Walker v. Forbes

• Decision Date: 08 September 2016
• Docket Number: Record No. 151848
• Citation: 790 S.E.2d 240
• Parties: R. Walker (Warden), Lunenburg Correctional Center v. Christopher Forbes
• Court: Virginia Supreme Court

790 S.E.2d 240

R. Walker (Warden), Lunenburg Correctional Center

v.Christopher Forbes

Record No. 151848

Supreme Court of Virginia.

September 8, 2016

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

No brief by appellee.

PRESENT: All the Justices

OPINION BY JUSTICE S. BERNARD GOODWYN

In this appeal, we consider whether the circuit court erred in ruling that a defendant has a federal constitutional right to counsel in a probation revocation hearing.

Background

On January 24, 2001, Christopher Forbes (Forbes) entered a guilty plea in the Circuit Court of Fairfax County to petit larceny as a third offense. On June 2, 2001, he was sentenced to four years' imprisonment, with two years and ten months suspended, and probation upon his release. On February 14, 2005, after his release and while still on probation for the petit larceny as a third offense conviction, Forbes pled guilty to robbery and abduction, and on May 5, 2005, he was sentenced to 15 and 20 years' imprisonment for those respective convictions, with 10 years suspended on each count, and five years' probation upon his release.

Because the new convictions constituted a violation of Forbes' probation on the 2001 petit larceny as a third offense conviction, the circuit court issued a warrant and, while Forbes was still incarcerated on the robbery and abduction convictions, held a probation revocation hearing.^* At that hearing, Forbes did not deny that he had committed new crimes while on probation. However, he asked for a less severe punishment than the one year recommended by the Commonwealth. The circuit court found Forbes in violation of the terms of his probation on the 2001 petit larceny conviction, and ordered that Forbes serve nine months of his suspended sentence. It entered an order to that effect on December 13, 2013.

On December 30, 2013, Forbes wrote to his appointed counsel claiming that the circuit court had lacked an indictment for the 2001 petit larceny charge, and requesting that counsel either appeal the re-imposed nine-month sentence, or inform Forbes in writing why no appeal was necessary. Counsel responded in a January 3, 2014 letter that included a copy of the 2001 indictment, stating that “frankly, there is no legal basis to pursue on appeal” because “during the plea colloquy you informed the court that you had received a copy of the indictment before being called on to plea,” and he directed Forbes to hire a new attorney if he still wished to appeal. Forbes did not respond.

On October 31, 2014, Forbes filed a petition for a writ of habeas corpus in the circuit court, alleging “a ‘manifest injustice’ occurred and that he was prejudiced as a result of counsels [sic] ineffective assistance in violation of the Constitution,” citing the Sixth and Fourteenth Amendments to the Constitution of the United States. He argued that counsel was ineffective in failing to inform the court that it lacked jurisdiction for want of an indictment, in failing to present Forbes with information concerning that jurisdictional ground for a direct appeal, and in “refus[ing] to file an appeal after his client made known his desire to do so.”

The Warden of the Lunenburg Correctional Center responded by moving to dismiss the petition. In the motion to dismiss, the Warden relied on Gagnon v. Scarpelli , 411 U.S. 778, 787–89, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)

, in which the United States Supreme Court held that there is no per se constitutional right to counsel at a probation revocation proceeding, to argue that, because Forbes was not constitutionally entitled to counsel at the revocation hearing, he was not entitled to effective assistance of counsel on appeal.

By letter opinion on July 22, 2015, the habeas court denied the Warden's motion to dismiss and granted Forbes a delayed appeal to the Court of Appeals of Virginia. The habeas court stated that Gagnon

did not say that counsel was never required at probation revocation hearings, but rather that “the decision as to the need of counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with the responsibility for administering the probation and parole system.” (quoting Gagnon , 411 U.S. at 790, 93 S.Ct. 1756 ). The habeas court then distinguished Gagnon —in which the Supreme Court determined that no counsel was constitutionally required—from this case on the ground that the revocation proceeding in Gagnon resembled a parole revocation hearing in Virginia, whereas Forbes' probation revocation “very much resembled a criminal trial.”

