State v. Hutton

Decision Date16 June 2015
Docket NumberNo. 14–0603.,14–0603.
Citation776 S.E.2d 621,235 W.Va. 724
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Respondent Below, Respondent v. Orville M. HUTTON, Petitioner Below, Petitioner.

Valena Beety, Esq., Michael Blumenthal, Esq., Nicole Annan, Law Student, Courtney Hooper, Martin McKeen, Devon Unger, Law Students, West Virginia University College of Law Clinical Law Program Morgantown, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Elbert Lin, Esq., Solicitor General, J. Zak Ritchie, Esq., Assistant Attorney General, Charleston, WV, for Respondent.


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 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 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 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. 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 “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 entered, imploring that tribunal to recognize the error and correct the judgment. Later it was obtained by motion to the trial court itself.
Janiec v. McCorkle, 52 N.J.Super. 1, 13–14, 144 A.2d 561, 568 (App.Div.1958). See People v. Kendricks, 190 Misc. 1058, 75 N.Y.S.2d 216, 218 (1947) (“Since a review by Parliament and the Exchequer was restricted exclusively to errors of law, it was essential to devise some means of correcting the occasional injustice resulting from errors of fact being committed in the Court of Kings Bench.”). Further, “the writ of error coram nobis (or vobis ) contemplates a review of the judgment by the court which rendered it, not by an appellate court; and no writ issues from an appellate court.” Leo Carlin, Correction of Error on Motion, 55 W. Va. L. Rev. 1, 6 (1952).

The scope of the writ of error coram nobis was extremely narrow. See People v. Goodspeed, 223 Cal.App.2d 146, 35 Cal.Rptr. 743, 749 (1963). The writ could not be used to permit a new examination of questions previously determined; nor could it be used as an alternative for direct appeal or habeas corpus. See State v. Davis, 515 N.W.2d 205, 208 (S.D.1994). It was “limited to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were discovered after the rendition of the judgment without fault of the party seeking relief.” Harris v. Commonwealth, 296 S.W.2d 700, 701 (Ky.1956). The writ “reaches only matters of fact unknown to the applicant at the time of judgment, not discoverable through reasonable diligence, and which are of a nature that, if known by the court, would have prevented entry of judgment.” State v. Diaz, 283 Neb. 414, 420, 808 N.W.2d 891, 896 (2012). Historically, the writ “did not require a claim that the movant was currently being unlawfully detained.” Steven J. Mulroy, The Safety Net: Applying Coram Nobis Law to Prevent the Execution of the Innocent, 11 Va. J. Soc. Pol'y & L. 1, 10 (2003). It also has been observed that, [t]hough more frequently employed in civil cases, coram nobis relief was available in criminal proceedings under the common law.” Louis J. Palmer, Jr., The Death Penalty in the United States: A Complete Guide to Federal and State Laws 198 (2d ed.2014). In commenting upon the limited scope of coram nobis, Professor Cleckley made the following...

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