SCoVA decides important, but somewhat boring, jurisdictional question
In a decision that is of interest to lawyers and probably boring to everyone else, SCoVA held that the filing a notice of appeal does not divest the trial court of its jurisdiction to consider a defendant’s post-trial motion to withdraw a guilty plea under Virginia Code § 19.2-296 in Velazquez v. Commonwealth of Virginia. (PDF of slip opinion available here.)
Mr. Velazquez was charged with computer solicitation of a child in violation of Virginia Code § 18.2-374.3 and attempted indecent liberties with a minor in violation of Virginia Code 18.2-370. During his hearing,he was represented by counsel with the aid of a Spanish interpreter. He signed a guilty plea questionnaire and a written plea agreement. Under that plea agreement, he pleaded guilty to solicitation of a child minor and the Commonwealth agreed to nolle prosequi the charge of attempted indecent liberties. After conducting a “thorough” plea colloquy, the trial court sentenced him to 15 years of imprisonment with 10 years suspended.
Five days later, Mr Velazquez submitted a pro se notice of appeal in the form of a hand-written note. He wrote that he wished to appeal his conviction and its sentence of five years. He explained that even though he had a Spanish interpreter and assistance of counsel they “both spoke very fast” and that he felt he signed the plea deal out of fear and anxiety. He went on to claim that he did not understand he was signing a plea bargain for five years.
Twelve days after that, the trial court entered its order sentencing Velazquez in accordance with the plea agreement. But in light of Mr. Velazquez’s note, the trial court also appointed him new counsel. His new counsel immediately filed a notice of appeal and a motion to withdraw his guilty plea pursuant to VA Code § 19.2-296.
After the motions hearing, the trial court raised the question of jurisdiction on its own. The judge explained that filing a Notice of Appeal perfects the appeal to the Virginia Court of Appeals and once that happens the trial court has no power to render any further decisions.
The Commonwealth, when asked for its opinion on the issue, stated that it believed the manifest injustice rule allowed the trial court to maintain its jurisdiction even with the filing of an appeal. After a brief recess, Velazquez’ attorney argued that the trial court still had jurisdiction to act because there was no statutory prohibition and cited Ghameshlouy v. Commonwealth, 279 VA. 379, 689 S.E.2d 698 (2010) for the proposition that the notice of appeal did not deprive any other courts of jurisdiction.
Nonetheless, the trial court concluded that it lacked jurisdiction and that, even if it did not, that Velazquez had not shown there was a “manifest injustice” that would merit withdrawal of his plea.
Mr. Velazquez noted his objection and filed his petition with the Court of Appeals which denied the appeal in an unpublished per curiam opinion. Specifically, it held that the trial court was divested of jurisdiction when Mr. Velazquez filed his notice of appeal.
The Supreme Court of Virginia granted Velazquez’ appeal to address the interplay between the filing of a notice of appeal and the motion to withdraw a guilty plea.
The jurisdictional question is, as any attorney knows, a question of law reviewed de novo. Henderson v. Ayers & Hartnett, P.C., 285 Va. 556, 563, 740 S.E.2d 518, 521 (2013), Country Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402, 410, 634 S.E.2d 745, 750 (2006). SCoVA explained that filing the notice did not divest the trial court of jurisdiction because the plain language of the rule gives a trial court 21 days from the entry of its final order to consider any motions to withdraw a guilty plea and to set aside the judgement of conviction and permit a defendant to withdraw his plea.
It also noted that the question of when an appellate court obtains jurisdiction over a case is a separate question from whether a trial court loses its jurisdiction over a case. “The fact that an appellate court has obtained jurisdiction over an appeal does not necessarily divest a trial court of all jurisdiction to act upon certain matters.” Particularly when there is an explicit statute or rule that grants authority to act.
In Mr. Velazquez’ case, the motion to withdraw his guilty plea was filed and heard within the 21-day period provided by the statutory rule so the trial court and the Court of appeals erred in holding that there was no jurisdiction to consider the motion.
But SCoVA went on to consider whether Mr. Velazquez had met the manifest injustice test required by the rule and held that he had not. It was not an abuse of discretion to deny the motion because there was a lengthy colloquy on the record which supported a finding that Mr. Velazquez understood the charges and voluntarily entered into the plea agreement. Accordingly, SCoVA affirmed the Court of Appeals decision as the right result for the wrong reason.