Present: All the Justices
JIM MURROW JENKINS
v. Record No. 050374
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
January 13, 2006
DIRECTOR OF THE VIRGINIA CENTER
FOR BEHAVIORAL REHABILITATION
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
I.
The primary issue that we consider in this habeas corpus
proceeding invoking this Court's original jurisdiction is
whether petitioner, who was committed to an institution
pursuant to Virginia's Sexually Violent Predators Act, is
entitled to effective assistance of counsel during the appeal
of the civil commitment judgment.
II.
Jim Murrow Jenkins, petitioner, was convicted in the
Accomack County Circuit Court in 1994 of one count of forcible
sodomy, two counts of aggravated sexual battery, and one count
of carnal knowledge. He received a sentence of 10 years, and
he was released on parole in October 1999.
Subsequently, Jenkins was convicted of a sexual offense
in Maryland and his parole was revoked. He was returned to
the custody of the Virginia Department of Corrections.
On October 9, 2003, the Department of Corrections
notified the Attorney General that Jenkins qualified for
consideration under the Virginia Sexually Violent Predators
Act. Petitioner, who was scheduled to be released from prison
on October 31, 2003, had scored a four or five on the Rapid
Risk Assessment for Sexual Offender Recidivism Test, and he
had predicate convictions of one count of forcible sodomy and
two counts of aggravated sexual battery.
The Attorney General filed a petition seeking commitment
of Jenkins as a sexually violent predator. Pursuant to former
Code § 37.1-70.7 that was in effect at the time of
petitioner's incarceration, the circuit court was required to
conduct a hearing to determine whether there was probable
cause to continue to hold Jenkins in prison beyond his
scheduled release date, pending the outcome of a trial under
the Sexually Violent Predators Act.1 A probable cause hearing
was scheduled for October 28, 2003. That morning, Jenkins
obtained a shaving razor and mutilated himself by cutting his
testicles and flushing them in the toilet.
The Attorney General requested that the circuit court
detain Jenkins in prison until the date of the rescheduled
1
Former Code § 37.1-70.7 was repealed, along with all the
other provisions of title 37.1 of the Code, effective October
1, 2005. See 2005 Acts ch. 716. Code § 37.2-906, effective
2
probable cause hearing. Jenkins objected, and the court
refused to do so. Jenkins was released from custody of the
Department of Corrections on October 31, 2003. The circuit
court scheduled a probable cause hearing for November 17,
2003, and ordered Jenkins to appear.
Jenkins appeared at the probable cause hearing, and at
the conclusion of the Attorney General's evidence, the circuit
court ruled that probable cause existed to believe that
Jenkins was a sexually violent predator. The circuit court
entered an order that placed Jenkins in the custody of the
Department of Corrections.
At the conclusion of a trial, the circuit court held that
Jenkins was a sexually violent predator and that no lesser
restrictive alternative to full commitment existed. Jenkins
was placed in the custody of the Commissioner of the
Department of Mental Health, Mental Retardation and Substance
Abuse Services.
On February 12, 2005, Jenkins filed a notice of appeal
from the circuit court's judgment. However, his trial counsel
failed to file timely trial transcripts as required by Rule
5:11(a). Consequently, this Court dismissed Jenkins' appeal.
October 1, 2005, addresses the subject matter previously
covered in former Code § 37.1-70.7.
3
Jenkins filed with the Clerk of this Court a petition for
a writ of habeas corpus against the Director of the Virginia
Center for Behavioral Rehabilitation. We placed this
proceeding on our privileged docket, and we requested that
counsel address the question whether petitioner was denied
effective assistance of counsel because trial counsel failed
to perfect his appeal of the civil commitment order.
Additionally, petitioner challenges whether the circuit court
had subject matter jurisdiction to commit him as a sexually
violent predator because he was not incarcerated at the time
of the probable cause hearing held pursuant to former Code
§ 37.1-70.7.
III.
A.
