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State v. Hutton

Supreme Court of West Virginia

November 1, 2017

STATE OF WEST VIRGINIA, Respondent
v.
ORVILLE M. HUTTON, Petitioner

          Submitted: October 18, 2014

         Appeal from the Circuit Court of Harrison County Honorable James A. Matish, Judge Criminal Action No. 13-P-119

          Wiley W. Newbold Morgantown, West Virginia Attorney for Petitioner

          Patrick Morrisey Attorney General Elbert Lin Solicitor General Thomas M. Johnson, Jr. Deputy AssistantAttorney General Gilbert Dickey Assistant Attorney General Zachary Viglianco Assistant Attorney General Charleston, West Virginia Attorneys for Respondent

          CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion., JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.

         SYLLABUS BY THE COURT

         1. "Under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Sixth Amendment requires defense counsel to warn an immigrant client of the deportation consequences of a guilty plea. When the deportation consequence is succinct, clear, and explicit under the applicable law, counsel must provide correct advice to the client. When the law is not succinct or straightforward, counsel is required only to advise the client that the criminal charges may carry a risk of adverse immigration consequences." Syllabus point 4, State v. Hutton, 235 W.Va. 724, 776 S.E.2d 621 (2015).

         2. "A claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) there exists a substantial adverse consequence from the conviction; and (4) the error presents a denial of a fundamental constitutional right." Syllabus point 5, State v. Hutton, 235 W.Va. 724, 776 S.E.2d 621 (2015).

         3. "In 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." Syllabus point 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

          OPINION

          DAVIS JUSTICE

         Petitioner, Orville M. Hutton ("Mr. Hutton"), appeals from an order of the Circuit Court of Harrison County that denied him relief in his petition for a writ of error coram nobis. In this appeal, Mr. Hutton contends that he satisfied the four-part test for coram nobis relief.[1] After carefully reviewing the briefs, the arguments of the parties, the legal authority cited, and the record presented for consideration, we reverse and remand for further proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL HISTORY

         In 2010, a Harrison County grand jury indicted Mr. Hutton for malicious assault[2] and three counts of sexual assault in the second degree.[3] The victim of the crimes was Mr. Hutton's girlfriend, who also was the mother of their four-year-old son. In May of 2010, shortly after the indictment, Mr. Hutton entered a Kennedy plea of guilty to the felony crime of unlawful assault, in exchange for the charges set out in the indictment being dropped.[4] In July of 2010, Mr. Hutton was sentenced to a term of one to five years. At some point, Mr. Hutton was released on parole. However, his parole was revoked, and he was required to serve the full term of his sentence.

         On May 15, 2013, a few days before Mr. Hutton was set to be released from prison, he was notified by the Department of Homeland Security that, as a result of his felony conviction, he would be held by the federal government under a detainer and processed for deportation to the place of his birth, Jamaica.[5] Upon being discharged from his State sentence, on May 25, 2013, Mr. Hutton was turned over to the federal government for deportation proceedings. During the pendency of the deportation proceedings, Mr. Hutton filed a petition for writ of error coram nobis with the circuit court. Mr. Hutton alleged in the petition that he received ineffective assistance of counsel because his trial counsel failed to inform him that his guilty plea to the felony crime of unlawful assault would result in his being deported from the United States. By order entered April 28, 2014, the circuit court denied relief to Mr. Hutton on the ground that the writ of error coram nobis was abolished in West Virginia. Mr. Hutton appealed that ruling. In the appeal to this Court, we reversed the circuit court's order and held in Syllabus point 3 of State v. Hutton, 235 W.Va. 724, 776 S.E.2d 621 (2015) ("Hutton I"), that "[i]n West Virginia, the common law writ of error coram nobis is available only in criminal proceedings." The case was remanded for the circuit court to hold a hearing on the merits of Mr. Hutton's petition.

         On December 16, 2015, the circuit court held an evidentiary hearing on Mr. Hutton's petition. Testimony was taken from four witnesses at the hearing: Mr. Hutton, [6]Thomas G. Dyer, [7] A. Courtenay Craig, [8] and Michael Blumenthal.[9] At the conclusion of the hearing, the circuit court entered an order on October 18, 2016, that denied relief to Mr. Hutton. This appeal followed.

         II. STANDARD OF REVIEW

         In this proceeding, the circuit court entered an order denying Mr. Hutton coram nobis relief. In our consideration of that order, we apply the following standard of review:

We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. pt. 2, in part, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Accord State v. Murray, 235 W.Va. 312, 319, 773 S.E.2d 656, 663 (2015).

