PRESENT: All the Justices

DERRICK EDWARD LASTER
                                              OPINION BY
v.   Record No. 121282                 JUSTICE DONALD W. LEMONS
                                             June 6, 2013
BOBBY D. RUSSELL, SUPERINTENDENT OF
WESTERN VIRGINIA REGIONAL JAIL


            FROM THE CIRCUIT COURT OF THE CITY OF SALEM
                      Charles N. Dorsey, Judge

      In this appeal we consider whether the Circuit Court of the

City of Salem ("circuit court") erred when it denied Derrick

Edward Laster's petition for a writ of habeas corpus.

                       I.   Facts and Proceedings

      Derrick Edward Laster ("Laster") was tried and convicted of

animate object sexual penetration on April 29, 2010, in a bench

trial in the circuit court, Judge Robert P. Doherty, Jr. ("Judge

Doherty") presiding.

      Laster was represented by Richard L. Lawrence ("Lawrence").

At trial, the teenage victim, M.D., testified that Laster, who

lived next door to her father's house, came over the night of

June 28, 2009.   M.D. had fallen asleep on a chair, and Laster

carried her upstairs to the bedroom.     M.D. testified that Laster

laid her on the bed and began touching her.     First he rubbed her

back then Laster placed his finger inside her vagina.

      Laster denied placing his finger inside the victim's

vagina, although he admitted carrying her upstairs, placing her
on the bed, and rubbing her back.      He also admitted that he

"smack[ed] her on her bottom."    Judge Doherty stated that he

believed M.D.'s testimony over Laster's testimony, and found

Laster guilty of animate object sexual penetration.

     Prior to his sentencing, Laster hired a new attorney,

Richard Padgett ("Padgett").    In his preparation for the

sentencing hearing, Padgett learned that the Commonwealth had

made a plea offer prior to trial.

     A hearing was held prior to sentencing to address whether

the plea offer was ever conveyed to Laster by Lawrence.      The

Deputy Commonwealth's Attorney, Anne Marshall Deaton Harrell

("Harrell"), testified that a few days prior to trial, she

called Lawrence and offered a plea agreement in which Laster

would plead guilty to aggravated sexual battery with a

recommended sentence of three years, all but four months

suspended.   Harrell made this offer so the teenage victim would

not have to testify in court.    Harrell stated that Lawrence

responded within a day or two and told her Laster would not

accept a felony plea offer.    Lawrence testified that he did not

specifically recall if he informed Laster about this offer.

Lawrence had asked Harrell to consider a misdemeanor plea

several times, but she declined.       Lawrence testified that Laster

told him numerous times he would not plead guilty to a felony.




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     Laster testified that he had told Lawrence he did not want

to plead guilty to a felony or receive any jail time, because he

would lose his job.   Nonetheless, Laster testified that Lawrence

never told him about this specific plea offer, but that he would

have agreed to take this offer if he had known about it.

     Judge Doherty stated at the hearing that he would give

Laster "the benefit of the doubt" that the plea offer was not

conveyed to him.   The court declared a mistrial, ordered a new

trial, and thereafter Judge Doherty recused himself from the new

trial.   Laster objected to the court ordering a new trial

instead of reinstating the plea offer.

     A new trial was held on November 4, 2010, before Judge

Charles N. Dorsey ("Judge Dorsey").   Laster entered a plea of no

contest, and stated on the record that he was entering his plea

freely and voluntarily and that no one had made any promises to

him in exchange for his plea.   He stated that he had no plea

agreement or understanding with the Commonwealth.   At this

hearing, Laster did not ask the circuit court to order the

Commonwealth to reinstate the prior plea offer.   The circuit

court accepted Laster's no contest plea, and on January 3, 2011,

sentenced Laster to 30 years' imprisonment, with 20 years

suspended.