Former Code § 37.1-103,2 in effect when Jenkins filed his
petition of habeas corpus, stated:
"Any person held in custody as mentally ill may
by petition for a writ of habeas corpus have the
question of the legality of his detention determined
by a court of competent jurisdiction. Upon the
petition, after notice to the authorities of the
hospital or other institution in which such person
is confined, the court shall in some courtroom of
such county or city, or in some other convenient
public place in such county or city determine
whether such person is mentally ill and whether he
should be detained."
2
Former Code § 37.1-103 has been repealed and replaced
with Code § 37.2-844.
4
Former Code § 37.1-104,3 in effect when Jenkins filed his
petition for writ of habeas corpus, stated:
"If the person mentioned in § 37.1-103 is held
in custody and actually confined in any hospital or
other institution, he may file his petition in the
circuit court of the county or the city in which
such hospital or other institution is located or in
the circuit court of the county or the city
adjoining the county or city in which such hospital
or other institution is located."
Former Code § 37.1-104.1,4 also in effect when Jenkins
filed his petition for habeas corpus, stated:
"In all cases, other than those provided for in
§ 37.1-104, the person may file his petition in the
circuit court of the county or the city in which he
resides, or in which he was certified to be mentally
ill, or in which an order was entered authorizing
his retention for continued hospitalization,
pursuant to Chapter 2, Art. 1 (§ 37.1-63 et seq.) of
this title."
Code § 8.01-654 states in relevant part:
"A. 1. The writ of habeas corpus ad
subjiciendum shall be granted forthwith by the
Supreme Court or any circuit court, to any person
who shall apply for the same by petition, showing by
affidavits or other evidence probable cause to
believe that he is detained without lawful
authority.
"2. A petition for writ of habeas corpus ad
subjiciendum, other than a petition challenging a
criminal conviction or sentence, shall be brought
within one year after the cause of action accrues.
A habeas corpus petition attacking a criminal
conviction or sentence, except as provided in
§ 8.01-654.1 for cases in which a death sentence has
3
Former Code § 37.1-104 has been repealed and replaced
with Code § 37.2-845.
4
Former Code § 37.1-104.1 has been repealed and replaced
with Code § 37.2-846.
5
been imposed, shall be filed within two years from
the date of final judgment in the trial court or
within one year from either final disposition of the
direct appeal in state court or the time for filing
such appeal has expired, whichever is later.
. . . .
"[B.]2. Such petition shall contain all
allegations the facts of which are known to
petitioner at the time of filing and such petition
shall enumerate all previous applications and their
disposition. No writ shall be granted on the basis
of any allegation the facts of which petitioner had
knowledge at the time of filing any previous
petition. . . .
"3. Such petition may allege detention without
lawful authority through challenge to a conviction,
although the sentence imposed for such conviction is
suspended or is to be served subsequently to the
sentence currently being served by petitioner."
Contrary to the Director's assertions, Jenkins was not
required to file his petition for writ of habeas corpus in the
circuit court where he was adjudicated as a sexually violent
predator. As we have repeatedly stated:
"While in the construction of statutes the constant
endeavor of the courts is to ascertain and give effect to
the intention of the legislature, that intention must be
gathered from the words used, unless a literal construction
would involve a manifest absurdity. Where the legislature
has used words of a plain and definite import the courts
cannot put upon them a construction which amounts to holding
the legislature did not mean what it has actually expressed.
Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396
S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924,
930, 172 S.E. 445, 447 (1934)); accord Davis v. Tazewell Place
6
Associates, 254 Va. 257, 260-61, 492 S.E.2d 162, 164 (1997);
Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997).
Applying this basic principle of statutory construction,
we hold that Jenkins was entitled to file his petition with
the Clerk of this Court. There is simply no language in
former Code § 37.1-104 that required Jenkins to file his
petition for habeas corpus in the circuit court that
adjudicated him as a sexually violent predator. Additionally,
Code § 8.01-654, which the Director does not discuss in his
brief, authorizes the petitioner to file his petition for writ
of habeas corpus in this Court. Code § 8.01-654 also
prescribes the statute of limitations and numerous requisites
that a habeas corpus petitioner, including Jenkins, must
satisfy.