         III. DISCUSSION

         In order to understand the posture of the issues presented in this appeal, a review of a few legal principles set out in our opinion in Hutton I is required. To begin, in the decision in Hutton I we recognized that the opinion by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), required attorneys to advise immigrant criminal defendants of the deportation consequences of a guilty plea. We addressed the issue in Syllabus point 4 of Hutton I as follows:

Under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Sixth Amendment requires defense counsel to warn an immigrant client of the deportation consequences of a guilty plea. When the deportation consequence is succinct, clear, and explicit under the applicable law, counsel must provide correct advice to the client. When the law is not succinct or straightforward, counsel is required only to advise the client that the criminal charges may carry a risk of adverse immigration consequences.

235 W.Va. 724, 776 S.E.2d 621. In order to obtain relief for a Padilla violation a defendant must show prejudice. See Padilla, 559 U.S. at 374, 130 S.Ct. at 1487, 176 L.Ed.2d. 284 ("Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below."). In light of Padilla, we adopted a test in Hutton I for a determination of whether a defendant in a coram nobis proceeding may have a plea set aside as a result of a Padilla violation. The test was set out in syllabus point 5 of Hutton I as follows:

A claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) there exists a substantial adverse consequence from the conviction; and (4) the error presents a denial of a fundamental constitutional right.

         It has been recognized that "[f]ailure to establish any of the above elements will defeat a petition for coram nobis relief." Borelli v. United States, No. 17-2814 (JLL), 2017 WL 4074027, at *2 (D.N.J. Sept. 14, 2017).

         We remanded the case in Hutton I so that the circuit court could afford Mr. Hutton an opportunity to present evidence on each of the four elements of the above test. At the conclusion of the hearing on the matter, the circuit court denied relief after determining that Mr. Hutton's evidence satisfied only the third element of the four-part test.[10] In this appeal, the State has conceded that Mr. Hutton also satisfied the first element of the test.[11]See Bereano v. United States, 706 F.3d 568, 576 (4th Cir. 2013) ("The Government does not contest the proposition that Bereano has satisfied the first three of the foregoing prerequisites for coram nobis relief."); United States v. Verrusio, No. 09-cr-00064 (BAH), 2017 WL 1437055, at *8 (D.D.C. Apr. 21, 2017) ("The government also does not quarrel with the defendant's claim that the first and second factors have been met. Instead, the government argues that the defendant cannot satisfy the third or the fourth factor."). As a general rule, we are not obligated to accept the State's concession of error by the circuit court on an issue. See Syl. pt. 8, in part, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991) ("This Court is not obligated to accept the State's confession of error in a criminal case."). However, the record shows quite clearly that Mr. Hutton established the first element of the test by showing that a more usual remedy was not available. Consequently, we summarily reject the circuit court's finding on this issue.[12] We will confine our analysis to the second and fourth elements of the Hutton I test: valid reasons exist for not attacking the conviction earlier and the error presents a denial of a fundamental constitutional right. We will address each issue separately.

         A. A Valid Reason Exists for Not Attacking the Conviction Earlier

         Mr. Hutton argues that the circuit court erred in finding that no valid reason existed for his failure to challenge the unlawful assault conviction earlier in a habeas corpus proceeding. In this appeal, the State also has argued that "Mr. Hutton failed to exercise reasonable diligence in asserting his claim."

         As previously mentioned, the decision in Hutton I required Mr. Hutton show that a valid reason existed for not attacking his conviction earlier. The opinion in Colon v. United States, No: 1:12-cr-204 (JCC), 2016 WL 7210350 (E.D. Va. Dec. 12, 2016) illustrates the meaning of attacking a conviction earlier. The defendant in Colon was an immigrant who pled guilty to a drug charge in federal court. After the defendant served her prison sentence, she was turned over to immigration officials for deportation. The defendant thereafter filed a petition for a writ of coram nobis on the grounds that her counsel failed to inform her of the deportation consequences of the guilty plea. The district court rejected the petition. In doing so, the court addressed the issue of attacking the conviction timely as follows:

In its opposition, the Government concedes that Colon's plea agreement, as well as the plea hearing, did not include a discussion of immigration consequences that might result from Colon's guilty plea. . . . The Government argues, however, that at least by the time Colon was sentenced - on August 24, 2012 - she had been informed that her conviction would result in a deportation review. . . . In fact, the Judgment entered on that date included the special conditions that Colon be surrendered to ICE for deportation review and that, if deported, Colon remain outside the United States. . . . Precisely due to this evidence of Colon's knowledge of the risk of deportation, the Government claims that she has provided no justification for waiting to attack her conviction in the intervening three years and seven months. . . .
Colon's reply to the Government's opposition argues that she was unable to attack her conviction earlier because she was unaware that her conviction would result in "an automatic mandatory deportation." . . . . She asserts that she first realized that she would be deported on December 16, 2015. . . . Before that time, she thought that the language in her special conditions meant only that "[deportation] may or may not happen." . . . In other words, Colon appears to be claiming that she had no reason to attack her conviction before April 2016.
Unfortunately, Colon's relative uncertainty about the possibility of deportation, and her possible hope that she would not be deported at all, do not provide a legitimate justification for her delay. Colon has failed to establish a valid reason for not attacking her conviction earlier. Thus, the Court will deny her motion.

