Present: ALL THE JUSTICES
COMMONWEALTH OF VIRGINIA
v. Record No. 092163 OPINION BY JUSTICE DONALD W. LEMONS
January 13, 2011
EMMANUEL MORRIS
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
COMMONWEALTH OF VIRGINIA
v. Record No. 092346
WELLYN FLORES CHAN
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
In these two appeals in which criminal defendants were
convicted and sentenced pursuant to guilty pleas, we consider
whether each of the trial courts erred by granting motions for
writs of error coram vobis 1 and audita querela to modify the
criminal sentences imposed several years previously.
I. Facts and Proceedings Below
A. Commonwealth of Virginia v. Emmanuel Morris
Emmanuel Morris (“Morris”) was charged with grand larceny
pursuant to Code § 18.2-95 in the Circuit Court for the City of
Alexandria. Prior to trial, Morris’ attorney asked whether he
1
For purposes of this opinion, we use the term “coram
vobis,” as recognized in Code § 8.01-677. We previously have
deemed coram vobis to include the term “coram nobis” and noted
that both shall be considered to be the same proceeding in
modern pleading and practice. Neighbors v. Commonwealth, 274
Va. 503, 509 n.5, 650 S.E.2d 514, 517 n.5 (2007).
was a U.S. citizen. Morris responded by showing him a “green
card,” indicating that he was a lawful permanent resident.
Morris’ attorney replied, “good, then [I] can pursue [sic] the
Judge to give [you] a lesser sentence based upon [your]
pleading Guilty to the charge instead of prolonging the trial.”
Upon his guilty plea, Morris was convicted of one count of
petit larceny and sentenced to 12 months in jail with 11 months
suspended.
Morris later applied for United States citizenship in
2004, but his application was not approved; rather, Morris
became subject to removal proceedings under the federal
Immigration and Nationality Act (“INA”) because of his 1997
conviction for “a crime involving moral turpitude . . . for
which a sentence of one year or longer may be imposed.”
8 U.S.C. § 1227(a)(2)(A)(i)(I)&(II) (2006 & Supp. II 2008).
Consequently, in December 2008, an immigration judge 2 ordered
that Morris be deported.
Following the order of deportation, Morris filed a motion
in the Circuit Court for the City of Alexandria for a writ of
error coram vobis or, alternatively, a writ of audita querela,
requesting the trial court to modify his criminal sentence.
The trial court issued an opinion letter holding that the writs
2
The immigration court is an administrative court run by
the United States Department of Justice’s Executive Office for
Immigration Review.
2
of error coram vobis and audita querela are appropriate to
review and modify a criminal sentence in Virginia under the
facts of Morris’ case. Accordingly, the trial court reduced
Morris’ sentence by one day, which decreased his total sentence
to 364 days. 3
B. Commonwealth of Virginia v. Wellyn Flores Chan
Wellyn Flores Chan (“Chan”) was convicted, pursuant to a
guilty plea, of misdemeanor assault and battery in the Circuit
Court for the City of Norfolk in 2005. Chan was sentenced to
12 months’ imprisonment with all 12 months suspended,
conditioned upon good behavior for 12 months.
In 2009, Chan applied for a duplicate legal permanent
resident card with the United States Citizenship and
Immigration Services (“USCIS”) to begin the process to become a
naturalized American citizen. At that time, USCIS learned of
Chan’s prior conviction and determined that she was subject to
mandatory detention and deportation under the INA, because she
had been convicted of an “aggravated felony,” which carried a
sentence of at least one year. The INA definition of an
“aggravated felony” includes crimes that are neither
“aggravated” nor “felonies” under state criminal law. See
8 U.S.C. § 1101(a)(43) (2006 & Supp. III 2009). In relevant
3
Significantly, 364 days is less than one year (or 12
months) for purposes of the INA. See Bayudan v. Ashcroft, 298
F.3d 799, 800 (9th Cir. 2002).
3
part, the INA definition of an “aggravated felony” includes a
conviction for any “crime of violence” that carried a sentence
of “at least one year,” including suspended time. 8 U.S.C.
§ 1101(a)(43)(F). Consequently, immigration agents detained
Chan in April of 2009, at which time she became subject to
deportation proceedings.
Chan moved to dismiss the action for her deportation in
the immigration court but her motion was denied. However, the
immigration court granted Chan additional time to seek relief
from the courts of the Commonwealth. Chan filed a petition for
writs of audita querela and coram vobis in the Circuit Court
for the City of Norfolk. The trial court subsequently heard
oral argument on Chan’s petition, granted her petition, and
amended her sentence to “360 days as opposed to 12 months” by a
nunc pro tunc order.
