Opinion
Criminal Docket NO. CR18-2055 Criminal Docket NO. CR19-258
06-29-2020
COMMONWEALTH OF VIRIGNIA v. KYDON D. TAYLOR
ORDER PERMITTING WITHDRAWAL OF GUILTY PLEA
This matter comes before the Court on Defendant Kydon Taylor's motion to withdraw his guilty plea to Second Degree Murder, Use of a Firearm in Commission of a Felony, Attempt to Commit Robbery, and Conspiracy to Commit Robbery. On June 10, 2020, the Court conducted an evidentiary hearing on the matter. After reviewing the hearing transcript and the parties' briefs, the Court GRANTS the motion for the reasons stated herein.
Background
On April 11, 2019, eighteen-year-old Kydon Taylor pleaded guilty to two counts of Use of a Firearm in Commission of a Felony, Attempted Robbery, Conspiracy to Commit Robbery, and Second-Degree Murder pursuant to a Plea Agreement with the Commonwealth. Along with the Plea Agreement, Taylor signed a Stipulation of Facts that set forth the following evidence that the Commonwealth would have presented at trial: When police arrived at the scene of the crime, the victim "was conscious and advised he was shot by 2 young males while across the street." (Commonwealth's Stipulation of Facts 1.) "Erin Kirby described a conversation she overheard earlier [on the evening of the alleged crime] in which her brother Jessie said that their cousin 'C.J[.]' [Charles Poff, Taylor's codefendant] and his friend [Taylor] were trying to rob Moochie [the victim]." (Id.) Taylor "confessed to being present when the plan was discussed" and "said he had been picked up by Poff, Jessie Kirby and Trevon Myricks." (Id.) While driving to the Kirby residence, Taylor saw two guns and knew that Jessie Kirby "contacted the victim to purchase marijuana and directed the victim to the spot across from his house." (Id. at 2.) Taylor confessed to knowing both about the plan to rob the victim and that Poff had a weapon on his person. (Id.) Then, "[h]e accompanied Poff across the street to the meeting location." (Id.) "Taylor denies shooting the victim." (Id.)
At the guilty plea hearing, the Court confirmed that Taylor had discussed with his attorney the charges against him, discussed the possible defenses available to him and whether he should plead guilty; confirmed that he had made his own decision about pleading guilty freely and without coercion or intimidation; and agreed that he chose to plead guilty because he is guilty. (Hr'g Tr. 6:10-7:21, Apr. 11, 2019.) His attorney, Melinda Seemar, informed the Court that she and Taylor "had many conversations" regarding "accomplice liability and what first-degree and second-degree principals are." (Id. at 7:22-24.) She stated that, "[b]ecause he didn't pull the trigger, he continues to have problems with that, but I think he understands that, looking at the accomplice liability, there are . . ." (Id. at 7:25-8:2.) Ms. Seemar did not finish her thought. The Court asked Taylor, "[i]s there anything about accomplice liability that you don't understand that you want Ms. Seemar or me to explain to you?" (Id. at 8:17-19.) He responded, "No, Your Honor." (Id. at 8:20.) The Court ultimately found that Taylor entered his plea agreement "freely and intelligently with an understanding of these charges and the consequences of pleading guilty to the charges" and found him guilty of all five charges. (Id. at 10:3-15.)
The Court set sentencing for July 12, 2019. Sentencing was continued several times, in part because of Ms. Seemar's withdrawal and the appointment of B. Thomas Reed as new counsel. Mr. Reed agreed to set Taylor's sentencing on December 20, 2019.
On December 18, 2019, Mr. Reed filed the instant motion, arguing that the Court should let Taylor withdraw his guilty plea because he "was never advised by counsel or the court th[at] mere presence and consent alone does not constitute one a principal in the second degree." (Mot. Withdraw Guilty Plea 1.) He contends that the "Commonwealth's evidence, at most, would prove defendant was present when others discussed robbing the victim and that the defendant was present when the victim was shot and killed." (Id.) Mr. Reed alleges that Taylor's prior counsel never advised him that this "is not in and of itself sufficient to convict the defendant as a principal in the second degree or one acting in concert with the principal in the first degree." (Id. at 2.)
If the Court grants his motion, Taylor plans to assert the defense that he "did not participate in the plan and decision to rob the victim and that he did not act in concert with the principal in the first degree, and that shooting the victim was not an incidental probable consequence of the plan to rob the victim" (Id.) In his supporting memorandum, Mr. Reed reiterates that Taylor's confession that he was "'present when the plan was discussed,'" "'knew the plan was to rob the victim,'" and "'accompanied [the codefendant] across the street to the meeting location' . . . constitute no more than presence and consent, which does not constitute one a principal in the second degree." (Mem. Law & Fact Supp. Mot. Withdraw Guilty Plea 3.)
