Present: All the Justices
JAMIE LAMONT MILES
v. Record No. 021718 OPINION BY JUSTICE CYNTHIA D. KINSER
June 6, 2003
SHERIFF OF THE VIRGINIA BEACH
CITY JAIL
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
This case is an appeal from a judgment of the circuit
court dismissing a petition for a writ of habeas corpus
filed by Jamie Lamont Miles. In the petition, Miles
asserted ineffective assistance of counsel because his
trial counsel failed to perfect an appeal to the Court of
Appeals of Virginia. Although Miles pled guilty to the
charges, we conclude that his trial counsel’s failure to
file an appeal after having been instructed to do so by
Miles constituted deficient performance and that Miles,
having objectively demonstrated his intent to appeal, is
entitled to a belated appeal. Thus, we will reverse the
judgment of the circuit court dismissing the petition for a
writ of habeas corpus.
Miles pled guilty to two counts of robbery, in
violation of Code § 18.2-58, and one count of using a
firearm in the commission of a felony, in violation of Code
§ 18.1-53.1. During the guilty plea colloquy, the court
asked Miles if he understood that, by pleading guilty, he
was waiving the right to appeal the court’s decision.
Miles responded affirmatively to the court’s question.
After hearing a summary of the evidence, the Circuit Court
for the City of Newport News found Miles guilty of the
offenses. At the sentencing hearing held on November 29,
2001, the court sentenced Miles to a five-year term of
imprisonment on each conviction, for a total sentence of 15
years. The court also advised Miles that, if he wished to
appeal the court’s decision, he needed to advise his
counsel so that a notice of appeal could be timely filed.
In his petition for a writ of habeas corpus, Miles
states that he wrote a letter dated December 11, 2001,
informing his attorney that he “wanted to appeal” his
convictions. Receiving no response from his trial counsel,
Miles then wrote the circuit court judge on three
occasions, each time stating that he wanted to file an
appeal. In the third letter, Miles asked the court to
appoint a different attorney to represent him on appeal,
and the court subsequently did so. The petition for a writ
of habeas corpus alleging ineffective assistance of trial
counsel and seeking a belated appeal then followed.
The respondent argued before the circuit court, as he
does on appeal, that the petition should be dismissed
because Miles failed to identify any anticipated grounds
2
for an appeal of his convictions. The respondent contended
that, by pleading guilty to the charges, Miles waived all
non-jurisdictional grounds for appeal, see e.g., Walton v.
Commonwealth, 256 Va. 85, 91, 501 S.E.2d 134, 138 (1998);
Peyton v. King, 210 Va. 194, 196-97, 169 S.E.2d 569, 571
(1969), and that the record does not reveal any
jurisdictional or sentencing errors upon which to base an
appeal. The respondent further pointed out that Miles did
not allege any such errors in his petition for a writ of
habeas corpus. Given the limited nature of the grounds
available for an appeal of a conviction after a defendant
has pled guilty and the fact that Miles received the
minimum sentence allowed for each of his convictions, the
respondent asserted that Miles had not demonstrated that he
was prejudiced by his trial counsel’s failure to file an
appeal. The circuit court agreed with the respondent’s
position and granted the motion to dismiss Miles’ petition
for a writ of habeas corpus.
Miles appeals from the circuit court’s judgment. He
contends that the court erred by dismissing his habeas
corpus petition because he directed his trial counsel to
file an appeal and the attorney failed to do so. Miles
posits that the court could not “presume a priori and in
the absence of any evidence” that he did not intend to
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raise jurisdictional or sentencing errors on appeal.
According to Miles, there is no requirement that he set
forth his intended grounds of appeal in a habeas corpus
petition seeking a belated appeal.
As the respondent argues, the law is well-settled that
“a voluntary and intelligent plea of guilty by an accused
is . . . a self-supplied conviction authorizing imposition
of the punishment fixed by law” and waives all non-
jurisdictional defects that occurred prior to entry of the
guilty plea. Peyton, 210 Va. at 196, 169 S.E.2d at 571;
accord Savino v. Commonwealth, 239 Va. 534, 538-39, 391
S.E.2d 276, 278 (1990); Beaver v. Commonwealth, 232 Va.
521, 526, 352 S.E.2d 342, 345 (1987); Guthrie v.
Commonwealth, 212 Va. 550, 551, 186 S.E.2d 26, 28 (1972);
see also Tollett v. Henderson, 411 U.S. 258, 267 (1973).