Colon, 2016 WL 7210350, at *2. See also Eastwood v. United States, No. 3-16-cv-00536-JAG, 2017 WL 462635, at *3 (E.D. Va. February 3, 2017) ("She claims that she could not bring this attack earlier because she 'was unaware of the near-mandatory effect of her plea until deportation proceedings were initiated against her.' This completely ignores the fact that the presiding judge at sentencing required Eastwood to surrender to immigration officials after she completed her term of imprisonment. Thus, no valid reason exists why Eastwood did not challenge her conviction earlier, rendering relief through writ of error coram nobis unavailable."); Kokoski v. United States, No. 5:12-2150, 2013 WL 1337408, at *7 (S.D. W.Va. Mar. 29, 2013) ("While the test above does not present a set time limit for filing coram nobis petitions . . ., it would be unfair to allow Petitioner to seek coram nobis relief at this time when such relief could have been pursued years ago.").

         The decision in United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), illustrates a timely attack of a conviction.[13] The defendant in Akinsade was born in Nigeria and came to the United States in 1988, at the age of seven. In 2000, the federal government charged the defendant with embezzlement from a bank. During plea bargaining negotiations, the defendant's attorney informed him twice that he could not be deported based on a single offense. The defendant was told that he could be deported only if he had two felony convictions. Relying on this legal advice, the defendant pled guilty. Prior to accepting the plea, the district judge warned the defendant that if he was not a citizen he could be deported. After accepting the plea, the district court sentenced the defendant to one month of imprisonment, and a three-year term of supervised release. Approximately nine years after the defendant was convicted and sentenced, he was arrested by immigration authorities and charged with deportation as an aggravated felon based upon the embezzlement conviction. The defendant filed a coram nobis petition in federal court, alleging a violation of his Sixth Amendment right to effective assistance of counsel because of the wrong advice given to him by his trial counsel. The district court rejected the argument on the ground that the defendant was not prejudiced, because the trial judge had warned him of the potential for deportation during the plea hearing. The Fourth Circuit disagreed and vacated the defendant's plea. In doing so, the opinion addressed the timeliness of the coram nobis attack on the conviction as follows:

Second, valid reasons exist for Akinsade not attacking the conviction earlier. Until physically detained by immigration authorities in 2009, Akinsade had no reason to challenge the conviction as his attorney's advice, up to that point in time, appeared accurate. . . .
....
. . . [T]he district court warned that Akinsade's plea could lead to deportation. This general and equivocal admonishment is insufficient to correct counsel's affirmative misadvice that Akinsade's crime was not categorically a deportable offense. More importantly, the admonishment did not "properly inform" Akinsade of the consequence he faced by pleading guilty: mandatory deportation. Thus, Akinsade could not have known that deportation was a legally mandated consequence of his plea.

Akinsade, 686 F.3d at 252-54.

         The decisions in Colon and Akinsade help illustrate that attacking a conviction for a Padilla violation is not foreclosed because of a failure to timely attack a conviction on some other basis. That is, for purposes of asserting a Padilla claim in a coram nobis proceeding, the issue of timely attacking the conviction is limited to showing a timely assertion of the Padilla immigration violation.

         In the instant proceeding, the State contends that Mr. Hutton could have attacked his conviction in a habeas corpus proceeding long before he filed the Padilla coram nobis petition.[14] The State relies upon evidence presented below that Mr. Hutton's attorney for post-trial motions, A. Courtenay Craig, had advised him that he may have had a claim for ineffective assistance of counsel against his trial lawyer. The State's reliance on a habeas attack is meritless because of the reason given by Mr. Craig when he informed Mr. Hutton of the potential for an ineffective assistance of counsel claim. Mr. Craig testified that he believed Mr. Hutton's trial counsel did not adequately prepare for trial and that, as a result of this inadequacy, he might have a claim for ineffective assistance of counsel. Mr. Craig testified to this issue during direct examination by counsel for Mr. Hutton:

Q. -you didn't realize he had immigration consequences through IRAIRA, and you didn't realize he had a defense and a claim of ineffective assistance of counsel based on Padilla, do you feel that you were, in fact, ineffective by failing to bring that to his attention at that point?
A. Okay. I can say this, at the time that I became aware of Padilla and this terminated, he'd already pled. It doesn't change his situation one way or another because I told him I think you have an ineffective assistance ...

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