Lead
This is an appeal by Orville M. Hutton from an order of the Circuit Court of Harrison County that denied his petition for a writ of error- coram nobis. Mr. Hutton sought the writ in order to have his guilty plea conviction for unlawful assault vacated on the grounds of ineffective assistance, of counsel. ' Mr. Hutton alleged that his trial counsel was ineffective in failing to inform him that his guilty plea could result in his being deported. The circuit court denied the writ based 'upon the following grounds: (1) the Legislature’s repeal of the coram nobis motion statute abolished coram nobis as a remedy in West Virginia; (2) even if coram nobis exiáts in West Virginia, a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ; and (3) even if a claim of ineffective assistance of counsel could be remedied under the writ, the evidence failed to show Mr. Hutton’s counsel did not inform him of the deportation consequences of his guilty plea. After a careful review of the briefs and the record submitted on appeal, and listening to the argument of the parties, wé reverse and remand for further proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Hutton was born in Jamaica in 1962. He came to the United States in 1971, at the age of nine. Mr. Hutton has resided in this country since that time. He is classified as a permanent resident of this country, but he is not an American citizen. In the January 2010 term of court, a Harrison County grand jury indicted Mr. Hutton for malicious assault and three counts of sexual assault in the second degree. The victim of the crimes was Mr. Hutton’s live-in girlfriend and mother of their then-four-year-old son.
On May 21, 2010,- Mr. Hutton appeared in circuit court and entered an Alford plea of
On May 25, 2013, Mr.' Hutton was discharged from his sentence and turned over to the federal government for deportation pro-. eeedings. While those proceedings were pending, Mr. Hutton filed a pro se petition for a writ of error eoram nobis on September 4, 2013, with the circuit court that sentenced him. In that petition, Mr. Hutton alleged that his Sixth Amendment right to effective assistance .of counsel had been violated because his trial counsel failed to inform him. that his guilty plea could result in his being-deported from the United States. Mr. Hutton requested the appointment of counsel for the coram nobis proceeding. However., at a scheduled April 9, 2014, evidentiary hearing, Mr. Hutton was told that if he insisted on. having counsel appointed, it would delay the proceeding because counsel would need time to prepare and adequately represent him. It appears that Mr. Hutton was concerned about being deported before another hearing could be rescheduled, so he agreed to hold the hearing without counsel.
Mr. Hutton testified by telephone at the hearing and submitted into evidence an affidavit from his trial counsel. In the affidavit, trial counsel indicated that he did not remember speaking with Mr. Hutton regarding his immigration status nor the consequences he faced as an immigrant if he was found guilty of the charges in the indictment. Mr. Hutton also had his sister and wife testify as witnesses by telephone. A final witness that Mr. Hutton wanted to call, his post-conviction counsel Courtenay Craig, was not available. Consequently, the circuit court continued the hearing until the next day. On that date, Mr. Craig testified by telephone on-behalf of Mr. Hutton. At the end of Mr. Hutton’s presentation of his evidence, the circuit court entered an amended order on April 28, 2014,
II.
STANDARD OP REVIEW
-In this proceeding, we are called upon to review the circuit court’s order denying Mr. Hutton coram' nobis relief. In reviewing challenges to the findings and conclusions of the circuit court, 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.”
State v. Allen,
III.
DISCUSSION
The circuit court made three dispositive rulings in denying Mr. Hutton relief. The
A. Overview of the Writ of Error Coram Nobis
The common law method for a trial court to review a final judgment was through the writ of error coram nobis.
The writ ... was originally dévised in England as a means of rectifying the unjust situation arising from the fact that any allowable method of appeal at common law was limited only to review for errors of law and there was no redress for an error of fact not apparent on the record and unknown to the court at the time of trial, which would have brought about a different result. Like all writs in those days, it issued out of Chancery and was addressed to the court in which the judgment had been entered, imploring that tribunal to recognize the error and correct the judgment. Later it was obtained by motion to the trial court itself.
Janiec v. McCorkle,
The scope of the writ of error coram nobis was extremely narrow. See People v. Goodspeed,
Coram nobis is of limited scope and is sometimes the proper vehicle for vindicating constitutional rights____Theoretically, coram nobis, not being dependent upon custody, is available indefinitely!.]
