William Eugene Jones, etc v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
WILLIAM EUGENE JONES, S/K/A
WILLIAM EUGENE JONES, JR.
MEMORANDUM OPINION * BY
v. Record No. 1128-98-4 JUDGE RUDOLPH BUMGARDNER, III
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Marvin D. Miller (Law Offices of Marvin D.
Miller, on briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial court convicted William Eugene Jones on his plea
of guilty of feloniously escaping from the custody of a court
pursuant to Code § 18.2-479. On appeal, the defendant argues
the trial court could only have convicted him of a misdemeanor.
He contends that the trial court erred by not reducing the
sentence to a misdemeanor penalty or in not allowing him to
withdraw his guilty plea. For the following reasons, we affirm.
On March 13, 1997, the trial court convicted and sentenced
the defendant for distributing cocaine. It then allowed him to
remain on electronic home detention until March 31, 1997 when it
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
ordered him to report to begin serving his sentence. The
defendant did not appear as ordered and was charged with escape
under Code § 18.2-479.
At his trial for escape held September 10, 1997, the trial
court accepted a guilty plea. Both sides stipulated the
evidence; the trial court ordered a pre-sentence report and
continued the case for sentencing. When the pre-sentence report
was prepared, the trial court sentenced the defendant to five
years, with four years and three months suspended.
After sentencing, the defendant filed a motion to correct a
sentencing irregularity or alternatively to withdraw his guilty
plea. The trial court held a hearing on April 10, 1998 but
denied the defendant's motion. The defendant never claimed that
his plea was involuntary but claimed that his attorney did not
understand that he was on pretrial electronic home detention
when he failed to report to jail. The defendant argues that
escape from pretrial detention could be no more than a
misdemeanor and the trial court abused its discretion by denying
him the relief requested.
The defendant has not provided a sufficient record for us
to review his claim of error. The defendant must provide an
adequate record enabling this Court to determine whether the
trial court erred. See Anderson v. Commonwealth, 251 Va. 437,
439, 470 S.E.2d 862, 863 (1996); Smith v. Commonwealth, 16 Va.
App. 630, 635, 432 S.E.2d 2, 6 (1993). His claim of error is a
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claim that the facts do not support his conviction of escape
from the custody of a court. However, the evidence at trial
does not indicate any such error. The parties stipulated that
the defendant was "allowed to stay out on electronic detention"
and that he did not report as ordered. Neither he nor his
attorney disputed the recitation of the facts. The record
supports the trial court's finding that he was guilty of the
offense as charged, a violation of Code § 18.2-479.
To assess the defendant's claim, we need a record of the
April 10, 1998 hearing when the trial court heard the motion.
We most likely would also need a record of the sentencing
portion of the March 13, 1997 trial and of the sentencing order
that released the defendant to home electronic detention. The
defendant argues that the narrative portion of the pre-sentence
report constitutes an official statement of facts needed to
support his motion. While a pre-sentence report is filed as a
part of the record, see Code § 19.2-299, its narrative of trial
proceedings is not a substitute for properly designated portions
of the transcript or a statement of facts, or copies of the
orders. See Rule 5A:8.
Whether or not a defendant may withdraw a plea of guilty
rests within the sound discretion of the trial court. See
Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873
(1949). Again, we cannot assess this attack without a proper
record of the hearing that considered the motion. "When the
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appellant fails to ensure that the record contains transcripts
or a written statement of facts necessary to permit resolution
of appellate issues, any assignments of error affected by such
omission shall not be considered." Rule 5A:8(b).
Accordingly, we affirm.
Affirmed.
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