Legal Standard
Virginia Code § 19.2-296 provides that:
[a] motion to withdraw a plea of guilty . . . may be made only before sentence is imposed . . . 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."[T]he statute does not expressly provide the standard by which a trial court is to determine whether to grant a motion to withdraw a guilty plea when . . . the motion is made before sentence has been imposed." Justus v. Commonwealth, 274 Va. 143, 153 (2007). In Justus, the Supreme Court of Virginia relied on the seminal case of Parris v. Commonwealth, 189 Va. 321 (1949) and provided that standard when it held that a trial court should not deny a pre-sentencing motion to withdraw a guilty plea "where it is in the least evident that the ends of justice will be subserved by permitting" a defendant to withdraw his guilty plea. Justus, 274 Va. at 153 (quoting Parris, 189 Va. at 325); see also Parris, 189 Va. at 325 ("The 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.").
A court should ordinarily allow a defendant to withdraw a guilty plea:
if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to the jury.Parris, 189 Va. at 325. In other words, a trial court should permit a defendant to withdraw a guilty plea "entered [i]nadvisedly when application thereof is duly made in good faith and sustained by proofs, and a proper offer is made to go to trial on a plea of not guilty." Justus, 274 Va. at 153-54 (quoting Parris, 189 Va. at 325-26); see also Booker v. Commonwealth, 61 Va. App. 323, 332-33 (2012) (quoting Justus, 274 Va. at 154) ("With respect to a defense that the accused tenders in support of a motion to withdraw the guilty plea, the Court in Justus . . . held that '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.'"). Subsequent courts summarized this test as requiring "the defendant (i) to establish a good-faith basis for making the guilty plea and later seeking to withdraw it, and (ii) to proffer evidence of a reasonable basis for contesting guilt." Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008).
In Small v. Commonwealth, 292 Va. 292 (2016), the Supreme Court of Virginia recognized a third factor for courts to consider when deciding whether to grant a motion to withdraw a guilty plea—"prejudice to the Commonwealth." Id. at 298. Thus, to succeed on a motion to withdraw a guilty plea: (1) a defendant must demonstrate a good-faith basis for seeking to withdraw the guilty plea; (2) a defendant must proffer a reasonable defense he intends to assert at trial; and (3) granting the motion must not substantially prejudice the Commonwealth. See Booker, 61 Va. App. at 332-33; Commonwealth v. Foster, No. CR17-2989, 2018 WL 9437460, at *5 (Norfolk Cir. Ct. Nov. 16, 2018).
Trial courts have discretion to grant a motion to withdraw a guilty plea "based on the facts and circumstances of the particular case." Justus, 274 Va. at 153, 154.
Analysis
I. The good faith requirement.
"In a pre-sentencing motion to withdraw a guilty plea, a defendant has the burden of establishing that his motion is made in good faith." Spencer v. Commonwealth, 68 Va. App. 183, 187 (2017). Insufficient or inaccurate advice from counsel satisfies the good faith requirement. Hernandez v. Commonwealth, 67 Va. App. 67, 77 (2016) (holding that a court should consider "whether [defendant's] counsel misadvised him as to his plea" when deciding a motion to withdraw a guilty plea). The Court need not find "that the defendant failed to receive adequate legal representation from counsel." Justus, 274 Va. at 154. Rather, "'poor or erroneous advice from counsel,' . . . where 'an attorney overlooked a viable defense,' constitutes grounds for withdrawing a guilty plea as being inadvised." Hernandez, 67 Va. App. at 78 (quoting Pritchett v. Commonwealth, 61 Va. App. 777, 788, 790 (2013)).
Mr. Reed argues that Taylor was previously misadvised because he pleaded guilty to these charges based on evidence that established only his mere knowledge of and presence at the robbery. The Commonwealth argues that Ms. Seemar effectively represented Taylor because "[a]t the time of the guilty plea, both the defendant and previous counsel for [the] defendant understood that he had just signed a stipulation that included the fact that he had been overheard planning the robbery of the victim with the co-defendant Charles Poff." (Resp. Def.'s Mot. Withdraw Guilty Plea 6.) The Commonwealth argues that, "[w]ith the understanding that the defendant was actively involved in the planning and execution of the attempted robbery," Ms. Seemar "correctly advised [Taylor] that, even if he didn't pull the trigger, he was just as guilty of those offenses as the co-defendant as a principal in the second degree due to accomplice liability." (Id.) The Commonwealth also faults Taylor for not having Ms. Seemar or the Court further explain accomplice liability at the April 11, 2019, hearing. (Id. at 8.)