     On October 20, 2011, Laster filed a petition for a writ of

habeas corpus in the circuit court.   Laster alleged he was


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denied the effective assistance of counsel because his first

attorney, Lawrence, did not communicate to him the plea offer

from the Commonwealth.   A hearing on the petition was held on

March 8, 2012.   The circuit court granted the Commonwealth's

motion to dismiss, holding that it had no jurisdiction over

Laster's claim because Laster was not being detained as a result

of his first trial.   Rather, Laster was being detained as a

result of his second trial in which he voluntarily entered a no

contest plea, and he did not allege any ineffective assistance

of counsel in his second trial.

     On March 21, 2012, the United States Supreme Court decided

Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399 (2012), and

Lafler v. Cooper, 566 U.S. ___, 132 S.Ct. 1376 (2012).   The

circuit court sua sponte vacated its March 8, 2012 order and

asked the parties to brief the effect of these two opinions on

Laster's case.   The circuit court held a hearing on April 17,

2012, and after considering the parties' briefs and argument,

the circuit court granted the Commonwealth's motion to dismiss.

     The circuit court held that it did not have jurisdiction to

grant the relief requested because the habeas petition did not

allege ineffective assistance of counsel in the second trial,

and the second trial was the basis for Laster's detention.     The

circuit court also held that Laster did not meet the prejudice

prong of the two part-test enunciated in Strickland v.


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Washington, 466 U.S. 668 (1984), because Laster "failed to show

a reasonable probability that the plea would have been entered

without the prosecution canceling it or the trial court refusing

to accept it."

     Laster filed a petition for appeal with this Court, and we

awarded him an appeal on the following assignments of error:

1.   The circuit court erred by abusing its discretion in
     determining that it did not have jurisdiction to reinstate
     the Commonwealth's original plea offer of four (4) months
     active time in jail.

2.   The circuit [court] erred by abusing its discretion in
     determining that the plea offer may have been withdrawn by
     the Commonwealth.

3.   The circuit court erred by abusing its discretion in
     determining that the court would not have accepted the plea
     offer of four (4) months.

                            II.     Analysis

                       A.   Standard of Review

     Whether an inmate is entitled to habeas relief is a mixed

question of law and fact.    Hash v. Director, 278 Va. 664, 672,

686 S.E.2d 208, 212 (2009).       The habeas court's findings and

conclusions are not binding on appeal, but are subject to review

to determine whether the habeas court correctly applied the law

to the facts.    Id.

                             B.    Analysis

     Code § 8.01-654(B)(1) grants jurisdiction over petitions

for writs of habeas corpus to this Court and to circuit courts.



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The "circuit court which entered the original judgment order of

conviction or convictions complained of in the petition shall

have authority to issue writs of habeas corpus."   Code § 8.01-

654.   The purpose of a writ of habeas corpus is to "test the

validity of detention, and, for this purpose, the law permits a

prisoner to mount a collateral attack upon his conviction or

sentence."   Howard v. Warden, 232 Va. 16, 19, 348 S.E.2d 211,

213 (1986); see also Buchanan v. Buchanan, 170 Va. 458, 464, 197

S.E. 426, 429 (1938) ("The primary object of habeas corpus is to

determine the legality of the restraint under which a person is

held.")(emphasis omitted).   In a habeas corpus proceeding, the

truth-seeking function of the trial process yields to a focus on

the legality of a petitioner's detention and whether the

petitioner presently is detained in violation of any

constitutional rights.    Lovitt v. Warden, 266 Va. 216, 240, 585

S.E.2d 801, 815 (2003).

       The Commonwealth argues that the circuit court lacked

jurisdiction over this matter because Laster is detained as a

result of his second trial, and has not alleged any

constitutional violation in his second trial.    Although the

Commonwealth frames this matter as jurisdictional, it is not.

The issue whether Laster is currently detained without lawful

authority focuses upon the merits of his claim and not the

circuit court's power to adjudicate it.


