Clarke v. Galdamez

• Citation: 789 S.E.2d 106,292 Va. 228
• Decision Date: 09 June 2016
• Docket Number: Record No. 151022
• Parties: Harold Clarke, Director, Virginia Department of Corrections v. Daniel Galdamez
• Court: Virginia Supreme Court

292 Va. 228

789 S.E.2d 106

Harold Clarke, Director, Virginia Department of Corrections

v.Daniel Galdamez

Record No. 151022

Supreme Court of Virginia.

June 9, 2016

Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Scott C. Sequin (Calderón Seguin, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy, S.J.

OPINION BY SENIOR JUSTICE ELIZABETH LACY

In this appeal, the Director of the Virginia Department of Corrections asks us to reverse the judgment of the habeas court granting a petition for a writ of habeas corpus because a decision by Daniel Galdamez to reject a plea agreement and proceed to trial could not be rational as a matter of law and, therefore, Galdamez could not satisfy the prejudice prong of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

.

BACKGROUND

In August 2013, while driving his vehicle out of a parking lot onto a multi-lane public roadway, Daniel Galdamez failed to yield to traffic traveling in the northbound lanes. The front of his vehicle struck the right side of the victim's vehicle, causing it to “veer to the left, cross over [a] concrete median[,] and enter [the southbound] lanes.” The impact occurred at a right angle, with Galdamez traveling west and the victim traveling north. The police report showed that the collision caused an estimated $4,000 in damage to the front of Galdamez's vehicle and $2,000 in damage to the right side of the victim's vehicle. Galdamez did not stop. He returned to the scene of the accident before the police arrived.

Galdamez was charged with felony hit and run, a Class 5 felony with a maximum sentence of 10 years' imprisonment, Code §§ 18.2–10(e)

, 46.2–894, and driving while intoxicated (“DWI”), Code § 18.2–266.

Galdamez, a native of El Salvador, told his attorney that his priority was not to lose his immigration status in the United States. Galdamez's attorney negotiated a plea agreement with the prosecutor that involved reducing the felony hit-and-run charge to a misdemeanor hit-and-run charge, a Class 1 misdemeanor with a maximum sentence of 12 months in jail, Code §§ 18.2–11(a)

, 46.2–894. The plea agreement included a stipulated sentence of 180 days of incarceration with 170 days suspended on the hit and run conviction and 90 days, suspended, on the DWI conviction. Galdamez accepted the plea agreement and did not appeal.

In December 2013, the United States Department of Homeland Security notified Galdamez that his Temporary Protected Status (“TPS”) would be revoked as a result of his criminal convictions. Under federal immigration regulations, a noncitizen forfeits his TPS after a conviction of either one or more felonies or two or more misdemeanors. See 8 C.F.R. §§ 244.14(a)(1)

, 244.4(a).

HABEAS CORPUS PROCEEDING

Galdamez instituted this proceeding by filing a petition for a writ of habeas corpus asking for an evidentiary hearing. He alleged that his prior counsel had given him erroneous advice about the effect of his plea agreement on his immigration status and, had he been given accurate information, he would have rejected the plea agreement and gone to trial on the felony hit and run and DWI charges. In addition, he alleged that he had defenses he had discussed with counsel, such as returning to the scene of the accident.

In his affidavit, Galdamez stated a number of reasons why remaining in this country was his priority, including that he is married and has a young child who is a citizen of the United States and for whom he is the sole financial support, all his extended family lives in the United States and, if deported, he would have no place to stay, no family to assist him, few financial opportunities and be subject to the rampant gang crime existing in El Salvador. Galdamez also stated in his affidavit that he spoke with his trial counsel regarding his defenses to the charges “including the fact that he never intended not to stop” and that he was present at the scene of the accident when the police arrived there.

The Director moved to dismiss the petition, arguing that Galdamez had “no viable defenses” to the hit and run charge because he fled from the scene. Therefore, the Director concluded, it would have been irrational for Galdamez to proceed to trial knowing he certainly would face the same immigration consequences and a longer prison term than if he accepted the plea agreement.