Franklin D. Cleckley, Handbook on West Virginia . Criminal Procedure 508 (2d ed.1993).
include clerical errors, the infancy of the defendant and nonrepresentation by a guardian, the common-law disability of coverture (the married woman’s disability to appear on her own in court), the death of a party before the verdict, the insanity of the defendant at the time of trial, a guilty plea procured by extrinsic fraud, and a valid defense that was not made because of fraud, duress, or excusable neglect.
Trujillo v. State,
B. The Status of the Writ of Error Coram Nobis in West Virginia Mr. Hutton contends that the circuit court committed error in concluding that the writ of error coram nobis was abolished in West Virginia through the Legislature’s repeal of the coram nobis motion statute. The circuit court reached that conclusion, in part, based upon West Virginia’s adoption of a Virginia statute that incorporated the writ. The Virginia Statute in question was found in chapter 181, § 1 of the Virginia Code of 1849. The following pronouncement regarding the writ of error coram nobis was set out under the Virginia statute: (Footnote added). The Virginia statute was adopted almost verbatim by the West Virginia Legislature in chapter 134, § 1 of the State Code of 1868. The West Virginia statute provided the following:
For any clerical error, or error in fact for which a judgment or decree may be reversed or corrected on writ of error co-ram nobis, the same may be reversed or corrected, on motion after reasonable notice, by the court, or if the judgment or decree be in a circuit court, by the judge thereof in vacation.[8 ]
For any clerical error or error in fact for which a judgment or decree may be reversed or corrected on writ of error coram nobis, the same may be 'reversed or corrected, on motion after reasonable notice, by the court, or by the judge thereof in vacation.9
The circuit court and the State take the position that when Virginia enacted its coram nobis motion statute, it effectively abolished the common law writ. Moreover, it is argued that because West Virginia adoptéd Virginia’s coram nobis motion statute, the common law writ was necessarily abolished in West Virginia. Finally, the circuit court
As a preliminary matter, our analysis requires us to review statutes. We previously have held that “[t]he primary object in construing a statute is to ascertain and give effect, to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r,
A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether ■ constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.
1. The impact of Virginia’s coram no-bis motion statute on the common law writ of error coram nobis. This Court has recognized that “[b]y an ordinance of the Virginia convention all of English common law was incorporated in Virginia in 1776[.]” State ex rel. Knight v. Public Serv. Comm’n,
Prior to 1849, when Virginia's coram nobis motion statute was enacted, Virginia recognized two ways in which a litigant could approach a trial court to challenge a final judgment. This could be done “by motion or writ of error coram nobis.” Eubank v. Ralls’ Ex’r,
This case tho’ depending upon a practice not common in this country is by no means a difficult one. I have no doubt but that the error complained of might have been corrected by the samé court upon motion, at a subsequent term; but-1 should not for that reason reverse the judgment, since the party having preferred a writ of error coram vobis had a right to proceed in that way, tho’ a shorter, and much less expensive mode might have been pursued.
Gordon,
It is with this legal background in view that we must discern the impact of Virginia’s eoram nobis motion statute on the common law writ in Virginia. A review of the text of the statute reveals that it was not intended to abolish the common law writ — it simply intended to codify the practice that was taking place since at least 1795, ie., allowing the substance of the writ to be brought as a post-judgment motion. There is no language in the statute which expressly or implicitly indicates that it was intended to abolish the common law' writ. Moreover, the statute made it discretionary to use a motion to raise a coram nobis issue. The statute provided that if a final judgment could be corrected with a writ of error coram nobis, it “may” be corrected on a motion. Further, the original title of the statute supports the discretionary use of a motion, as it provides: “Errors which might be corrected on writ of error coram nobis, may be corrected on motion
Even the current version of Virginia’s co-ram nobis motion statute has been interpreted as allowing a motion to act as a substitute for the writ. It was observed in Blowe v. Peyton,
The circuit court and the State have noted that the courts of Virginia have concluded that coram nobis has been limited by the statute to clerical error or error in fact. See Neighbors v. Commonwealth,
In sum, we reject the position of the circuit court and the State that when Virginia enacted its coram nobis motion statute, it effectively abolished the common law writ of error coram nobis.
