                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner
Argued at Chesapeake


MANDIAYE M. SENE
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1550-08-1                               JUDGE RUDOLPH BUMGARDNER, III
                                                                   JULY 28, 2009
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                               Christopher W. Hutton, Judge

                 Charles E. Haden for appellant.

                 Jennifer C. Williamson, Assistant Attorney General (William C.
                 Mimms, Attorney General, on brief), for appellee.


       Mandiaye M. Sene appeals his conviction of rape, Code § 18.2-61. He contends the trial

court erred in denying his post-sentence motion to withdraw his guilty plea and in denying his

motion for a bail bond pending his appeal. Concluding the trial court did not err, we affirm.

       The defendant pled guilty 1 to rape. In return for his plea, the Commonwealth moved to

nolle prosequi the related abduction charge. During the detailed plea colloquy, the defendant

conceded he understood the charge against him, the elements of the crime, and his waiver of

certain rights by entering his plea. The Commonwealth presented its evidence by stipulation,

and both the defendant and his attorney agreed to the evidence as summarized.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Defense counsel sought and received permission to characterize the defendant’s plea as
an Alford plea despite appellant’s admission of guilt. Virginia courts “treat Alford pleas as
having the same preclusive effect as a guilty plea.” Perry v. Commonwealth, 33 Va. App. 410,
412, 533 S.E.2d 651, 652 (2000) (citation omitted).
       The victim was a twenty-eight-year-old, mentally retarded woman who had never been

able to live outside her family home. She had a performance IQ of 57 and could not participate

in many adult activities, such as reading or driving. She did work eight hours a week at T J

Maxx where she unboxed and hung-up clothes. She could take the bus to work, but she had to

wear a laminated card around her neck that contained bus route information and emergency

phone numbers in case she got confused or lost.

       While the victim was waiting at her bus stop to catch a bus to work, the defendant

approached the victim whom he had never met before. He offered to give her a ride to work in

his car. She got in his car, but the defendant drove to his home despite her insistence on needing

to get to work. He took her out of his car, into his house, and up to his bedroom.

       The victim became frightened and ceased talking. She did not know where she was, or

how to get to work or to get home. The defendant handed the victim her cell phone. She played

with it in a childlike fashion while the defendant proceeded to remove her pants and underpants.

He had intercourse with her as she lay there holding the phone. The victim cried out, but the

defendant continued to have intercourse with her as she became more frightened. She did not

know how to free herself from the situation.

       After the defendant completed the sex act, the victim again asked to be taken to her job.

In response, the defendant pushed her onto her stomach and began having sex with her again.

The victim again cried out in pain. Upon completing the sex act, the defendant stood up, went to

the bathroom, washed, and dressed. The victim pulled on her clothes but was quiet and did not

speak. The defendant put her into his car and drove her to the shopping center where he dropped

her in front of T J Maxx. After being arrested and advised of his Miranda rights, the defendant

admitted taking the victim from her bus stop to his home where he had sexual relations with her.




                                               -2-
         The trial court accepted the defendant’s plea, heard the stipulated evidence, and found the

defendant guilty of rape on April 3, 2008. It ordered a presentence report and continued the case

to June 12, 2008 for a sentencing hearing. On that date, the trial court sentenced the defendant to

twenty years in the penitentiary with five years suspended.

         On June 30, 2008, over twelve weeks after entering his Alford guilty plea, the defendant

moved to withdraw it. He also filed a notice of appeal and moved for bail pending appeal. The

defendant sought to withdraw his plea because he was under the misapprehension that mere

mental retardation was sufficient to negate capacity to consent. He maintained that he had not

been aware of the holding in Adkins v. Commonwealth, 20 Va. App. 332, 345-46, 452 S.E.2d

382, 388-89 (1995) (holding that mentally retarded persons are not per se incapable of

consenting to sexual intercourse), and that case afforded defenses of which he had not been

aware.

         The trial court found the questioning of the defendant before accepting his plea was

substantial and the motion to withdraw the pleas came after sentencing. It denied the motion to

withdraw the plea and also denied bail pending appeal due to the seriousness of the crime and the

substantial penalty imposed.

         “A motion to withdraw a plea of guilty or nolo contendere may be made only before

sentence is imposed or imposition of a sentence is suspended.” Code § 19.2-296 (emphasis

added). To “correct manifest injustice,” however, the statute includes an exception that “the

court . . . may set aside the judgment of conviction and permit the defendant to withdraw his

plea.” Id.

         The decision to allow a defendant to withdraw his guilty plea rests “within the sound

discretion of the trial court and is to be determined by the facts and circumstances of each case.”

Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d, 872, 873 (1949). At a minimum, every

                                                -3-
motion to withdraw a guilty plea must be “made in good faith and sustained by proofs.” Justus

v. Commonwealth, 274 Va. 143, 153, 645 S.E.2d 284, 288 (2007). These requirements protect

the integrity of the judicial process by precluding defendants from using a guilty plea as a

subterfuge to manipulate the court and preventing essentially futile trials. A trial court’s

discretion to grant the motion “will rarely, if ever, be exercised in aid of an attempt to rely upon

a merely dilatory or formal defense.” Parris, 189 Va. at 323-24, 52 S.E.2d at 873-74.

       A defendant must “affirmatively show” that an injustice has occurred, and not merely that

an injustice “might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487

S.E.2d 269, 272 (1997) (emphasis in original). “In examining a case for miscarriage of justice,”

courts determine whether the record contains “affirmative evidence of innocence or lack of a

criminal offense.” Tooke v. Commonwealth, 47 Va. App. 759, 765, 627 S.E.2d 533, 536 (2006)

(citation omitted).

       The defendant conceded during argument that the issue in this case is consent and the

victim’s ability to consent. The defendant also conceded that to satisfy the manifest injustice

standard, he would have to show the evidence was insufficient to prove the victim did not, or

could not, consent to having sexual intercourse with the defendant. The evidence that the victim

met the statutory definition of being mentally incompetent 2 to give consent to the sexual act

involved in the charge was abundant. Clearly, the victim did not understand the nature or

consequences of the sexual act with the defendant.

       In addition, the record supports the trial court’s finding that the defendant knowingly and

intelligently entered his plea of guilt. The defendant’s assertions regarding possible defenses and


       2
         Code § 18.2-67.10 defines “Mental incapacity” as “that condition of the complaining
witness existing at the time of an offense under this article which prevents the complaining
witness from understanding the nature or consequences of the sexual act involved in such offense
and about which the accused knew or should have known.”

                                                -4-
his ignorance of the law do not rise to the statute’s “more severe standard” applicable after

sentencing, which requires the defendant to show denial of his motion would create a “manifest

injustice.” Justus, 274 Va. at 153, 645 S.E.2d at 288. Accordingly, the trial court did not abuse

its discretion in denying the defendant’s motion to withdraw his guilty plea after sentencing.

       The defendant also maintains the trial court erred in denying his request for bail pending

appeal. This Court reviews a trial court’s decision whether to grant bail post-conviction for

abuse of discretion. “In reviewing an exercise of discretion, we do not substitute our judgment

for that of the trial court. Rather, we consider only whether the record fairly supports the trial

court’s action.” Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997).

“Appellate courts will not interfere with the discretionary decisions of a trial court unless it is

clear that such discretion has been abused.” Kennedy v. Commonwealth, 18 Va. App. 543, 549,

445 S.E.2d 699, 703 (1994). A trial judge’s decision to grant or deny bail should take into

consideration the evidence and the total record, including factors such as the “nature and

circumstance of the offense, the fact of conviction, [and] the quantum of punishment assessed.”

Commonwealth v. Smith, 230 Va. 354, 363, 337 S.E.2d 278, 283 (1985). In addition, Code

§ 19.2-319 provides that if a defendant is convicted of a serious crime, which includes rape, and

receives an active sentence, the trial court shall presume bail will not assure the appearance of

the defendant or the safety of the public.

       The defendant was convicted of a serious offense against a mentally vulnerable victim for

which he received a substantial prison sentence. The defendant was a native of Senegal and only

in this country for twenty months when he committed the offense. During sentencing he

indicated he wanted to return to his home. Given the seriousness of the offense and the

punishment imposed, the defendant posed a danger to the community and of absconding if he




                                                 -5-
remained at liberty while he appealed. There was no abuse of discretion in refusing the

defendant’s motion for bond pending appeal.

       Accordingly, we affirm the conviction and the denial of bail.
                                                                                          Affirmed.




                                              -6-
