Dir. of the Dep't of Corr. v. Kozich

• Citation: 290 Va. 502,779 S.E.2d 555
• Decision Date: 10 December 2015
• Docket Number: Record No. 141788.
• Parties: DIRECTOR OF the DEPARTMENT OF CORRECTIONS v. Douglas Todd KOZICH.
• Court: Virginia Supreme Court

290 Va. 502

779 S.E.2d 555

DIRECTOR OF the DEPARTMENT OF CORRECTIONS

v.Douglas Todd KOZICH.

Record No. 141788.

Supreme Court of Virginia.

Dec. 10, 2015.

Steven A. Witmer, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Jonathan P. Sheldon (Sheldon, Flood & Haywood, on brief), Alexandria, for appellee.

Present: All the Justices.

Opinion by Justice D. ARTHUR KELSEY.

The circuit court issued a writ of habeas corpus to Douglas Todd Kozich, finding that his trial counsel had violated the Sixth Amendment guarantee of effective legal representation by not timely filing, and obtaining a ruling on, a motion seeking a reconsideration of Kozich's sentence. Disagreeing with several aspects of the court's reasoning, we nonetheless affirm the judgment granting the writ in this case on alternative grounds legally supported by the habeas court's factual findings.

I.

In 2013, Kozich pled guilty to one count of grand larceny and two counts of obtaining money by false pretenses. After the trial court approved the plea, the court entered an order finding him guilty of all charges, ordered the presentation of a presentence report, and scheduled a hearing to determine the sentences.

At the sentencing hearing on June 7, 2013, the trial court stated that it had reviewed the presentence report and Kozich's sentencing memorandum and considered the applicable sentencing guidelines.¹ Kozich's criminal record included about fourteen prior felony convictions, more than fifteen misdemeanor convictions, and several probation violations. Kozich's sentencing memorandum informed the court that Kozich's criminal record was "entirely the product of his addictions" to various drugs that he had been using "for three decades." Counsel called attention to the presentence report, which noted Kozich's use of LSD, cocaine, marijuana, heroin, and prescription opiate medications (morphine

and Vicodin ). In that report, Kozich admitted that he committed the crimes for which he was being sentenced while under the influence of cocaine and heroin.

Relying on these facts, Kozich's counsel pled for mercy at the sentencing hearing, pointing out that Kozich's criminal behavior was "the direct proximate result of addiction and mental health problems." Counsel directed the court's attention to counsel's sentencing memorandum provided to the court. In it, counsel requested that Kozich be placed in "Crossroads or some other residential treatment program" and given a suspended sentence.

The memorandum also informed the court that Kozich had attended a mental illness and substance abuse program operated by Pathway Homes. He "met weekly with a licensed counselor and was supervised by a licensed psychologist who served as a house volunteer." Kozich also participated in Alcoholics Anonymous and Narcotics Anonymous meetings and, at the time of sentencing, was enrolled in several substance abuse programs.

Kozich's counsel implored the court, "I would suggest to the Court that you strongly consider the letter that's attached to the sentencing memorandum." That letter, written by the mental health manager of the Program for Assertive Community Treatment and South County Intensive Community Treatment Team, recommended "an inpatient substance abuse treatment program" like "Crossroads" and suggested that the court mandate "treatment to one of those programs instead of jail time." After counsel's argument, Kozich used his allocution to make an impassioned request for drug treatment and psychological counseling rather than imprisonment.

In its ruling, the court stated to Kozich that "putting you in programs doesn't work because even when you're given the opportunity of the programs, even when you're given the opportunity of probation, you can't help yourself. And so it's come to the point where I have to protect the public from you." The court then concluded, "What I'm going to do is this[:] I'm going to impose a sentence here today which I think is an appropriate sentence in the absence of an actual program for me to look at and determine whether or not it's appropriate." The court added that it would "give leave" to Kozich's counsel to "file a motion to reconsider" if he later wished to produce additional information on treatment programs. The court ended the hearing by issuing two-year active sentences, running consecutively, for each of the three offenses. "That is what I think is the appropriate sentence," the court announced.

