PRESENT: All the Justices

R. WALKER (WARDEN), LUNENBURG
CORRECTIONAL CENTER
                                                                     OPINION BY
v. Record No. 151848                                        JUSTICE S. BERNARD GOODWYN
                                                                   September 8, 2016
CHRISTOPHER FORBES

                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                               Michael F. Devine, Judge

       In this appeal, we consider whether the circuit court erred in ruling that a defendant has a

federal constitutional right to counsel in a probation revocation hearing.

                                           BACKGROUND

       On January 24, 2001, Christopher Forbes (Forbes) entered a guilty plea in the Circuit

Court of Fairfax County to petit larceny as a third offense. On June 2, 2001, he was sentenced to

four years’ imprisonment, with two years and ten months suspended, and probation upon his

release. On February 14, 2005, after his release and while still on probation for the petit larceny

as a third offense conviction, Forbes pled guilty to robbery and abduction, and on May 5, 2005,

he was sentenced to 15 and 20 years’ imprisonment for those respective convictions, with 10

years suspended on each count, and five years’ probation upon his release.

       Because the new convictions constituted a violation of Forbes’ probation on the 2001

petit larceny as a third offense conviction, the circuit court issued a warrant and, while Forbes

was still incarcerated on the robbery and abduction convictions, held a probation revocation

hearing. * At that hearing, Forbes did not deny that he had committed new crimes while on



       *
         The circuit court issued the initial bench warrant for Forbes on June 7, 2005, and the
Department of Corrections issued an “Offender Detainer Notification,” which stated that Forbes
was notified that his 2005 convictions violated his 2001 probation. However, Forbes was not
served until early 2011. On November 15, 2013 the court executed a second warrant and held
the revocation hearing on that day.
probation. However, he asked for a less severe punishment than the one year recommended by

the Commonwealth. The circuit court found Forbes in violation of the terms of his probation on

the 2001 petit larceny conviction, and ordered that Forbes serve nine months of his suspended

sentence. It entered an order to that effect on December 13, 2013.

       On December 30, 2013, Forbes wrote to his appointed counsel claiming that the circuit

court had lacked an indictment for the 2001 petit larceny charge, and requesting that counsel

either appeal the re-imposed nine-month sentence, or inform Forbes in writing why no appeal

was necessary. Counsel responded in a January 3, 2014 letter that included a copy of the 2001

indictment, stating that “frankly, there is no legal basis to pursue on appeal” because “during the

plea colloquy you informed the court that you had received a copy of the indictment before being

called on to plea,” and he directed Forbes to hire a new attorney if he still wished to appeal.

Forbes did not respond.

       On October 31, 2014, Forbes filed a petition for a writ of habeas corpus in the circuit

court, alleging “a ‘manifest injustice’ occurred and that he was prejudiced as a result of counsels

[sic] ineffective assistance in violation of the Constitution,” citing the Sixth and Fourteenth

Amendments to the Constitution of the United States. He argued that counsel was ineffective in

failing to inform the court that it lacked jurisdiction for want of an indictment, in failing to

present Forbes with information concerning that jurisdictional ground for a direct appeal, and in

“refus[ing] to file an appeal after his client made known his desire to do so.”

       The Warden of the Lunenburg Correctional Center responded by moving to dismiss the

petition. In the motion to dismiss, the Warden relied on Gagnon v. Scarpelli, 411 U.S. 778, 787-

89 (1973), in which the United States Supreme Court held that there is no per se constitutional

right to counsel at a probation revocation proceeding, to argue that, because Forbes was not



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constitutionally entitled to counsel at the revocation hearing, he was not entitled to effective

assistance of counsel on appeal.

          By letter opinion on July 22, 2015, the habeas court denied the Warden’s motion to

dismiss and granted Forbes a delayed appeal to the Court of Appeals of Virginia. The habeas

court stated that Gagnon did not say that counsel was never required at probation revocation

hearings, but rather that “the decision as to the need of counsel must be made on a case-by-case

basis in the exercise of a sound discretion by the state authority charged with the responsibility

for administering the probation and parole system.” (quoting Gagnon, 411 U.S. at 790). The

habeas court then distinguished Gagnon—in which the Supreme Court determined that no

counsel was constitutionally required—from this case on the ground that the revocation

proceeding in Gagnon resembled a parole revocation hearing in Virginia, whereas Forbes’

probation revocation “very much resembled a criminal trial.”

          The habeas court then stated that, in Virginia, the authority charged with determining

when counsel is needed is the General Assembly, which has enacted Code §§ 19.2-157 and -158,

requiring the court to inform probationers facing revocation of their right to counsel. Thus, it

concluded that Virginia defendants have a statutory right to counsel during probation revocation

hearings and appeals. The habeas court concluded by ruling that counsel’s performance was

deficient because he failed to file the requested appeal, and granted Forbes leave to file an

appeal.

          The Warden moved for reconsideration, arguing that Virginia’s statutory appointment of

counsel at probation revocation hearings does not create a constitutional right to counsel or to the

effective assistance of counsel, and asked the habeas court to find that although Forbes had a

statutory right to counsel at the revocation hearing, he did not have a constitutional right to



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effective assistance of counsel at the hearing or on appeal. He continued that Forbes’ hearing did

not give rise to a constitutional due process right to counsel under Gagnon because it was

“routine.” The habeas court denied the motion for reconsideration, and this Court granted the

Warden’s appeal on the following assignment of error:

       The habeas court erred in ruling that Forbes was denied the effective assistance of
       counsel in appealing the revocation of his suspended sentence.

                                             ANALYSIS

       “Because entitlement to habeas relief is a mixed question of law and fact, the habeas

court’s findings and conclusions are not binding upon this Court, but are subject to review to

determine whether the court correctly applied the law to the facts.” Zemene v. Clarke, 289 Va.