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        In this collateral attack upon his conviction, Laster has

the burden to prove by a preponderance of the evidence his claim

of ineffective assistance of counsel.      Jerman v. Director, 267

Va. 432, 438, 593 S.E.2d 255, 258 (2004); Green v. Young, 264

Va. 604, 608, 571 S.E.2d 135, 138 (2002).      To prevail on this

claim, he must satisfy both parts of the two-part test

established in Strickland, 466 U.S. at 687.

        Laster asserted in his petition for a writ of habeas corpus

that he was denied the effective assistance of counsel because

his first attorney, Lawrence, failed to communicate to him the

Commonwealth's plea offer of a reduced charge and sentence

recommendation.    Laster asserts that he is being detained

without lawful authority because of his lawyer's ineffectiveness

in his first trial.      He does not assert any constitutional

violations in his second trial.     Laster argues that his

situation is similar to the respondent's in Lafler v. Cooper.

        In Lafler, Anthony Cooper ("Cooper") was represented by

counsel during plea negotiations.       His counsel informed him of a

favorable plea offer to dismiss two charges and recommend a

sentence of 51 to 85 months on the other two charges, but on the

advice of counsel, Cooper rejected the offer.      132 S.Ct. at

1383.    After the plea offer was rejected, Cooper had a trial

before a jury.     Id.   Cooper was found guilty and received a

mandatory minimum sentence of 185 to 360 months' imprisonment.


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Id.    The parties in Lafler all agreed that counsel's advice to

Cooper with respect to the plea offer was erroneous and fell

below the standard of adequate assistance of counsel guaranteed

by the Sixth Amendment.     Id. at 1384.

        In Lafler, the United States Supreme Court held that

Cooper's subsequent fair trial could not erase the deficient

performance by counsel during plea negotiations.     132 S.Ct. at

1388.    Laster argues that, as in Lafler, his second trial could

not cure the deficient performance of his counsel in the first

trial.

        The United States Supreme Court has urged courts

considering collateral attacks upon convictions and detention to

consider the prejudice prong of Strickland prior to considering

the performance prong.     The Court held that a court is not

required to determine "whether counsel's performance was

deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies."     466 U.S. at

697.    Instead, a court may proceed directly to the prejudice

prong of the two-part test "[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice." Id.

        Following this direction, we will assume without deciding

that Laster may link the first and second trials and assert

ineffective assistance of counsel, and we will further assume


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without deciding that Laster's first lawyer's performance was

deficient for the purpose of Strickland analysis.   Nonetheless,

Laster may not prevail in his request for relief because he

cannot prove prejudice as required in light of the Supreme

Court's application of these standards to the plea context in

the case of Missouri v. Frye.

      In Frye, the United States Supreme Court explained that to

prove Strickland prejudice, a defendant who has shown a

reasonable probability that he would have accepted the

uncommunicated plea offer must also show that neither the

prosecution nor the trial court would have prevented the offer

from being accepted or implemented.   132 S.Ct. at 1410.   The

Court stated that

           [i]n order to complete a showing of
           Strickland prejudice, defendants who have
           shown a reasonable probability they would
           have accepted the earlier plea offer must
           also show that, if the prosecution had the
           discretion to cancel it or if the trial
           court had the discretion to refuse to accept
           it, there is a reasonable probability
           neither the prosecution nor the trial court
           would have prevented the offer from being
           accepted or implemented. This further
           showing is of particular importance because
           a defendant has no right to be offered a
           plea.

Id.