2. West Virginia’s adoption of Virginia’s coram nobis motion statute did not abolish the common law writ of error co-ram nobis. The circuit court’s order provides that insofar as West Virginia adopted Virginia’s eoram nobis motion statute, the common law writ “did not continue in force in West Virginia.” The State also has argued that, as a result of the,statute, “the writ of coram nobis has never been a part of that common law.” The State premises its argument on article XI, § 8 of the West Virginia Constitution of 1863. A provision in § 8 provides the following:
Such parts of the common law and the laws of the State of Virginia as are in force within the boundaries of the State of West Virginia, when this Constitution goes into operation, and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the Legislature.
According to the State, as a result of this constitutional provision, “instead of adopting the writ of coram nobis from Virginia as part of the common law, West Virginia adopted the statutory motion from ■ Virginia.” We disagree with the circuit court’s ruling and the State’s arguments.
To begin, as we previously mentioned, the 1st section of chapter 134 of the Code of [1868] provides that for any clerical error, or error in fact, for which a judgment or decree may be reversed or corrected on writ of error coram nobis, the same may be reversed or corrected on motion, after reasonable notice by the court, or by the judge thereof in vacation.
Campbell v. Hughes,
■ We have seen, that the great weight of the authority is in favor of holding a judgment recovered against a deceased person not void but voidable. We think‘this doctrine [is] founded on the better reason. It is very easy for the personal representative upon motion under see. 1 of ch. 134 of the Code to correct the error. That section gives an additional remedy to a writ of error coram nobis; it reads as'follows: “For any clerical error or error in fact, for which a judgment or decree may be reversed or corrected on ■writ of error coram nobis, the same may be reversed or corrected on motion after reasonable notice by thé court or by the judge thereof - in vacation.” It would result in great inconvenience and in many eases in gross injustice to regard such judgments absolute nullities.
King,
The decisions in King and Watt suggest that this Court interpreted our coram nobis motion statute as providing a substitute for the writ through a motion. This suggestion was made explicit in Withrow v. Smithson,
The point is made that the application to equity is mistaken, and that it should have been to the court of law which pronounced the judgment, by either writ of.error co-ram nobis at common law [] or by motion under section 1, c. ISJp, Code. There was in no manner a suggestion of Smithson’s insanity in the record of the judgment— [I]f[,] at the date of the judgment^] there exist a fact, which, had it been introduced into the record, ought to have prevented the judgment, but it wás not introduced, it is a ease of error in fact, to 'be corrected by writ of error coram nobis, or by such motion. Thus, if the defendant be dead, ... but where the death is not presented, and judgment is rendered, that is error in fact, to be corrected by writ of error coram . nobis or motion.
Withrow v. Smithson,
A writ of error coram nobis, or a motion in lieu of it, is not a proper process to reverse [a] judgment, because of the defendant’s insanity, as the judgment can only be affected in equity, which has jurisdiction in such case.
Withrow,
The prior decisions of this Court have made it abundantly clear that the common law writ of error coram nobis was not abolished by the Legislature’s adoption of Virginia’s coram nobis motion statute. Therefore, we reject the circuit court’s determination to the contrary.
3. The Legislature’s repeal of the co-ram nobis motion statute did not abolish the common law writ of error coram no-bis. The circuit court and State contend that insofar as the Legislature repealed the eoram nobis motion statute in 1998, the common law writ is abolished in West Virginia. We disagree.
To understand the limited impact of the repeal of the coram nobis motion statute, it must be viewed in light of this Court’s abolishment of the common law writ of error coram nobis in civil cases. Prior to the repeal of the coram nobis motion statute in 1998, this Court had abolished the writ of error coram nobis in.civil cases pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. See Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure,. § 60(b), at 1294 (4th ed. 2012) (“Rule 60(b) expressly abolishes the use of writs of coram nobis and coram vobis ..., as mechanisms for obtaining relief from a final judgment.”). In 1960, this Court adopted the Rules of Civil Procedure. The following provision abolishing the writ of error coram nobis in civil cases was incorporated into Rule 60(b) when " the Rules were adopted:
Writs of coram nobis, coram vobis, petitions for rehearing, bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from á judgment shall be by motion as prescribed in these rules or by an independent action.