The Commonwealth timely filed its notice of appeal in both
cases, and we granted an appeal in each case on the following
assignments of error:
For Morris, Record No. 092163:
1. The Trial Court erred in its decision finding
authority to apply the Writ of Coram Vobis, or
alternatively the Writ of Audita Querela, as an
appropriate remedy.
2. The Trial Court erred in granting Appellee relief
under the Writ of Coram Vobis.
4
For Chan, Record No. 092346:
1. The trial court erred in holding that it possessed
jurisdiction to modify a criminal defendant’s
sentence over four years after the trial court’s
entry of the final sentencing order in the case,
where the 21-day period proscribed by Rule 1:1 had
elapsed and where there were no applicable exceptions
to the rule.
2. The trial court erred in holding that the traditional
equitable Writ of Error Audita Querela is an
available remedy in criminal cases.
3. Even if the Writ of Error Audita Querela is
applicable to criminal proceedings, the trial court
erred in issuing a Writ of Error Audita Querela under
the circumstances of this case because it has
provided the defendant with a secondary, non-
statutory remedy for ineffective assistance of
counsel.
4. Assuming, arguendo, that the trial court relied upon
the alternative relief requested, the trial court
erred in modifying the defendant’s finalized sentence
through a Writ of Error Coram Vobis.
II. Analysis
A. Standard of Review
“We review questions of law de novo, including those
situations where there is a mixed question of law and fact.”
Westgate at Williamsburg Condo. Ass’n v. Philip Richardson Co.,
270 Va. 566, 574, 621 S.E.2d 114, 118 (2005). Similarly,
an issue of statutory interpretation is a pure
question of law which we review de novo. When
the language of a statute is unambiguous, we are
bound by the plain meaning of that language.
Furthermore, we must give effect to the
legislature’s intention as expressed by the
language used unless a literal interpretation of
the language would result in a manifest
5
absurdity. If a statute is subject to more than
one interpretation, we must apply the
interpretation that will carry out the
legislative intent behind the statute.
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,
104, 639 S.E.2d 174, 178 (2007) (citations omitted).
B. Rule 1:1
Rule 1:1 provides that, “[a]ll final judgments, orders,
and decrees, irrespective of terms of court, shall remain under
the control of the trial court and subject to be modified,
vacated, or suspended for twenty-one days after the date of
entry, and no longer.” We previously have stated that “[t]here
are strong policy reasons favoring certainty of results in
judicial proceedings. Accordingly, we attach a high degree of
finality to judgments, whether obtained by default or
otherwise. Rule 1:1 implements that policy, and we apply it
rigorously, unless a statute creates a clear exception to its
operation.” McEwen Lumber Co. v. Lipscomb Brothers Lumber Co.,
234 Va. 243, 247, 360 S.E.2d 845, 848 (1987) (citations
omitted).
Therefore, “[u]nless otherwise provided by statute . . .
Rule 1:1 prohibits the modification of a final order more than
21 days after the date of entry.” Charles v. Commonwealth, 270
Va. 14, 17 n.*, 613 S.E.2d 432, 433 n.* (2005). Accordingly,
“Rule 1:1 and long standing case law applying that rule
6
preclude a trial court from entering a second sentencing order
altering an original sentencing order that has become final.”
Id. at 19, 613 S.E.2d at 434 (citing Robertson v.
Superintendent of the Wise Correctional Unit, 248 Va. 232, 236,
445 S.E.2d 116, 118 (1994); Conner v. Commonwealth, 207 Va.
455, 457, 150 S.E.2d 478, 479 (1966)).
However the policy of finality contained in Rule 1:1 is
not absolute. “The General Assembly has enacted various
exceptions to this policy, [including] Code § 19.2-303 (court
may modify unserved portion of sentence at any time before
defendant is transferred to Department of Corrections) [and]
Code § 8.01-428 (court may modify final order in certain listed
circumstances)” Charles, 270 Va. at 17 n.*, 613 S.E.2d at 433
n.*, including fraud on the court, see Code § 8.01-428(D).
Additionally, Code § 8.01-654, providing for the writ of habeas
corpus, is an exception to the policy of finality contained in
Rule 1:1.
Perhaps most notably for the purposes of these cases, the
writ of audita querela and Code § 8.01-677 (error coram vobis)
also provide exceptions to Rule 1:1 under proper circumstances.