The court entered three sentencing orders more than two weeks later, on June 24, 2013, each of which imposed a two-year active sentence on the respective convictions. The orders remanded Kozich to the custody of the sheriff for incarceration by the Virginia Department of Corrections and directed Kozich's court-appointed counsel to be paid the statutory attorney fee. Nothing in the written orders granted leave for further motions, stayed the proceedings for any reason, or made any suggestion that the court intended to take the case under advisement. No appeal followed.

On September 27, 2013, more than three months after entry of the final sentencing orders, Kozich's counsel filed a motion to reconsider the sentence. By this time, Kozich was incarcerated in a state penitentiary. On November 13, 2013, the court denied the motion to reconsider because "the Court no longer ha [d] jurisdiction over this case." See generally Code § 19.2–303 (authorizing the power to "suspend or otherwise modify" the sentences of felons who have "not actually been transferred to a receiving unit of the Department [of Corrections]" if the court finds that doing so would be "compatible with the public interest and there are circumstances in mitigation of the offense").

In May 2014, Kozich filed a petition seeking a writ of habeas corpus and naming the Virginia Department of Corrections as respondent. The case was assigned to the same judge who had previously presided over Kozich's sentencing hearing. At an evidentiary hearing on the petition, Kozich's habeas counsel contended that Kozich's trial attorney had provided ineffective assistance of counsel by failing to present a specific drug-treatment plan at the sentencing hearing as an alternative to incarceration. Habeas counsel also argued that trial counsel had failed to file a timely motion to reconsider the sentence.

In reply, the Commonwealth argued that Kozich's trial counsel did not breach his duty of effective assistance of counsel by not presenting at the sentencing hearing a detailed plan for drug treatment in lieu of incarceration—in addition to his argument, sentencing memorandum, its supporting letter from a treatment professional, and Kozich's personal allocution. The Commonwealth also argued that the Sixth Amendment right to counsel does not extend to post-judgment motions to reconsider a criminal sentence.

The habeas court ruled for the Commonwealth on the first claim, which focused on the absence of a specific plan for treatment at the time of sentencing.² The judge explained: "As to whether or not [trial counsel] was deficient in his performance, I do not find that at the time of the original sentencing that he was deficient for failing to bring me that plan, and the reason is because the [presentence report] showed a person who had really not been taking opportunities seriously." She continued, "I don't find that ... in and of itself was deficient." Accord J.A. at 73 ("I don't think that's ineffective assistance.... I don't expect attorneys to read my mind" because "[e]very single [judge] is different.").

On the second claim, alleging ineffectiveness due to counsel's failure to file a timely motion for reconsideration, the habeas court ruled against the Commonwealth. On this issue, the judge noted, "I find myself benefitting from knowing what was going on in my head." Based upon that knowledge and her personal practice of "rarely issu[ing] an invitation to counsel to submit something more," the judge stated that the written sentencing orders were not truly final orders. It was "within my mind," the judge revealed, "that I [was] not finally sentencing [Kozich]." If she does not "invite" more from a party, she explained, "it's the end, period," and, in her mind, the order is actually final. Here, she intended only to "impose a sentence here today" with the resulting effect of "continuing" the case as "an open sentencing." On that reasoning, she found that Kozich "had a constitutional right to counsel at the time of the conduct in question, because it occurred during the time that the overall sentencing process was still in progress."

That finding left two issues to be resolved: Was Kozich's trial counsel ineffective by not timely filing, and obtaining a ruling on, a motion to reconsider the sentences, and, if so, was Kozich prejudiced? The judge answered both questions in the affirmative. The failure to file a timely motion to reconsider and to ensure that the court had an opportunity to rule on it, the judge held, constituted ineffective assistance. "As far as the prejudice is concerned," the judge reasoned, "heroin addicts" show a higher propensity for favorable treatment outcomes than other drug addicts. If the motion to reconsider had been timely filed, the judge stated she "would have placed Mr. Kozich in a program with a sufficient aftercare component. I know that that is what I was considering. I know that that was what I was intending.... I had every intention of putting this gentleman in a program and giving him a chance." The court issued the writ of habeas corpus based upon "the reasons stated by the court" from the bench.

The court thereafter vacated the sentencing orders entered on June 24, 2013, which imposed six years of active incarceration, and entered new sentencing orders on January 9, 2015. The amended sentencing orders imposed three consecutive two-year terms of incarceration, suspending one year of each sentence, resulting in a total of three years of active...