Previously available evidence dooms actual innocence writ

The court denies a petition for a writ of actual innocence because it was based on evidence available to petitioner before his conviction became final in the circuit court.

Background

On July 27, 2010, petitioner Johnson pleaded guilty to bank robbery. After the plea but before sentencing, Johnson filed several pro se motions alleging ineffective assistance and “various defects in the proceedings[.]”

On Sept. 8, 2010, Johnson moved to strike or set aside his conviction, to strike the indictment and to withdraw his guilty plea. Each motion was based on the fact that the Virginia Criminal Code cited on his arrest warrant was not the same VCC stated on the indictment. Johnson “asserted that the indictment was invalid and his guilty plea was unknowing because he had been misled by the incorrect VCC.”

On Oct. 20, 2010, at the scheduled sentencing hearing, Johnson asked to represent himself. He argued that the discrepancy in VCC numbers was a “major fatal error” that his attorney and the commonwealth should have noticed. The trial court excused Johnson’s counsel and continued the matter.

On Dec. 9, Johnson argued that “he had ben ‘arrested for one thing and indicted for another.’” He asked for new counsel. The court appointed an attorney and continued the matter to March 16, 2011. At that hearing, Johnson’s attorney moved to withdraw, stating that “he was ethically unable to file the motion Johnson wanted.” Johnson reiterated his previous arguments.

“The Commonwealth responded that the indictment stated the correct VCC and that only one indictment had been secured against Johnson. It noted that Johnson was arraigned on the indictment on July 27, 2010, and pleaded guilty to the charge in the indictment.

“The Commonwealth stated that the facts of the case were that Johnson robbed a bank; he approached the teller and robbed a bank. The Commonwealth noted that there was a scrivener’s error on the conviction order because it stated ‘robbery: residence’ but the conviction order reflected the correct VCC. …

“The trial court found ‘I think the record shows you were indicted for bank robbery. You pled guilty to bank robbery. You were found guilty of bank robbery. That is what you are going to be sentenced for.’ After hearing evidence and argument, the trial court found that Johnson’s criminal record was ‘atrocious’ and sentenced him to forty years’ imprisonment with twenty years suspended by final order entered on May 5, 2011.”

This court denied Johnson’s appeal and a prior petition for a writ of actual innocence. Johnson again seeks a writ of actual innocence.

Analysis

As a preliminary matter, the statute governing writs of actual innocence has been amended, so that petitioners, such as Johnson, may seek a writ even though they pleaded guilty in the trial court. In addition, the limitation on filing only one petition challenging a felony conviction was eliminated. As a result, Johnson’s petition is properly before the court even though he previously filed for an actual innocence writ.

As to the petition, “‘[T]he writ of actual innocence is statutorily limited to the late discovery of previously unknown or unavailable evidence that could not have been gained through diligent efforts at the time of trial and that would cause no rational trier of fact to find the petitioner guilty had it been available.’ …(emphasis added). 

“Here, the record and petition itself affirmatively demonstrate that Johnson had the information upon which he relies ‘before the expiration of 21 days following entry of the final order of conviction.’ … (emphasis added). 

“The trial court entered the final order of conviction on May 5, 2011; thus, that is the date that controls the claim Johnson presents here. As noted above, after Johnson entered his guilty plea but before his sentencing, he filed numerous pro se motions noting that the VCC noted on his arrest warrant was different from the VCC Code recited in the indictment.

“Johnson expressly argued the point he raises in the instant petition to the trial court at hearings on October 20, 2010, December 9, 2010, and March 16, 2011. Thus, Johnson is not eligible for the writ of actual innocence because the evidence upon which he relies was available to him before his conviction became final in the circuit court.”

Petition dismissed.

Johnson v. Commonwealth, Record No. 0930-20-2, Dec. 1, 2020. CAV (O’Brien, Malveaux and Frank) Upon a Petition for a Writ of Actual Innocence. VLW 020-7-220, 9 pp. Published Order.