However, these cases do not fall within the contemplated
circumstances required by Code § 8.01-677 for error coram
vobis, and audita querela is not available for use to modify
criminal sentences in Virginia.
7
C. Writ of Error Coram Vobis
In Dobie v. Commonwealth, 198 Va. 762, 769, 96 S.E.2d 747,
752 (1957), we explained the origin and function of the ancient
common law writ of coram vobis:
The principal function of the writ is to afford
to the court in which an action was tried an
opportunity to correct its own record with
reference to a vital fact not known when the
judgment was rendered, and which could not have
been presented by a motion for a new trial,
appeal or other existing statutory proceeding.
It lies for an error of fact not apparent on the
record, not attributable to the applicant’s
negligence, and which if known by the court
would have prevented rendition of the judgment.
It does not lie for newly-discovered evidence or
newly-arising facts, or facts adjudicated on the
trial. It is not available where advantage
could have been taken of the alleged error at
the trial, as where the facts complained of were
known before or at the trial, or where at the
trial the accused or his attorney knew of the
existence of such facts but failed to present
them.
(Citations omitted; emphasis added.) However, “[a]s a common
law writ, coram vobis has been substantially limited by the
General Assembly through Code § 8.01-677.” Neighbors v.
Commonwealth, 274 Va. 503, 508, 650 S.E.2d 514, 517 (2007).
Code § 8.01-677 states that “[f]or any clerical error or error
in fact for which a judgment may be reversed or corrected on
writ of error coram vobis, the same may be reversed or
corrected on motion, after reasonable notice, by the court.”
We specifically recognized the restriction of a writ of error
8
coram vobis only to clerical errors and certain errors of fact
when we reviewed the nearly identical statutory predecessor to
Code § 8.01-677 4 :
Our statute is in simple, clear and unambiguous
language, and we read it to mean what it says.
It does not provide that it may be used to
obtain a writ of error, or an appeal, or for any
purpose other than to correct a “clerical error
or error in fact.” . . . If its provisions
should be widened, the enlargement should be
effected by the legislature.
Blowe v. Peyton, 208 Va. 68, 74, 155 S.E.2d 351, 356 (1967).
We recognized this restriction of coram vobis again in
Neighbors, 274 Va. at 511, 650 S.E.2d at 518. As these cases
involve no allegations of clerical error below, we will focus
our analysis on whether the circumstances of these cases
include “errors of fact” for which coram vobis would lie.
Specifically, we have held that such errors of fact
include cases “ ‘where judgment is rendered against a party
after his death, or who is an infant.’ ” Dobie, 198 Va. at
770, 96 S.E.2d at 753 (quoting Richardson v. Jones, 53 Va. (12
Gratt.) 53, 55 (1855)). Significantly, such errors of fact do
not merely render the judgment voidable upon a certain showing,
as in cases where ineffective assistance of counsel is alleged
4
Former Code § 8-485 (1957), which we reviewed in Blowe,
stated: “For any clerical error or error in fact for which a
judgment or decree may be reversed or corrected on writ of
error coram vobis, the same may be reversed or corrected on
motion, after reasonable notice, by the court, or by the judge
thereof in vacation.”
9
or where required notices have not been given. See Strickland
v. Washington, 466 U.S. 668, 691-96 (1984); Nelson v. Warden,
262 Va. 276, 280, 552 S.E.2d 73, 75 (2001).
Accordingly, the essential question in the cases before us
is whether there was an “error of fact not apparent on the
record, not attributable to the applicant’s negligence, and
which if known by the court would have prevented rendition of
the judgment.” Dobie, 198 Va. at 769, 96 S.E.2d at 752
(emphasis added). To answer this question, we must focus on
the moment when Morris and Chan entered their guilty pleas to
determine whether such an error of fact existed that would have
prevented the court from having the authority to enter
judgment. We hold that there was no such error of fact.
Chan asserts that the error of fact that would have
prevented the trial court from proceeding to judgment in her
case is that “counsel for Ms. Chan never made the trial court
aware of the facts that Ms. Chan was not born in the United
States and that she was not a citizen of the United States.”
We cannot agree that this “error” is the kind contemplated by
Code § 8.01-677 for the purposes of coram vobis. While the
trial court might have been inclined to impose a lesser
sentence had it known of Chan’s non-citizen status, it still
had the authority to render judgment against Chan.
10
Accordingly, the trial court erred in relying upon the writ of
error coram vobis to amend Chan’s original sentencing order.