This provision in Rule 60(b) was taken from its counterpart .in federal Rule 60(b). See United States v. Kerschman,
No provision equivalent to the relief mechanism of Rule 60(b) exists in the West Virginia Rules of Criminal Procedure. Consequently, the common law writ of error coram nobis in criminal cases was not affected by Rule 60(b). This Court previously has indicated that “in spite of the language in Rule 60(b) which abolishes the writ of error eoram nobis, in criminal cases the writ of coram nobis ... remains available whenever resort to a more usual remedy would be inappropriate.” State v. Eddie Tosh K.,
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the • judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should, have prospective application; or (6) , any other reason justifying relief from the operation of the judgment.
When the Legislature repealed the coram nobis motion statute in 1998, the actual common law writ of error coram nobis was limited to criminal cases as a result of Rule 60(b). The circuit court and the State argue that repeal of the statute abolished the common law writ of error eoram nobis in criminal cases.
This Court has made clear that “[i]f the Legislature intends to alter or supersede the common law, it must do so clearly and without equivocation.” State ex rel. Van Nguyen v. Berger,
Moreover, we have held that “[w]hen a statute which is declaratory of the common law is repealed the common law remains in force for the reason that the statute was an affirmance of the common law.” Syl. pt. 2, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars,
In sum, Rule 60(b) abolished the common law writ of error coram nobis in civil cases. The Legislature’s repeal of the eoram nobis motion statute merely abolished the use of a motion to raise a coram nobis issue in criminal cases. Consequently, and we so hold, in West Virginia, the common law writ of error coram nobis is available only in criminal proceedings.
C. Courts Permit a Constitutional Legal Error Claim to Be Brought under the Writ of Error Coram Nobis
Mr. Hutton contends that the circuit court committed error in finding that the writ of error coram nobis could not be used to raise a constitutional claim for ineffective assistance of counsel. The circuit court’s order and the State’s brief argue that the constitutional claim of ineffective assistance of counsel presents a mixed question of fact and law. Consequently, the claim' cannot be raised in a petition for the writ of error coram nobis because the common law did not allow errors of law to be raised through the writ. Although we agree with the circuit court and State that the writ of error coram nobis was limited under the common law to errors of
To begin, the circuit court’s order held that “there is no constitutional or statutory basis to expand the writ.” We disagree. This Court has made clear that we have authority to alter the common law. In Morningstar v. Black & Decker Manufacturing Co.,
[w]e did not hold in Morningstar that we would ignore the English common law, but only that we are not required to accept it as forever binding us, to the point where we cannot make our own assessment of the reasonableness'of an ancient common law rule in light of the present condition of our society.
Markey,
Having determined that this Court has authority to modify common law principles, we now will proceed to show why and how we will modify the common law writ of error eoram nobis. We will do this in three parts:
(1) modification of the writ of error coram nobis by the United States Supreme Court;
(2) a defendant has a constitutional right to be informed of the possible deportation consequences of being convicted of a crime; and
(3) creation of a four-part test for asserting a constitutional legal claim in a petition for a writ of error coram nobis.
1. Modification of the writ of error co-ram nobis by the United States Supreme Court. The seminal ease recognizing the expansion of the writ of error coram nobis to
[wjhere it cannot be deduced from’ the record whether counsel was properly waived, we think, no other "remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard by the federal trial court.
Morgan,
The decision in United States v. Denedo,
Any rationale confining the,'"writ to technical errors, however, has been superseded; for in its modem iteration eoram nobis is broader than its common-law predecessor. This is confirmed by our opinion in Morgan. In that case we found that a writ of coram nobis can issue to redress a fundamental error, there a deprivation of eounsel in violation of the Sixth Amendment, as opposed to mere technical errors. The potential universe of cases-that range from technical errors to fundamental ones perhaps illustrates, in the case of coram nobis, the tendency of a principle to expand itself to the limit of its logic. To confine the use of coram nobis so that finality is not at risk in a great number of cases, we were careful in Morgan to limit the availability of the writ to “extraordinary” cases presenting circumstances compelling its use to achieve justice.
