Ostrander v. Green

• Decision Date: 01 February 1995
• Docket Number: No. 94-6396,94-6396
• Citation: 46 F.3d 347
• Parties: Philip James OSTRANDER, Petitioner-Appellant, v. Fred W. GREEN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 347

46 F.3d 347

Philip James OSTRANDER, Petitioner-Appellant, v. Fred W. GREEN, Warden, Respondent-Appellee.

No. 94-6396.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 3, 1994.

Decided Feb. 1, 1995.

ARGUED: Ira Nikelsberg, Nikelsberg & Rizzo, P.C., Fairfax, VA, for appellant. John H. McLees, Jr., Asst. Atty. Gen., Richmond, VA, for appellee. ON BRIEF: Lawrence Eliot Freedman, L. Freedman & Associates, P.C., Fairfax, VA, for appellant. James S. Gilmore, III, Atty. Gen. of Virginia, Richmond, VA, for appellee.

Before HALL and MICHAEL, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge HALL wrote the opinion, in which Judge MICHAEL and Senior Judge CHAPMAN joined.

OPINION

K.K. HALL, Circuit Judge:

Philip James Ostrander, a Virginia prisoner, appeals an order of the district court dismissing his petition for a writ of habeas corpus. We reverse.

I.

A.

Ostrander was a successful young businessman in the Virginia Beach area. In 1990, his fifteen-year-old sister-in-law, Dianne Howell, accused him of molesting her on several occasions beginning when she was thirteen. He was charged in a six-count indictment with three counts of carnal knowledge of a minor, two counts of sexual battery, and one count of sodomy.

He was represented at a preliminary hearing by his corporate lawyer, Gene Woolard. Woolard had not practiced criminal defense for some time, so Ostrander enlisted an experienced criminal defense lawyer, Louis Napoleon "Mike" Joynes, as co-counsel.

Two days before trial, Ostrander's family (his parents, Jim and Lillian Ostrander; his sister-in-law, Vicki Elliott; and a friend, Bonnie Basnight) met with his attorneys. Joynes reported that he had worked out a plea agreement with the prosecutor. Under the agreement, Ostrander would plead guilty to four of the six charges, and the Commonwealth would agree that the sentences would run concurrently, which exposed Ostrander to a 20-year maximum sentence. If convicted of all charges, and all sentences were imposed consecutively, Ostrander could have received as much as 75 years in prison. Joynes also allegedly assured Ostrander's family that his sentence would be "capped" at three to five years, that the Commonwealth had agreed not to oppose work release, that he knew the persons who ran the work release program very well, and that Ostrander's receiving work release was guaranteed.

Ostrander's parents reluctantly advised their son to take the deal. Ostrander agreed to plead guilty, though he maintains his innocence.

Ostrander pled guilty. Later, he was sentenced to twelve years in prison. ¹ Within days of sentencing, Ostrander discovered that not only had he not been approved for work release, but also that he was ineligible for work release as a matter of law because of the nature of his offense. He quickly found a new lawyer and moved to withdraw his plea under Va.Code Sec. 19.2-296, which permits such withdrawals after final judgment only on a showing of "manifest injustice."

B.

The state court held a comprehensive two-day hearing on the motion. Ostrander testified first. He said that he spoke with Joynes and Woolard a day or two before his scheduled trial date. The attorneys explained the proposed plea agreement with him, but Ostrander was reluctant to plead guilty because, he asserts, he is innocent. Joynes assured Ostrander that he had a verbal agreement with the Commonwealth's attorney for a three-to-five year "cap" on the sentence and that there was a 75-80 percent chance Ostrander would be released on probation. In an earlier meeting, Joynes had "guaranteed" Ostrander that he would be placed on work release if there were "any problems." Joynes explained that he and Sheriff Drew were good friends, that he had "everything set up" for work release, and to expect Captain Palett to come to interview him for the program.

Ostrander pled guilty in accordance with the written plea agreement. He did not enter an Alford ² plea because his attorneys advised him just before the hearing that it "would make the judge mad."

On the day before sentencing, Ostrander's mother, his brother, Joynes, and Basnight met with him at the jail. The group discussed the upcoming sentencing. Joynes reported that if Ostrander did not receive probation, he would be out on work release within 24 or 48 hours, because "everything was already set up." According to Ostrander, this information confirmed what he had understood at the time of his plea. Joynes then told Ostrander and his family that he had given Sheriff Frank Drew a lot of wine "for the work release" and for taking Ostrander to a psychological evaluation. Joynes also reported that Captain Jack Palett was active in the Shriners, and that he had mentioned to Palett that Ostrander's business, Logo Lil's, could help out the Shriners with embroidery, hats, and the like if he were given work release.