B.
Former Code § 37.1-70.7,5 in effect during Jenkins'
sexually violent predator proceedings, stated:
"A. Upon the filing of a petition alleging
that a person is a sexually violent predator, the
circuit court shall schedule a hearing within thirty
days to determine whether probable cause exists to
believe that the person named in the petition is a
sexually violent predator. A copy of the petition
shall be personally served on the person named in
the petition, his attorney, and his guardian or
committee, if applicable. In addition, a written
explanation of the sexually violent predator
5
Former Code § 37.1-70.7 has been repealed and replaced
with Code § 37.2-906.
7
involuntary commitment process and the statutory
protections associated with the process shall be
given to the person at the time the petition is
served.
"B. Prior to any hearing under this section,
the judge shall ascertain if the person whose
commitment is sought is represented by counsel, and
if he is not represented by counsel, the judge shall
appoint an attorney-at-law to represent him.
However, if such person requests an opportunity to
employ counsel, the court shall give him a
reasonable opportunity to employ counsel at his own
expense.
"C. At the probable cause hearing, the judge
shall (i) verify the person's identity and (ii)
determine whether probable cause exists to believe
that the person is a sexually violent predator. In
the case of a prisoner in the custody of the
Department of Corrections, if the judge finds that
there is not probable cause to believe that the
person is a sexually violent predator, the judge
shall dismiss the petition and the person shall
remain in the custody of the Department of
Corrections until his scheduled date of release from
prison. In the case of a defendant, if the judge
finds that there is not probable cause to believe
the defendant is a sexually violent predator, the
judge shall dismiss the petition and order that the
defendant be released, committed pursuant to § 37.1-
67.3, or certified pursuant to § 37.1-65.1. If the
judge finds that probable cause exists to believe
that the prisoner or defendant is a sexually violent
predator, the judge shall order that the prisoner
remain in the secure custody of the Department of
Corrections or the defendant remain in the secure
custody of the Department of Mental Health, Mental
Retardation and Substance Abuse Services until a
trial is conducted to determine whether he should be
committed."
As we have already stated, petitioner was released from
the custody of the Department of Corrections on October 31,
2003, and his probable cause hearing was conducted on November
17, 2003, eighteen days after he was released. Petitioner,
8
relying upon Townes v. Commonwealth, 269 Va. 234, 609 S.E.2d 1
(2005), contends that at the time of the probable cause
hearing, he was neither a prisoner nor a defendant and, thus,
the circuit court lacked the subject matter jurisdiction to
conduct the civil commitment proceedings. We disagree with
petitioner's arguments.
In Townes, we considered whether, pursuant to former Code
§ 37.1-70.6(A), the Commonwealth could obtain a civil
commitment of Lorenzo Townes as a sexually violent predator
even though he had served his entire sentence for the
necessary predicate "sexually violent offense." Townes had
been convicted of statutory rape and sentenced to 18 years in
prison. He finished serving this sentence in January 1991,
but he remained in prison as a result of convictions for other
crimes that were not sexually violent offenses. 269 Va. at
237, 609 S.E.2d at 2.
Townes was released from prison in April 2002 and granted
parole. He violated parole, and he returned to prison that
same month to complete his remaining sentence. In April 2003,
the Director of the Virginia Department of Corrections
notified the Commitment Review Committee that Townes, who was
scheduled to be released from prison in August 2003, was
subject to review for civil commitment because he had
9
committed a sexually violent offense, and he had been
identified through testing as likely to re-offend. Id.
The circuit court conducted a probable cause hearing as
required by former Code § 37.1-70.7 and concluded that there
was probable cause to believe that Townes was a sexually
violent predator. At the conclusion of a trial of the
commitment petition, the circuit court found that Townes was a
sexually violent predator, and he was committed to the custody
of the Department of Mental Health, Mental Retardation, and
Substance Abuse Services for appropriate treatment and
confinement in a secure facility. 269 Va. at 237-39, 609
S.E.2d at 2-3.