The habeas court then stated that, in Virginia, the authority charged with determining when counsel is needed is the General Assembly, which has enacted Code §§ 19.2–157

and –158, requiring the court to inform probationers facing revocation of their right to counsel. Thus, it concluded that Virginia defendants have a statutory right to counsel during probation revocation hearings and appeals. The habeas court concluded by ruling that counsel's performance was deficient because he failed to file the requested appeal, and granted Forbes leave to file an appeal.

The Warden moved for reconsideration, arguing that Virginia's statutory appointment of counsel at probation revocation hearings does not create a constitutional right to counsel or to the effective assistance of counsel, and asked the habeas court to find that although Forbes had a statutory right to counsel at the revocation hearing, he did not have a constitutional right to effective assistance of counsel at the hearing or on appeal. He continued that Forbes' hearing did not give rise to a constitutional due process right to counsel under Gagnon

because it was “routine.” The habeas court denied the motion for reconsideration, and this Court granted the Warden's appeal on the following assignment of error:

The habeas court erred in ruling that Forbes was denied the effective assistance of counsel in appealing the revocation of his suspended sentence.

Analysis

“Because entitlement to habeas relief is a mixed question of law and fact, the habeas court's findings and conclusions are not binding upon this Court, but are subject to review to determine whether the court correctly applied the law to the facts.” Zemene v. Clarke , 289 Va. 303, 306–07, 768 S.E.2d 684, 686 (2015)

.

A petitioner seeking relief “by habeas corpus on the ground of ineffective assistance of counsel has the burden of proving the charge made.” Peyton v. Fields , 207 Va. 40, 44, 147 S.E.2d 762, 766 (1966)

. Because “[t]he right to effective assistance of counsel is dependent on the right to counsel itself,” Howard v. Warden of Buckingham Correctional Center , 232 Va. 16, 19, 348 S.E.2d 211, 213, (1986) (quoting Evitts v. Lucey, 469 U.S. 387, 396 n.7, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) ), “before a person can assert a claim of ineffective assistance of counsel he first must establish that he has a right to counsel.” Dodson v. Director , 233 Va. 303, 306, 355 S.E.2d 573, 575 (1987) (citing Wainwright v. Torna , 455 U.S. 586, 587–88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) ; Lucey , 469 U.S. at 396 n.7, 105 S.Ct. 830 ). Where there is no constitutional right to counsel, there can be no deprivation of effective assistance. Torna , 455 U.S. at 587–88, 102 S.Ct. 1300.

In the context of probation revocation, the constitutional right to counsel, if any, flows from the Due Process Clause of the Fourteenth Amendment rather than from the Sixth Amendment. See Gagnon, 411 U.S. at 790, 93 S.Ct. 1756

(identifying “fundamental fairness—the touchstone of due process,” as the source for the right to counsel in revocation proceedings). This is because “the revocation of parole is not a part of a criminal prosecution.” Id. at 781, 93 S.Ct. 1756 (citing Morrissey v. Brewer , 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (holding that “the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations”)); see also

Commonwealth v. Jackson , 267 Va. 226, 229, 590 S.E.2d 518, 519 (2004) (holding that “in Virginia, while a probation revocation hearing is a criminal proceeding, it is not a stage of a criminal prosecution”) (internal quotation marks and citation omitted).

However, because such proceedings raise the possibility of a serious loss of liberty, a probationer is entitled to due process—specifically, a hearing on probable cause and a subsequent hearing prior to the final revocation decision. Gagnon, 411 U.S. at 782, 93 S.Ct. 1756

. But due process does not always require the presence of counsel at revocation hearings; indeed, “the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings.” Id. at 790, 93 S.Ct. 1756. Nevertheless, “there will remain certain cases in which fundamental fairness—the touchstone of due process—will require” counsel at such proceedings. Id. While declining to formulate a...