State of West Virginia v. Orville M. Hutton ( 2015 )

No. 14-0603 –State of West Virginia v. Orville M. Hutton
FILED
June 16, 2015
RORY L. PERRY II, CLERK
BENJAMIN, Justice, dissenting: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I dissent to the majority opinion because I do not believe that the English
common law writ of coram nobis continues in force in West Virginia. Also, even if the
common law writ of coram nobis is available in this State, I do not believe that it
provides relief to the petitioner.
1. The English common law writ of coram nobis does not continue in
force in West Virginia. This issue is governed W. Va. Code § 2-1-1 (1923), which
provides:
The common law of England, so far as it is not
repugnant to the principles of the constitution of this state,
shall continue in force within the same, except in those
respects wherein it was altered by the General Assembly of
Virginia before the twentieth day of June, eighteen hundred
and sixty-three, or has been, or shall be, altered by the
Legislature of this state.
Under our law, “[w]here the meaning of a statute is clear and its provisions are
unambiguous, this Court will not undertake to construe and interpret it, but will apply the
statute as its exact terms require.” Syl. pt. 2, Pocahontas Co. v. Dep’t of Mines, 137 W.
Va. 864, 74 S.E.2d 590 (1953). The provisions of W. Va. Code § 2-1-1 are plain and
should be applied as written.
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According to W. Va. Code § 2-1-1, the common law of England, so far as it
is not repugnant to our State Constitution, shall continue in force in this State “except in
those respects wherein [the English common law] was altered by the General Assembly
of Virginia before [June 20, 1863].” The writ of coram nobis was part of the common law
of England in 1863. However, the common law writ was altered by the General
Assembly of Virginia by statute in 1849 with the enactment of Va.Code, c. 181.
Regarding this statute, the Supreme Court of Virginia explained that “[a]s a common law
writ, coram vobis has been substantially limited by the General Assembly through Code §
8.01-677” (a successor to the 1849 statute).”1 Neighbors v. Commonwealth, 650 S.E.2d
514, 517 (Va. 2007). That court also has indicated that “[i]n Virginia, we have by statute
provided for a proceeding by motion to correct any clerical error or error in fact for which
a judgment or decree may be reversed or corrected, as a substitute for the common law
writ of error coram vobis, sometimes called coram nobis.” Blowe v. Peyton, 155 S.E.2d
351, 356 (Va. 1967) (citation and internal quotation marks omitted). It is clear to me then
that the General Assembly of Virginia altered the common law writ of coram nobis
before June 20, 1863, by substantially limiting the writ and substituting a motion in place
of the writ. Therefore, according to the plain terms of W. Va. Code § 2-1-1, the common
law writ of coram nobis did not continue in force in this State. Instead, this State adopted
the Virginia statute that substituted a motion for the writ of coram nobis. See syl. pt. 3, in
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The current version of Virginia’s statute provides that “[f]or any clerical error or
error of fact for which a judgment may be reversed or corrected on writ of error coram
vobis, the same may be reversed or corrected on motion, after reasonable notice to the
court.” The terms “coram vobis” and “coram nobis” are used interchangeably.
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part, Curtis v. Railway Co., 68 W. Va. 762, 70 S.E. 776 (1911) (holding that specific
judgment was “reviewable, formerly by a writ of error coram nobis, now by motion, and
by appeal to this Court).
The majority opinion attempts to get around the fact that the Virginia
statute altered the common law writ of coram nobis by asserting that the Virginia statute
was a codification of Virginia’s existing practice of permitting relief either by a writ of
coram nobis or by motion. While this may very well be the case, it is not relevant to a
determination of whether the common law writ of coram nobis continued in force within
this State after June 20, 1863, pursuant to W. Va. Code § 2-1-1. This code section clearly
provides that the common law of England, not Virginia, shall continue in this State
except in those respects wherein it was altered by the General Assembly of Virginia prior
to June 20, 1863. I do not believe that it can be disputed that the English common law
writ of coram nobis was altered by the enactment of the Virginia statute in 1849. At the
very least, the writ was altered by the fact that it became simply one option by which a
defendant could seek relief from a fact-based error. Another option was that the
defendant could seek such relief by motion. Also, despite the majority opinion’s finding
to the contrary, I believe that the Virginia statute altered the English common law writ by
substantially limiting it as stated by the Virginia Supreme Court in Neighbors, supra.
Therefore, I conclude that, pursuant to W. Va. Code § 2-1-1, this State did not adopt the
English common law writ of coram nobis. Instead, we adopted the Virginia statute that
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altered the common law writ. Consequently, when our Legislature repealed W, Va. Code
§ 58-2-3, no common law writ of coram nobis remained.
2. The majority should not have created a novel writ of coram nobis
that is foreign to our jurisprudence. Even if I accepted the majority opinion’s finding
that a common law writ of coram nobis exists in this State, I would base the writ on the
one recognized by former W. Va. Code § 58-2-3. The writ of coram nobis formerly set
forth in W. Va. Code § 58-2-3 was based on the English common law and Virginia
statutory law. This State adopted the Virginia statute, and this statute existed in this State
from 1868 until 1998, and was firmly established in this Court’s jurisprudence. I do not
believe that this Court should ever consider altering such firmly established law except
after careful deliberation and an actual need has been demonstrated for the alteration.
Neither of these is shown in the majority opinion. Instead, the majority summarily
concludes that it believes that the four-part test set forth in a fourth circuit case is a good
test to adopt and, just that simply, the majority abolishes hundreds of years of established
law regarding the writ of coram nobis. I disagree with this ill-considered and wholly
unnecessary adoption of novel law.
