Negra v. Commonwealth

Thomas D. Horne, Judge

MEMORANDUM OPINION AND ORDER

On December 16, 2004, Aisha Negra was charged in warrants with two separate offenses of grand larceny. She retained the services of an attorney and appeared for a preliminary hearing on March 15, 2005. At that hearing, pursuant to an agreement with the Commonwealth, the charges were amended to petty larceny and the petitioner sentenced to twelve months on each of the two warrants. All but twenty-four hours of each of the two periods of confinement were suspended on terms and conditions. The two sentences were to be served consecutively. The aggregate period of probation was two years.

In her instant Petition for the issuance of a writ of habeas corpus, Ms. Negra contends that she is entitled to relief from these convictions because her trial counsel's representation was ineffective. She asserts that she was, upon inquiry, misinformed by her attorney concerning the relationship of her plea and possible deportation. When raised on habeas, ineffective assistant of counsel claims are judged by the two-part test enunciated Strickland v. Washington, 466 U.S. 668 (1984), that is, deficiency of performance and resulting prejudice to the petitioner. Specifically,

First, the petitioner must show that trial counsel's representation fell below an objective standard of reasonableness. Second, if trial counsel's performance was deficient, the petitioner also must establish that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Friedline v. Commonwealth, 265 Va. 273, 277 (2003).

As relates to guilty pleas, a claimant, such as in the instant case, bears the burden of showing both the objectively deficient performance of her counsel and that, absent such advise, there is a reasonable probability she would have pled not guilty and gone to trial. Hill v. Lockhart, 474 U.S. 52 (1985). Thus,

…the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the contest of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson and McMann v. Richardson (citations omitted). The second, or 'prejudice,' requirement, on the other hand focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial….these predictions of outcome at a possible trial, where necessary, should be made objectively, without regard for the 'idiosyncrasies' of the particular decision maker.
Hill v. Lockhart
, at 52, 58,59, 60.

Central to the claim of the petitioner is her contention that she was misinformed by her counsel as to the collateral consequences of her plea attendant to the issue of deportation. There is no affirmative duty imposed upon counsel to inform their client concerning the collateral consequences of their plea just as there is no duty on the trial court to so inform the defendant. Zigta v. Commonwealth, 38 Va. App. 149 (2002). However, should the attorney, when asked, grossly misinform his or her client concerning such collateral consequences; and the client relies upon such misleading information in agreeing to the plea, then an issue for habeas relief is presented. Ostrander v. Green, 46 F. 3d 347 (4th Cir. 1995); United States v. Gajendragadkar, 1998 U.S. App. LEXIS 11656 (4th Cir. 1998). Ms. Negra contends in her pleading and papers that she was grossly misinformed upon her specific inquiry about deportation.

The judge of the district court expressly directed that the two sentences run consecutive to one another. Va. Code Ann. §19.2-308. Consecutive sentences are treated as one aggregate sentence. Bernard v. Garraghty, 934 F.2d 52 (1991). Thus, they may not be parsed or prioritized to limit the petitioner's standing to pursue her ineffective assistance claim in this case.

Although a petition may be determined based upon the record and affidavits, the instant papers filed raise credibility issues that would suggest a need for a plenary hearing. Va. Code Ann. §§8.01-654 (B)(4); 660. The Supreme Court of Virginia has observed that, "[b]ecause each trial record is different, such determinations are not subject to fixed rules but must proceed on a case-by-case basis." Friedline v. Commonwealth, 265 Va. 273, 277 (2003).

In summary, with respect to the either prong of the Hill test, the Court cannot on the instant record determine either what was said concerning deportation or whether there is a reasonable probability the petitioner would have gone to trial absent the advice given. Credibility issues are presented that cannot be resolved on the papers filed.

Accordingly, the motion to dismiss will be denied. Counsel should contact the Court concerning the scheduling of an evidentiary hearing.

The Clerk shall forthwith mail a copy of this Opinion and Order to counsel.

Entered this 2nd day of October 2006

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Thomas D. Horne, Judge Rule 1:13 endorsements