Denedo,
2. A defendant has a constitutional right to be informed of the possible deportation consequences of being convicted of a crime. The right of a defendant to be informed of any immigration consequences before pleading guilty to a crime was elevated to a constitutional right by the United States Supreme Court in the case of Padilla v. Kentucky,
As an initial matter, the opinion in Padilla examined the evolution of federal immigration law. The opinion concluded its review by noting the following:
These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for. non-citizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral paid: — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
Padilla,
, The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.
In the instant case, the terms of the relevant immigration statute ar,e succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute____Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.
Immigration law can be complex, and it is a legal specialty of its own. Some members of. the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is moré limited. When the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
Accepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency. to satisfy the first prong of Strickland.
Padilla,
It is our responsibility under the Constitution to ensure that no criminal' defendant — whether a citizen or not — is left to the'mercies of incompetent counsel. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.
Padilla,
Justice Alito, joined by Chief Justice Roberts, wrote a concurring opinion in Padilla. Although Justice Alito joined in the judgment under the facts of the case, he suggested that the majority opinion may have gone too far in the standard it imposed on criminal attorneys to provide immigration advice. Justice Alito noted that “it may be hard, in some cases, for defense counsel even to determine whether a client is an alien.” Padilla,
such as statutory or administrative reforms requiring trial judges to inform a defendant on the record that a guilty plea may carry adverse immigration consequences. As amici point out, 28 states and the District of Columbia have already adopted rules, plea forms, or statutes requiring courts to advise criminal defendants of the possible immigration consequences of their pleas.
Padilla,
Justice Sealia, joined by Justice Thomas, dissented from the majority opinion. The dissent did not believe the Sixth Amendment required defense counsel to inform defendants of the collateral consequences of being convicted. Justice Sealia wrote:
The Court’s holding prevents legislation that could solve the problems addressed by today’s opinions in a more precise and targeted fashion. If the subject had not been constitutionalized, legislation could specify which categories of misadviee about matters ancillary to the prosecution invalidate plea agreements, what collateral consequences counsel must bring to a defendant’s attention, and what warnings must be given. Moreover, legislation could provide consequences for the misadviee, nonadvice, or failure to warn, other than nullification of a criminal conviction after the witnesses and evidence needed for retrial have disappeared.
Padilla,
To be clear, Padilla imposes on defense counsel a constitutional duty to warn immigrant clients of the legal consequences of a plea conviction. The Padilla warning has been summarized as follows:
The Court expounded on the duties of counsel both where immigration law is and is not clear on the effect of a guilty plea on immigration status. Where the removal consequence is succinct, clear, and explicit, counsel must provide correct advice to the noncitizen. When the law is not succinct or straightforward, a criminal defense attorney only needs to advise the noncitizen that the criminal charges may carry a risk of adverse immigration consequences.
Michael Vomacka, Supreme Court Decision in Padilla v. Kentucky States Affirmative Duty to Inform Client of Risk Guilty Plea May Result in Removal, 25 Geo. Immigr. L.J. 233, 234-35 (2010).
Consequently, we now hold that under Padilla v. Kentucky,
3. Creation of a four-part test for asserting a constitutional legal claim in a petition for a writ of error coram nobis. The Fourth Circuit has recognized a four-part test for determining when the writ of error coram nobis may be used to remedy a constitutional legal error. ■ This test was set out in United States v. Akinsade,
The defendant in Akinsade was a Nigerian citizen who came to America in 1988, at the age of seven, and resided in Maryland. He became a lawful permanent resident in 2000. In March 2000, the defendant was charged by the federal government with embezzlement from a bank. While considering a plea agreement with the government, the defendant asked his attorney on at least two different occasions about the potential immigration consequences of a guilty plea. On both occasions, his attorney advised him that he could not be deported based on this single offense. His attorney told him that he could be deported only if he had two felony convictions. This advice was inconsistent with the law at that time. Relying on his attorney’s advice that he could not be deported for a single offense,' the defendant pled guilty. The plea agreement made no mention that deportation was mandatory or even possible. During the plea hearing, the district judge warned the defendant that, if he was not a citizen, he could be deported. After the district court accepted the plea, the defendant was sentenced to one month of imprisonment to be served in community confinement, and a three-year term of supervised release. Once the defendant served his sentence, he attended the University of Maryland, where he received a bachelor’s degree in computer science. He later earned a master’s degree from the university and received a fellowship from the National Science Foundation. The defendant later moved to upstate New York.
