Bottoms v. Com.Bottoms v. Com.
In this appeal, we consider whether the circuit court erred in failing to permit William D. Bottoms to withdraw a guilty plea to two counts of construction fraud.1 Bottoms contends that the court abused its discretion by applying an incorrect standard to determine whether he should be permitted to withdraw his plea pursuant to
BACKGROUND
On May 14, 2007, the Dinwiddie County Grand Jury indicted Bottoms for two counts of construction fraud in violation of
The circuit court conducted a guilty plea colloquy in which Bottoms stated that he understood the charges against him, though the specific elements of the offense of construction fraud were not recited at that time. Bottoms stated that he had committed the offenses for which he was charged, and that he was in fact guilty of these offenses. Bottoms further stated that he had consulted with his attorney for “[a]bout two or three hours” and that he had determined to plead guilty based upon his “conference with her.”
After a discussion with the Commonwealth concerning the range of sentencing for the offenses, the circuit court indicated that the plea agreement required that Bottoms be released on bond pending the preparation of the presentence report, ostensibly so that he could attempt to arrange for restitution to the victims, but it contained no recommendation concerning sentencing. The court then continued with the guilty plea colloquy, asking Bottoms if he understood that the
The Commonwealth then proffered the evidence it would have adduced in support of the construction fraud offenses. That proffer showed that Bottoms had entered into two separate contracts to renovate a home and a church in Dinwiddie County. With regard to the home renovation, the proffered evidence was that Bottoms had undertaken the work but performed it poorly, and as a result the homeowner was “out” $1,642. With regard to the church renovation, the proffered evidence was that Bottoms had begun work on the project by purchasing materials and hiring laborers, but before the project was complete the building inspector determined that Bottoms did not have the proper class of contractor‘s license to perform work of that scale and that the work done to that point did not meet the requirements of the building code. A qualified contractor was hired to supervise the work, but Bottoms “disappeared from the
During the continuance, Bottoms retained new counsel who filed a motion on May 15, 2008 seeking to permit Bottoms to withdraw his guilty plea pursuant to
On June 25, 2008, the circuit court convened a hearing to receive the presentence report and evidence concerning sentencing. At the outset of the hearing, Bottoms’ counsel indicated that he was not ready to proceed because of the pending motion to withdraw the guilty plea. Although the mental health counselor from the jail was present and available to testify, counsel maintained that another witness, the psychiatrist who had treated Bottoms while he was in jail, was not present. Counsel maintained that the testimony of the psychiatrist was necessary to establish that Bottoms had not
Bottoms’ counsel then asserted that “after subsequent research I think that Mr. Bottoms has some very real defenses.” The circuit court observed, “Maybe he has all kinds of defenses, but he waives those when he comes to court and announces ready and pleads guilty.” Counsel responded that the procedure under
The Commonwealth opposed the motion to withdraw the guilty plea, contending that Bottoms had already received the benefit of the plea agreement in that he had been allowed to post bond pending sentencing, but that he had failed to make restitution during the time the case had been continued. The Commonwealth further contended that Bottoms’ responses during the guilty plea colloquy had been “clear[,] concise[, and] not confused.” Bottoms’ counsel responded that the plea agreement had not really provided any benefit as it did not provide for any agreed or recommended sentence. He further reiterated his position that there were “real defenses” to the charges because the evidence would show a lack of intent to defraud.
The circuit court overruled the motion to withdraw the guilty plea, finding that Bottoms had failed to establish “any good cause.” The court opined that in its view “[t]his is just a case where the defendant has changed his mind and wants to back pedal and undo that which has been done.” However, the court agreed to continue the sentencing hearing, stating that it would permit Bottoms “to have the psychiatrist . . . testify about what is wrong with him and why it should mitigate the punishment.”
In the motion for reconsideration, Bottoms further contended that “there was no factual basis for the [circuit c]ourt to accept the guilty plea[].” Bottoms contended that the proffer of evidence by the Commonwealth showed that he lacked the requisite intent to defraud at the time he entered into the two renovation contracts and received advance payment for the purchase of supplies and labor. Relying upon Justus v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007), Bottoms contended that he had satisfied the criteria for being permitted to withdraw his guilty plea under
At a hearing on September 4, 2008, Bottoms’ counsel indicated that he was prepared to go forward with sentencing, but asked the circuit court first to rule on the motion for reconsideration. Because the court was unaware that the
At a sentencing hearing on January 7, 2009, the Commonwealth called various witnesses including the building inspector who had directed Bottoms to stop work on the church project that was the subject of one of the construction fraud charges, representatives of the church, and the owner of the home that was the subject of the other construction fraud charge. During his examination of these witnesses, without objection from the Commonwealth, Bottoms’ counsel elicited testimony establishing that Bottoms had purchased materials, hired laborers, and performed work on both projects, completing all of the work on the home and approximately half of the work on the church, though the witnesses maintained that the quality of the work was unsatisfactory.
Bottoms also called Dr. Vernon Choudhary, the psychiatrist who had treated him while he was incarcerated. Although Dr. Choudhary had no current recollection of his treatment of Bottoms, he was permitted to testify based upon
In an order dated February 4, 2009, the circuit court sentenced Bottoms to ten years imprisonment for each of the construction fraud offenses to run concurrently, with eight years suspended from each concurrent sentence. Bottoms was also required to make restitution in the amount of $26,150 and pay $1,130 in court costs.
