Opinion
Record No. 1496-91-1
October 27, 1992
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH ALAN E. ROSENBLATT, JUDGE.
Bobby W. Davis, for appellant.
Thomas C Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
On May 7, 1991, Bernard Gilchrist (defendant) was convicted by the trial court on pleas of guilty to three felony indictments. Following the preparation of a presentence report, defendant was sentenced on July 16, 1991. Defendant thereafter noted an appeal to this Court, complaining that the "guilty plea could not have been made freely and voluntarily." However, this argument was not raised before the trial court and is barred on appeal.
The record discloses that, after pleading guilty to each indictment, but prior to a finding by the trial court, defendant requested an opportunity to "talk to [his] lawyer." Defendant's counsel then advised the court that it "appear[ed] there may have been a change of plans" and defendant wished to "withdraw his plea." Before ruling, the court permitted defendant to consult further with his counsel. The trial court first admonished defendant that, if he changed his plea, "these cases will be tried with" and "he'll be sentenced by a jury," "even if he . . . wants to plead guilty." After meeting with defendant, counsel informed the court that defendant had "decided to continue on with his guilty plea." The trial judge then offered defendant "two choices," either "plead guilty . . . or take a jury trial." Defendant elected "to plead guilty," and apologized for "all the inconvenience."
The trial court concluded the numerous inquiries of defendant necessary to "a plea of guilty," Rule 3A:8(b), and expressly determined that defendant "understood the . . . charge and the consequences of his pleas," which were "entered freely, intelligently and voluntarily." Defendant was then found guilty "as charged in the indictments," with "sentencing" delayed pending the preparation of a presentence report. At the sentencing hearing, defendant again personally appeared before the trial court, accompanied by counsel, and presented evidence and argument in support of a lenient disposition.
Defendant now asserts that he was "not sure" of his pleas and asserts that he "decided to resume his guilty plea" only after the court threatened to "force" a not guilty plea, "request a jury trial and impose the jury's recommendation as to sentence." Under such circumstances, defendant contends it "would be impossible" for the Commonwealth "to show that defendant pled guilty freely and voluntarily." Beaver v. Commonwealth, 232 Va. 521, 526, 352 S.E.2d 342, 345 (1987), cert. denied, 483 U.S. 1033 (1987); Graham v. Commonwealth, 11 Va. App. 133, 139-40, 397 S.E.2d 270, 273-74 (1990); see Mason v. Commonwealth, ___ Va. App. ___, ___, 419 S.E.2d 856, 858 (1992).
Defendant, however, failed to present this argument to the trial court at any time during the proceedings, and Rule 5A:18 requires that the trial judge be given "the first opportunity to rule on disputed evidentiary and procedural questions."Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). A matter not in issue before the trial court will not be considered for the first time on appeal, Rule 5A:18;Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991), and no exception is afforded for constitutional claims. Superintendent v. Hayes, 215 Va. 122, 123-24, 207 S.E.2d 823, 824 (1974).
While this Court will "notice error for which there has been no timely objection . . . when necessary to satisfy the ends of justice," Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989), the record must "affirmatively show that a miscarriage of justice has occurred, not . . . that a miscarriage might have occurred." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). Our review of the record discloses no miscarriage of justice in the instant case.See Jimenez v. Commonwealth, 241 Va. 244, 248-49, 402 S.E.2d 678, 680 (1991).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.