March 10, 2011 - 12:15am
Supreme Court of Virginia Limits Post-Conviction Remedies Available to Immigrants Posted by: Administrator

Having its first opportunity to address, somewhat indirectly, the gravamen of the United States Supreme Court’s holding in Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), the Virginia Supreme Court in Commonwealth v. Morris, Record No. 092163 and Commonwealth v. Chan, Record No. 092346 (Jan. 13, 2011) (collectively referred to as the “Morris/Chan” case) significantly limited the remedies available to a defendant who seeks to rely on Padilla for post-conviction relief in courts in the Commonwealth.


In Padilla, the United States Supreme Court held that where defense counsel fails to inform or incorrectly informs her non-citizen client of the immigration consequences of pleading guilty to a crime in state court, counsel has fallen below an objectively reasonable standard of professional performance, in violation of the Sixth Amendment as interpreted by Strickland v. Washington, 466 U.S. 688, 694 (1984).  Padilla, 130 S. Ct. at 1484. (“It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’”).  In light of Padilla, the appellees in Morris/Chan sought relief from the trial court where they pled guilty, claiming that their trial counsel purportedly gave them erroneous advice regarding the immigration consequences of pleading guilty. 


Morris and Chan pled guilty to and were convicted of crimes against the Commonwealth in 1997 and 2005, respectively.  After their convictions, Morris and Chan applied for United States citizenship, only to learn that their previous state court convictions not only prevented them from becoming citizens, but subjected them to removal from the United States, pursuant to the Immigration and Nationality Act (“INA”).  8 U.S.C. § 1227, et seq.  Specifically, Morris’ plea to petit larceny and sentence of 12 months’ imprisonment, with 11 months suspended constituted a “crime involving moral turpitude . . . for which a sentence of one year or longer may be imposed,” and, thus, subjected him to removal proceedings under the INA.  8 U.S.C. § 1227(a)(2)(A).  Similarly, Chan’s plea to misdemeanor assault and battery for which he received a 12 month sentence with all 12 months suspended, made him an “aggravated felon” for immigration purposes and subjected him to mandatory detention and deportation.  Id.; 8 U.S.C. § 1101(a)(43).  Claiming ineffective assistance of counsel under Padilla, the appellees sought a writ of error coram vobis, pursuant to Va. Code Section 8.01-677, and a writ of audita qurela, requesting that the trial court modify their original criminal sentence in a manner that would preclude removal.  In Morris’ case, the trial court determined that the writs sought by Morris were appropriate to review and modify his criminal sentence and, thus, modified Morris’ 12 month sentence by one day.   Likewise, in Chan’s case, the trial court amended Chan’s original sentence to 360 days by a nunc pro tunc order.


However, the Virginia Supreme Court disagreed and reversed the Circuit Courts’ rulings in both Morris’ and Chan’s cases.  The Court reasoned that unless a statute clearly provided otherwise, a trial court is not able to modify a final order more than 21 days after the order has been entered.  Pursuant to Virginia Supreme Court Rule 1:1: “[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.”  Accordingly, though recognizing that a writ of habeas corpus, a writ of error coram vobis, and a writ of audita querela provide exceptions to Rule 1:1, the Court held that “these cases do not fall within the contemplated circumstances required by Code § 8.01-677 for error coram vobis, and audita querela is not available for use to modify criminal sentences in Virginia.”  Morris/Chan at 7. 


With respect to the writ of audita querela, the Court held that such a writ was only applicable to provide relief to civil judgment debtors and that, therefore, “[w]hat is certain is that the writ of audita querela has never been applicable to modify a criminal sentence in Virginia.”  Morris/Chan at 16.    Notably, the Court refused to follow the lead of other states, namely Florida and Kentucky, which have applied the writ to modify criminal sentences, holding, instead, that the writ as recognized in Virginia is the same as it was recognized under English common law: a writ “available for use by [civil] judgment debtors to release them from judgment where the judgment ‘ought not to have issued . . .’” Morris/Chan at 16.  


With respect to the writ of error coram vobis, the Court stated that the essential question “is whether there was 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.’”  Morris/Chan at 10 (quoting Dobie v. Commonwealth, 198 Va. 762, 769 (1957)) (emphasis in original).  The Court rejected, therefore, Chan’s contention that because her counsel never made the trial court aware of Chan’s non-citizen status, the trial court was deprived of a fact which would have prevented it from proceeding to judgment.  The Court, instead, concluded that “[w]hile the trial court may have been inclined to impose a lesser sentence had it known of Chan’s non-citizen status, it still had the authority to render judgment against Chan.”  Morris/Chan at 10. 


Likewise, the Court went on to reject Morris’ seemingly stronger, Padilla-centered argument that ineffective assistance of counsel that results in a defendant pleading guilty to a crime for which he is either unaware or misinformed about the immigration consequences of pleading guilty is an error of fact for which a writ of coram vobis should issue.  The Court concluded that “[w]hile 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 errors of fact in cases ‘where judgment is rendered against a party after his death, or who is an infant.’”  Morris/Chan at 12 (quoting Dobie, 198 Va. at 770)(emphasis in original).  Without additional analysis or reasoning, the Court concluded that Morris and Chan’s reliance on Padilla was misplaced because “[w]hile Morris and Chan 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 pursuant to Code § 8.01-654, neither did so.”  Morris/Chan at 13.  Seemingly, the Court would confine Padilla’s applicability to the habeas corpus context, a conclusion that does not seem to necessarily follow the holding of Padilla.


Said differently, the Court’s holding seems to promote the remarkable conclusion that a trial court, either knowing that a defendant has received ineffective assistance of counsel or, more simply, knowing that a defendant is unaware of one of the consequences of pleading guilty, a consequence that the U.S. Supreme Court has held to be most severe and crucial, see Padilla, 130 S. Ct. 1487 (“The severity of deportation – ‘the equivalent of banishment or exile,’ – only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-391 (1947))), could still proceed to render a judgment against such a defendant.  Thus, where, as in this case, the trial court is unaware of those facts, there is no error of fact that would have prevented the trial court from proceeding to judgment.  Id. (“Accordingly, a claim of ineffective assistance of counsel does not constitute an error of fact for which coram vobis will lie under Code § 8.01-677, because such a claim would not have prevented rendition of the judgment.”).