303, 306-07, 768 S.E.2d 684, 686 (2015).

       A petitioner seeking relief “by habeas corpus on the ground of ineffective assistance of

counsel has the burden of proving the charge made.” Peyton v. Fields, 207 Va. 40, 44, 147

S.E.2d 762, 766 (1966). Because “[t]he right to effective assistance of counsel is dependent on

the right to counsel itself,” Howard v. Warden of Buckingham Correctional Center, 232 Va. 16,

19, 348 S.E.2d 211, 213, (1986) (quoting Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985)), “before

a person can assert a claim of ineffective assistance of counsel he first must establish that he has

a right to counsel.” Dodson v. Director, 233 Va. 303, 306, 355 S.E.2d 573, 575 (1987) (citing

Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Lucey, 469 U.S. at 396 n.7). Where there is

no constitutional right to counsel, there can be no deprivation of effective assistance. Torna, 455

U.S. at 587-88.

       In the context of probation revocation, the constitutional right to counsel, if any, flows

from the Due Process Clause of the Fourteenth Amendment rather than from the Sixth

Amendment. See Gagnon, 411 U.S. at 790 (identifying “fundamental fairness – the touchstone

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of due process,” as the source for the right to counsel in revocation proceedings). This is

because “the revocation of parole is not a part of a criminal prosecution.” Id. at 781 (citing

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (holding that “the revocation of parole is not part

of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding

does not apply to parole revocations”)); see also Commonwealth v. Jackson, 267 Va. 226, 229,

590 S.E.2d 518, 519 (2004) (holding that “in Virginia, while a probation revocation hearing is a

criminal proceeding, it is not a stage of a criminal prosecution”) (internal quotation marks and

citation omitted).

       However, because such proceedings raise the possibility of a serious loss of liberty, a

probationer is entitled to due process – specifically, a hearing on probable cause and a

subsequent hearing prior to the final revocation decision. Gagnon, 411 U.S. at 782. But due

process does not always require the presence of counsel at revocation hearings; indeed, “the

presence and participation of counsel will probably be both undesirable and constitutionally

unnecessary in most revocation hearings.” Id. at 790. Nevertheless, “there will remain certain

cases in which fundamental fairness—the touchstone of due process—will require” counsel at

such proceedings. Id. While declining to formulate a precise rule for identifying those

proceedings in which counsel may be required, the court stated that

       Presumptively, it may be said that counsel should be provided in cases where,
       after being informed of his right to request counsel, the probationer or parolee
       makes such a request, based on a timely and colorable claim (i) that he has not
       committed the alleged violation of the conditions upon which he is at liberty; or
       (ii) that, even if the violation is a matter of public record or is uncontested, there
       are substantial reasons which justified or mitigated the violation and make
       revocation inappropriate, and that the reasons are complex or otherwise difficult
       to develop or present. In passing on a request for the appointment of counsel, the
       responsible agency also should consider, especially in doubtful cases, whether the
       probationer appears to be capable of speaking effectively for himself.

Id. at 790-91.

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       Additionally, any statutory right to counsel in postconviction proceedings arises from

legislative grace and does not create a constitutional right to counsel or the concomitant

constitutional right to the effective assistance of counsel. See People v. Hardin, 840 N.E.2d

1205, 1212 (Ill. 2005) (holding that “[t]he right to assistance of counsel in postconviction

proceedings is a matter of legislative grace”; “[t]here is no corresponding constitutional right to

effective assistance of postconviction counsel . . . and a defendant is guaranteed only the level of

assistance provided by [state statutory provisions on post-conviction procedure]”); Frazier v.

State, 303 S.W.3d 674, 680 (Tenn. 2010) (explaining that the obligations and responsibilities of

statutorily appointed counsel are governed by the Tennessee Supreme Court rules, not the

Constitution); see generally 3 Wayne R. LaFave et al., Criminal Procedure § 11.7(a), at 944 n.10

(4th ed. 2015).

       Here, Forbes’ sole contention is that he “has a [federal] constitutional right to counsel,

and effective assistance of counsel, at a probation revocation hearing or on appeal” under Mempa

v. Rhay, 389 U.S. 128 (1967), because the circuit court had discretion in the amount of the

defendant’s sentence re-imposed as a result of the probation violation. In Mempa, the United

States Supreme Court held that sentencing constitutes a critical stage of a criminal proceeding at

which counsel is required. Id. at 137. However, Mempa is limited to cases in which “the

sentencing has been deferred subject to probation,” id. at 130, and its “line of reasoning does not

require a hearing or counsel at the time of probation revocation in a case . . . where the

probationer was sentenced at the time of trial.” Gagnon, 411 U.S. at 781. Forbes was sentenced

at his 2001 trial, so Mempa is inapposite.

       Therefore, we must assess under United States Supreme Court case law whether Forbes

had a federal constitutional right to counsel at the hearing based upon a due process analysis.



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Forbes cannot meet the requirements of review regarding a due process right to counsel as

explained in Gagnon because he admitted violating his probation by committing new crimes and

did not otherwise contest revocation, and he did not present any circumstances mitigating or

justifying the violation. Thus, Forbes’ probation revocation hearing was not one in which

fundamental fairness gave rise to a due process constitutional right to counsel.

                                           CONCLUSION

       Forbes had no federal constitutional right to counsel in his probation revocation hearing.

Therefore, he could not have been denied the effective assistance of that counsel. See Torna,

455 U.S. at 587-88; Howard, 232 Va. at 19-20, 348 S.E.2d at 213. Because the habeas court

erred in ruling otherwise, we will reverse the ruling of the habeas court, which granted the

petitioner a delayed appeal.

                                                                     Reversed and final judgment.




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