Kerry Lee Winslow v. Commonwealth of Virginia, 749 S.E.2d 563

Background

Winslow was charged with grand larceny of a firearm and possession of a firearm by a convicted felon; mid-trial he negotiated an oral plea agreement and pled guilty to both counts.
The parties recited the plea terms on the record in open court; the trial judge conducted an extensive colloquy confirming the plea was knowing and voluntary.
The court reporter transcribed the entire proceeding verbatim; the court accepted the pleas, entered final judgment, and imposed the stipulated sentences.
Winslow did not object in the trial court that the plea agreement was not reduced to a signed writing as required by Rule 3A:8(c)(2).
On appeal Winslow argued for the first time that the absence of a signed, written plea agreement violated Rule 3A:8(c)(2), rendering the conviction void ab initio, or alternatively excused by the ends-of-justice exception to Rule 5A:18.

Issues

Issue	Plaintiff's Argument (Winslow)	Defendant's Argument (Commonwealth)	Held
Whether acceptance of an oral, transcribed plea that was not reduced to a signed writing violated Rule 3A:8(c)(2) such that the conviction is void ab initio	Rule 3A:8(c)(2) requires plea agreements be reduced to writing and signed; the absence of signatures/written agreement renders the conviction void and reviewable despite procedural default	Rule 3A:8(c)(2) is a procedural rule; its violation does not strip the court of subject-matter jurisdiction and thus does not make the order void ab initio	The court held the Rule’s formalities are procedural, not jurisdictional; any violation would make the order voidable, not void ab initio
Whether the ends-of-justice exception to Rule 5A:18 excused Winslow’s failure to raise the Rule 3A:8(c)(2) objection below	The irregularity was sufficiently serious to invoke the ends-of-justice exception and permit appellate review	The irregularity did not demonstrate a grave injustice, conviction of non-criminal conduct, or affirmative proof of innocence; the exception is narrow and not met here	The court held the ends-of-justice exception did not apply; Winslow’s failure to preserve the claim in the trial court bars raising it on appeal
Whether a verbatim transcript of the oral plea can satisfy the “reduced to writing” requirement of Rule 3A:8(c)(2)	(Implied) A complete, preserved transcript should satisfy the writing requirement	(Implied) Unclear but procedural defects do not automatically vitiate pleas absent prejudice	The court expressed doubt but declined to decide whether the transcript satisfied the writing requirement; the case was resolved on preservation grounds
Whether absence of signatures alone justified relief despite an unchallenged voluntary plea	Signatures missing; hence plea invalid	Missing signatures are a technical defect that did not affect voluntariness, accuracy of the record, or show prejudice	The court held the lack of signatures was, at most, a procedural defect that did not establish grave injustice or innocence and thus provided no basis for relief on appeal

Key Cases Cited

Kelley v. Stamos, 285 Va. 68 (distinguishing void and voidable orders)
Wright v. Commonwealth, 52 Va. App. 690 (void-ab-initio doctrine and collateral attack)
Singh v. Mooney, 261 Va. 48 (void orders may be attacked anytime)
Gheorghiu v. Commonwealth, 280 Va. 678 (ends-of-justice exception applied to void sentences)
Gordon v. Commonwealth, 61 Va. App. 682 (application of ends-of-justice exception)
United States v. Timmreck, 441 U.S. 780 (rule violations governing guilty pleas are procedural, not jurisdictional)
Thacker v. Hubard, 122 Va. 379 (judicial power derives from constitution/legislature, not court rules)
Hairston v. Commonwealth, 16 Va. App. 941 (Rule 3A:8 is procedural, not jurisdictional)