Ineffective assistance requires new trial

Where respondent concedes that petitioner’s plea-based convictions were the result of ineffective assistance of counsel, petitioner is entitled to habeas relief and a new trial is ordered.

Petitioner pleaded no contest to felony obstruction of justice and felony eluding under an oral plea agreement. In exchange for the pleas, the prosecutor dismissed a related attempted capital murder charge.

The pleas were entered, petitioner was sentenced and his appeal was unsuccessful. He has now moved for a writ of habeas corpus.

“Petitioner contends that he was denied the effective assistance of counsel because (1) counsel advised petitioner to plead no contest to felony obstruction without conducting a reasonable investigation of that charge, which would have shown that petitioner’s conduct did not meet the elements of the offense, and (2) counsel coerced petitioner into pleading no contest to felony obstruction and felony eluding based on the prosecutor’s threat to reinstate the attempted capital murder charge, when there was no probable cause or evidence to support an attempted capital murder charge.

“After conducting its own evaluation of the facts, the respondent now agrees that the performance of petitioner’s counsel was constitutionally deficient because he advised petitioner to plead no contest to felony obstruction of justice when petitioner’s actions did not violate Code § 18.2-460(C), and that petitioner was prejudiced as a result. Accordingly, the respondent affirmatively joins in petitioner’s request for relief concerning that conviction. …

“Furthermore, under the particular facts of this case, the Court finds petitioner’s felony eluding charge was inexorably joined with the felony obstruction charge in the oral agreement between petitioner and the Commonwealth and, therefore, cannot be severed. …

“Thus, we must vacate both the felony obstruction and felony eluding convictions. … [P]etitioner is awarded a new trial on these charges[.]”

Crum v. Clarke. Record No. 171622 (Order) Nov. 27, 2019. (Upon a Petition for a Writ of Habeas Corpus) David Bernard Hargett for Petitioner, Rosemary Virginia Bourne for Respondent. VLW 019-6-087, 3 pp.