The habeas court entered an order granting Galdamez an evidentiary hearing and denying the Director's motion for reconsideration. In its opinion letter granting the evidentiary hearing, the habeas court determined that if Galdamez's allegations regarding his counsel's erroneous advice were true, the performance prong of Strickland

would be satisfied. The habeas court also concluded that Galdamez stated a colorable claim of prejudice under Strickland based on his desire to protect his immigration status and, although he “initially fled the scene of the accident,” Galdamez alleged “a viable defense” to the hit and run charge and “[i]t is possible that the fact finder, under the totality of the circumstances, would have acquitted Mr. Galdamez of the hit and run charge.”

The evidence produced at the evidentiary hearing established that Galdamez had been in this country for 15 years. He had TPS, which allowed him to legally work in this country, enroll in Social Security, and obtain a driver's license and medical insurance. He had maintained a full-time job as a painter for six years and had no other criminal record.

Galdamez testified that he did not know he was in an accident until he arrived at his destination, that when he “got out of the car” he realized he had hit something, that he “return[ed] immediately after” he realized that his car had been damaged, that he was gone from the scene for approximately 12 to 15 minutes and returned to the scene before the police arrived.

Galdamez testified that he wanted to protect his immigration status and remain in the United States because his wife and young daughter are here, that he is the sole financial support for his daughter, all his extended family is in the United States, that he would have no financial opportunities in El Salvador and he did not want to return to El Salvador because of the gangs and corruption and he feared for his safety. He also testified, consistent with his allegations, that he told his prior counsel that his “priority was not to lose his TPS status” and “to stay with his daughter and family” and that his prior counsel had advised him that his immigration status would not be adversely affected should Galdamez accept the plea agreement.

The habeas court found Galdamez to be credible and ruled that his prior attorney had given Galdamez erroneous advice regarding the plea agreement's impact on Galdamez's immigration status and that, had Galdamez been properly advised, he would have rejected the plea agreement and gone to trial. The habeas court also stated that it was “possible that the fact finder, under the totality of the circumstances, would have acquitted Mr. Galdamez of the hit and run charge.” The habeas court concluded that if Galdamez had been properly advised, his decision to reject the plea agreement and go to trial would have been a rational decision, thereby satisfying the performance and prejudice prongs of Strickland

. The habeas court granted the writ and vacated Galdamez's convictions, and remanded the case for further proceedings.

The Director filed this appeal in which he challenges only the habeas court's holding that Galdamez satisfied the prejudice prong of Strickland

.

ANALYSIS

To satisfy Strickland's

prejudice prong in circumstances involving counsel's deficient performance in conjunction with plea agreements, a defendant must show a reasonable probability that but for counsel's erroneous advice, the defendant would have rejected the plea agreement and proceeded to trial and that such a choice would be rational under the circumstances. Hill v. Lockhart , 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In extending the Sixth Amendment protection of effective assistance of counsel to instances in which the plea agreement could impact a noncitizen's immigration status including possible deportation, the United States Supreme Court remarked that maintaining one's right to remain in this country “may be more important to the client than any potential jail sentence.” Padilla v. Kentucky , 559 U.S. 356, 368, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ; see also Zemene v. Clarke , 289 Va. 303, 768 S.E.2d 684 (2015). Thus in such cases, the significance of the immigration consequences of a plea agreement to the defendant is a legitimate part of the circumstances to be considered in the prejudice analysis, particularly whether the decision to reject a proposed plea agreement and proceed to trial is rational.

The Director contends that Code § 46.2–894

, the hit and run statute, is violated if the driver involved in an accident resulting in property damage does not “immediately” stop at the scene of the accident. Because Galdamez admits he did not “immediately” stop at the scene of the accident, “as a matter of law, [Galdamez] would have been convicted had he gone to trial.” Therefore, the Director contends a decision to reject the plea agreement could not, under these circumstances, be rational as a matter of law and, therefore, the habeas court erred in finding that Galdamez satisfied the prejudice prong of Strickland . We disagree.

The evidence before the habeas court, including the testimony of Galdamez, demonstrates that there were a number of factual issues that could have been contested or tested had the case gone to trial.^* As the Director acknowledges in his brief to this Court, the hit and run statute has four elements, each of which must be established by the Commonwealth beyond a reasonable doubt to secure a conviction. To convict a defendant...