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Ineffective assistance claims rejected

Where appellant claims in his habeas corpus petition that counsel provided ineffective assistance at trial, the circuit court correctly dismissed the petition with prejudice.


Appellant Sullivan was arrested after a controlled drug buy that an informant facilitated. A jury found Sullivan guilty of possession with intent to distribute PCP.

Kent was Sullivan’s court-appointed counsel. Sullivan “asserts that … Kent was ineffective because: (1) Kent elicited prejudicial testimony – from Detective Clark and the informant – concerning Sullivan’s alleged prior uncharged sale of PCP; (2) Kent rejected the Commonwealth’s offer to reduce Sullivan’s charge to simple possession without first communicating the offer to Sullivan; and (3) Kent failed to challenge Detective Waddell’s bias and motive to testify.”

The third assignment of error “is deemed waived for lack of an adequate supporting argument in Sullivan’s brief.”

Legal standard

“A two-prong test is applied to assess a claim of ineffective assistance of counsel. … Under the first prong (the performance prong), a defendant must show deficient performance by establishing that counsel’s representation fell below an objective standard of reasonableness. … Under the second prong (the prejudice prong), the defendant ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Strickland v. Washington, 466 U.S. 668 (1984).

“An ineffective assistance claim fails if the claim makes an insufficient showing on either the performance prong or the prejudice prong.”

Prior sales

“Sullivan asserts that the Habeas Court erred in holding that he failed to prove that he was prejudiced when Kent elicited testimony concerning prior drug sales from Detective Clark and the informant. We disagree.

“In this instance, the Habeas Court anchored its denial of Sullivan’s ineffective assistance of counsel claim, regarding Kent’s examination of the informant, on findings that Sullivan’s claim failed as to both the performance and prejudice prongs.

“The Habeas Court held that Kent did not render deficient performance when he asked the informant about prior drug sales because, in doing so, Kent was only following Sullivan’s instructions.
“The Habeas Court also held that Sullivan was not prejudiced when Kent elicited adverse testimony from the informant because the Commonwealth presented other unrelated evidence that overwhelmingly supported a finding of Sullivan’s guilt.

“Sullivan only assigned error to the Habeas Court’s ruling as to the prejudice prong. Sullivan failed to assign error to the Habeas Court’s ruling concerning the performance prong.

“The circuit court’s uncontested ruling that Sullivan failed to demonstrate that Kent’s performance was deficient regarding his examination of the informant forms a separate and independent basis to affirm the Habeas Court’s ruling, because an ineffective assistance claim fails if it does not satisfy both the performance and prejudice prongs of the analysis required by Strickland. …

“The significance of Detective Clark’s testimony elicited by Kent regarding a prior drug sale by Sullivan, relates to Sullivan’s intent to distribute PCP on the date he was charged. Even if Detective Clark’s testimony is disregarded, however, there is other evidence on the record that amply proves Sullivan’s intent to distribute PCP on the day in question.

“The controlled-buy team found Sullivan at the agreed-upon meeting place at the agreed-upon time for the purportedly planned sale of PCP; it is undisputed that Sullivan was at that location with vials of

PCP in his possession; testimony showed that the number of PCP vials that were confiscated from Sullivan corresponded with the number of PCP vials that the informant was supposed to purchase from Sullivan; and Sullivan admitted to Detective Dorrough that he purchased the PCP vials with the intention of selling some of those vials at a sale price that matched the sale price quoted to the informant – $100 per vial.

“Even absent the allegedly improper testimony elicited from Detective Clark, by Kent, regarding Sullivan selling drugs on a different occasion, the record supports the Habeas Court’s ruling that Sullivan failed to satisfy the prejudice prong of the Strickland test because the Commonwealth presented evidence, unrelated to the purportedly improper testimony, which independently provides overwhelming evidence of Sullivan’s guilt regarding the criminal charge he was being tried on.”

Plea offer

Sullivan avers that the Habeas Court erred when it did not find that Kent’s representation fell below an objective standard of reasonableness because Kent rejected the Commonwealth’s plea offer without first communicating the offer to Sullivan. This argument is without merit. …

“[T]he Habeas Court found that Kent timely and properly communicated the plea offer to Sullivan. This is a finding of fact that we will not disturb on appeal because it is supported by the completed record submitted for the Habeas Court’s consideration.

“The trial record did not contain any reference to a plea offer that was rejected by Sullivan during the preliminary hearing stage.

“It was thus appropriate for the Habeas Court to rely on the assertions in Sullivan’s petition and the statements in the affidavits, which were attached as exhibits to the Director’s answer, in order to determine the circumstances and facts relating to the allegedly uncommunicated plea offer.

“Sullivan claims that a plea offer was made by the Commonwealth after the preliminary hearing, and he would have accepted that offer if it had been communicated to him.

“The affidavits presented support the Habeas Court’s factual determination that Kent communicated the plea offer, described by Sullivan, to Sullivan prior to the preliminary hearing and Sullivan rejected it.”


Sullivan v. Clarke, Record No. 200198 (Unpublished order) March 3, 2022. From the Circuit Court of Fauquier County. VLW 022-6-014, 9 pp.

VLW 022-6-014

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