Opinion
Case No. CL-2011-10489
10-19-2011
Allones v. Commonwealth
William E. Hassan, Esquire Ryan T. Fitzgerald, Esquire Assistant Commonwealth's Attorney Office of the Commonwealth's Attorney
DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M.ALDEN
JONATHAN C.THACHER
n. TERRENCE NEY
RANOV I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J, SMITH
?AVID S. SCHELL
JAN _ BRODIE
LORRAINE NOHDLUND
BRETT A KASSAHIAN
MICHAEL F. OEVINE
JUCGES
BARNARD F JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKQRT
RICHARD J. JAMBOHSKY
JACK B. STEVENS
J. HOWE BPOWN
F. BFI1JCE BACH
M. LANGHORNE KEITH
ARTHUR B. WEREG6
KATHLEEN H. MACKAY
ROBERT W, WOOLDRIDGE, JR.
MICHAEL R MCWEENY
GAYLORD L FINCH, JR
STANLEY R KLEIN
RETTRED JUDGES
October 19, 2011
Allones
v.
Commonwealth
Dear Counsel:
This matter is before the court on the petition of the plaintiff, Admarys Allones, for a writ of coram vobis and the Commonwealth's opposition. For the following reasons, the petition will be denied and this case will be dismissed.
Background
On May 20, 2006, the petitioner was charged in Fairfax County with felony shoplifting. After a preliminary hearing, she was indicted on January 16, 2007.
' Ms. Allones contends that when her case came to trial, on March 7, 2007, the commonwealth attorney offered to allow her to plead guilty to a misdemeanor. She refused the offer, maintained her innocence, and went to trial with a jury. The jury convicted Ms. Allones of the felony. She was fined $1,250.
Ms. Allones now contends that her conviction should be voided and her case dismissed because, in accepting her plea of not guilty, the court did not advise her that a felony conviction might jeopardize her immigration status.
Discussion
Ms. Allones's petition cites no legal authority in support of any position she advances. In particular, she cites no legal authority that places the responsibility on the judge, when accepting a plea of not guilty, to advise the defendant about the collateral consequences of a conviction.
Ms. Allones's petition is silent about whether her attorney advised her that a felony conviction might jeopardize her ability to remain in the United States. The petition cites no authority that requires the judge to ascertain whether defense counsel has advised a defendant who pleads not guilty about the collateral consequences of a conviction.
See, Padilta v. Kentucky. 559 U.S._(March 31, 2010), in which the United States Supreme Court held that defense counsel's representation of a noncitizen is constitutionally deficient is he or she does not advise the client that that a pending criminal charge may carry adverse immigration consequences.
2
Rule 3A:8 of the Ruies of the Supreme Court of Virginia provides that the trial court shall not accept a plea of guilty or nolo contendere "without first determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea." There is no similar requirement for a plea of not guilty. See also Rules of the Supreme Court of Virginia, Form 7 ("suggested questions" for the court to ask an accused who has pleaded not guilty include no questions about any consequences of a conviction).
It is incumbent on the trial judge to ascertain that a defendant who pleads guilty or nolo contendere enters the plea knowingly and voluntarily because that defendant is giving up important legal rights, including the right to remain silent, the right to a jury trial, and the right to confront and cross examine his or her accusers. The trial judge has no corollary duties for a defendant who pleads not guilty. That defendant is giving up no legal rights. Instead, that defendant is invoking the full panoply of his or her legal rights, including the right to remain silent, the right to a jury trial and the right to be confronted with his or her accusers.
A writ of coram vobis lies to correct "an error of fact not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented the rendition of the judgment" Commonwealth v. Morris, 281 Va. 70, 80 (2001), quoting Dobie v. Commonwealth, 198 Va. 762, 769 (1957).
Although Ms. Allones requests a writ of coram nobis, the court will call the writ in question a writ of coram vobis, in accordance with Va. Code § 8.01-677 and Commonwealth v. Morris, 281 Va. 70(2011], Seeajso Neighbors v. Commonwealth, 274 Va. 503, 507, n. 5 [2007) ("[c]oram vobis shall be deemed to include the term coram nobis and both shall be considered to be the same proceeding in modern pleading and practice")
3
In Dobie v. Commonwealth, supra, the Supreme Court held that the writ of coram vobis "cannot serve to gain a new trial for a defendant after a conviction on a plea of guilty merely because he might have fared better on a plea of not guilty." 198 Va. at 771. In Blowe v. Peyton, 208 Va. 68 (1967), the Court held that the writ of coram vobis was not a substitute for a writ of habeas corpus.
Applying those holdings to this case, this court finds that a writ of coram vobis does not lie under the facts alleged in Ms. Allones's petition. Even if the possible adverse effects of a felony conviction on Ms. Allones's immigration status were fully discussed at the time of her arraignment, "rendition of judgment" against her would not have been "prevented." Simply put, Ms. Allones cannot attack her conviction four year after the fact by means of a writ of coram vobis because she now regrets not accepting the commonwealth's offer to allow her to plead guilty to a misdemeanor.
Conclusion
For the foregoing reasons, the petition for a writ of coram vobis will be denied and this case will be dismissed with prejudice. An order reflecting this ruling has been entered today and is attached.
Sincerely,
Jane Marum Roush
FINAL ORDER
This matter came before the court on petitioner's petition for writ of coram vobis. The court also considered the Commonwealth's opposition to the petition. For the reasons stated in the court's opinion letter of this date, a copy of which is incorporated herein, the petition is denied and this case is dismissed with prejudice. Judge
ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE PARTIES IS WAIVED IN
THE DISCRETION OF THE COURT PURSUANT TO RULE 1:13 OF THE SUPREME COURT OF
VIRGINIA.
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