Damien Cameron Spencer v. Commonwealth of Virginia
68 Va. App. 183
| Va. Ct. App. | 2017Background
- Damien Spencer was indicted after nude photos of a 16‑year‑old were found on his cell phone pursuant to a search warrant.
- Spencer waived arraignment and pleaded nolo contendere to four felony counts relating to procuring, transmitting, possessing, and soliciting child pornography.
- The Commonwealth proffered evidence, including Spencer’s admission that he took screenshots and saved the images; the trial court accepted the pleas as voluntary and intelligent.
- Before sentencing, Spencer obtained new counsel and moved to withdraw his pleas, asserting the phone search was supported by an invalid warrant and that prior counsel failed to advise him of a suppression motion.
- At the withdrawal hearing Spencer offered no affidavits, documents, testimony, or the warrant itself; prior counsel, present in court, did not testify.
- The trial court denied the motion, characterizing prior counsel’s failure to file a suppression motion as trial strategy and relying on the plea colloquy; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant should be allowed to withdraw pre‑sentencing nolo contendere pleas | Spencer: pleas should be withdrawn because evidence from an invalid search warrant should have been suppressed | Commonwealth: Spencer failed to proffer prima facie evidence of a reasonable defense or supporting facts | Denied — Spencer failed to meet burden to show a reasonable, prima facie defense or provide supporting evidence |
| Whether failure of prior counsel to move to suppress required withdrawal | Spencer: prior counsel did not advise him about a suppression motion | Commonwealth: counsel’s inaction was trial strategy and unsupported by testimony or affidavit | Trial court permissibly treated it as trial strategy; appellate court found no abuse of discretion |
| Role of plea colloquy in assessing withdrawal motion | Spencer: court erred by relying on plea colloquy instead of considering proffered factual claims | Commonwealth: plea colloquy established Spencer’s understanding; no factual proffer contradicted it | Court may rely on plea colloquy where no supporting contrary evidence is offered |
| Burden to show reasonable defense for withdrawal | Spencer: relied on legal challenge to warrant sufficing to show reasonable defense | Commonwealth: legal claim alone insufficient without factual proffer (warrant, phone records, testimony) | Defendant must proffer sufficient facts or credible testimony/affidavit to establish prima facie reasonable defense; Spencer did not |
Key Cases Cited
- Justus v. Commonwealth, 274 Va. 143 (explains standards for allowing pre‑sentencing withdrawal of guilty pleas)
- Hernandez v. Commonwealth, 67 Va. App. 67 (clarifies trial court must determine if defendant made prima facie showing of reasonable defense rather than resolving credibility)
- Pritchett v. Commonwealth, 61 Va. App. 777 (standard of review and factors for withdrawal motions)
- Coleman v. Commonwealth, 51 Va. App. 284 (trial court not required to automatically grant pre‑sentencing withdrawal; defendant must proffer evidence)
- Jefferson v. Commonwealth, 27 Va. App. 477 (appellate standard for reversing denial of withdrawal)
- Edmonds v. Commonwealth, 292 Va. 301 (defendant failed to prove reasonable defense where record lacked sufficient proffer)