (Id.) While driving to the Kirby residence, Taylor saw two guns and knew that Jessie Kirby "contacted the victim to purchase marijuana and directed the victim to the spot across from his house." (Id. at 2.) Taylor confessed to knowing both about the plan to rob the victim and that Poff had a weapon on his person. (Id.) Then, "[h]e accompanied Poff across the street to the meeting location." (Id.) "Taylor denies shooting the victim." (Id.)

At the guilty plea hearing, the Court confirmed that Taylor had discussed with his attorney the charges against him, discussed the possible defenses available to him and whether he should plead guilty; confirmed that he had made his own decision about pleading guilty freely and without coercion or intimidation; and agreed that he chose to plead guilty because he is guilty. (Hr'g Tr. 6:10-7:21, Apr. 11, 2019.) His attorney, Melinda Seemar, informed the Court that she and Taylor "had many conversations" regarding "accomplice liability and what first-degree and second-degree principals are." (Id. at 7:22-24.) She stated that, "[b]ecause he didn't pull the trigger, he continues to have problems with that, but I think he understands that, looking at the accomplice liability, there are . . ." (Id. at 7:25-8:2.) Ms. Seemar did not finish her thought. The Court asked Taylor, "[i]s there anything about accomplice liability that you don't understand that you want Ms. Seemar or me to explain to you?" (Id. at 8:17-19.) He responded, "No, Your Honor." (Id. at 8:20.) The Court ultimately found that Taylor entered his plea agreement "freely and intelligently with an understanding of these charges and the consequences of pleading guilty to the charges" and found him guilty of all five charges. (Id. at 10:3-15.)

The Court set sentencing for July 12, 2019. Sentencing was continued several times, in part because of Ms. Seemar's withdrawal and the appointment of B. Thomas Reed as new counsel. Mr. Reed agreed to set Taylor's sentencing on December 20, 2019.

On December 18, 2019, Mr. Reed filed the instant motion, arguing that the Court should let Taylor withdraw his guilty plea because he "was never advised by counsel or the court th[at] mere presence and consent alone does not constitute one a principal in the second degree." (Mot. Withdraw Guilty Plea 1.) He contends that the "Commonwealth's evidence, at most, would prove defendant was present when others discussed robbing the victim and that the defendant was present when the victim was shot and killed." (Id.) Mr. Reed alleges that Taylor's prior counsel never advised him that this "is not in and of itself sufficient to convict the defendant as a principal in the second degree or one acting in concert with the principal in the first degree." (Id. at 2.)

If the Court grants his motion, Taylor plans to assert the defense that he "did not participate in the plan and decision to rob the victim and that he did not act in concert with the principal in the first degree, and that shooting the victim was not an incidental probable consequence of the plan to rob the victim" (Id.) In his supporting memorandum, Mr. Reed reiterates that Taylor's confession that he was "'present when the plan was discussed,'" "'knew the plan was to rob the victim,'" and "'accompanied [the codefendant] across the street to the meeting location' . . . constitute no more than presence and consent, which does not constitute one a principal in the second degree." (Mem. Law & Fact Supp. Mot. Withdraw Guilty Plea 3.)

Legal Standard

Virginia Code § 19.2-296 provides that:

[a] motion to withdraw a plea of guilty . . . may be made only before sentence is imposed . . . but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.

"[T]he statute does not expressly provide the standard by which a trial court is to determine whether to grant a motion to withdraw a guilty plea when . . . the motion is made before sentence has been imposed." Justus v. Commonwealth, 274 Va. 143, 153 (2007). In Justus, the SupremeCourt of Virginia relied on the seminal case of Parris v. Commonwealth, 189 Va. 321 (1949) and provided that standard when it held that a trial court should not deny a pre-sentencing motion to withdraw a guilty plea "where it is in the least evident that the ends of justice will be subserved by permitting" a defendant to withdraw his guilty plea. Justus, 274 Va. at 153 (quoting Parris, 189 Va. at 325); see also Parris, 189 Va. at 325 ("The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty.").

A court should ordinarily allow a defendant to withdraw a guilty plea:

if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury.

Parris, 189 Va. at 325. In other words, a trial court should permit a defendant to withdraw a guilty plea "entered [i]nadvisedly when application thereof is duly made in good faith and sustained by proofs, and a proper offer is made to go to trial on a plea of not guilty." Justus, 274 Va. at 153-54 (quoting Parris, 189 Va. at 325-26); see also Booker v. Commonwealth, 61 Va. App. 323, 332-33 (2012) (quoting Justus, 274 Va. at 154) ("With respect to a defense that the accused tenders in support of a motion to withdraw the guilty plea, the Court in Justus . . . held that 'the motion should be granted even if the guilty plea was merely entered "inadvisedly" when the evidence supporting the motion shows that there is a reasonable defense to be presented to the judge or jury trying the case.'"). Subsequent courts summarized this test as requiring "the defendant (i) to establish a good-faith basis for making the guilty plea and later seeking to withdraw it, and (ii) to proffer evidence of a reasonable basis for contesting guilt." Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008).

In Small v. Commonwealth, 292 Va. 292 (2016), the Supreme Court of Virginia recognized a third factor for courts to consider when deciding whether to grant a motion to withdraw a guiltyplea—"prejudice to the Commonwealth." Id. at 298. Thus, 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. See Booker, 61 Va. App. at 332-33; Commonwealth v. Foster, No. CR17-2989, 2018 WL 9437460, at *5 (Norfolk Cir. Ct. Nov. 16, 2018).

Trial courts have discretion to grant a motion to withdraw a guilty plea "based on the facts and circumstances of the particular case." Justus, 274 Va. at 153, 154.

Analysis

I. The good faith requirement.

"In a pre-sentencing motion to withdraw a guilty plea, a defendant has the burden of establishing that his motion is made in good faith." Spencer v. Commonwealth, 68 Va. App. 183, 187 (2017). Insufficient or inaccurate advice from counsel satisfies the good faith requirement. Hernandez v. Commonwealth, 67 Va. App. 67, 77 (2016) (holding that a court should consider "whether [defendant's] counsel misadvised him as to his plea" when deciding a motion to withdraw a guilty plea). The Court need not find "that the defendant failed to receive adequate legal representation from counsel." Justus, 274 Va. at 154. Rather, "'poor or erroneous advice from counsel,' . . . where 'an attorney overlooked a viable defense,' constitutes grounds for withdrawing a guilty plea as being inadvised." Hernandez, 67 Va. App. at 78 (quoting Pritchett v. Commonwealth, 61 Va. App. 777, 788, 790 (2013)).

Mr. Reed argues that Taylor was previously misadvised because he pleaded guilty to these charges based on evidence that established only his mere knowledge of and presence at the robbery. The Commonwealth argues that Ms. Seemar effectively represented Taylor because "[a]tthe time of the guilty plea, both the defendant and previous counsel for [the] defendant...