Almost nine years after the defendant in Akinsade was convicted, immigration authorities arrested him and placed him in detention in Batavia,- New York. The defendant later was charged with deportation as an aggravated felon based upon the embezzlement conviction. The defendant filed a petition for a writ of error coram nobis 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. After conducting a hearing, the district court denied the petition. The court held that although the defense counsel’s affirmative misrepresentations rendered his assistance constitutionally deficient, the defendant was not prejudiced because the warning of the potential for deportation during the plea colloquy with the judge cured counsel’s affirmative misrepresentations. The defendant appealed to the Fourth Circuit.
The Fourth Circuit noted at the outset in Akinsade that precedent by the United States Supreme Court made it clear that “[a]s a remedy of last resort, the writ of error coram nobis is granted only where an error is of the most fundamental character and there exists no other available remedy.” Akinsade,
A petitioner seeking this relief must show that (1) a more usual remedy is not available; (2) valid reasons exist'for not attacking. the conviction earlier; (3) adverseeonsequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.
Akinsade,
Under’ the prejudice prong of Strickland, the potential , strength of the state’s case must inform our analysis, inasmuch as a reasonable defendant would surely take it into account.... Applying this standard, we have held that counsel’s affirmative misadvice on collateral consequences to a guilty plea was prejudicial where the prosecution’s evidence proved to be more than enough for a guilty verdict but was hardly invincible on its face — We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus wquld reasonably risk going to trial instead of pleading guilty and facing certain deportation.
Akinsade,
We believe that the four-part test set out in Akinsade provides a good framework for limiting the use of the writ of error coram nobis to assert a constitutional legal error. Consequently, we now hold that 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.
D. Application of the Test for Raising a Legal Error in a Petition for a Writ of Error Coram Nobis
The last issue.presented for our review is the circuit court’s determination that even if a claim of .ineffective assistance of counsel could be remedied under the writ, the "evidence failed to show Mr. Hutton’s counsel did not inform, him of the deportation consequences of his guilty plea. We decline to address this issue because the circuit court did not have the benefit of the test we have adopted in this opinion for raising a legal error claim in a writ of error coram nobis proceeding.
IV.
CONCLUSION
We reverse the circuit court’s amended order of April 28, 2014, denying Mr. Hutton’s petition for writ of error eoram nobis, and remand this ease for further proceedings consistent with this opinion.
Reversed and Remanded.
Notes
. An Alford plea, from the decision in North Carolina v. Alford,
. Mr. Hutton had been released earlier on parole. However, his parole was revoked, and he served the full term of his sentence.
: The original order was entered on April 21, 2014.
. The state and federal government opposed reIiéff for Mr. Hutton; but neither- appears to have called any witnesses at the proceeding.
. Mr. Hutton is represented by counsel in this appeal.
. There also was another, similar writ that was called the writ of coram vobis. The distinction between the two writs involved the courts in which they were filed.
It was called coram nobis (before us) in King's Bench because the king was supposed to preside in person in that court. It was called coram vobis (before you — the king’s justices) in Common Pleas, where the king was not supposed to reside.
Neighbors v. Commonwealth,
. Professor Cleckley also suggested that the writ "cannot ... be used unless the applicant for the writ is physically present in the state where he seeks relief, although there is no requirement that he be in custody.” Cleckley, Handbook, at 508. We have not been able to find any judicial support for Professor Cleckley’s assertion that a coram nobis petitioner must be present in the State. We have, however, found contrary authority. See State v. Urbano,
. See Va.Code Ann. § 8.01-677 (1977). The Virginia statute now uses the phrase coram vobis instead of coram nobis. See Draghia v. Commonwealth,
. West Virginia’s coram nobis motion statute was subsequently codified at W. Va.Code § 58-2-3 (1923) (repealed).
. The title of Virginia’s current version of the coram nobis motion statute reads: "Errors corrected on motion instead of writ of error coram vobis.”