` 3. The common law writ of coram nobis does not provide relief to the
petitioner. Significantly, the Virginia writ of coram nobis, upon which this State’s writ
was based, does not provide relief for claims of ineffective assistance of counsel. A case
similar to the instant one was recently decided by the Supreme Court of Virginia in
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Commonwealth v. Morris, 705 S.E.2d 503 (Va. 2011). In Morris, two defendants pled
guilty to crimes on the basis of improper advice of their lawyers and, as a result, faced
deportation proceedings. Consequently, the defendants filed motions pursuant to
Virginia’s coram nobis statute in which they requested modification of their sentences.
The circuit court granted the defendants’ motions, and the Commonwealth appealed. The
Virginia Supreme Court reversed the circuit court’s ruling. In doing so, the Court
reasoned as follows:
In Dobie v. Commonwealth, 198 Va. 762, 769, 96
S.E.2d 747, 752 (1957), we explained the origin and function
of the ancient common law writ of coram vobis:
The principal function of the writ is to
afford to the court in which an action was tried
an opportunity to correct its own record with
reference to a vital fact not known when the
judgment was rendered, and which could not
have been presented by a motion for a new trial,
appeal or other existing statutory proceeding. It
lies for an error of fact not apparent on the
record, not attributable to the applicant’s
negligence, and which if known by the court
would have prevented rendition of the
judgment. It does not lie for newly-discovered
evidence or newly-arising facts, or facts
adjudicated on the trial. It is not available where
advantage could have been taken of the alleged
error at the trial, as where the facts complained
of were known before or at the trial, or where at
the trial the accused or his attorney knew of the
existence of such facts but failed to present
them.
(Citations omitted; emphasis added). However, “[a]s a
common law writ, coram vobis has been substantially limited
by the General Assembly through Code § 8.01-677.”
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Neighbors v. Commonwealth 274 Va. 503, 508, 650 S.E.2d
514, 517 (2007).
Morris, 705 S.E.2d at 506. The court in Morris framed its inquiry as whether at the
moment the two defendants entered their guilty pleas, an error of fact existed that would
have prevented the circuit court from having authority to enter the judgment.
One of the Morris defendant’s asserted errors of fact was her counsel’s
failure to inform the trial court that the defendant was not born in the United States. The
other defendant claimed that his lawyer’s ineffective assistance of counsel resulting in
dire immigration consequences should be deemed an error in fact that would have
prevented the trial court from rendering judgment in his case. The Virginia court found
that these alleged errors did not constitute errors of fact for the purpose of coram vobis
because
the proper test is whether the alleged error constitutes “an
error of fact not apparent on the record, not attributable to the
applicant’s negligence, and which if known by the court
would have prevented rendition of the judgment.” Dobie, 198
Va. 769, 96 S.E.2d at 752 (emphasis added). While
ineffective assistance of counsel may render a judgment
voidable upon the necessary showing, it does not render the
trial court incapable of rendering judgment, as do the errors
of fact in cases “‘where judgment is rendered against a party
after his death, or who is an infant.’” Dobie, 198 Va. at 770,
96 S.E.2d at 753 (quoting Richardson, 53 Va. (12 Gratt.) at
55).
Morris, 705 S.E.2d at 507–08. The Court noted that both defendants relied on the United
States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), in which
the Supreme Court held that the Constitution’s Sixth Amendment requires counsel who
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represent non-citizen criminal defendants to inform their clients whether his or her plea
carries a risk of deportation. The Virginia Court found, however, that the defendants’
reliance on Padilla was misplaced, explaining that while the defendants “may have
suffered ineffective assistance of counsel according to Padilla, and may have been
successful had they timely filed petitions for writs of habeas corpus . . . neither did so.
Ineffective assistance of counsel does not constitute an error of fact for the purposes of
coram vobis under Code § 8.01-677.” Morris, 705 S.E.2d at 508. The Virginia Court’s
reasoning in Morris applies with equal force to the instant facts. Therefore, any writ of
coram nobis recognized by this Court should not apply to claims of ineffective assistance
of counsel so as to provide the petitioner the relief which he seeks.
3. A writ of coram nobis does not provide relief to the petitioner under
the specific facts of this case. This Court has held that
[i]n the West Virginia courts, claims of ineffective
assistance of counsel are to be governed by the two-pronged
test established in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s
performance was deficient under an objective standard of
reasonableness; and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.
Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Specifically, the
petitioner has failed to show that his trial counsel’s performance was deficient under the
first prong of Strickland.
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The petitioner relies on Padilla, supra, to show that his counsel’s failure to
inform him of the potential deportation consequences of his plea constituted deficient
performance under an objective standard of reasonableness. However, there is a key
distinction between the facts in Padilla and the facts of the instant case. In Padilla, the
defendant alleged that “his counsel not only failed to advise him of this [deportation]
consequence prior to his entering the plea, but also told him that he did not have to worry
about immigration status since he had been in the country so long.” Padilla, 559 U.S. at
359 (internal quotation marks and citation omitted). Implicit in this allegation is the fact
that the defendant’s counsel knew the defendant’s immigration status. In other words,
Padilla addressed only the legal advice required of competent counsel once counsel
knows that his or her client is not an American citizen. In the instant case, the petitioner
testified in the evidentiary hearing before the circuit court that he never informed his trial
counsel that he was not a United States citizen, and that he and his counsel had no
conversations about his immigration status. As a result, the petitioner’s trial counsel had
no apparent reason to investigate the petitioner’s immigration status, and his failure to do
so under these circumstances was not deficient under an objective standard of
reasonableness. Therefore, the petitioner has failed to show the first prong in the two-
pronged Strickland test governing claims of ineffective assistance of counsel.
For the reasons set forth above, I would affirm the circuit court’s order that
denied coram nobis relief to the petitioner. Therefore, I dissent.
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