Laster v. Russell ( 2013 )

PRESENT: All the Justices
DERRICK EDWARD LASTER
OPINION BY
v. Record No. 121282 JUSTICE DONALD W. LEMONS
June 6, 2013
BOBBY D. RUSSELL, SUPERINTENDENT OF
WESTERN VIRGINIA REGIONAL JAIL
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Charles N. Dorsey, Judge
In this appeal we consider whether the Circuit Court of the
City of Salem ("circuit court") erred when it denied Derrick
Edward Laster's petition for a writ of habeas corpus.
I. Facts and Proceedings
Derrick Edward Laster ("Laster") was tried and convicted of
animate object sexual penetration on April 29, 2010, in a bench
trial in the circuit court, Judge Robert P. Doherty, Jr. ("Judge
Doherty") presiding.
Laster was represented by Richard L. Lawrence ("Lawrence").
At trial, the teenage victim, M.D., testified that Laster, who
lived next door to her father's house, came over the night of
June 28, 2009. M.D. had fallen asleep on a chair, and Laster
carried her upstairs to the bedroom. M.D. testified that Laster
laid her on the bed and began touching her. First he rubbed her
back then Laster placed his finger inside her vagina.
Laster denied placing his finger inside the victim's
vagina, although he admitted carrying her upstairs, placing her
on the bed, and rubbing her back. He also admitted that he
"smack[ed] her on her bottom." Judge Doherty stated that he
believed M.D.'s testimony over Laster's testimony, and found
Laster guilty of animate object sexual penetration.
Prior to his sentencing, Laster hired a new attorney,
Richard Padgett ("Padgett"). In his preparation for the
sentencing hearing, Padgett learned that the Commonwealth had
made a plea offer prior to trial.
A hearing was held prior to sentencing to address whether
the plea offer was ever conveyed to Laster by Lawrence. The
Deputy Commonwealth's Attorney, Anne Marshall Deaton Harrell
("Harrell"), testified that a few days prior to trial, she
called Lawrence and offered a plea agreement in which Laster
would plead guilty to aggravated sexual battery with a
recommended sentence of three years, all but four months
suspended. Harrell made this offer so the teenage victim would
not have to testify in court. Harrell stated that Lawrence
responded within a day or two and told her Laster would not
accept a felony plea offer. Lawrence testified that he did not
specifically recall if he informed Laster about this offer.
Lawrence had asked Harrell to consider a misdemeanor plea
several times, but she declined. Lawrence testified that Laster
told him numerous times he would not plead guilty to a felony.
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Laster testified that he had told Lawrence he did not want
to plead guilty to a felony or receive any jail time, because he
would lose his job. Nonetheless, Laster testified that Lawrence
never told him about this specific plea offer, but that he would
have agreed to take this offer if he had known about it.
Judge Doherty stated at the hearing that he would give
Laster "the benefit of the doubt" that the plea offer was not
conveyed to him. The court declared a mistrial, ordered a new
trial, and thereafter Judge Doherty recused himself from the new
trial. Laster objected to the court ordering a new trial
instead of reinstating the plea offer.
A new trial was held on November 4, 2010, before Judge
Charles N. Dorsey ("Judge Dorsey"). Laster entered a plea of no
contest, and stated on the record that he was entering his plea
freely and voluntarily and that no one had made any promises to
him in exchange for his plea. He stated that he had no plea
agreement or understanding with the Commonwealth. At this
hearing, Laster did not ask the circuit court to order the
Commonwealth to reinstate the prior plea offer. The circuit
court accepted Laster's no contest plea, and on January 3, 2011,
sentenced Laster to 30 years' imprisonment, with 20 years
suspended.
On October 20, 2011, Laster filed a petition for a writ of
habeas corpus in the circuit court. Laster alleged he was
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denied the effective assistance of counsel because his first
attorney, Lawrence, did not communicate to him the plea offer
from the Commonwealth. A hearing on the petition was held on
March 8, 2012. The circuit court granted the Commonwealth's
motion to dismiss, holding that it had no jurisdiction over
Laster's claim because Laster was not being detained as a result
of his first trial. Rather, Laster was being detained as a
result of his second trial in which he voluntarily entered a no
contest plea, and he did not allege any ineffective assistance
of counsel in his second trial.
On March 21, 2012, the United States Supreme Court decided
Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399 (2012), and
Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012). The
circuit court sua sponte vacated its March 8, 2012 order and
asked the parties to brief the effect of these two opinions on
Laster's case. The circuit court held a hearing on April 17,
2012, and after considering the parties' briefs and argument,
the circuit court granted the Commonwealth's motion to dismiss.
The circuit court held that it did not have jurisdiction to
grant the relief requested because the habeas petition did not
allege ineffective assistance of counsel in the second trial,
and the second trial was the basis for Laster's detention. The
circuit court also held that Laster did not meet the prejudice
prong of the two part-test enunciated in Strickland v.