. We also should note that even if we had determined that Virginia abolished the common law writ of error coram nobis, such a determination. would not have impacted our ultimate conclusion that the writ exists as a common law remedy in West Virginia. This is because, as will been seen in the next section, historically, this ‘ Court has always recognized that the common law writ existed in this State.
. The relevant provision of Rule 60(b) provides as follows:
. This actually is a disingenuous argument. Both the circuit court and the State have argued that the common law writ of error coram nobis was never part of the law in West Virginia, in part, because of the adoption of Virginia’s coram nobis motion statute. If the common law writ never existed in West Virginia, then how could the repeal of the statute abolish that which purportedly never existed?
. It should be clearly understood that although a writ of error coram nobis proceeding is in the nature of a civil proceeding, the abolishment of the writ by Rule 60(b) does not prevent the initiation of a writ proceeding. Rule 60(b) would prevent only a final judgment in a writ proceeding from being challenged by use of another writ.
. It has been observed that "[t]he writ of coram nobis is not available in a majority of states because those states have enacted uniform post-conviction acts that provide a streamlined, single remedy for obtaining relief from a judgment of conviction, and that remedy is available to petitioners who are no longer in custody.” Trujillo v. State,
. See State v. Keith D.,
. Subsequent to the decision in Padilla, the Supreme Court held in Chaidez v. United States, - U.S. -,
. The State’s brief alleged that Mr. Hutton did not inform his counsel that he was an immigrant. Under the current state of the law, this is of no moment. As noted by Justice Alito, the decision in Padilla did not impose a requirement on the defendant to inform counsel that he is an immigrant. While we may agree with Justice Alito that such a burden should be imposed on a client, Padilla has not done so. Consequently, we decline to make an exception to a federal constitutional right without guidance from federal courts.
. We also are concerned that the circuit court's order did not cite to Padilla or discuss the stringent constitutional requirements Padilla places on defense counsel. On remand, the circuit court will now have the benefit of the guidance set out in Padilla.
. The circuit court's ruling was based upon trial counsel's affidavit wherein trial counsel indicated that he did not remember if he had advised Mr. Hutton about deportation. In light of the Supreme Court's opinion, in Padilla, we are doubtful that the attorney's failed memory affidavit is sufficient to reject Mr. Hutton's claim that he was not informed about deportation. Padilla would appear to require a definitive statement by counsel that he informed Mr. Hutton of the possibility of deportation. For example, in Padilla the Court rejected a contention by the Solicitor General that a defendant should not be allowed to prevail on an ineffective assistance of counsel claim if an attorney remains silent about immigration consequences. The Court held that "[s]ilence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement.” Padilla,
Concurrence Opinion
concurring, in part, . and dissenting, in part:
I concur in the majority’s historical analysis of the common law writ of error coram nobis, as well as its ultimate conclusion that the writ remains available only in extraordinary circumstances in criminal proceedings in West Virginia. Further, while I do not disagree with the majority’s new syllabus point four to the extent it reflects the holding of the United State Supreme Court m Padilla v. Kentucky,
The sole similarity between Mr. Hutton in the instant matter, and the petitioner in Padilla, Jose Padilla, is that both were longtime, lawful permanent residents of this country, but not American citizens, when they became subject to deportation as a direct consequence of their guilty pleas to criminal charges.. What remains are two factually significant differences that render Padilla inapplicable to Mr. Hutton’s situation.
First, it appears from the facts set forth in Padilla that Mr. Padilla’s counsel was aware that his client was not a citizen of the United States prior to Mr. Padilla entering his guilty plea. Second, armed with the knowledge of his client’s immigration status, Mr. Padilla’s counsel proceeded to advise him that he ‘“did not have to worry about immigration status since he had been in the country so long.’ ” Padilla at 359,
Conversely,. in the case- sub judice, the appendix record contains a transcript of the coram nobis hearing held before the circuit court during which Mr. Hutton testified that he never told his counsel of his immigration status. Consequently, unlike the attorney in Padilla, and absent a record showing the contrary, it appears that Mr. Hutton’s defense counsel was unaware that his client was not an American citizen. In further and significant contrast to Padilla, Mr. Hutton does not assert that his trial counsel gave him incorrect immigration advice.
