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Petition properly denied without evidentiary hearing

Where petitioner expressed satisfaction with counsel’s performance, pleaded “not guilty” and was convicted of marijuana and weapons offenses, the circuit court properly denied his habeas corpus petition based on ineffective assistance of counsel without holding an evidentiary hearing.

Before trial

“Guarino was indicted for manufacturing with intent to distribute marijuana and possessing a firearm while simultaneously possessing with the intent to manufacture more than one pound of marijuana. At the beginning of his jury trial, Guarino assured the circuit court that he understood his charges and the possible penalties.

“Guarino affirmatively stated that he fully discussed his charges and possible defenses with his attorney, Keith Jones, and that he was entirely satisfied with Jones’ services. Guarino further assured the circuit court that he was entering his pleas of ‘not guilty’ freely and voluntarily. The Commonwealth and Jones confirmed that an unspecified number of plea bargain offers had been communicated to Guarino.”

After the verdict

In March 2016, a jury found Guarino guilty of both charges and imposed a 10-year sentence. Guarino addressed the court but never mentioned he was dissatisfied with counsel’s performance.

In August, Guarino sent the court letters, in which he requested new counsel. He “complained that Jones failed to adequately explain the consequences of rejecting the offered plea agreement. Guarino specifically stated that when he inquired about his chances of prevailing in a jury trial, Jones replied, ‘That’s what I do! Plus this prosecuting attorney is not the sharpest tool in the shed.’”

The  Court of Appeals and the Virginia Supreme Court denied Guarino’s appeals. He filed a habeas petition in the circuit court. Guarino argued that he was offered a plea deal of six months for all charges. He said he did not take the deal because Jones claimed “ he‘could beat the case against him.’”

Respondent Clarke moved to dismiss. The circuit court denied and dismissed the petition.

“Specifically, the circuit court found that Guarino’s claim that counsel was ineffective in his failure to advise him of the potential consequences of refusing the plea offer was without merit.”

Missing allegation

“Code § 8.01-654(B)(2) states that a ‘petition shall contain all allegations the facts of which are known to petitioner at the time of filing.’ Here, Guarino’s claim that Jones never informed him of the maximum punishments he faced if convicted was a fact known to him when he filed his initial habeas petition; nevertheless, Guarino neglected to include that factual allegation in that pleading.

“Guarino’s initial pleading stated, ‘An attorney must correctly inform the defendant of the direct consequences of his plea,’ failing to specify the consequences counsel failed to inform him of prior to his rejection of the plea deal.

“Generally, a party may not ‘rise above’ the allegations made in his pleading. As this Court has often held, ‘[t]he issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.’ …

“‘Thus, a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.’ … Because Guarino neglected to include in his initial petition the specific allegation that Jones did not inform him of the maximum punishment for the crimes for which he was indicted, it was not properly preserved for appellate review. …

“For these reasons, we hold that Guarino’s allegation of ineffective assistance of counsel is barred from consideration by this Court.”

Guarino v. Clarke, Record No. 200192 (Order) July 1, 2021, appeal from Chesterfield County Circuit Court. VLW 021-6-047, 4 pp.

VLW 021-6-047

Virginia Lawyers Weekly