Johnson v. Anis ( 2012 )

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan,
and Powell, JJ., and Russell, S.J.
GENE M. JOHNSON, DIRECTOR OF
THE DEPARTMENT OF CORRECTIONS
OPINION BY
v. Record No. 111937 SENIOR JUSTICE CHARLES S. RUSSELL
September 14, 2012
ANTHONY LOUIS ANIS
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge
This appeal presents a question of the circumstances in
which a defendant in a criminal case, who has entered a guilty
plea, may be permitted to withdraw that plea and proceed to
trial on a plea of not guilty. It involves the distinction that
applies when a motion to withdraw a guilty plea is made after,
rather than before, a sentence has been imposed.
In 2006, Anthony Louis Anis entered an Alford plea of
guilty in the Circuit Court of Henrico County to an indictment
charging him with grand larceny. At the plea colloquy, the
court asked him whether he was satisfied with the services of
his attorney. Anis replied: "I think he's been about the best
attorney I probably could have had." The court found that the
plea was voluntarily and intelligently entered and found Anis
guilty. The Commonwealth recommended an active sentence
equivalent to the time Anis had spent in jail awaiting trial,
four and one-half months. Pursuant to that recommendation, the
court imposed a sentence of five years, with four years, seven
months, and fifteen days suspended.
Within the 21-day period before the sentencing order became
final, Anis informed his attorney that he wished to withdraw his
guilty plea, plead not guilty and go to trial. His attorney
later testified that he knew of no legitimate basis for
withdrawal of the plea, but that he filed a motion to withdraw
it on "ends of justice" grounds because of the shortness of the
time the case would remain in the circuit court's jurisdiction.
The court ultimately denied the motion in an order entered
March 1, 2007, and Anis did not appeal.
Approximately twenty months later, on October 24, 2008,
Anis filed a petition for habeas corpus in the circuit court.
One of the claims made by the petition was that he had been
denied the effective assistance of counsel because trial counsel
had failed to base his motion to withdraw the guilty plea on the
specific grounds of mistake, misunderstanding, fear, and
misrepresentation, causing the plea to be entered "inadvisedly
and involuntarily." The court declined to grant an evidentiary
hearing and denied the petition, citing this Court's decision in
Anderson v. Warden, 222 Va. 511, 516, 281 S.E.2d 885, 888
(1981).
Anis appealed that decision to this Court. We awarded Anis
an appeal and entered an order directing the circuit court to
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conduct an evidentiary hearing to decide Anis' claims. Anis v.
Johnson, Dir., Dep't of Corr., Record No. 092485 (April 23,
2010).
At the evidentiary hearing, Melvin Crawley testified that
he was the owner of a commercial building in Henrico County upon
which a new roof was being installed. There were three 5-ton
air conditioning units on the roof which were in good working
order. They were not to be disturbed by the roofers except to
ensure that the rubberized seals around them remained intact.
Crawley testified that his employee, George Gayles, called to
inform him that someone was dismantling the air-conditioning
units. Crawley came to the site and found Anis on the roof.
Two of the units had been "gutted" and the third was partially
dismantled. Anis told him that the "owner" had given him
permission to remove the units. When Crawley told him "I'm the
owner. I've never seen you before," Anis fled, jumping into his
truck and driving away, nearly running over Gayles in the
process. Crawley reported the event, including the truck's
license number, to the police.
When arrested, Anis told the police that some "black guy"
who was in charge of the roofing work had given him permission
to remove the air conditioning units. His trial counsel
testified that Anis had said his permission had come from "a
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Mexican with a red bandanna." Anis could furnish no name,
address, or contact information for this individual. *
Anis had two prior convictions for larceny. Trial counsel
concluded that in the absence of any witness to corroborate
Anis' account, and in view of his flight from the scene when
confronted by the owner, and his prior larceny convictions,
Anis' best choice would be an Alford plea in exchange for an
agreed sentence recommendation of "time served" and the
Commonwealth's agreement to nolle prosequi an additional charge
of felony vandalism. Anis agreed with this recommendation and
informed the court that he thought an Alford plea was his best
option.
The circuit court granted Anis a writ of habeas corpus on
his claim that trial counsel was ineffective for failing to
allege the specific grounds of mistake, fear, misunderstanding
and misrepresentation in his motion to withdraw the guilty plea.
We awarded the Commonwealth this appeal.
In granting the writ, the court relied on Justus v.
Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007), and
Parris v. Commonwealth, 189 Va. 321, 325, 52 S.E.2d 872, 874
(1949) (" '[t]he least surprise or influence causing a defendant
*
Approximately five years after his arrest, at the
evidentiary hearing, Anis testified that the previously unnamed
man who had given him permission to remove the units was "clean-
cut," was wearing a mustache and a ball cap, and was named
"José."
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to plead guilty when he has any defense at all should be
sufficient grounds for permitting a change of a plea from guilty
to not guilty'"). The circuit court erred in applying that
rule, which applies only before a sentence has been imposed.
After sentencing, a more stringent standard has been imposed by
the General Assembly. Code § 19.2-296 provides:
Withdrawal of plea of guilty. – A motion to
withdraw a plea of guilty or nolo contendere
may be made only before sentence is imposed
or imposition of a sentence is suspended;
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.
In Justus, we expressly pointed out this distinction. 274 Va.
at 152-53, 645 S.E.2d at 287-88.
The term "manifest" is defined as being "synonymous with
open, clear, visible, unmistakable, indubitable, indisputable,
evident, and self-evident. In evidence, that which is clear and
requires no proof; that which is notorious." Black's Law
Dictionary 962 (6th ed. 1990) (emphasis added).
Anis testified at the evidentiary hearing that he had "been
getting scrap metal for extra money." The evidence was that the
scrap value of the metal removed was at least $3,000 and that
Crawley's replacement cost would be $25,000. Anis made no
denial of any facts except his claim that he had permission from
an unknown person to remove the units.
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If the case had gone to trial, Anis' sole defense would
have been his own self-serving and uncorroborated testimony. He
would have been subject to cross-examination with regard to his
changing accounts of the person who had allegedly given him
permission, his precipitate flight from the scene when
confronted by the owner, and his two prior larceny convictions.
There was no evidence at the evidentiary hearing, or elsewhere
in the record, to support a conclusion that Anis was denied the
effective assistance of counsel or that manifest injustice
occurred.
Because the circuit court applied an inapplicable standard
in granting the writ, we will reverse the judgment appealed from
and dismiss the writ of habeas corpus.
Reversed and writ dismissed.
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