                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia


TUSHUNDI OMAR JONATHAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1983-98-1              JUDGE JERE M. H. WILLIS, JR.
                                             NOVEMBER 9, 1999
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Robert P. Frank, Judge

          Oldric J. LaBell, Jr., for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General; Daniel J.
          Munroe, Assistant Attorney General, on
          brief), for appellee.


     On appeal from his conviction of possession of cocaine with

intent to distribute, in violation of Code § 18.2-248, Tushundi

Omar Jonathan contends that the trial court erred (1) in failing

to comply with his plea agreement as it was understood by him,

(2) in failing to follow the sentence recommendation of the

Commonwealth's Attorney, (3) in holding that the plea agreement

was no longer binding when he was sentenced, and (4) in allowing

the Commonwealth's Attorney to argue for a sentence inconsistent

with the plea agreement.    Jonathan did not preserve the first




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
three grounds for appeal.   We find no abuse of discretion as to

the fourth ground.   We affirm the judgment of the trial court.

                                 I.

     On December 18, 1997, Jonathan pled guilty to possession of

cocaine with the intent to distribute, in violation of Code

§ 18.2-248.   The plea was entered upon the Commonwealth's

agreement not to ask for more than two years imprisonment.    The

agreement was informal and unwritten.     This appears clearly from

the trial court's questioning of Jonathan at arraignment.    At

that hearing, the following dialogue occurred:

               [Trial] court: Now, sir, there is no
          plea agreement, and the Commonwealth is not
          recommending a specific sentence.
          Therefore, while the Commonwealth will ask
          for no more than two years, I'm not bound by
          the Commonwealth's request.

                Do you understand that?

               [Jonathan nodded his head
          affirmatively.]

               [Trial] court: And if I don't follow
          their request, you can't withdraw your plea
          of guilty.

                Do you understand that?

                [Jonathan]: Yes, sir.

                *     *     *     *       *     *     *

               [Trial] court: And you understand that
          I could sentence you to more years than the
          Commonwealth requests or that's even found
          in the guidelines?

                [Jonathan]: Yes, sir.


                                - 2 -
        On January 21, 1998, Jonathan moved to withdraw his guilty

plea.    The trial court warned defense counsel that:

"[Jonathan's] got two years.       And if I grant the new trial, he

could be looking at a whole lot more than that.      Because I'm

sure all deals are off at that point."      The Commonwealth's

Attorney stated that she felt that the agreement would be

revoked if Jonathan were granted a new trial.      The trial court

further said:    "If I grant a new trial, if he's found guilty,

he's going to sure be looking at a whole lot more.      He is going

to be looking at multiples of two years and not two years or

less.    Do you understand what I am saying?"    To which defense

counsel replied:    "Yes, sir."

        On June 30, 1998, Jonathan withdrew the motion to withdraw

his guilty plea.    At a subsequent hearing, on July 17, 1998, the

Commonwealth argued that the sentencing agreement was

automatically revoked when Jonathan moved to withdraw his plea.

The trial court responded:    "Well, the Commonwealth may be bound

by the recommendation.    The [trial c]ourt isn't bound . . . by

the recommendation."

        At sentencing on August 10, 1998, the trial court again

confirmed that there was no formal plea agreement and that it

was not bound by the understood agreement between Jonathan and

the Commonwealth:

                  [Trial] court:    But there's no written
             plea agreement?

                                   - 3 -
                [Defense Counsel]: No, sir.

               [Trial] court: And you would agree
          that I don't have to follow that
          recommendation?

               [Defense Counsel]:     That is correct,
          Your Honor.

               [Trial] court: Nor does he - - - nor
          does he have a right to withdraw his plea if
          I don't follow the recommendation?

               [Defense counsel]:     That is correct,
          Judge.


Upon Jonathan's plea of guilty, the trial court found him guilty

and sentenced him to serve fifteen years imprisonment with

eleven of those years suspended.

                                II.

     Jonathan contends that the trial court erred in refusing to

be bound by the agreement as he understood it and in failing to

follow the sentencing recommendation of the Commonwealth.

Jonathan concedes that these issues were not preserved properly

for appeal, see Rule 5A:18, but argues that the "ends of

justice" exception to the operation of the rule applies.    Rule

5A:18 states:

               No ruling of the trial court . . . will
          be considered as a basis for reversal unless
          the objection was stated together with the
          grounds therefor at the time of the ruling,
          except for good cause shown or to enable the
          Court of Appeals to attain the ends of
          justice.



                               - 4 -
Id.   For the "ends of justice" exception to apply, Jonathan must

prove that a miscarriage of justice has actually occurred.     See

Redman v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269,

272-73 (1997).    He has not done so.    He understood the

consequences of his plea, as evidenced by his answers to the

trial court's questions.    Further, the agreement was merely a

promise by the Commonwealth not to seek more than two years

imprisonment.    Jonathan was never assured of his actual

sentence.    The trial court never agreed to be bound by the

Commonwealth's recommendation, but, indeed, asserted repeatedly

that it would not be so bound.

      The actual sentence imposed no injustice.

             "[W]hen a statue prescribes a maximum
             imprisonment penalty and the sentence does
             not exceed that maximum, the sentence will
             not be overturned as being an abuse of
             discretion."

Fortune v. Commonwealth, 12 Va. App. 643, 651, 406 S.E.2d 47, 51

(1991) (citation omitted).

                                 III.

      Jonathan next contends that the trial court erred in ruling

at sentencing that the plea agreement was no longer binding.      He

argues that at the June 30 hearing, the trial court told him

that he could "stick with" the original agreement, and that the

trial court thereby bound itself to comply with the

agreement.    However, he never asserted this position before the

trial court and it is clear that the trial court never

                                 - 5 -
considered itself bound by the original agreement.      Throughout

the proceedings, the trial court maintained and reiterated that

it would not be bound by the agreement and that Jonathan could

not withdraw his plea if the trial court imposed a more severe

sentence.   The previously-recited dialogue between Jonathan's

attorney and the court shows plainly that Jonathan accepted this

ruling without objection.   Thus, Jonathan did not preserve this

issue for appeal.   See Rule 5A:18.

                                  IV.

     Finally, Jonathan contends that the Commonwealth failed to

comply with the agreement and sought a greater penalty than the

agreed two years imprisonment.    At no time at the August 10,

1998 sentencing hearing, however, did the Commonwealth ask the

trial court to impose a more severe sentence.      At that hearing,

the Commonwealth's Attorney reviewed Jonathan's prior criminal

record and the procedural history of the case.      When defense

counsel inquired as to the purpose of the Commonwealth's

examination of those matters, the trial court acknowledged that

it had ruled on the matter previously and that the Commonwealth

would be bound by the agreed sentencing recommendation.      The

Commonwealth's Attorney then conceded that the "original

recommendation was that the Commonwealth would agree that the

defendant would serve two years."       Thus, the trial court did not

allow the Commonwealth to argue for a harsher punishment.



                                 - 6 -
     The agreement between Jonathan and the Commonwealth was

informal.   Jonathan clearly understood that the trial court was

not bound by it.   We find no abuse of discretion in the

sentence.   The sentence imposed no injustice.

     The judgment of the trial court is affirmed.

                                                           Affirmed.




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