Commonwealth v. Morris, JAN11, VaSC No. 092163 & 092346The criminal defense lawyers didn't know immigration law. One defendant's lawyer did not realize that a permanent resident could be deported for a felony conviction and another defendant's lawyer did not realize that a misdemeanor domestic assault and battery would count as an aggravated felony for immigration purposes. Of course, the guilty pleas and convictions happened several years before (at least 4 years) the federal government decided to expel the individuals. There is no solution to this under Virginia law. The Rules of the Supreme Court of Virginia declare a conviction order finalized, and therefore unchangeable, after 21 days. A direct appeal of a case must commence within 30 days of the conviction. A habeas must start within a year of the conviction order (or the last order dealing with the appeal). Federal habeas must start within two years of the conviction order (I think). In other words, there is no relief available. Therefore, the defendant tried to use holdovers from the common law.
Trial Judge: Haddock, 18VaCir (overturned) Trial Judge: Morrison, 4VaCir (overturned)
(1) The writ of Audita Querela is writ only available for use in civil cases and cannot be used to modify a criminal sentence. (2) A writ of Coram Vorbis is only available if (a) it's for an error of facts not apparent on the record, and (b) the error is not attributable to the applicant, and (c) if the error had been known to the judge it would have prevented rendition of judgment. (3) A writ of coram nobis cannot proceed from new evidence or facts. (4) Coram nobis can only correct (a) clerical errors, and (b) errors of fact. (5) Errors of fact must not merely be enough to render the conviction voidable, they must make it impossible to render a judgment. (6) Ineffective assistance of counsel does not fall within the bounds of a writ of coram nobis.
In fact, over the last few years the writ of coram nobis has become a popular technique which defense attorneys have tried to use to get trial courts to alter sentences after the courts have lost jurisdiction. It has had some legs to it for a couple reasons. Many times it has found trial judges who haven't dealt much with this common law writ and don't understand that in Virginia coram nobis is available only under extremely limited circumstances. At other times it has been a convenient way to wink and nod something through the system that isn't actually allowed.
I'm not sure which happened in the two cases the Virginia Supreme Court overturned. There was no legal remedy for either case - all the final dates had passed and the writ of actual innocence was not available because the defendants were guilty. The defendants got judges to alter the sentences of guilty individuals because of collateral consequences. The standard enforced by the Supreme Court isn't a new one, the extant case law clearly set out the standard: Coram Nobis only fixes scrivener's errors and errors of fact which make the judgment void ab initio.
The decision may lead to unpleasant consequences, but it's not wrong. In particular, I have some sympathy for the defendant who pled guilty to a misdemeanor and later found out that it was an aggravated felony under federal immigration law. This is more proof of my previous statement that Padilla sets a standard unreachable by a typical defense attorney. After all, what would normally be your answer if a defendant asked you if a misdemeanor was a felony? Nevertheless, the general Assembly has chosen not to give any court the ability to alter a sentence based upon collateral consequences.
I have mixed feelings about this. At first blush, I am pleased that coram nobis has been shut down. I've not seen it abused where I currently practice, but before I moved out here I was starting to see it pop up more and more in trials courts where I previously practiced. I never saw it succeed and I was actually quite annoyed by it. Primarily, I saw it being used by certain defense attorneys as a way to take money from convicts families to go back into court and make meritless motions which everyone knew the judges were going to shoot down.
On the other hand, equity does call for some sort of fix here. Perhaps the General Assembly could be called upon to pass an equity statute:
19.2-5001 Writ of EquityIt would be a very limited writ, but it would be helpful in this kind of situation.
Under the following conditions, a circuit court court may alter a sentence which it, or a court for which it hears appeals, had previously imposed.
(a) The sentenced individual is not incarcerated or on supervised probation, and
(b) Evidence is provided to the trial court that
(i) the sentenced individual has been convicted more than 10 years previously of a non-violent felony, or (ii) the sentenced individual has been convicted more than 5 years previously of a misdemeanor, and
(b) There is clear and convincing evidence that the sentenced individual has reformed, and
(c) There is clear and convincing evidence that failure to alter the sentence will have serious and continuing detrimental affects on the sentenced individual.
This motion may only be made in a circuit court. Nothing in this statute shall be construed as allowing the circuit court to change the sentence of a violent felony, reduce a felony to a misdemeanor, change the statute under which the defendant was convicted, or expunge a conviction. The Commonwealth shall have the right to appeal any action taken by a trial court under this statute.