What happens when a circuit court doesn’t accept a plea agreement but also doesn’t refuse it–and then the parties change their minds?

The Supreme Court of Virginia reversed the Court of Appeals in Thomas v. Commonwealth, determining that courts are not free to enforce a plea agreement that neither party agreed to. The conclusion may seem obvious, but the Court of Appeals had other arguments to rely upon when it affirmed the conviction here (the doctrine of approbate and reprobate, the Circuit Court’s findings, the record, etc.)

Although the facts of this case are fairly unique, the Supreme Court’s review of plea agreements and other legal principles is helpful. The parties initially attempted to enter into one agreement, but the circuit court did not accept or reject the agreement and instead continued the matter, after hearing a “prospective” plea from the defendant. During the course of the Pandemic and after other developments in the case, the parties reached agreement for a misdemeanor instead of a felony. A different judge heard the plea and accepted it and sentenced the defendant. When the original judge found out, however, it stayed the orders and scheduled a hearing.

The procedural history is certainly worth a read, but after a variety of motions and arguments, the Circuit Court vacated the other judge’s orders and “accepted” the defendant’s earlier plea.

Here, the Circuit Court even attempted to insulate its ruling by making a factual finding that the parties had resorted to “gamesmanship.” As we know, factual findings are entitled to deference on appeal. But the Supreme Court found that the only question properly before the Court was one of law, not fact, and thus it could disregard that factual finding.

Takeaways: What lessons can be gleaned?

First, be careful what you wish for. Here, the Court returned the parties to the status quo prior to the agreement–and returned the defendant to face an indictment for an aggravated malicious wounding charge (not the misdemeanor charge the parties had wanted).

Second, words matter. Here, the trial court had never accepted or rejected the plea agreement, and the defendant only indicated that he would in the future agree to enter a plea on an amended charge. These details are important.

Have questions or want to discuss a tricky plea agreement situation? Give me a call.

One of the reasons the defense was successful in this case was the record: it had litigated these issues before the trial court and filed written motions so these issues were preserved. I am happy to assist trial attorneys who are still in Circuit Court who want to put their best case forward on appeal.