Small v. Commonwealth, 788 S.E.2d 702

Background

Small pleaded guilty (Nov 10, 2010) to possession of a firearm after a felony conviction after police found a Lorcin .380 in a trash can outside a residence; Small’s DNA was on the gun.
Small had been shot four days before the possession charge; the shooter remained at large at the time of the plea but was later convicted.
Sentencing was repeatedly continued; nearly 2 years 8 months after pleading guilty Small filed a pre‑sentence motion (June 18, 2013) to withdraw his plea, asserting a necessity/self‑defense justification tied to the shooter’s later conviction.
The trial court denied the motion, finding that the lengthy delay (about 4.5 years by hearing) prejudiced the Commonwealth and that details relevant to the justification defense could no longer be reliably developed at trial.
The Court of Appeals affirmed by per curiam order; the Virginia Supreme Court likewise affirmed, holding the trial court did not abuse its discretion and that Small lacked a reasonable necessity defense.

Issues

Issue	Small's Argument	Commonwealth's Argument	Held
Whether Small should be allowed to withdraw his pre‑sentence guilty plea based on an honest mistake of fact and to assert necessity	Small argued he pleaded guilty under an honest mistake and would have instead asserted necessity/self‑defense once the shooter’s conviction provided evidence supporting his fear	The Commonwealth argued the long delay and resulting prejudice made withdrawal inappropriate and that Small lacked a viable necessity defense	Denied — trial court did not abuse discretion in refusing withdrawal
Whether prejudice to the Commonwealth from delay is a permissible factor in deciding pre‑sentence plea withdrawal	Delay was justified because Small needed the shooter’s conviction to support his defense	The Commonwealth argued delay caused undue prejudice and impeded fair trial preparation	Allowed — court expressly recognizes prejudice to Commonwealth as a relevant factor and held prejudice here outweighed equities favoring withdrawal
Whether Small had a reasonable (imminent‑threat) necessity/self‑defense defense to possession	Small claimed he reasonably feared imminent harm because he had been shot four days earlier and the shooter was at large	The Commonwealth: fear was generalized; no evidence of imminent threat, threats, or contemporaneous attack at time of possession	Held: No reasonable defense — generalized fear insufficient; no imminent threatened harm shown
Whether plea was uninformed/inadvised such that withdrawal or vacatur is required	Small argued the plea was inadvised and counsel misadvised him about presenting a necessity defense	Commonwealth maintained lack of reasonable defense and prejudice justified denial; court noted issue unnecessary to decide	Not addressed on merits — court declined to reach because it found no reasonable defense

Key Cases Cited

Parris v. Commonwealth, 189 Va. 321, 52 S.E.2d 872 (1949) (standard: allow withdrawal pre‑sentence for honest mistake of material fact)
Justus v. Commonwealth, 274 Va. 143, 645 S.E.2d 284 (2007) (distinguishes pre‑sentence motions from post‑sentence motions and standards)
Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001) (permitting necessity/duress defense where defendant was under direct attack)
Buckley v. City of Falls Church, 7 Va. App. 32, 371 S.E.2d 827 (1988) (elements for duress/necessity defense)
McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 (1978) (self‑defense as law of necessity; fear must be of death or serious bodily harm)
Commonwealth v. Sands, 262 Va. 724, 553 S.E.2d 733 (2001) (imminence requires immediate, real threat)
United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989) (generalized fear months after shooting insufficient to show present or imminent threat)