The waiver of non-jurisdictional defenses applies not only
in the trial court but also in this Court. Peyton, 210 Va.
at 196, 169 S.E.2d at 571. When a conviction is based upon
a defendant’s guilty plea and the defendant receives the
sentence fixed by law, “there is nothing to appeal” absent
a jurisdictional defect. Id. at 197, 169 S.E.2d at 571.
However, this case is not a direct appeal from Miles’
convictions. Instead, it is a collateral attack on those
convictions based on Miles’ claim of ineffective assistance
4
of counsel. Consequently, the issue here is whether trial
counsel was constitutionally ineffective for failing to
file a notice of appeal. With regard to this issue, it is
important that Miles wrote his attorney prior to the
expiration of the period of time allowed for filing a
notice of appeal, see Rule 5A:6, and stated that he wanted
to appeal his convictions. Miles’ trial counsel did not
dispute this allegation in his affidavit filed as an
exhibit with the respondent’s motion to dismiss Miles’
habeas corpus petition. Instead, the attorney stated only
that he was not aware of any grounds upon which Miles could
have appealed his convictions.
Our analysis of Miles’ claim of ineffective assistance
of counsel is guided by the decision of the Supreme Court
of the United States in Roe v. Flores-Ortega, 528 U.S. 470
(2000). There, the Court held that the two-part test for
adjudicating claims of ineffective assistance of counsel
previously enunciated in Strickland v. Washington, 466 U.S.
668 (1984), applies to a claim “that counsel was
constitutionally ineffective for failing to file a notice
of appeal.” Roe, 528 U.S. at 477. Under the Strickland
test, a convicted defendant “must show (1) that counsel’s
representation ‘fell below an objective standard of
reasonableness,’ and (2) that counsel’s deficient
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performance prejudiced the defendant.” Id. at 476-77
(quoting Strickland, 466 U.S. at 688, 694).
In Roe, the question under the first prong of the
Strickland test was whether counsel was deficient for
failing to file a notice of appeal “when the defendant
[had] not clearly conveyed his wishes one way or the
other[.]” Id. at 477. In framing that question, the Court
pointed out that it had previously “held that a lawyer who
disregards specific instructions from the defendant to file
a notice of appeal acts in a manner that is professionally
unreasonable.” Id. (citing Rodriquez v. United States, 395
U.S. 327, 330 (1969); Peguero v. United States, 526 U.S.
23, 28 (1999)). At the opposite end of the spectrum, as
the Court noted, is the defendant who explicitly instructs
counsel not to file an appeal. Id. Such a defendant
cannot later complain that counsel, by following
instructions, engaged in deficient performance. Id.
The ineffective assistance of counsel claim in Roe
fell between those two extremes and was, therefore, “best
answered” by making two additional inquiries. Id. at 477-
78. The first inquiry was whether counsel had consulted
with the defendant. 1 Id. at 478. If counsel had done so,
1
The Court defined the term “consult” as “advising the
defendant about the advantages and disadvantages of taking
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“the question of deficient performance [was] easily
answered: Counsel perform[ed] in a professionally
unreasonable manner only by failing to follow the
defendant’s express instructions with respect to an
appeal.” Id. However, if counsel had not consulted with
the defendant about an appeal, the second question was
“whether counsel’s failure to consult with the defendant
itself constitute[d] deficient performance.” Id. Because
the attorney in Roe had not consulted with the defendant,
the Court then addressed under what circumstances counsel
has an obligation to consult with a defendant about an
appeal. Id. A relevant factor with regard to the duty to
consult is whether the conviction followed a trial or a
guilty plea. Id. at 480.
However, it is not necessary in the present case to
address these subsidiary questions because Miles’ claim
falls squarely at the end of the spectrum where an attorney
disregards a defendant’s instructions to file a notice of
appeal. 2 In that situation, an attorney “acts in a manner
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an appeal, and making a reasonable effort to discover the
defendant’s wishes.” Roe, 528 U.S. at 478.
2
We do not agree with the respondent’s
characterization of Miles’ communication with his attorney
as “a desire to appeal.” At sentencing, the court told
Miles that, if he wanted to appeal, he needed to advise his
counsel so that a notice of appeal could be timely filed.
