State v. Hutton, No. 14-0603

CourtSupreme Court of West Virginia
Writing for the CourtJUSTICE DAVIS delivered the Opinion of the Court.
Docket NumberNo. 14-0603
PartiesSTATE OF WEST VIRGINIA, Respondent Below, Respondent v. ORVILLE M. HUTTON, Petitioner Below, Petitioner
Decision Date16 June 2015

STATE OF WEST VIRGINIA, Respondent Below, Respondent
ORVILLE M. HUTTON, Petitioner Below, Petitioner

No. 14-0603


January 2015 Term
Submitted: April 22, 2015
June 16, 2015

Appeal from the Circuit Court of Harrison County
Honorable James A. Matish, Judge
Civil Action No. 13-P-119-3


Valena Beety, Esq.
Michael Blumenthal, Esq.

Nicole Annan, Law Student
Courtney Hooper, Law Student
Martin McKeen, Law Student
Devon Unger, Law Student
West Virginia University College of
Law Clinical Law Program
Morgantown, West Virginia
Attorneys for Petitioner

Patrick Morrisey, Esq.
Attorney General
Elbert Lin, Esq.

Solicitor General
J. Zak Ritchie, Esq.

Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent

JUSTICE DAVIS delivered the Opinion of the Court.

Page 2

JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.

JUSTICE LOUGHRY concurs in part, dissents in part, and reserves the right to file a separate opinion.

Page 3


1. "A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith." Syllabus point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).

2. "When a statute which is declaratory of the common law is repealed the common law remains in force for the reason that the statute was an affirmance of the common law." Syllabus point 2, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

3. In West Virginia, the common law writ of error coram nobis is available only in criminal proceedings.

4. Under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the Sixth Amendment requires defense counsel to warn an immigrant client of

Page 4

the deportation consequences of a guilty plea. When the deportation consequence is succinct, clear, and explicit under the applicable law, counsel must provide correct advice to the client. When the law is not succinct or straightforward, counsel is required only to advise the client that the criminal charges may carry a risk of adverse immigration consequences.

5. A claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) there exists a substantial adverse consequence from the conviction; and (4) the error presents a denial of a fundamental constitutional right.

Page 5

Davis, Justice:

This is an appeal by Orville M. Hutton from an order of the Circuit Court of Harrison County that denied his petition for a writ of error coram nobis. Mr. Hutton sought the writ in order to have his guilty plea conviction for unlawful assault vacated on the grounds of ineffective assistance of counsel. Mr. Hutton alleged that his trial counsel was ineffective in failing to inform him that his guilty plea could result in his being deported. The circuit court denied the writ based upon the following grounds: (1) the Legislature's repeal of the coram nobis motion statute abolished coram nobis as a remedy in West Virginia; (2) even if coram nobis exists in West Virginia, a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ; and (3) even if a claim of ineffective assistance of counsel could be remedied under the writ, the evidence failed to show Mr. Hutton's counsel did not inform him of the deportation consequences of his guilty plea. After a careful review of the briefs and the record submitted on appeal, and listening to the argument of the parties, we reverse and remand for further proceedings consistent with this opinion.


Mr. Hutton was born in Jamaica in 1962. He came to the United States in 1971, at the age of nine. Mr. Hutton has resided in this country since that time. He is

Page 6

classified as a permanent resident of this country, but he is not an American citizen. In the January 2010 term of court, a Harrison County grand jury indicted Mr. Hutton for malicious assault and three counts of sexual assault in the second degree. The victim of the crimes was Mr. Hutton's live-in girlfriend and mother of their then-four-year-old son.

On May 21, 2010, Mr. Hutton appeared in circuit court and entered an Alford plea of guilty1 to the crime of unlawful assault, a lesser-included offense of malicious assault. As a result of the plea, the remaining sexual assault charges were dismissed. On July 6, 2010, the circuit court sentenced Mr. Hutton to prison for a term of one to five years. On May 15, 2013, ten days before Mr. Hutton was supposed to be released from prison,2 he was notified by the Department of Homeland Security that he would be held by the federal government under a detainer and processed for deportation to Jamaica because of his felony conviction.