Reversing the judgment of the circuit court, we held that
Townes could not be subjected to the involuntary civil
commitment process under the sexually violent predator
statutes because former Code §§ 37.1-70.4 and -70.5 required
that a prisoner must have been serving an active sentence for
a sexually violent offense at the time he was identified as
being subject to the Sexually Violent Predators Act. 269 Va.
at 240-41, 609 S.E.2d at 4.
Contrary to petitioner's assertions, we did not hold in
Townes that the circuit court lacked subject matter
jurisdiction to adjudicate Townes' status as a sexually
violent predator. Rather, we held that the circuit court
10
erred by declaring that Townes was a sexually violent predator
because the Commonwealth failed to establish one of the
necessary statutory predicates – that Townes was a prisoner
serving an active sentence for a sexually violent offense when
he was identified as being subject to the former Sexually
Violent Predators Act.
Subject matter jurisdiction refers to a court's power to
adjudicate a class of cases or controversies, and this power
must be granted through a constitution or statute. Nelson v.
Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001); Morrison
v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990);
Humphreys v. Commonwealth, 186 Va. 765, 772-73, 43 S.E.2d 890,
894 (1947); Farant Investment Corp. v. Francis, 138 Va. 417,
427-28, 122 S.E. 141, 144 (1924). Subject matter jurisdiction
cannot be waived or conferred on a court by the litigants and
the lack of subject matter jurisdiction may be raised at any
time. Nelson, 262 Va. at 281, 552 S.E.2d at 75; Morrison, 239
Va. at 169-70, 387 S.E.2d at 755-56. Additionally, any
judgment rendered by a court without subject matter
jurisdiction is void ab initio. Nelson, 262 Va. at 281, 552
S.E.2d at 75; Morrison, 239 Va. at 170, 387 S.E.2d at 755-56.
Clearly, in the present case, the circuit court that
heard Jenkins' probable cause hearing and adjudicated his
status as a sexually violent predator had subject matter
11
jurisdiction to make these determinations. The former
Sexually Violent Predators Act conferred subject matter
jurisdiction upon the circuit courts to adjudicate the class
of cases involving the involuntary commitment of alleged
sexually violent predators. Petitioner ignores the numerous
statutory grants of authority that the former Act conferred
upon the circuit courts. For example, the former Act required
that the Attorney General file all petitions for involuntary
commitments against alleged sexual predators in the circuit
court where the prisoner was last convicted of a sexually
violent offense or where the defendant was deemed unrestorably
incompetent. See former Code § 37.1-70.6. Additionally, the
former Act prescribed numerous procedures for involuntary
commitment proceedings in the circuit courts.
C.
Jenkins argues that pursuant to the due process clauses
of the federal constitution and the Constitution of Virginia,
he is entitled to counsel during the involuntary commitment
process for sexually violent predators. Jenkins asserts that
he was deprived of effective assistance of counsel because
trial counsel failed to perfect an appeal from the order of
involuntary commitment in the manner provided by law.
Petitioner contends that he is entitled to a belated appeal of
that order.
12
Responding, the Director states that Jenkins does not
have a constitutional right to an appeal and, hence, he has no
right to counsel during the appellate phase of a civil case.
The Director also contends that even if Jenkins has a right to
effective assistance of counsel, he was not prejudiced because
of trial counsel's failure to file an appeal in the manner
prescribed by law. We disagree with the Director.
We stated in Townes:
"It cannot be seriously disputed that a person
subjected to an involuntary civil commitment
proceeding has a substantial liberty interest in
avoiding confinement in a mental hospital. Zinermon
v. Burch, 494 U.S. 113, 131 (1990). 'Civil
commitment for any purpose constitutes a significant
deprivation of liberty that requires due process
protection.' Addington v. Texas, 441 U.S. 418, 425
(1979)."
