No. 14-0603 –State of West Virginia v. Orville M. Hutton
                                                                           FILED
                                                                        June 16, 2015
                                                                      RORY L. PERRY II, CLERK
BENJAMIN, Justice, dissenting:                                      SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA




              I dissent to the majority opinion because I do not believe that the English

common law writ of coram nobis continues in force in West Virginia. Also, even if the

common law writ of coram nobis is available in this State, I do not believe that it

provides relief to the petitioner.



              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, 137 W.

Va. 864, 74 S.E.2d 590 (1953). The provisions of W. Va. Code § 2-1-1 are plain and

should be applied as written.



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              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 1849 statute).”1 Neighbors v. Commonwealth, 650 S.E.2d

514, 517 (Va. 2007). That court also has indicated that “[i]n Virginia, we have by statute

provided for a proceeding by motion to correct any clerical error or error in fact for which

a judgment or decree may be reversed or corrected, as a substitute for the common law

writ of error coram vobis, sometimes called coram nobis.” Blowe v. Peyton, 155 S.E.2d

351, 356 (Va. 1967) (citation and internal quotation marks omitted). It is clear to me then

that the General Assembly of Virginia altered the common law writ of coram nobis

before June 20, 1863, by substantially limiting the writ and substituting a motion in place

of the writ. Therefore, according to the plain terms of W. Va. Code § 2-1-1, the common

law writ of coram nobis did not continue in force in this State. Instead, this State adopted

the Virginia statute that substituted a motion for the writ of coram nobis. See syl. pt. 3, in


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         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 “coram vobis” and “coram nobis” are used interchangeably.
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part, Curtis v. Railway Co., 68 W. Va. 762, 70 S.E. 776 (1911) (holding that specific

judgment was “reviewable, formerly by a writ of error coram nobis, now by motion, and

by appeal to this Court).



              The majority opinion attempts to get around the fact that the Virginia

statute altered the common law writ of coram 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

substantially limiting it as stated by the Virginia Supreme Court in Neighbors, supra.

Therefore, I conclude that, pursuant to W. Va. Code § 2-1-1, this State did not adopt the

English common law writ of coram nobis. Instead, we adopted the Virginia statute that



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altered the common law writ. Consequently, when our Legislature repealed W, Va. Code

§ 58-2-3, no common law writ of coram nobis remained.



              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 novel law.



       `      3. The common law writ of coram nobis 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 case

similar to the instant one was recently decided by the Supreme Court of Virginia in

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Commonwealth v. Morris, 705 S.E.2d 503 (Va. 2011). In Morris, two defendants pled

guilty to crimes on the basis of improper advice of their lawyers and, as a result, faced

deportation proceedings. Consequently, the defendants filed motions pursuant to

Virginia’s coram nobis statute in which they requested modification of their sentences.

The circuit court granted the defendants’ motions, and the Commonwealth appealed. The

Virginia Supreme Court reversed the circuit court’s ruling. In doing so, the Court

reasoned as follows:

                     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 coram 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.”


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              Neighbors v. Commonwealth 274 Va. 503, 508, 650 S.E.2d
              514, 517 (2007).

Morris, 705 S.E.2d at 506. The court in Morris framed its inquiry as whether at the

moment the two defendants entered their guilty pleas, an error of fact existed that would

have prevented the circuit court from having authority to enter the judgment.



              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 born in the United States. The

other defendant claimed that his lawyer’s ineffective assistance of counsel resulting in

dire immigration consequences should be deemed an error in fact that would have

prevented the trial court from rendering judgment in his case. The Virginia court found

that these alleged errors did not constitute errors of fact for the purpose of coram vobis

because

              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. 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, 705 S.E.2d at 507–08. The Court noted that both defendants relied on the United

States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), in which

the Supreme Court held that the Constitution’s Sixth Amendment requires counsel who

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represent non-citizen criminal defendants to inform their clients whether his or her plea

carries a risk of deportation. The Virginia Court found, however, that the defendants’

reliance on Padilla was misplaced, explaining that while the defendants “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 . . . neither did so.

Ineffective assistance of counsel does not constitute an error of fact for the purposes of

coram vobis under Code § 8.01-677.” Morris, 705 S.E.2d at 508. The Virginia Court’s

reasoning in Morris applies with equal force to the instant facts. Therefore, any writ of

coram nobis recognized by this Court should not apply to claims of ineffective assistance

of counsel so as to provide the petitioner the relief which he seeks.



              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, 194 W. Va. 3, 459 S.E.2d 114 (1995). Specifically, the

petitioner has failed to show that his trial counsel’s performance was deficient under the

first prong of Strickland.




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              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, 559 U.S. at

359 (internal quotation marks and citation omitted). Implicit in this allegation is the fact

that the defendant’s counsel knew the defendant’s immigration status. In other words,

Padilla addressed only the legal advice required of competent counsel once counsel

knows that his or her client is not an American citizen. In the instant case, the petitioner

testified in the evidentiary hearing before the circuit court that he never informed his trial

counsel that he was not a United States citizen, and that he and his counsel had no

conversations about his immigration status. As a result, the petitioner’s trial counsel had

no apparent reason to investigate the petitioner’s immigration status, and his failure to do

so under these circumstances was not deficient under an objective standard of

reasonableness. Therefore, the petitioner has failed to show the first prong in the two-

pronged Strickland test governing claims of ineffective assistance of counsel.



              For the reasons set forth above, I would affirm the circuit court’s order that

denied coram nobis relief to the petitioner. Therefore, I dissent.



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