Sheriff Drew testified next. He stated that he was not a "friend" of Joynes, that Lieutenant James Lindenbaugh ran the work release program, and that Captain Palett had no connection whatsoever with it. He denied ever receiving a gift of wine from Joynes, and he could not recall whether Joynes had ever mentioned Ostrander to him before the plea and sentencing. He said that his standard answer to work release inquiries is to direct the attorney to Lieutenant Lindenbaugh. Finally, Sheriff Drew stated that the work release regulations are "very simple," and those convicted of violent or sexual offenses are ineligible.

Captain Palett took the stand and testified that he has nothing to do with the work release program. He did recall speaking with Joynes a few months previously about a client of Joynes who was interested in work release, and he directed Joynes to speak to Lieutenant Lindenbaugh. He denied telling Joynes that there would be "no problem" with securing his client a place in the program. He did confirm, though, that Joynes brought up Palett's involvement in the Shriners and said that his client owned a business that made T-shirts and hats, "[a]nd if I ever needed any, he would be a good man to get some from."

Bonnie Basnight, Ostrander's friend, ³ then corroborated certain aspects of his story. She was present at Joynes' office along with Ostrander's mother, father, and sister-in-law on the evening just before the plea. This group discussed the situation, and later telephoned Ostrander at the jail. Joynes explained the Alford plea, stated that there was "no problem whatsoever" with obtaining work release, and the sentence would be capped at three to five years under a verbal agreement Joynes had with the Commonwealth's attorney. According to Basnight, Joynes confidently reported that he was a personal friend of Sheriff Drew, there was "no question" but that Ostrander would be out on work release within 48 hours of sentencing, and he was going to give Sheriff Drew a bottle of wine for the favor. Basnight said that Ostrander's parents were very upset. His father was in tears, and he wanted his son to plead guilty so that there would be no risk of further jail time.

Basnight was also present at sentencing. When Ostrander received twelve years, she and the family were stunned. She and Ostrander's mother confronted Joynes and Woolard outside the courtroom. Joynes told them, "Don't worry about it. I'm going downstairs right now and talk with Sheriff Drew, and Philip will be out in forty-eight hours. He will be sitting at McDonald's with you eating lunch."

Mrs. Ostrander recounted many of the same details. She was somewhat consoled by the availability of the Alford plea, because she did not want her son to admit guilt when he was innocent. She also remembered Joynes' explaining the three-to-five year "cap" and guaranteeing work release. She was present when Joynes predicted that her son would probably get probation and, if not, would surely be out on work release within days. After the sentencing, she questioned Joynes about why her son had not entered an Alford plea, and Joynes told her that they had not wanted to make the judge mad. She stated that she would never have advised her son to plead guilty if she had not thought he would be on work release.

James Elliott, Ostrander's older brother, testified that he planned to employ his brother when he was out on work release. ⁴ He was present at the jail just before sentencing when Joynes advised that the work release "deal" was already set up with Sheriff Drew, and he was encouraged enough to make a date with his brother to watch Monday night football.

Elliott's wife Vicki, who had been present at the pre-plea meeting in Joynes' office, added her further corroboration to the "cap," the "guarantee" of work release, the bottle of wine for Joynes' "personal friend" Sheriff Drew, and the planned Alford plea.

Ostrander rested his case. The Commonwealth's case hinged on the testimony of Woolard and Joynes.

Woolard went first. After describing his prior representation of Ostrander and how Joynes was brought into the case, Woolard addressed some of Ostrander's allegations. He denied any knowledge of an agreement for a "cap." He did state that Ostrander had been advised that he might receive "extra credit" from the sentencing judge for entering a straight guilty rather than an Alford plea.

Woolard remembered that the plea agreement included a promise by the Commonwealth not to oppose work release--a promise he recalled seeing in writing--but he could not find the clause when presented with the actual written agreement.

Woolard confirmed other aspects of Ostrander's story. He heard Joynes say that he was a friend of Sheriff Drew, and he was present when Joynes discussed Shriners' hats with Captain Palett. Most importantly, Woolard verified that after their discussion with Palett, Joynes told Ostrander that work release "should be no problem" and "looked good," though, he added, "there's no guarantees." On...