269 Va. at 240, 609 S.E.2d at 4. Additionally, the United
States Supreme Court has stated:
"We have recognized that for the ordinary
citizen, commitment to a mental hospital produces 'a
massive curtailment of liberty,' Humphrey v. Cady,
405 U.S. 504, 509 (1972), and in consequence
'requires due process protection.' Addington v.
Texas, 441 U.S. 418, 425 (1979); O'Connor v.
Donaldson, 422 U.S. 563, 580 (1975) (BURGER, C. J.,
concurring).”
Vitek v. Jones, 445 U.S. 480, 491-92 (1980).
The Supreme Court has also held that:
"There is a substantial liberty interest in avoiding
confinement in a mental hospital. See Vitek v.
Jones, 445 U.S. 480, 491-492 (1980) (commitment to
mental hospital entails ' "a massive curtailment of
13
liberty," ' and requires due process protection);
Parham v. J. R., 442 U.S. at [584,] 600 [(1979)]
(there is a 'substantial liberty interest in not
being confined unnecessarily for medical
treatment'); Addington v. Texas, 441 U.S. 418, 425
(1979) ('Civil commitment for any purpose
constitutes a significant deprivation of liberty
that requires due process protection')."
Zinermon v. Burch, 494 U.S. 113, 131 (1990).
We also recognize that an individual who is the subject
of a proceeding under Virginia's Sexually Violent Predators
Act has a substantial liberty interest in avoiding
confinement. Indeed, the subject of a civil commitment
proceeding commenced pursuant to this Act may be confined for
his natural life. Additionally, a person who is adjudicated
as a sexually violent predator may be compelled to accept
medical treatment against his will.
Even though involuntary civil commitment is a significant
deprivation of liberty to which federal and state procedural
due process protections apply, persons subject to these
commitment proceedings do not enjoy the same rights attendant
to a criminal proceeding. See e.g., Jones v. United States,
463 U.S. 354, 367-68 (1983). However, the Supreme Court in
Vitek identified certain minimal standards that federal due
process guarantees to a respondent in an involuntary civil
commitment proceeding: a hearing at which evidence is
presented and the respondent is provided a chance to be heard
14
and to present documentary evidence as well as witnesses; the
right to confront and to cross-examine government witnesses at
the hearing except upon a showing of good cause; an
independent decision maker; a written, reasoned opinion; and
effective and timely notice of the pendency of the hearing and
of these rights.
A plurality of the Supreme Court concluded in Vitek that
federal due process required that an indigent civil commitment
respondent have representation by an attorney, Justice Powell
expressly disagreed, and the remaining Justices did not
consider the issue because they believed the controversy was
moot. We agree with the plurality in Vitek that:
"A prisoner thought to be suffering from a mental
disease or defect requiring involuntary treatment
probably has a [great] need for legal assistance,
for such a prisoner is more likely to be unable to
understand or exercise his rights. In these
circumstances, it is appropriate that counsel be
provided to indigent prisoners whom the State seeks
to treat as mentally ill."
Vitek, 445 U.S. at 496-97.
We hold that in view of the substantial liberty interest
at stake in an involuntary civil commitment based upon
Virginia's Sexually Violent Predators Act, the due process
protections embodied in the federal and Virginia Constitutions
mandate that the subject of the involuntary civil commitment
process has the right to counsel at all significant stages of
15
the judicial proceedings, including the appellate process.
Accord, Project Release v. Prevost, 722 F.2d 960, 976 (2nd
Cir. 1983); In re Barnard, 455 F.2d 1370, 1375-76 (D.C. Cir.
1971); Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968);
Johnson v. Solomon, 484 F.Supp. 278, 292 (D. Md. 1979); Dorsey
v. Solomon, 435 F.Supp. 725, 733 (D. Md. 1977); Stamus v.
Leonhardt, 414 F.Supp. 439, 446 (S.D. Iowa 1977); Suzuki v.
