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Counsel deficient, but defendant not prejudiced

Virginia Lawyers Weekly//September 23, 2018

Counsel deficient, but defendant not prejudiced

Virginia Lawyers Weekly//September 23, 2018

Defendant Kearns filed a petition for habeas relief, alleging ineffective assistance of counsel. The court held that, while his counsel was deficient, Kearns had not demonstrated prejudice. As such, it dismissed his habeas petition.


Lee Allen Kearns was guilty of grand larceny and larceny with the intent to sell or distribute. Kearns was sentenced to a total of three years active incarceration and a fine of $2,500.00. The court additionally imposed a three-year period of postrelease supervision. Kearns unsuccessfully appealed his convictions. He now brings this petition for habeas corpus relief. Kearns requested relief is denied for the reasons outlined below.

Ineffective assistance of counsel claim

Kearns asserts that due to his appellate counsel’s ineffective assistance, his Sixth Amendment rights have been violated. Kearns present counsel admits his own deficiencies in that he filed a late, and ultimately required, transcript. Thus, the court only concerns itself with whether Kearns was actually prejudiced on his appeal regarding whether he received a speedy trial.

The commonwealth, in accordance to Virginia Code § 19.2-243, was required to bring Kearns to trial “within nine months from the date … [the] indictment or presentment [was] found against [him].” However. Code § 19.2-243 explicitly states that statutory speedy trial is tolled on the accused if the delay was caused “by concurrence of the accused or his counsel in such a motion by the attorney for the commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth.”

In this case, upon review of the court orders, three continuances occurred. One at Kearns’ request, one at the joint request of Kearns and the commonwealth, and one at the court’s own request. However, at no point during any of these requests for continuances did Kearns object. Therefore, Kearns statutory speedy trial argument would have failed even if the Court of Appeals had considered it on the merits.

Kearns also contends that his constitutional right to a speedy trial was violated. The Sixth Amendment to the United States Constitution and Article I, § 8 of the Virginia Constitution each guarantee an accused the right to a speedy trial. There is no difference between the constitutional rights to a speedy trial granted by the federal and state constitutions.

“[T]he defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” This factor weighs against Kearns as he did not object to, and even requested, continuances in this matter. Moreover, while Kearns asserted a right to a speedy trial through his numerous dismissal motions, he continuously failed to object to continuances and did not demand immediate trial. Thus, this factor is weighted against Kearns favor. Finally, during this alleged trial delay, Kearns was released on bond and was not waiting in a cell for over nine months. Though Kearns claims that witnesses’ memories were eroding during the waiting period, Kearns does not support this proposition and does not point to any transcript or record where a witness stated they could not remember something. Since Kearns’ constitutional right to a speedy trial was not violated, the Court of Appeals would have been unlikely to find his argument meritorious, even if his counsel had been effective.

The three year postrelease supervision term

Kearns argues the imposition of a term of postrelease supervision under Code §19.2-295.2 constitutes an unconstitutional enhancement of the sentence of active incarceration permitted by the jury’s sentence and findings of fact in his case. However, “[t]his statute [Code § 19.2-295.2] does not require that a trial court find proof of particular facts independent of the jury’s conviction. The trial court here did not make any factual determinations beyond those implicit in the jury’s conviction.” The Court was thus within its statutory discretion to assign Kearns postrelease supervision.

Motion to dismiss Habeas Corpus petition granted.

Kearns v. Clarke, CL-2018-5378, Sept. 13, 2018. Fairfax Cir. (Kassabian). VLW No. 018-8-082, 10 pp.

VLW 018-8-082

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