On May 25, 2013, Mr. Hutton was discharged from his sentence and turned

Page 7

over to the federal government for deportation proceedings. While those proceedings were pending, Mr. Hutton filed a pro se petition for a writ of error coram nobis on September 4, 2013, with the circuit court that sentenced him. In that petition, Mr. Hutton alleged that his Sixth Amendment right to effective assistance of counsel had been violated because his trial counsel failed to inform him that his guilty plea could result in his being deported from the United States. Mr. Hutton requested the appointment of counsel for the coram nobis proceeding. However, at a scheduled April 9, 2014, evidentiary hearing, Mr. Hutton was told that if he insisted on having counsel appointed, it would delay the proceeding because counsel would need time to prepare and adequately represent him. It appears that Mr. Hutton was concerned about being deported before another hearing could be rescheduled, so he agreed to hold the hearing without counsel.

Mr. Hutton testified by telephone at the hearing and submitted into evidence an affidavit from his trial counsel. In the affidavit, trial counsel indicated that he did not remember speaking with Mr. Hutton regarding his immigration status nor the consequences he faced as an immigrant if he was found guilty of the charges in the indictment. Mr. Hutton also had his sister and wife testify as witnesses by telephone. A final witness that Mr. Hutton wanted to call, his post-conviction counsel Courtenay Craig, was not available. Consequently, the circuit court continued the hearing until the next day. On that date, Mr. Craig testified by telephone on behalf of Mr. Hutton. At the end of Mr. Hutton's

Page 8

presentation of his evidence, the circuit court entered an amended order on April 28, 2014,3 denying him relief.4 This appeal followed.5


In this proceeding, we are called upon to review the circuit court's order denying Mr. Hutton coram nobis relief. In reviewing challenges to the findings and conclusions of the circuit court, we apply the following standard of review:

"We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review."

State v. Allen, 208 W. Va. 144, 150, 539 S.E.2d 87, 93 (1999) (quoting Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997)).


The circuit court made three dispositive rulings in denying Mr. Hutton relief.

Page 9

The court determined that the writ of error coram nobis did not exist in West Virginia; a claim of ineffective assistance of counsel is not a recognized ground for relief under the writ; and Mr. Hutton failed to show that his counsel did not inform him of the deportation consequences of his guilty plea. We will address each dispositive issue separately. However, before we begin our analysis, we first will provide an overview of the origins and scope of the writ of error coram nobis.

A. Overview of the Writ of Error Coram Nobis

The common law method for a trial court to review a final judgment was through the writ of error coram nobis.6 The writ "originated in sixteenth-century England as an instrument used by trial courts to correct their own fact-based errors." Trenkler v. United States, 536 F.3d 85, 92-93 (1st Cir. 2008). As such, the original purpose of the writ

Page 10

"was to promote respect for the judicial process by enabling a court to correct technical errors in a final judgment previously rendered." United States v. George, 676 F.3d 249, 253 (1st Cir. 2012). See Warden, Nevada State Prison v. Peters, 83 Nev. 298, 305, 429 P.2d 549, 553 (1967) ("Its purpose is to correct an alleged error of fact not appearing in the record where there is no other remedy available."). Prior to the development of the writ, trial courts lacked the authority to correct their own errors. See United States v. Sawyer, 239 F.3d 31, 37 (1st Cir. 2001). This situation has been described as follows:

The writ . . . was originally devised in England as a means of rectifying the unjust situation arising from the fact that any allowable method of appeal at common law was limited only to review for errors of law and there was no redress for an error of fact not apparent on the record and unknown to the court at the time of trial, which would have brought about a different result. Like all writs in those days, it issued out of Chancery and was addressed to the court in which the judgment had been

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT