Sullivan v. Commonwealth

ASHLEY NICOLE SULLIVAN v. COMMONWEALTH OF VIRGINIA

Record No. 1039-19-4

COURT OF APPEALS OF VIRGINIA

OCTOBER 20, 2020

UNPUBLISHED

Present: Judges Beales, Huff and O'Brien

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE RANDOLPH A. BEALES

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Victoria A.B. Willis, Judge

James J. Ilijevich for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Appellant Ashley Nicole Sullivan signed a plea agreement in which she agreed to plead guilty to possession of a Schedule I/II controlled substance and possession of drug paraphernalia in exchange for the Commonwealth's agreement to move to nolle prosequi two additional charges. Pursuant to the plea agreement, Sullivan waived her right to withdraw her guilty plea. Approximately two months after the trial court accepted her plea and pronounced her guilty - and after a written order of guilt was entered - Sullivan informed the trial court that she wished to request a deferred disposition under Code § 18.2-251. The trial court denied the request and also denied Sullivan's subsequent request to withdraw her guilty plea. Sullivan appeals, arguing that the trial court erred "when it determined that, after receiving a plea of guilty and finding the Appellant guilty of a violation of Va. Code § 18.2-250, it did not have the authority to order a deferred disposition under Va. Code § 18.2-251, even though the Appellant was otherwisequalified." Sullivan also argues that the trial court erred "when it denied the Appellant's motion to withdraw her guilty plea when it was clear to the Court that the trial counsel sought to correct the Appellant's plea so that it was tendered in compliance with Va. Code § 18.2-251 which was anticipated at the time of her plea."

I. BACKGROUND

On December 2, 2017, law enforcement received a 9-1-1 call reporting that a woman, Sullivan, was unconscious and slumped over the steering wheel of her vehicle in a 7-Eleven parking lot in Stafford County. When an officer arrived at the scene, Sullivan began to awaken. The officer observed that Sullivan was disoriented, that her speech was slurred, and that she was acting nervous. Sullivan refused to exit the vehicle. While conducting a search, the officer found that she possessed oxymorphone, Suboxone, marijuana, and drug paraphernalia.

Sullivan was indicted for felony possession of a Schedule I/II controlled substance in violation of Code § 18.2-250 and three misdemeanors: possession of controlled paraphernalia in violation of Code § 54.1-3466; possession of a Schedule III drug in violation of Code § 18.2-250; and possession of less than one-half ounce of marijuana in violation of Code § 18.2-250.1. Sullivan pled not guilty and requested a bench trial, but the Commonwealth requested a trial by jury.

Prior to the trial, Sullivan and the Commonwealth entered into a plea agreement. Pursuant to the agreement, Sullivan agreed to plead guilty to possession of a Schedule I/II controlled substance and possession of controlled paraphernalia. Sullivan also agreed to waive her right to withdraw her guilty plea. The plea agreement expressly stated, "I agree to waive my right to withdraw my plea of guilty under Virginia Code § 19.2-296[.]" In exchange, the Commonwealth agreed to move to nolle prosequi the remaining charges.

On November 20, 2018, Sullivan appeared before the trial court to advise it of her plea. During the plea colloquy, the trial judge confirmed that Sullivan was entering into the plea freely and voluntarily. She asked if Sullivan understood that her plea agreement included a waiver of her right to withdraw her guilty plea under Code § 19.2-296 and if Sullivan understood that provision. Sullivan responded that she did understand it and did wish to waive her right to withdraw her guilty plea. The trial judge also asked if Sullivan understood that there was "a statutory right for you to subsequently withdraw your guilty plea and you are now waiving that right?" Sullivan stated that she understood. The trial judge then asked Sullivan if her attorney had discussed sentencing with her and the range of punishment she could receive. Sullivan responded, "Yes." The judge then stated, "The Court accepts your pleas of guilty on the two charges and finds sufficient evidence and does, in fact, find you guilty of possession of a schedule one or two controlled substance as charged in CR18-914-00, and possession of paraphernalia as charged in CR18-914-01." The trial court also granted the Commonwealth's motion - made in accordance with the plea agreement - to nolle prosequi the remaining charges. A written conviction order was entered on November 30, 2018.

On December 12, 2018, Sullivan appeared for a bond hearing, and her attorney requested she be released on a recognizance bond pending the sentencing. The trial judge explained, "But she's a convicted felon, so she can't do a PR bond, because she plead guilty to - - to felony charges." During the course of the hearing, counsel for Sullivan also acknowledged that Sullivan had already now been convicted of the felony. She stated, "This is not someone who's facing [a] significant amount of jail time. As Your Honor commented, she's a convicted felon. This is her first felony." After hearing the parties' arguments, the trial court set a $3,000 secured bond.

On January 28, 2019, the parties appeared for Sullivan's sentencing hearing. At the hearing, Sullivan's counsel asked that Sullivan be sentenced to "the first offender program" or, ifthe court would not do so, that the court only sentence her to probation.¹ The trial judge asked if defense counsel had notified the court of Sullivan's intention to seek a first offender disposition before the court found Sullivan guilty. Defense counsel stated that she could not remember whether she had requested a first offender disposition before the conviction order was entered. The trial judge responded, "Well, it's a key issue. Because usually what the Court does then is withhold the finding." The prosecutor, Sandra Park, stated that she had not been aware that Sullivan was going to seek a first offender disposition. The judge continued the case to provide time for the parties and the court to review the transcripts to see if Sullivan's counsel had ever made the request.

When the parties returned to court at the next hearing date, the trial judge stated that she had reviewed the transcripts and found that a deferred disposition was never requested. Sullivan's counsel explained that it was her and her client's intention to make the request at the December 12, 2018 bond hearing, but she had failed to do so.² As a result, she moved to set aside the findings of guilt and to withdraw the guilty plea. Because Park could not be present - and another prosecutor less familiar with the case was standing in for her - the court took the matter under advisement and continued the case to May 23, 2019.

At the May 23, 2019 hearing on defense counsel's motions to set aside the findings of guilt and to withdraw the guilty plea, Park stated that she had reviewed her file and found thatSullivan actually had expressed an interest in seeking a deferred disposition under Code § 18.2-251. However, Park argued that Sullivan could not now seek to withdraw her guilty plea in order to seek a deferred disposition because, instead of pursuing her initial interest in a deferred disposition, Sullivan had chosen to sign a plea agreement in which she waived her right to withdraw her guilty plea. The trial judge informed Sullivan's trial counsel, "[T]his plea agreement clearly says she waived her right to withdraw, and that was reviewed by you as counsel with her, it was reviewed during the colloquy, she understood that. So she doesn't have a right because she waived that right." The trial court sentenced Sullivan to two years and twelve months of incarceration with all the time suspended, conditioned on her completion of supervised probation and five years of good behavior. The sentencing order reflects that the trial judge denied the motion to withdraw the guilty plea "due to the defendant entering into a written plea agreement in this case on November 20, 2018."

On June 17, 2019, the parties again appeared before the trial court regarding a motion by Sullivan's attorney to withdraw as counsel and to suspend the final order to allow Sullivan to find new counsel. The trial judge granted counsel's motion to withdraw, denied the motion to suspend the final order, and appointed appellate counsel for Sullivan. This appeal followed.

II. ANALYSIS

A. Sullivan's Request for a Deferred Disposition

In her first assignment of error, Sullivan argues that "[t]he trial court erred when it determined that, after receiving a plea of guilty and finding the Appellant guilty of a violation of Va. Code § 18.2-250, it did not have the authority to order a deferred disposition under Va. Code § 18.2-251, even though the Appellant was otherwise qualified." "Whether a trial court 'has authority to take a case under advisement and defer a finding of guilt is a question of law' reviewed de novo on appeal." Vandyke v. Commonwealth, 71 Va. App. 723, 729 (2020)(quoting White v. Commonwealth, 67 Va. App. 599, 604 (2017)). Sullivan's argument requires us to determine whether the trial court erred in its interpretation of Code § 18.2-251, an issue we also review de novo on appeal. See Eley v. Commonwealth, 70 Va. App. 158, 162 (2019).

Code § 18.2-251 provides, in relevant part, as follows:

Whenever any person who has not previously been convicted of any criminal offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, or pleads guilty to or enters a plea of

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