Richard Lee Cook v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Haley
Argued at Chesapeake, Virginia
RICHARD LEE COOK
MEMORANDUM OPINION* BY
v. Record No. 2349-04-1 JUDGE ROBERT P. FRANK
NOVEMBER 1, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Richard C. Kerns for appellant.
Kathleen B. Martin, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Richard Lee Cook, appellant, upon his pleas of guilty, was found guilty of four counts of
forgery and one count of communicating threats to burn. On appeal, he contends that his guilty
pleas were not voluntarily made because the trial court did not specifically advise him of the
appellate consequences of his guilty pleas. For the reasons stated herein, we affirm appellant’s
convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
ANALYSIS
Appellant contends that because the trial court did not advise him of the appellate
consequences of his pleas of guilty,1 his pleas were not voluntarily and intelligently given.2 The
Commonwealth maintains this argument is defaulted because appellant never questioned the
voluntariness of his pleas before the trial court. We agree with the Commonwealth.
Rule 5A:18 states, “No ruling of the trial court . . . will be considered as a basis for
reversal unless the objection was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.” Under Rule 5A:18, a specific argument must be made to the trial court at the
appropriate time, or the allegation of error will not be considered on appeal. See Mounce v.
Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). The purpose underlying this
rule is to afford the trial court an opportunity to rule intelligently on the arguments presented and
to take corrective action if necessary. Martin v. Commonwealth, 13 Va. App. 524, 530, 414
S.E.2d 401, 404 (1992); Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991). The
purpose and terms of the rule therefore are met if the appellant sufficiently apprizes the trial
court of the basis of his objection. See Chaine v. Commonwealth, 17 Va. App. 179, 183, 436
S.E.2d 187, 189 (1993), aff’d on reh’g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).
1
In a proceeding free of jurisdictional defects, no appeal lies from a punishment fixed by
law and imposed upon a defendant who has entered a voluntary and intelligent plea of guilty.
Dowell v. Commonwealth, 12 Va. App. 1145, 1148, 408 S.E.2d 263, 265 (1991), aff’d on reh’g
en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).
2
We note that appellant did not designate on brief where in the record he preserved this
issue for appeal as required by Rule 5A:20(c). However, because we find that the issue was
waived, we need not address Rule 5A:20(c).
-2-
Appellant never objected to the trial court’s acceptance of his guilty pleas either during
trial or in post-trial motions. He did not file a motion to withdraw his pleas of guilty as provided
by Code § 19.2-296:
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.
A motion to withdraw a plea of guilty gives the trial court an opportunity to evaluate the
accused’s explanation of why he did or did not voluntarily and intelligently enter the plea. If
appellant filed such a motion, the trial court could have evaluated whether appellant
misunderstood the appellate consequences of his pleas.
The record reflects that appellant timely filed his notice of appeal on October 8, 2004,
within eight days of his sentencing on September 30, 2004. Clearly, appellant was informed of
the appellate consequences of his guilty pleas at that time, which was well within the twenty-one
days appellant had to move the trial court to withdraw his guilty pleas. Even if appellant was
denied due process by the trial court’s failure to advise him of his appellate rights upon entering
a guilty plea, appellant had a choice between bringing this issue to the attention of the trial court,
while it still retained jurisdiction to set aside appellant’s convictions, and raising this issue on
appeal. Appellant chose the latter, and in doing so, failed to properly preserve this issue on
appeal.
Thus, by not raising these issues below and by not giving the trial court an opportunity to
rule, appellant is procedurally barred from raising these issues for the first time on appeal. See
Allen v. Commonwealth, 27 Va. App. 726, 501 S.E.2d 441 (1998) (holding that because
-3-
appellant did not raise whether his nolo contendere plea was voluntary and intelligently given,
the issue was not preserved for appeal).
Although Rule 5A:18 allows exceptions for good cause or to meet the ends of justice,
appellant does not argue that we should invoke these exceptions. See Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). We will not consider such
an argument sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444,
448 (2003) (en banc).3
Thus, we affirm the convictions.
Affirmed.
3
Because we find a procedural default, we do not discuss whether the trial court’s failure
to advise appellant of his appellate rights constitutes denial of due process.
-4-