Similarly, Morris asserts that “ineffective assistance of
counsel resulting in dire immigration consequences [should] be
deemed an error in fact[,]” that would have prevented the trial
court from rendering judgment in his case. The trial court
agreed. Specifically, the trial court in Morris’ case
identified the error of fact as the “misinformation” provided
to Morris in response to Morris’ indication of his immigration
status, when Morris’ attorney replied, “good, then [I] can
pursue the Judge to give [you] a lesser sentence based upon
[your] pleading Guilty to the charge instead of prolonging the
trial.” The trial court included in the identification of
“error of fact,” the “failure to inform the [c]ourt” of the
“fact of misinformation to [Morris].” The trial court in
Morris concluded in its letter opinion of June 26, 2009, “a
conviction entered by the Court without full knowledge of the
facts either by the Court or by the defendant at the time of
his plea due to misadvice by his counsel would qualify as ‘an
error of fact for which a judgment may be reversed or
corrected.’ ”
However, the trial court did not consider the type of
error for which coram vobis will lie. As we previously have
held, the proper test is whether the alleged error constitutes
11
“an error of fact not apparent on the record, not attributable
to the applicant’s negligence, and which if known by the court
would have prevented rendition of the judgment.” Dobie, 198
Va. at 769, 96 S.E.2d at 752 (emphasis added). While
ineffective assistance of counsel may render a judgment
voidable upon the necessary showing, it does not render the
trial court incapable of rendering judgment, as do the errors
of fact in cases “ ‘where judgment is rendered against a party
after his death, or who is an infant.’ ” Dobie, 198 Va. at
770, 96 S.E.2d at 753 (quoting Richardson, 53 Va. (12 Gratt.)
at 55).
Accordingly, a claim of ineffective assistance of counsel
does not constitute an error of fact for which coram vobis will
lie under Code § 8.01-677, because such a claim would not “have
prevented rendition of the judgment.” Dobie, 198 Va. at 769,
96 S.E.2d at 752. The trial court erred in relying upon coram
vobis to modify Morris’ original sentencing order.
It should be noted that in making his ineffective
assistance of counsel argument, Morris relied in large part
upon the United States Supreme Court’s recent ruling in Padilla
v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1486 (2010),
regarding the obligation of counsel to advise non-citizen
criminal defendants whether a particular plea carries the risk
of deportation. In Padilla, the Supreme Court stated that it
12
is the Court’s “responsibility under the Constitution to ensure
that no criminal defendant – whether a citizen or not – is left
to the ‘mercies of incompetent counsel.’ ” Id. (citation
omitted; emphasis added). Accordingly, the Supreme Court held
that the United States Constitution’s Sixth Amendment requires
counsel who represent non-citizen criminal defendants to
“inform [their] client whether his [or her] plea carries a risk
of deportation.” Id.
While Chan asserts a different “error of fact,” she made a
similar argument regarding the Supreme Court’s holding in
Padilla. Morris’ and Chan’s reliance on Padilla is misplaced.
While Morris and Chan may have suffered ineffective assistance
of counsel according to Padilla, and may have been successful
had they timely filed petitions for writs of habeas corpus
pursuant to Code § 8.01-654, neither did so. Ineffective
assistance of counsel does not constitute an error of fact for
the purposes of coram vobis under Code § 8.01-677.
D. Writ of Audita Querela
The common law writ of audita querela originated in
England in the early 14th century to provide relief to civil
judgment debtors. See Ira P. Robbins, The Revitalization of
the Common-Law Civil Writ of Audita Querela as a Post-
Conviction Remedy in Criminal Cases: The Immigration Context
and Beyond, 6 Geo. Immigr. L.J. 643, 646 (1992) (citing
13
Theodore F.T. Plucknett, A Concise History of the Common Law
394 (5th ed. 1956)). 5
Code § 1-200 states that, “[t]he common law of England,
insofar as it is not repugnant to the principles of the Bill of
Rights and Constitution of this Commonwealth, shall continue in
full force within the same, and be the rule of decision, except
as altered by the General Assembly.” Additionally, Code § 1-
201 states that,
[t]he right and benefit of all writs, remedial
and judicial, given by any statute or act of
Parliament, made in aid of the common law prior
to the fourth year of the reign of James the
First [1606-1607], of a general nature, not
local to England, shall still be saved, insofar
as the same are consistent with the Bill of
Rights and Constitution of this Commonwealth and
the Acts of Assembly.
(Emphasis added.)