Quisenberry, 411 F.Supp. 1113, 1129 (D. Haw. 1976); Lynch v.
Baxley, 386 F.Supp. 378, 389 (M.D. Ala. 1974); Bell v. Wayne
County General Hospital, 384 F.Supp. 1085, 1093 (E.D. Mich.
1974); Lessard v. Schmidt, 349 F.Supp. 1078, 1097-99 (E.D.
Wis. 1972); Dixon v. Attorney General, 325 F.Supp. 966, 972
(M.D.Pa. 1971); Honor v. Yamuchi, 820 S.W.2d 267, 269 (Ark.
1991); Pullen v. State, 802 So. 2d 1113, 1119 (Fla. 2001); In
re Beverly, 342 So. 2d 481, 489 (Fla. 1977); In re Simons, 698
P.2d 850, 851 (Mont. 1985); People ex rel. Rogers v. Stanley,
217 N.E.2d 636, 636 (N.Y. 1966); Rashid v. J. B., 410 N.W.2d
530, 532 (N.D. 1987); McDuffie v. Berzzarins, 330 N.E.2d 667,
669 (Ohio 1975); Ex parte Ullmann, 616 S.W.2d 278, 283 (Tex.
App. 1981).
We also hold that Jenkins has a constitutional right to
effective assistance of counsel during the proceeding in which
he was adjudicated a sexually violent predator, and on appeal
from that adjudication. Thus, Jenkins’ claim of ineffective
16
assistance of counsel must be evaluated under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). See
Pope v. Alston, 537 So.2d 953, 956-57 (Ala. Civ. App. 1988)
(subject of an involuntary commitment must show counsel was
ineffective under Strickland); People v. Rainey, 758 N.E.2d
492, 502-03 (Ill. App. Ct. 2001) (persons adjudicated under
Sexually Violent Persons Commitment Act are entitled to
effective assistance of counsel measured by the Strickland
test); In re Crane, 704 N.W.2d 437, 439 (Iowa 2005) (claim of
ineffectiveness of counsel by person involuntary committed
under Sexually Violent Predator Act is measured by Strickland
test); In re Alleged Mental Illness of Cordie, 372 N.W.2d 24,
29 (Minn. Ct. App. 1985) (involuntarily commitment will not be
overturned because of counsel’s ineffectiveness unless
Strickland standard is satisfied); State of Texas for the Best
Interest and Protection of H.W., 85 S.W.3d 348, 356 (Tex. App.
2002) (subject of an involuntary commitment proceeding has the
right to effective assistance of counsel as judged by the
Strickland two-prong test); In re Smith, 72 P.3d 186, 190
(Wash. Ct. App. 2003) (person involuntarily committed as a
sexually violent predator must establish both prongs of
Strickland in order to prevail on a claim of ineffective
counsel).
17
Under Strickland, a habeas petitioner must first
demonstrate that “counsel’s performance was deficient,” i.e.,
“that counsel’s representation fell below an objective
standard of reasonableness.” 466 U.S. at 687-88. Second, a
petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. These
requirements are commonly referred to as the “performance” and
“prejudice” prongs of the Strickland two-part test.
The performance of Jenkins’ attorney was deficient. By
failing to perfect an appeal to this Court from Jenkins’
adjudication as a sexually violent predator, his counsel’s
representation “fell below an objective standard of
reasonableness.” Id. at 688.
The United States Supreme Court has held, and we agree,
that “when counsel’s constitutionally deficient performance
deprives a defendant of an appeal that he otherwise would have
taken, the defendant has made out a successful ineffective
assistance of counsel claim entitling him to an appeal.” Roe
v. Flores-Ortega, 528 U.S. 470, 484 (2000). In this
circumstance, prejudice is generally presumed. See Miles v.