      The offer in this case was to reduce the charge of animate

object sexual penetration to a charge of aggravated sexual



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battery with a sentencing recommendation of three years'

imprisonment and all but four months suspended.   It is

significant that the plea offer was for a sentencing

recommendation, not a specific sentence.   Virginia law permits

three types of plea agreements, which are articulated in Rule

3A:8.   Rule 3A:8 provides in pertinent part:

           (c) Plea Agreement Procedure. -
           (1) The attorney for the Commonwealth and
           the attorney for the defendant or the
           defendant when acting pro se may engage in
           discussions with a view toward reaching an
           agreement that, upon entry by the defendant
           of a plea of guilty, or a plea of nolo
           contendre, to a charged offense, or to a
           lesser or related offense, the attorney for
           the Commonwealth will do any of the
           following:
            (A) Move for nolle prosequi or dismissal of
           other charges;
            (B) Make a recommendation, or agree not to
           oppose the defendant's request, for a
           particular sentence, with the understanding
           that such recommendation or request shall
           not be binding on the court;
            (C) Agree that a specific sentence is the
           appropriate disposition of the case. In any
           such discussions under this Rule, the court
           shall not participate.
           (2) If a plea agreement has been reached by
           the parties, it shall, in every felony case,
           be reduced to writing, signed by the
           attorney for the Commonwealth, the
           defendant, and, in every case, his attorney,
           if any, and presented to the court. The
           court shall require the disclosure of the
           agreement in open court or, upon a showing
           of good cause, in camera, at the time the
           plea is offered. If the agreement is of the
           type specified in subdivision (c)(1)(A) or
           (C), the court may accept or reject the
           agreement, or may defer its decision as to


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           the acceptance or rejection until there has
           been an opportunity to consider a
           presentence report. If the agreement is of
           the type specified in subdivision (c)(1)(B),
           the court shall advise the defendant that,
           if the court does not accept the
           recommendation or request, the defendant
           nevertheless has no right to withdraw his
           plea, unless the Commonwealth fails to
           perform its part of the agreement. In that
           event, the defendant shall have the right to
           withdraw his plea.

Rule 3A:8(c).    This rule makes it clear that if the agreement is

for a sentencing recommendation under Rule 3A:8(c)(1)(B), the

trial court is not required to accept the recommendation, and

the defendant has no right to withdraw his plea on that basis.

     Again assuming without deciding that the Commonwealth would

have left the offer available for acceptance and it would have

been reduced to a written agreement pursuant to Rule 3A:8(c)(2),

Laster was required to prove that the circuit court would have

accepted the plea agreement and the sentencing recommendation.

In Frye, the United States Supreme Court noted that some state

rules give trial courts the discretion to accept or reject plea

agreements.     Frye, 132 S.Ct. at 1410.   Virginia is one of those

states.   See Rule 3A:8.   In Frye, the Court elaborated that in

such jurisdictions where trial courts have this discretion

           [it] can be assumed that in most
           jurisdictions prosecutors and judges are
           familiar with the boundaries of acceptable
           plea bargains and sentences. So in most
           instances it should not be difficult to make
           an objective assessment as to whether or not


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           a particular fact or intervening
           circumstance would suffice, in the normal
           course, to cause prosecutorial withdrawal or
           judicial nonapproval of a plea bargain. The
           determination that there is or is not a
           reasonable probability that the outcome of
           the proceeding would have been different
           absent counsel's errors can be conducted
           within that framework.

Id.

      When considering Laster's habeas petition, the circuit

court properly applied this test as enunciated in Frye.   The

circuit court judge, Judge Dorsey, stated that he was very

familiar with Judge Doherty from having practiced together and

having been on the same bench for almost ten years.   He further

stated,

           I cannot imagine that Judge Doherty would
           have accepted, even if the request had been
           made at the first trial, if the Commonwealth
           had not withdrawn the offer, assuming that
           they either didn't or didn't have the
           jurisdiction or authority to do so, I cannot
           imagine that Judge Doherty, if the agreement
           had been presented to him, would have
           accepted it.

Laster has offered no evidence to prove that this particular

plea offer was within the boundaries of acceptable plea

agreements and sentences in the jurisdiction, or that Judge

Doherty had ever accepted similar plea agreements and sentences

in other cases involving similar facts and charges.




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                        III.   Conclusion

     We hold that the circuit court did not err in dismissing

the petition for a writ of habeas corpus.

                                                     Affirmed.




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