The fourth year of the reign of James the First coincided
with the founding of Jamestown. Consequently, our adoption of
English common law, and the rights and benefits of all writs in
aid of English common law, ends in 1607 upon the establishment
of the first permanent English settlement in America,
Jamestown. From that time forward, the common law we recognize
is that which has been developed in Virginia. More simply
5
See also Black’s Law Dictionary 150 (9th ed. 2009)
(defining audita querela as “[a] writ available to a judgment
debtor who seeks a rehearing of a matter on grounds of newly
discovered evidence or newly existing legal defenses”).
14
stated, English common law and writs in aid of it prior to the
settlement of Jamestown (insofar as the same are consistent
with the Bill of Rights and Constitution of the Commonwealth
and the Acts of Assembly), together with common law developed
in Virginia thereafter, constitute the corpus of common law
that guides our analysis.
Accordingly, the writ of audita querela, which was part of
the common law prior to 1607, is the law of the Commonwealth.
Because the General Assembly has never abolished the writ of
audita querela in Virginia, it continues in force today by
virtue of Code §§ 1-200 and 1-201.
However, while the General Assembly has not abolished the
writ, we have noted that “[i]t seems to be true that in our
practice the motion to quash is a summary remedy in use in all
cases where by the ancient practice the party would be entitled
to a writ of audita querela.” Lowenbach v. Kelley, 111 Va.
439, 443, 69 S.E. 352, 354 (1910) (citing Steele v. Boyd, 33
Va. (6 Leigh) 547, 552-53 (1835)). Accordingly, while audita
querela may still exist in Virginia, it has fallen into disuse
in civil practice. See Steele, 33 Va. (6 Leigh) at 552-54;
Smock v. Dade, 26 Va. (5 Rand.) 639, 644-45 (1826) (“[W]e are
satisfied . . . that the more summary, and less expensive mode
of proceeding by motion [is] proper, and that relief may be
given in this way in all cases, where by the ancient practice
15
the party would be entitled to an Audita Querela.”); Nicolson
v. Hancock, 14 Va. (4 Hen. & M.) 491, 501 (1810) (observing
that audita querela “has long since given way to a summary mode
of relief upon motion”).
What is certain is that the writ of audita querela has
never been applicable to modify a criminal sentence in
Virginia. The only cases in which this Court has considered
audita querela have involved civil judgments. See, e.g.,
Lowenbach, 111 Va. at 443, 69 S.E. at 354; Steele, 33 Va. (6
Leigh) at 547; Smock, 26 Va. (5 Rand.) at 644-45.
The practice in Virginia is the same as it was in England.
The writ was only available at common law in England for use by
civil judgment debtors. See Turner v. Davies, 85 Eng. Rep.
871, 878-79 (1670). Specifically, the writ was available for
use by judgment debtors to release them from judgment where the
judgment “ought not to have issued,” such as in cases “where
the party has a good defence [sic], but had not, nor has any
other means to take advantage of it,” id. at 878-79, or where
the debtors had paid the debt or otherwise been discharged from
the obligation. See, e.g., Ognel v. Randol, 79 Eng. Rep. 23
(1701); Corbett v. Barnes, 79 Eng. Rep. 985 (1792). There does
not appear to be any case in England prior to 1607 in which the
writ was used to seek post-conviction relief from a criminal
sentence.
16
Some jurisdictions have held that audita querela is
available as a remedy to modify a criminal sentence. See Keith
v. State, 163 So. 884, 885 (Fla. 1935); Balsley v.
Commonwealth, 428 S.W.2d 614, 616 (Ky. Ct. App. 1968).
However, neither this Court nor any English court prior to the
writ’s adoption in this Commonwealth has ever applied the writ
of audita querela in this manner. We will not do so now.
Based upon the purpose and history of audita querela at
common law in both England and Virginia, we hold that the writ
of audita querela is not available to seek post-conviction
relief from criminal sentences in Virginia.
III. Conclusion
For the reasons stated, we hold that the errors of fact
alleged by Morris and Chan in the cases before us do not
constitute “errors of fact” for the purposes of coram vobis, as
contemplated by Code § 8.01-677. Also, we hold that the writ
of audita querela may not be used to seek post-conviction
relief from criminal sentences in Virginia. Accordingly, the
trial courts erred in their reliance upon the writs of error
coram vobis and audita querela to modify the criminal sentences
imposed in these cases, and we will reverse the judgment of the
Circuit Court for the City of Alexandria and the judgment of
the Circuit Court for the City of Norfolk in these cases, and
dismiss the petitions.
17
Record No. 092163 - Reversed and dismissed.
Record No. 092346 - Reversed and dismissed.
18