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Washington, 466 U.S. 668 (1984), because Laster "failed to show
a reasonable probability that the plea would have been entered
without the prosecution canceling it or the trial court refusing
to accept it."
Laster filed a petition for appeal with this Court, and we
awarded him an appeal on the following assignments of error:
1. The circuit court erred by abusing its discretion in
determining that it did not have jurisdiction to reinstate
the Commonwealth's original plea offer of four (4) months
active time in jail.
2. The circuit [court] erred by abusing its discretion in
determining that the plea offer may have been withdrawn by
the Commonwealth.
3. The circuit court erred by abusing its discretion in
determining that the court would not have accepted the plea
offer of four (4) months.
II. Analysis
A. Standard of Review
Whether an inmate is entitled to habeas relief is a mixed
question of law and fact. Hash v. Director, 278 Va. 664, 672,
686 S.E.2d 208, 212 (2009). The habeas court's findings and
conclusions are not binding on appeal, but are subject to review
to determine whether the habeas court correctly applied the law
to the facts. Id.
B. Analysis
Code § 8.01-654(B)(1) grants jurisdiction over petitions
for writs of habeas corpus to this Court and to circuit courts.
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The "circuit court which entered the original judgment order of
conviction or convictions complained of in the petition shall
have authority to issue writs of habeas corpus." Code § 8.01-
654. The purpose of a writ of habeas corpus is to "test the
validity of detention, and, for this purpose, the law permits a
prisoner to mount a collateral attack upon his conviction or
sentence." Howard v. Warden, 232 Va. 16, 19, 348 S.E.2d 211,
213 (1986); see also Buchanan v. Buchanan, 170 Va. 458, 464, 197
S.E. 426, 429 (1938) ("The primary object of habeas corpus is to
determine the legality of the restraint under which a person is
held.")(emphasis omitted). In a habeas corpus proceeding, the
truth-seeking function of the trial process yields to a focus on
the legality of a petitioner's detention and whether the
petitioner presently is detained in violation of any
constitutional rights. Lovitt v. Warden, 266 Va. 216, 240, 585
S.E.2d 801, 815 (2003).
The Commonwealth argues that the circuit court lacked
jurisdiction over this matter because Laster is detained as a
result of his second trial, and has not alleged any
constitutional violation in his second trial. Although the
Commonwealth frames this matter as jurisdictional, it is not.
The issue whether Laster is currently detained without lawful
authority focuses upon the merits of his claim and not the
circuit court's power to adjudicate it.
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In this collateral attack upon his conviction, Laster has
the burden to prove by a preponderance of the evidence his claim
of ineffective assistance of counsel. Jerman v. Director, 267
Va. 432, 438, 593 S.E.2d 255, 258 (2004); Green v. Young, 264
Va. 604, 608, 571 S.E.2d 135, 138 (2002). To prevail on this
claim, he must satisfy both parts of the two-part test
established in Strickland, 466 U.S. at 687.
Laster asserted in his petition for a writ of habeas corpus
that he was denied the effective assistance of counsel because
his first attorney, Lawrence, failed to communicate to him the
Commonwealth's plea offer of a reduced charge and sentence
recommendation. Laster asserts that he is being detained
without lawful authority because of his lawyer's ineffectiveness
in his first trial. He does not assert any constitutional
violations in his second trial. Laster argues that his
situation is similar to the respondent's in Lafler v. Cooper.
In Lafler, Anthony Cooper ("Cooper") was represented by
counsel during plea negotiations. His counsel informed him of a
favorable plea offer to dismiss two charges and recommend a
sentence of 51 to 85 months on the other two charges, but on the
advice of counsel, Cooper rejected the offer. 132 S.Ct. at
1383. After the plea offer was rejected, Cooper had a trial
before a jury. Id. Cooper was found guilty and received a
mandatory minimum sentence of 185 to 360 months' imprisonment.
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Id. The parties in Lafler all agreed that counsel's advice to
Cooper with respect to the plea offer was erroneous and fell
below the standard of adequate assistance of counsel guaranteed
by the Sixth Amendment. Id. at 1384.
In Lafler, the United States Supreme Court held that
Cooper's subsequent fair trial could not erase the deficient
performance by counsel during plea negotiations. 132 S.Ct. at
1388. Laster argues that, as in Lafler, his second trial could
not cure the deficient performance of his counsel in the first
trial.
The United States Supreme Court has urged courts
considering collateral attacks upon convictions and detention to
consider the prejudice prong of Strickland prior to considering
the performance prong. The Court held that a court is not
required to determine "whether counsel's performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies." 466 U.S. at
697. Instead, a court may proceed directly to the prejudice
prong of the two-part test "[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice." Id.
Following this direction, we will assume without deciding
that Laster may link the first and second trials and assert
ineffective assistance of counsel, and we will further assume
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without deciding that Laster's first lawyer's performance was
deficient for the purpose of Strickland analysis. Nonetheless,
Laster may not prevail in his request for relief because he
cannot prove prejudice as required in light of the Supreme
Court's application of these standards to the plea context in
the case of Missouri v. Frye.