At the June 10 hearing, Ms. Seemar testified as follows in response to questioning from Mr. Reed:
Q: Okay. Did you tell [Taylor] that the issue was whether he knew about the robbery?(Hr'g Tr. 80: 6-8, June 10, 2020). Earlier in the hearing, in response to questioning from the Commonwealth, she testified:
A: Yes.
Q: Let me ask you this: Did you go over with [Taylor] what the law would be if the Judge or jury found that he was not a participant in the robbery?(Id. at 75:22-76:8.)
A: Yes.
Q: And, if you recall, what did you tell him?
A: If he was not a participant, he was just merely there?
Q: Yes.
A: And he did not know about the robbery before he went over there. I mean, I told him that he wouldn't have any responsibility.
Although Ms. Seemar's testimony does not clearly or definitively establish that she misadvised Taylor, it does suggest that she considered Taylor's admitted knowledge of the robbery as sufficient to establish his guilt. Virginia law does not support holding a non-participant with mere knowledge of a crime criminally liable as an accomplice. See Brickhouse v. Commonwealth, 276 Va. 682, 687 (2008) (holding that neither awareness of illegal activity nor knowledge of the crime make someone guilty as a principal in the second degree). The Court is not satisfied that Taylor received that legal advice. Based on Ms. Seemar's testimony, it appears that Taylor might have been advised that his foreknowledge of the robbery meant he was guilty. Mr. Reed correctly argues that such advice is contrary to the law. Thus, the Court concludes that Taylor made his motion in good faith.
II. The facially reasonable defense.
Taylor must make "a prima facie showing of a reasonable defense" to succeed on his motion. Hernandez, 67 Va. App. at 79. Although the defendant must "proffer[] sufficient facts to support the asserted defense, such that it is reasonable to present it to the judge or jury trying the case," the court should not "evaluate credibility of witnesses" or "determine whether the proffered defense will be successful." Hernandez, 67 Va. App. at 79. This "relatively liberal standard" places a low burden on the defendant. See Branch v. Commonwealth, 60 Va. App. 540, 546 (2012).
Here, Taylor argues that the "Commonwealth's evidence, at most, would prove defendant was present when others discussed robbing the victim and that the defendant was present when the victim was shot and killed," which "is not in and of itself sufficient to convict the defendant as a principal in the second degree or one acting in concert with the principal in the first degree." (Mot. Withdraw Guilty Plea 1-2.) Conversely, the Commonwealth characterizes the Stipulation of Facts as "unambiguously stat[ing] that Charles Poff and the defendant were overheard planning to rob the victim. Therefore, per the stipulation that the defendant read and endorsed, he was not merely present when 'others discussed robbing the victim' but was, instead, actively involved in the plan to rob the victim." (Resp. Def.'s Mot. Withdraw Guilty Plea 4.) The Commonwealth notes Taylor identifies Poff as the shooter and vice versa, but it believes that "the stipulated fact that he had been previously overheard planning the robbery with the co-defendant Charles Poff" negates those statements. (Id. at 4-5.) Yet, the Commonwealth admits that the "poor-quality video of the incident" makes it impossible "to tell which co-defendant, or both, actually shot the victim." (Id. at 5.) Because of this ambiguity, the Commonwealth observes that the "trier of fact could just as well determine from the stipulation that [Taylor's] self-serving statement (of not being the shooter) could be disregarded and the testimony of the co-defendant accepted." (Id.)
In Brickhouse v. Commonwealth, the Supreme Court of Virginia held that:
To prove that a defendant is guilty as a principal in the second degree, the Commonwealth must establish that the defendant procured, encouraged, countenanced or approved the criminal act. . . . Evidence of a defendant's mere presence at a crime scene is insufficient to sustain a conviction as a principal in the second degree. . . . "The Commonwealth must prove that the defendant consented to the felonious purpose and the defendant contributed to its execution." . . . There must be evidence that [the defendant] committed an overt act knowingly in furtherance of the commission of the crime . . . or that she shared in the criminal intent of the principal committing the crime.276 Va. at 686 (citations omitted). Based on these principles, the Brickhouse Court ultimately vacated the defendant's conviction, reasoning that neither awareness of illegal activity nor knowledge of the crime make someone guilty as a principal in the second degree. Brickhouse, 276 Va. at 687 ("Such evidence indicates that [the defendant] was aware of the drug activity; however, the Commonwealth must prove more than [the defendant]'s knowledge of the crime.").
