by Sam Rutherford

The Supreme Court of Virginia held that a trial court erred by enforcing a plea agreement after the parties had negotiated a new agreement because the first plea was neither accepted nor rejected by the trial court. This case presented yet another legal issue stemming from delays caused by the COVID-19 pandemic that appellate courts across the country have had to resolve.

Background

On September 23, 2019, Tony Thomas was indicted for aggravated malicious wounding as a result of his slashing Eric Smith’s face with a razor knife during a fight. On January 22, 2020, the day trial was set to begin, the parties informed the trial court that they had reached a plea agreement in which Thomas agreed to plead no contest to a reduced charge of unlawful wounding. The trial court released the jury and stated it would set a hearing to accept the plea and sentence Thomas at a later date. Although the court reviewed documents related to the plea, it emphasized that it was not accepting or rejecting the plea at that time. The court did, however, conduct a brief plea colloquy and elicit from Thomas over defense counsel’s objection a tentative plea of “no contest” to the reduced charge.

Before the plea hearing could be held, COVID-19 struck and ground all court proceedings to a halt. The delay also caused difficulties for prosecution witnesses in Thomas’ case. The parties eventually negotiated a new plea wherein Thomas agreed to plead no contest to a misdemeanor assault and battery charge. On May 13, 2020, the parties appeared before a “designate judge” who accepted the plea and sentenced Thomas to 12 months in jail on the misdemeanor charge, with credit for time served. Thomas was released from custody.

A few days later, however, the original trial judge stayed these orders and scheduled another hearing for May 27, 2020. The court was angry with defense counsel and the prosecutor for engaging in what it described as “gamesmanship” for presenting the new plea to a designate judge while the original plea was still under advisement. Both lawyers emphasized that the court had neither accepted nor rejected the plea, so they believed they were free to renegotiate the case as they saw fit and proceed accordingly before a different judge. The trial judge disagreed, noting that he had conducted a plea colloquy with Thomas and accepted a tentative no contest plea from him to the amended charge of unlawful wounding.

The trial court vacated Thomas’ plea to misdemeanor assault and entered a guilty finding on the original no contest plea to unlawful wounding. It did allow Thomas to remain out of custody on bail pending sentencing. Both parties filed motions for reconsideration and to set aside the guilty finding to unlawful wounding, but the court denied these requests. Instead, the court sentenced Thomas to five years in prison, with four years suspended, on the malicious wounding charge, which is a felony. With credit for time served, Thomas remained out of custody.

Thomas timely appealed to the Virginia Court of Appeals, which affirmed in an unpublished opinion agreeing that the parties had engaged in “gamesmanship” and that the original judge had authority to enforce the first plea agreement. The Virginia Supreme Court granted discretionary review and reversed.

Analysis

The Virginia Supreme Court chose to resolve Thomas’ appeal on the “best and narrowest ground” possible, which it defined as “whether a trial court has the authority to enforce a proposed plea agreement that has been expressly withdrawn by the parties prior to its acceptance by the trial court.” Answering this question required the Court to review the role trial judges play in the plea-bargaining process.

Although guilty pleas and plea agreements are often addressed by trial courts “in tandem” and the “line of demarcation between the two has blurred,” they are in fact “separate things altogether, and the latter only becomes operative when the former is taken by a valid process.” This distinction was critical in Thomas’ case.

A plea, which is an “act of the accused,” occurs after he or she has been arraigned on a charge. Although the shift between arraignment and plea is a subtle one often not discernable or appreciated in courtrooms, a plea is not part of the arraignment. Whitehead v. Commonwealth, 60 Va. 640 (1870). A guilty plea is a “self-supplied conviction,” Peyton v. Commonwealth, 169 S.E.2d 569 (Va. 1969), and a defendant who enters a guilty plea waives significant constitutional rights, such as the right to trial by jury, the right against self-incrimination, the right to confront his or her accusers, and the right to require that the prosecution prove its case beyond a reasonable doubt. Allen v. Commonwealth, 501 S.E.2d 441 (Va. App. 1998). As such, a trial judge may only accept a defendant’s guilty plea after assuring itself that the plea has been knowingly and voluntarily made with full understanding of the rights being sacrificed. Gardner v. Warden, 281 S.E.2d 876 (Va. 1981).

Even after a defendant validly pleads guilty, the trial court “must still execute the judgment of conviction following the plea.” Citing Lewis v. Commonwealth, 813 S.E.2d 732 (Va. 2018). Here, the trial court stressed repeatedly that Thomas’ plea of no contest to the unlawful wounding charge was merely “prospective,” and the court never actually accepted his plea at the first hearing. Thus, the trial court had no lawful basis upon which it could execute a judgment of conviction against Thomas on that charge at the subsequent hearing.

Plea agreements are different than guilty pleas. They are an “adjudicative element” of the procedural process addressed by trial courts after accepting a defendant’s guilty plea. Santobello v. New York, 404 U.S. 257 (1971). Criminal Rule 3A:8(c)(2) provides that “if a plea agreement has been reached by the parties, it shall, in every felony case, be reduced to writing, signed by the attorney for the Commonwealth, the defendant, and, in every case, his attorney, if any, and be presented to the court.” Plea agreements may be accepted or rejected by the trial court, or the court may defer this decision until it has had the opportunity to review a presentence report. Rule 3A:8(c)(2).

Under Virginia law, there are three types of plea agreements: (1) where the prosecution moves for dismissal of other charges, (2) where the prosecution makes a sentencing recommendation that is not binding on the trial court, or (3) where the prosecution and defense agree on a specific sentence as an appropriate disposition in the case. See Criminal Rule 3A:8(c)(1). While a plea agreement usually entails the defendant pleading guilty in exchange for sentencing concessions, the agreement “standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.” Mabry v. Johnson, 467 U.S. 504 (1984).

Because plea agreements are essentially contracts between the defendant and the prosecution, Wright v. Commonwealth, 655 S.E.2d 7 (Va. 2008), a trial court’s authority related to them is limited. As the Court explained, a “plea agreement’s transformation from executory agreement to judgment of the trial court takes place once a trial court formally and properly accepts an accused’s plea of guilt and corresponding plea agreement.” And while a trial court is free to reject a plea agreement under Rule 3A:8, it may not “enforce the terms of a plea agreement to which the parties do not actually agree. A trial court’s position in a plea agreement context is that of a ratifier or rejector.”

Thus, when a plea agreement is neither ratified nor rejected by the trial court, and the parties no longer assent to the agreement, basic contract law principles preclude the court from enforcing the agreement because there is no longer mutual assent between the parties. See Phillips v. Mazyck, 643 S.E.2d 172 (Va. 2007) (explaining that mutual assent, an essential component of any contract, is “the meeting of the minds of the parties”). Here, the trial court overstepped its authority by enforcing a plea agreement that Thomas and the prosecutor’s office not only annulled but also both stated was no longer in the interests of justice in light of subsequent developments in the case.

Conclusion

Accordingly, the Court reversed Thomas’ felony conviction for malicious wounding and remanded the case to the trial court for proceedings consistent with its opinion. See: Thomas v. Commonwealth, 901 S.E.2d 44 (Va. 2024).

Editor’s note: Anyone with an interest in the basic legal principles and concepts that govern plea agreements is encouraged to read the Court’s full opinion, which discusses them in considerable detail and will be educational for readers in any jurisdiction.

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