In Frye, the United States Supreme Court explained that to
prove Strickland prejudice, a defendant who has shown a
reasonable probability that he would have accepted the
uncommunicated plea offer must also show that neither the
prosecution nor the trial court would have prevented the offer
from being accepted or implemented. 132 S.Ct. at 1410. The
Court stated that
[i]n order to complete a showing of
Strickland prejudice, defendants who have
shown a reasonable probability they would
have accepted the earlier plea offer must
also show that, if the prosecution had the
discretion to cancel it or if the trial
court had the discretion to refuse to accept
it, there is a reasonable probability
neither the prosecution nor the trial court
would have prevented the offer from being
accepted or implemented. This further
showing is of particular importance because
a defendant has no right to be offered a
plea.
Id.
The offer in this case was to reduce the charge of animate
object sexual penetration to a charge of aggravated sexual
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battery with a sentencing recommendation of three years'
imprisonment and all but four months suspended. It is
significant that the plea offer was for a sentencing
recommendation, not a specific sentence. Virginia law permits
three types of plea agreements, which are articulated in Rule
3A:8. Rule 3A:8 provides in pertinent part:
(c) Plea Agreement Procedure. -
(1) The attorney for the Commonwealth and
the attorney for the defendant or the
defendant when acting pro se may engage in
discussions with a view toward reaching an
agreement that, upon entry by the defendant
of a plea of guilty, or a plea of nolo
contendre, to a charged offense, or to a
lesser or related offense, the attorney for
the Commonwealth will do any of the
following:
(A) Move for nolle prosequi or dismissal of
other charges;
(B) Make a recommendation, or agree not to
oppose the defendant's request, for a
particular sentence, with the understanding
that such recommendation or request shall
not be binding on the court;
(C) Agree that a specific sentence is the
appropriate disposition of the case. In any
such discussions under this Rule, the court
shall not participate.
(2) If a plea agreement has been reached by
the parties, it shall, in every felony case,
be reduced to writing, signed by the
attorney for the Commonwealth, the
defendant, and, in every case, his attorney,
if any, and presented to the court. The
court shall require the disclosure of the
agreement in open court or, upon a showing
of good cause, in camera, at the time the
plea is offered. If the agreement is of the
type specified in subdivision (c)(1)(A) or
(C), the court may accept or reject the
agreement, or may defer its decision as to
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the acceptance or rejection until there has
been an opportunity to consider a
presentence report. If the agreement is of
the type specified in subdivision (c)(1)(B),
the court shall advise the defendant that,
if the court does not accept the
recommendation or request, the defendant
nevertheless has no right to withdraw his
plea, unless the Commonwealth fails to
perform its part of the agreement. In that
event, the defendant shall have the right to
withdraw his plea.
Rule 3A:8(c). This rule makes it clear that if the agreement is
for a sentencing recommendation under Rule 3A:8(c)(1)(B), the
trial court is not required to accept the recommendation, and
the defendant has no right to withdraw his plea on that basis.
Again assuming without deciding that the Commonwealth would
have left the offer available for acceptance and it would have
been reduced to a written agreement pursuant to Rule 3A:8(c)(2),
Laster was required to prove that the circuit court would have
accepted the plea agreement and the sentencing recommendation.
In Frye, the United States Supreme Court noted that some state
rules give trial courts the discretion to accept or reject plea
agreements. Frye, 132 S.Ct. at 1410. Virginia is one of those
states. See Rule 3A:8. In Frye, the Court elaborated that in
such jurisdictions where trial courts have this discretion
[it] can be assumed that in most
jurisdictions prosecutors and judges are
familiar with the boundaries of acceptable
plea bargains and sentences. So in most
instances it should not be difficult to make
an objective assessment as to whether or not
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a particular fact or intervening
circumstance would suffice, in the normal
course, to cause prosecutorial withdrawal or
judicial nonapproval of a plea bargain. The
determination that there is or is not a
reasonable probability that the outcome of
the proceeding would have been different
absent counsel's errors can be conducted
within that framework.
Id.
When considering Laster's habeas petition, the circuit
court properly applied this test as enunciated in Frye. The
circuit court judge, Judge Dorsey, stated that he was very
familiar with Judge Doherty from having practiced together and
having been on the same bench for almost ten years. He further
stated,
I cannot imagine that Judge Doherty would
have accepted, even if the request had been
made at the first trial, if the Commonwealth
had not withdrawn the offer, assuming that
they either didn't or didn't have the
jurisdiction or authority to do so, I cannot
imagine that Judge Doherty, if the agreement
had been presented to him, would have
accepted it.
Laster has offered no evidence to prove that this particular
plea offer was within the boundaries of acceptable plea
agreements and sentences in the jurisdiction, or that Judge
Doherty had ever accepted similar plea agreements and sentences
in other cases involving similar facts and charges.
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III. Conclusion
We hold that the circuit court did not err in dismissing
the petition for a writ of habeas corpus.
Affirmed.
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