Robert Dwayne Armstrong v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, McClanahan and Petty ROBERT DWAYNE ARMSTRONG

MEMORANDUM OPINION* BY v. Record No. 2102-05-3 JUDGE ROBERT J. HUMPHREYS

DECEMBER 28, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY

Henry A. Vanover, Judge

Bruce H. Russell, II (Bolling, Hearl & Russell, on brief), for appellant.

J. Robert Bryden, II, Assistant Attorney General (Robert F.

McDonnell, Attorney General; Steven R. McCullough, Deputy State Solicitor General, on brief), for appellee.

Robert Dwayne Armstrong (“Armstrong”) appeals1 his conviction of three counts of unlawful carnal knowledge, in violation of Code § 18.2-63.2 Armstrong contends that the trial court erred in convicting him of two counts of unlawful carnal knowledge because he now claims that the victim testified at the preliminary hearing that she was actually fifteen years of age at the time of the offense.3 Armstrong argues that because the statute “deals with children who are ‘under the age of 15,’” it was “improper of the court to convict him of the offense.” For the following reasons, we disagree and affirm the conviction.

BACKGROUND

On appeal, we view the evidence “in the light most favorable to the Commonwealth and grant all reasonable inferences fairly deducible therefrom.” Ellis v. Commonwealth, 29 Va. App. 548, 551, 513 S.E.2d 453, 454 (1999). So viewed, the evidence established the following.

Armstrong was indicted on two counts of rape, in violation of Code § 18.2-61, and one count of unlawful carnal knowledge, in violation of Code § 18.2-63. Pursuant to a plea agreement, the Commonwealth agreed to amend the indictments to reflect three counts of unlawful carnal knowledge, in violation of Code § 18.2-63. In return, Armstrong agreed to plead guilty to all three counts.

On August 27, 2004, Armstrong pled guilty and stipulated to the Commonwealth’s evidence as proffered by the prosecutor. Specifically, Armstrong agreed that the evidence proved that both victims were between the ages of thirteen and fifteen at the time of the offenses.4 The court sentenced Armstrong to serve a total of 30 years (10 years for each count), with 20 years suspended. Armstrong now appeals.

ANALYSIS

On appeal, Armstrong contends that because the victim’s testimony at the preliminary hearing indicated that she was actually fifteen at the time of the offense, the trial court erred in convicting him under Code § 18.2-63. We disagree.

We need not reach the question of whether Armstrong’s agreement to the evidentiary stipulation, which he asserts is in conflict with the victim’s testimony at the preliminary hearing, constitutes trial court error. Specifically, “the introduction of evidence to sustain a conviction upon a guilty plea is [] unnecessary in any criminal case,” as a “‘plea of guilty, accepted and entered by the court, is a conviction or the equivalent of a conviction of the offense to which it is directed.’” Kibert v. Commonwealth, 216 Va. 660, 664, 222 S.E.2d 790, 793 (1976) (quoting Crutchfield v. Commonwealth, 187 Va. 291, 296, 46 S.E.2d 340, 342 (1948)). Moreover, “it is a waiver of all defenses other than those jurisdictional.” Peyton v. King, 210 Va. 194, 196, 169 S.E.2d 569, 571 (1969). Thus, “[w]here a conviction is rendered upon such a plea and the punishment fixed by law is in fact imposed in a proceeding free of jurisdictional defect, there is nothing to appeal.” Id.

In this case, Armstrong contends that because the victim testified during the preliminary hearing that she was fifteen at the time of the offense, the evidence failed to prove an element of the offense for which he was convicted. Stated differently, Armstrong contends that the evidence was insufficient to support his conviction for two counts of unlawful carnal knowledge, in violation of Code § 18.2-63.5

However, Armstrong fails to recognize that by entering a knowing, voluntary, and intelligent plea of guilty, he supplied all of the evidence necessary to support his conviction. See Hobson v. Youell, 177 Va. 906, 912-13, 15 S.E.2d 76, 78 (1941) (“Generally no evidence of guilt is required in order to proceed to judgment [upon a plea of guilty], for [the] accused has himself supplied the necessary proof.”).6 He also fails to recognize that a voluntary and intelligent guilty plea, accepted by the court, bars him from attacking his conviction based on any non-jurisdictional grounds. See Beaver v. Commonwealth, 232 Va. 521, 526, 352 S.E.2d 342, 345 (1987). As such, Armstrong may not now appeal his conviction based on insufficiency of the evidence. Accordingly, we hold that the trial court did not err in finding Armstrong guilty of unlawful carnal knowledge, in violation of Code § 18.2-63.

Affirmed.