Thus, one's mere presence in a group that does something criminal does not create liability as a principal in the second degree, unless the defendant "'consented to the felonious purpose and . . . contributed to its execution,'" "procured, encouraged, countenanced or approved the criminal act," "committed an overt act knowingly in furtherance of the commission of the crime . . . or . . . shared in the criminal intent of the principal committing the crime." Id. at 686. Stated differently, knowledge or awareness that group members intend to break the law does not, by itself, make someone a principal in the second degree.
Even assuming, arguendo, that the Commonwealth can prove everything in its Stipulation of Facts, Taylor has proffered a prima facie defense of mere knowledge of and presence at the crime scene. First, the victim's identification of two light-skinned black males does not definitively identify Taylor. Second, Erin Kirby's statement proves only Jessie Kirby's thoughts about Taylor's and Poff's plans. It does not conclusively prove that Taylor planned the robbery. Third, a jury could find Taylor's testimony that Poff shot the victim more credible than Poff's testimony to the contrary.
The Commonwealth argues that nobody would believe that Taylor (i) knew his co-defendant was going to rob the victim and (ii) accompanied his co-defendant to the scene, but did not himself participate in the robbery. In effect, the Commonwealth argues that an inherently incredible defense is no defense at all. Even if the Court shared the Commonwealth's assessment of the defense, the Court may not weigh the relative credibility of the two witnesses or the likelihood that the proffered defense will succeed when deciding this motion. See Hernandez, 67 Va. App. at 79 ("In a motion to withdraw a guilty plea, it is not the trial court's role to evaluate credibility of witnesses, nor to determine whether the proffered defense will be successful."). The evidence in the Stipulation of Facts proves Taylor's knowledge of and presence at the robbery, which by themselves do not support finding him guilty as a principal in the second degree. Therefore, Taylor has asserted a facially reasonable defense.
III. Prejudice to the Commonwealth
"Finally, trial courts should consider whether allowing the defendant to withdraw his guilty plea would cause prejudice to the prosecution." Booker, 61 Va. App. at 333; see also Small, 292 Va. at 298 ("Today we specifically recognize prejudice to the Commonwealth as a relevant factor that should be considered when reviewing a motion to withdraw a guilty plea."). Although "the passage of time itself constitute[s] prejudice," the Commonwealth cannot speculate "that the passage of time 'might' hamper its ability to find and call witnesses" without citing facts in the record to support such a claim. Hernandez, 67 Va. App. at 81. A court can deny a motion to withdraw a guilty plea only "where the record indicates that there has been some form of significant prejudice to the Commonwealth." Hubbard v. Commonwealth, 60 Va. App. 200, 211 n.4 (2012); see also Hernandez, 67 Va. App. at 81 (internal citations omitted) (finding no significant prejudice to the Commonwealth when it "did not identify any witnesses as likely being unavailable . . . or charges that could not be prosecuted due to the delay").
The Commonwealth argues that granting Taylor's motion will prejudice its prosecution because Taylor waited over eight months to file his Motion to Withdraw Guilty Plea and more than two years have elapsed since the offense date. (Resp. Def.'s Mot. Withdraw Guilty Plea 10.) In support of this claim, the Commonwealth notes that "criminal prosecutions rarely get better with time. Witnesses move away, memories fade, and willingness to cooperate and appear for court appearances wane[s]." (Id.) The Commonwealth did not, however, prove the unavailability of any witness or identify the specific prejudice other than the mere passage of time. (See Hr'g Tr. 81:11-85:14, June 10, 2020.) The Commonwealth's Attorney predicted that he would have difficulty convincing Charles Poff to testify at a new trial, although he could not "say 100 percent he's unavailable." (Id at 83:23-84:13.) While the Commonwealth raises a legitimate concern about obtaining Poff's cooperation, the Court notes the availability of Virginia Code § 19.2-303.02, which authorizes reductions in sentences to DOC inmates who provided substantial assistance in investigating or prosecuting" for certain crimes. Given that potential incentive, the Court does not view as a foregone conclusion Poff's reluctance to testify.
The Court today has an insufficient basis to "find that the passage of time itself was so prejudicial to the Commonwealth as to outweigh the benefit to [defendant] of allowing him to withdraw his plea[] and proceed to trial on" his proffered defense. Hernandez, 67 Va. App. at 81-82.
Conclusion
For the reasons stated herein, the Court GRANTS Taylor's Motion to Withdraw Guilty Plea. The Court notes the Commonwealth's objection.
The Clerk of Court is hereby directed to email to all counsel of record a copy of this Order.
This case should be placed on the next to-be-set docket.
It is so ORDERED.
Entered this 29 day of June, 2020.
/s/ _________
Mary Jane Hall, Judge