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that is professionally unreasonable” by failing to follow
the defendant’s specific instructions. Id. at 477. Since
it is not disputed that Miles timely instructed his trial
counsel to initiate an appeal, we hold that counsel’s
failure to do so was deficient performance under the first
prong of the Strickland two-part test. See Roe, 528 U.S.
at 477; Rodriquez, 395 U.S. at 330.
We reach this conclusion even though Miles pled guilty
to the charges. The decision whether to file an appeal
ultimately rests with the defendant. Jones v. Barnes, 463
U.S. 745, 751 (1983). In this case, trial counsel’s
failure to follow Miles’ timely instruction to appeal
cannot be considered a strategic decision but, instead,
“reflects inattention to the defendant’s wishes.” Roe, 528
U.S. at 477. That a defendant pled guilty is an
appropriate factor to consider when determining whether
counsel was ineffective for failing to consult with the
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Miles then wrote his attorney and told the attorney that he
“wanted to appeal.” Receiving no response from his
attorney, Miles persisted in his decision to appeal by
writing the circuit court on three occasions and stating
that he wanted to file an appeal. As we have already
noted, Miles’ trial counsel did not dispute these
assertions in his affidavit filed in the circuit court.
Thus, we cannot say that Miles’ claim is merely a “blanket
assertion” that he requested an appeal, which, it if were,
would be insufficient to establish deficient performance.
Ledbetter v. United States, 182 F. Supp.2d 510, 517
(W.D.N.C. 2001).
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defendant about an appeal. See id. at 479. Failure to
consult is not the issue in this case.
With regard to the “prejudice” prong of the Strickland
test, the Court in Roe held 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.” Id. at 484.
The question whether a particular defendant has made the
requisite showing of prejudice will turn on the facts of
the case. Id. at 485. However, the Court reiterated its
prior holding in Rodriquez: “[T]he defendant, by
instructing counsel to perfect an appeal, objectively
indicated his intent to appeal and was entitled to a new
appeal without any further showing.” Id.
We reach the same conclusion in this case even though
we recognize that the defendant in Rodriquez did not enter
a guilty plea. Nevertheless, the respondent argues that,
given the narrow scope of issues available for appeal
following a guilty plea in Virginia and Miles’ failure to
identify any viable ground of appeal, Miles has not
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demonstrated the requisite prejudice to justify habeas
relief. 3 We do not agree.
Although the range of potential grounds for appeal
following a guilty plea is limited in Virginia, a defendant
who has pled guilty still retains the statutory right to
file a notice of appeal and present a petition for appeal
to the Court of Appeals of Virginia. See Code §§ 17.1-406
and –407. Thus, when a defendant, after pleading guilty,
timely instructs counsel to file an appeal, we conclude
that it would be unfair to find an absence of prejudice
solely because the defendant failed to state, in a habeas
corpus petition, the anticipated grounds of a belated
appeal. Such a requirement is not imposed on a defendant
who has pled not guilty and seeks a belated appeal. See
Roe, 528 U.S. at 486. As the Court in Rodriquez
recognized, “[t]hose whose right to an appeal has been
frustrated should be treated exactly like any other
appellants.” Rodriquez, 395 U.S. at 330 (rejecting any
requirement that a defendant “specify the points he would
raise were his right to appeal reinstated”). Otherwise,
3
Two cases relied upon by the respondent, Sarroca v.
United States, 250 F.3d 785 (2nd Cir. 2001), and Montero-
Melendez v. United States, ___ F. Supp.2d ___ (S.D.N.Y.
2003), are not relevant because the defendants in those
cases had not instructed their respective counsel to file
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the defendant who has entered a guilty plea would often
have to search the record for meritorious grounds for an
appeal before an attorney has done so, and this Court would
have to use its resources to determine whether nonfrivolous
grounds for an appeal exist when ruling on the defendant’s
habeas corpus petition rather than doing so more
efficiently in the direct appeal process. However, we
emphasize that our holding today is limited to those
situations where a defendant has unequivocally and timely
instructed counsel to perfect an appeal.
For these reasons, we will reverse the judgment
appealed from and remand the case to the circuit court with
directions to issue the writ of habeas corpus and to grant
leave to Miles to file a notice of appeal and to petition
the Court of Appeals of Virginia for an appeal from the
judgments rendered on November 29, 2001 by the Circuit
Court for the City of Newport News upon two convictions of
robbery and one conviction for use of a firearm in the
commission of a felony.
Reversed and remanded.
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an appeal. Instead, both cases focused on counsel’s duty
to consult with the respective defendant about an appeal.
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