In addressing Mr. Padilla’s post-conviction challenge based on an ineffective assistance of counsel claim, the Padilla Court observed that the changes to the immigration law in
Although deportation is a “particularly severe ‘penalty!!,]’ ” id. at 365,
More recently, in State v. Rodriguez, No. 108,505,
[t]he Padilla majority did not impose a duty to investigate the citizenship or immigration status of every client in a criminal case. See State v. Stephens,46 Kan. App.2d 853 , 856,265 P.3d 574 (2011), rev. denied294 Kan. 947 (2012). In his concurrence in Padilla, Justice Alito observed that in some cases, it may be hard for defense counsel even to determine whether a client is an ... alien. Padilla,559 U.S. at 379-80 [130 S.Ct. 1473 ] (Alito, J., concurring). He suggested that “[w]hen a criminal defense attorney is aware” that a client is an ... alien, he or she should advise the client of the immigration consequences and tell the client to consult an immigration specialist for advice on that subject. Padilla,559 U.S. at 387 [130 S.Ct. 1473 ].
Id. at *10. The Kansas court proceeded to find “there was no evidence presented establishing that Rodriguez’s former attorney knew or had a reason to know Rodriguez was an undocumented alien prior to the entry of the no contest plea.” Id. at *10. Similarly, in the case at bar, Mr. Hutton had been a resident of the United States since he was a young child, having lived here for nearly forty years at the time the criminal charges were brought against him. Consequently, there was likely no reason for his counsel to know that he was not an American citizen.
I believe the majority in the case at bar, like the majority in Padilla, leaves unclear whether lawyers must inquire of the immigration status of each and every client charged with a crime. And, the majority’s footnote eighteen only serves to further muddy the waters.
In footnote eighteen, the majority excuses Mr. Hutton’s admitted failure to advise his
Placing an affirmative duty on lawyers to ask every client whether he or she is an American citizen prior to entry of a guilty plea may seem an msignifieant burden, particularly when contrasted with the possibility of adverse immigration consequences arising out of a guilty plea to erimmal charges. However, absent an express holding by the UMted States Supreme Court imposing a blanket duty on lawyers to question every criminal defense client concerning their citizensMp or immigration status, or unless an attorney reasonably should have known of Ms or her client’s immigrant statufe under the particular circumstances, I do not believe that such a global duty of inquiry exists.
For these reasons, I respectfully concur, in part, and dissent, in part, to the majority’s decision in this case.
.See Syl. Pt. 5, State v. Miller,
. Under the majority’s remand, I would remind the circuit court that Mr. Hutton will need to prove that his counsel’s performance was deficient under the first prong of Strickland and, if he is successful in that regard, he will still have to satisfy the second prong and prove prejudice before he will be entitled to. relief.
. See Clarke, 974 N.E.2d at 569.
. I share Justice Alito’s concerns about the burden- that Padilla does place on a lawyer who is aware that his or her client is an alien. As Justice Alito summarized, "a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise.” Id. at 387-88,
an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.
Id. at 388,
. Given the uncertainly created by Padilla in this regard, perhaps the issue should be addressed either through our procedural rules, or through a statutory enactment. See Padilla,
Decisions from other courts also reflect the use of plea forms that address the issue of citizenship. See State v. Navarette-Pacheco, No. 106,-874,
Dissenting Opinion
dissenting:
I dissent to the majority opimon because I do not believe that the English common law writ of coram nobis continues in force in West Virgmia. Also, even if the common law
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,
• 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 1349 statute).”
The majority opinion attempts to get around the fact that the Virginia statute altered the common law writ of eoram 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
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 hovel law.
3. The common law writ of coram no-bis 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 ease similar to the instant one was recently decided by the Supreme Court of Virginia in Commonwealth v. Morris,
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 eoram 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,” Neighbors v. Commonwealth,274 Va. 503 , 508,650 S.E.2d 514 , 517 (2007).
Morris,
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 bom in the United States. The other defendant claimed that his lawyer’s ineffective assistance of counsel resulting in dire immigration consequences should be deemed
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. [at] 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,
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,
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,
_ For the reasons set forth above, I would affirm the circuit court’s order that denied coram nobis relief to the petitioner, fore, I dissent, There-
. 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 “co-ram vobis” and "coram nobis” are used interchangeably.