Bottoms subsequently filed a petition for appeal to the Court of Appeals, contending that the circuit court erred in denying his motion to withdraw his guilty plea. Bottoms also maintained that the court had applied an incorrect standard by finding that the guilty plea colloquy established that his plea had been knowing and voluntary, thus waiving any later claim of a defense. Bottoms contended that in applying this standard, the court failed to follow this Court‘s holding in Justus, which required the court to weigh the defendant‘s responses in the guilty plea colloquy against the assertion that the plea had been entered into under a misapprehension of the nature of the proceedings, or even an assertion that the
By an unpublished per curiam order dated September 9, 2009, the Court of Appeals denied Bottoms’ petition for appeal. Without directly addressing Bottoms’ contention that the circuit court had applied an incorrect standard in denying his motion to withdraw his plea, the Court reasoned that Bottoms “invited the very error of which he complains” by failing to advise the circuit court during the guilty plea colloquy that he was suffering from depression. Bottoms v. Commonwealth, Record No. 0117-09-2, slip. op. at 2 (September 9, 2009). The Court concluded that by subsequently asserting that he had not fully comprehended the nature of the plea hearing because of his depression and the failure of the jail personnel to provide him with medication, Bottoms was attempting to “approbate and reprobate.” Id., slip op. at 3.
The Court of Appeals further concluded that even if Bottoms could establish that he had been under a disability when he entered his guilty plea, he had not established that he could present a defense that was not merely dilatory or formal in nature. Distinguishing Justus, where the defendant had asserted “strong, specific arguments” in support of a defense of legal impossibility because she had been charged
DISCUSSION
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.
Bottoms contends that the circuit court‘s conclusion that the guilty plea colloquy “reveal[ed] a knowing and voluntary guilty plea with knowledge of the consequences” and, thus, barred him from seeking to withdraw his plea and assert any
In Justus, we said that reliance upon “admissions made by a defendant in a guilty plea and the attendant colloquy . . . is misplaced in the context of a
In this case, it is manifest that the circuit court‘s analysis of Bottoms’
Rather, as we explained in Justus,
in exercising its discretion to grant or deny a
Code § 19.2-296 motion made prior to the entry of a final sentencing order, the trial court is to make that determination based on the facts and circumstances of the particular case. And, generally, the withdrawal of a guilty plea should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. Thus, the motion should be granted even if the guilty plea was merely entered inadvisedly when the evidence supporting the motion shows that there is a reasonable defense to be presented to the judge or jury trying the case.
Our decision in Justus was based upon our holding in Parris, 189 Va. at 324, 52 S.E.2d at 873, in which we explained that “the motion should not be denied, if timely made, and if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fact or facts, or if it was induced by fraud, coercion or undue influence and would not otherwise have been made.” We further explained that ” ‘[t]he least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty.’ ” Id. at 325 (quoting 14 Am. Jur., Criminal Law, § 287 at 961 (1938)). Thus, a timely motion to withdraw a plea of guilty should be granted if there is good cause to believe that ” ‘it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect;
Bottoms’ motion to withdraw the guilty plea was clearly filed in a timely manner, over one month before his scheduled sentencing hearing. The record in this case amply demonstrates that Bottoms’ plea of guilty was, at the very least, entered inadvisedly. Under the proper standard from Justus, 274 Va. at 154, 645 S.E.2d at 289, we held that the defendant seeking to withdraw a plea of guilty entered inadvisedly must assert that he will be able to present a “reasonable defense” to the trier of fact, id., while recognizing that the trial court should not use the discretion granted by the statute “in aid of an attempt to rely upon a merely dilatory or formal defense.” Id. at 153, 645 S.E.2d at 288 (internal quotation marks and citations omitted). The circuit court in this case did not consider whether Bottoms’ proffered defense was reasonable, and not “merely dilatory or formal.” However, the Court of Appeals implicitly found that the proffered defense was not reasonable because it was “vague.” We disagree with this characterization of Bottoms’ proffered defense, especially in light of the testimony received during the sentencing hearing with regard to the
We recognize that a defendant may possess the requisite intent to commit construction fraud even though he begins to perform on the contract after receiving the advance payment, but later abandons the work. Holsapple, 266 Va. at 601, 587 S.E.2d at 566. Such intent may even be shown where the contract is actually completed, but the quality of the work is so poor that the trier of fact may infer that the defendant entered into the contract with the deliberate, fraudulent
Bottoms asserted in the circuit court that he could rebut the Commonwealth‘s allegation that he was guilty of construction fraud by showing that at the time he entered into the contracts, he fully intended to perform the work, he fully performed the contract for renovation of the home, and he stopped work on the renovation of the church when it was approximately half complete merely because it was determined that he was not properly licensed to perform the work and was not following the proper building code requirements. There is nothing “vague” or merely “formal” in the asserted defense of lack of intent to defraud. Nor does the record support that Bottoms was dilatory in making this claim, as there is no clear indication that at the time of the guilty plea colloquy Bottoms actually understood the specific elements of the offense of construction fraud. Rather, there was an affirmative averment that he learned of the availability of this defense only after his new counsel had performed additional research. The asserted defense, if proven, would
CONCLUSION
For these reasons, we hold that the circuit court erred in not permitting Bottoms to withdraw his guilty plea in order to have the case to go forward to trial. Accordingly, the judgment of the Court of Appeals affirming that judgment will be reversed. The case will be remanded to the Court of Appeals with instruction to remand to the circuit court where Bottoms shall be permitted to withdraw his guilty plea and the case shall proceed to trial if the Commonwealth be so advised.
Reversed and remanded.