Sheriff, 266 Va. 110, 116-17, 581 S.E.2d 191, 195 (2003)
(“when a defendant . . . timely instructs counsel to file an
appeal, . . . it would be unfair to find an absence of
18
prejudice solely because the defendant failed to state, in a
habeas corpus petition, the anticipated grounds of a belated
appeal”); Hernandez v. United States, 202 F.3d 486, 489 (2nd
Cir. 2000) (prejudice is presumed “where the alleged
ineffective assistance lies in counsel’s unexcused failure to
bring a direct appeal from a criminal conviction upon the
defendant’s direction to do so”); Romero v. Tansy, 46 F.3d
1024, 1030 (10th Cir. 1995) (“where a defendant claims that
counsel was ineffective for failing to perfect an appeal, he
must only satisfy the first prong of the Strickland test . . .
prejudice is presumed”); Bonneau v. United States, 961 F.2d
17, 17 (1st Cir. 1992) (the defendant, who lost his right of
appeal due to his counsel’s deficient performance, was
“entitled to a new appeal without first showing that there is
a meritorious appellate issue”); Thomas v. O’Leary, 856 F.2d
1011, 1017 (7th Cir. 1988) (attorney’s failure to file a brief
on behalf of a defendant “amounted to a complete denial of
assistance of counsel during a critical stage” and defendant
was not required to prove prejudice under the second prong of
the Strickland test); Williams v. Lockhart, 849 F.2d 1134,
1137 n.3 (8th Cir. 1988) (“deficient attorney performance in
perfecting an appeal is prejudicial under” Strickland);
Langston v. Arkansas, 19 S.W.3d 619, 621 (Ark. 2000) (“a
presumption of prejudice aris[es] from the failure of counsel
19
to perfect an appeal if counsel’s deficient performance led to
the forfeiture of the convicted defendant’s right to pursue a
direct appeal”); Montana v. Rogers, 32 P.3d 724, 729 (Mont.
2001) (“when, but for counsel’s deficient performance,
defendant would have appealed, such error is prejudicial”);
Nebraska v. Trotter, 609 N.W.2d 33, 38 (Neb. 2000) (when
defendant’s counsel failed to perfect an appeal, prejudice was
presumed); Pennsylvania v. Halley, 870 A.2d 795, 801 (Pa.
2005) (prejudice is presumed when counsel’s failure to file a
required statement results in a waiver of all claims asserted
on direct appeal); Washington v. Wicker, 20 P.3d 1007, 1009
(Wash. Ct. App. 2001) (“an attorney’s failure to file a
requested notice of appeal is ‘professionally unreasonable’
[and t]he defendant need not make any additional showing of
prejudice”).
Courts have expressed various reasons for presuming
prejudice when counsel’s deficient performance deprived a
defendant of an appeal that the defendant otherwise would have
pursued. One explanation previously articulated by this Court
in the context of post-conviction habeas relief is equally
valid in this proceeding. When ruling on a habeas petition
asserting a claim of ineffective assistance of counsel for
failing to perfect an appeal, it is not an efficient use of
judicial resources for this Court to examine the merits of a
20
petitioner’s grounds of appeal in order to determine whether
the petitioner satisfied the prejudice prong of the Strickland
test. It is better to grant a belated appeal and then permit
the appellate court to consider petitioner’s claims of trial
error. See Miles, 266 Va. at 117, 581 S.E.2d at 195; see also
Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir. 1990).
IV.
We conclude that Jenkins was entitled to file his
petition for a writ of habeas corpus in this Court. We
further conclude that Jenkins’ claim of ineffective assistance
of counsel must be measured by the Strickland standard and
that, under the Strickland two-prong test, Jenkins established
that he was denied the effective assistance of counsel and
should be granted a belated appeal.
Accordingly, we will grant the writ of habeas corpus, and
we will award Jenkins a belated appeal. We note, however,
that Jenkins will remain confined to a secure facility
designated by the Commissioner of the Department of Mental
Health, Mental Retardation and Substance Abuse Services
pending his appeal. Additionally, Jenkins will remain subject
to any statutory reviews set forth in the Virginia Sexually
Violent Predators Act, Code § 37.2-900, et seq.
Petition granted.
21