Tuesday 18th
August, 1998.
James L. Terry, Appellant,
against Record No. 1480-97-2
Circuit Court No. CR96-382-00
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Overton, Bumgardner and Senior Judge Baker*
On July 14, 1998 came the appellee, by counsel, and filed a
petition praying that the Court set aside the judgment rendered herein
on June 30, 1998, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on June 30, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
____________________
*Judge Baker participated in the decision of this petition
for rehearing en banc prior to the effective date of his retirement on
July 31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
JAMES L. TERRY
OPINION BY
v. Record No. 1480-97-2 JUDGE JAMES W. BENTON, JR.
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Steven B. Novey, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
James L. Terry pleaded guilty to one count of felony carnal
knowledge of a child. See Code § 18.2-63. The trial judge
imposed a ten-year sentence, suspending eight years. Terry
appeals the sentence imposed by the trial judge and contends the
admission of certain evidence at the sentencing hearing violated
his Sixth Amendment right to counsel. For the reasons that
follow, we reverse and remand for resentencing.
I.
On August 23, 1996, Terry was arrested and charged with a
single count of carnal knowledge of a child. Three days later,
at the arraignment, the Public Defender was appointed to
represent Terry. A month after Terry's arrest and arraignment, a
county social services worker and two police investigators
initiated contact with Terry at the county jail without the
presence, consent, or notification of Terry's counsel. The
social worker testified that they went to the jail to "let
[Terry] know . . . that there's an investigative child protection
services investigation going on" concerning the child and to give
him "a pamphlet and everything." According to the social worker,
Terry volunteered incriminating information about his contact
with the child.
The Commonwealth later indicted Terry for the offense of
carnal knowledge of the child, the felony for which he was
arrested on August 23, and also indicted Terry on four new felony
counts - object sexual penetration, rape, cunnilingus, and
fellatio. All the indictments charged that Terry committed
offenses against the same child who was the subject of the
initial carnal knowledge charge. Alleging that his Sixth
Amendment right to counsel had been violated, Terry filed a
motion to suppress the statements made in jail to the social
worker and the police officers. Before the trial judge ruled on
Terry's motion to suppress his statements, the trial judge held
an evidentiary hearing pursuant to Code § 18.2-67.7(C) (the rape
shield law). At the hearing, the child denied the occurrence of
the events which were the basis for the four additional charges.
Following the hearing, the Commonwealth nol prossed the
additional four charges. Terry pleaded guilty to the original
charge of carnal knowledge.
At the sentencing hearing on the charge of carnal knowledge,
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the Commonwealth's attorney called as a witness the social
worker. When the social worker began to testify concerning the
statements Terry made to her in the jail, Terry's counsel
objected to the evidence as irrelevant to the current charge and
having been obtained in violation of Terry's Sixth Amendment
right to counsel. The Commonwealth argued that the evidence had
not been suppressed because the trial judge had not ruled on
Terry's initial motion to suppress. The Commonwealth also argued
that the exclusionary rule does not apply to sentencing hearings.
The trial judge allowed the testimony.
The social worker testified that she and two police officers
initiated the contact with Terry in jail. She testified that
Terry made statements, including the following:
He told me that he had had sex, including
oral sex, with the juvenile that's involved
in this case . . . . He told me that it had
been several times. The oral sex was
basically performed on him by her. And this
happened a majority of the time when her mom
was at work or either she didn't go to
school.
The child also testified at the sentencing hearing. She
said that when she was thirteen she initiated the one sexual
encounter for which Terry had pleaded guilty. She denied having
any other sexual encounters with Terry.
Relying on Terry's prior record and Terry's statements to
the social worker and the police officers, the Commonwealth's
attorney argued, "[w]hether he raped her or did these other
offenses, at a minimum, he's still fantasizing about her. . . .
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He needs some serious prison time to learn to think about what
he's doing to children." Departing from the voluntary sentencing
guidelines, which suggested a sentence of three to six months
incarceration, the trial judge imposed a sentence of ten years,
suspending eight. On the disposition order, the trial judge
listed the "serious nature of [the] offense and chance of future
contact with victim upon early release" as his reasons for
departure from the voluntary sentencing guidelines.
II.
Relying upon Peyton v. King, 210 Va. 194, 169 S.E.2d 569
(1969), the Commonwealth contends Terry waived his right to
appeal his sentence by pleading guilty to the charge. In King,
the Supreme Court responded as follows to the assertion that a
defendant could appeal his conviction after a guilty plea:
[A] voluntary and intelligent plea of guilty
by an accused is, in reality, a self-supplied
conviction authorizing imposition of the
punishment fixed by law. It is a waiver of
all defenses other than those jurisdictional,
effective as such not only in the lower court
but as well in this court. Where a
conviction is rendered upon such a plea and
the punishment fixed by law is in fact
imposed in a proceeding free of
jurisdictional defect, there is nothing to
appeal. To take any other view would give
recognition to an empty right and permit
frivolous appeals for the mere sake of delay.
Id. at 196-97, 169 S.E.2d at 571.
That ruling is not dispositive of the issue raised in this
appeal. While a defendant who pleads guilty "'may not thereafter
raise independent claims relating to the deprivation of
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constitutional rights that occurred prior to the entry of the
guilty plea,'" Beaver v. Commonwealth, 232 Va. 521, 526-27, 352
S.E.2d 342, 345 (1987) (quoting Tollett v. Henderson, 411 U.S.
258, 267 (1973)) (emphasis added), it does not follow that a
defendant who pleads guilty waives his or her right to challenge
violations of constitutional rights that occur at a sentencing
hearing after the defendant's entry of the guilty plea. A
defendant does not, by his or her guilty plea, prospectively
waive the right to object to violations of constitutional rights
that occur at the sentencing hearing. See United States v.
Jacobson, 15 F.3d 19, 23 (2d Cir. 1994).
The principle is well established that "a plea [of guilty]
marks the end of one chapter in the progress of a defendant's
case, and, simultaneously, begins a new chapter. Thus, an
unconditional guilty plea insulates virtually all earlier rulings
in the case from appellate review." United States v. Cordero, 42
F.3d 697, 698 (1st Cir. 1994). However, "a defendant's
unconditional guilty plea does not automatically waive the right
to appeal matters incident to sentencing as opposed to guilt."
Id. at 699. See also State v. Heatwole, 423 S.E.2d 735, 737
(N.C. 1992). "[A] defendant who waives his right to appeal does
not subject himself to being sentenced entirely at the whim of
the [trial judge]." United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992). The general waiver of appeal rights flowing
from a plea of guilty does not bar the right to appeal violations
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of a Sixth Amendment right to counsel that occur at a sentencing
hearing. See United States v. Attar, 38 F.3d 727, 732-33 (4th
Cir. 1994).
Applying the principle that a trial judge is required to
reject a guilty plea if it is not "intelligently, voluntarily and
knowingly made," Graham v. Commonwealth, 11 Va. App. 133, 134,
397 S.E.2d 270, 273-74 (1990), we believe it is equally obvious
that a defendant cannot knowingly, intelligently, and voluntarily
waive a right when it is not clear what rights will be
implicated. See United States v. Melancon, 972 F.2d 566, 571
(5th Cir. 1992) (Parker, J., concurring) ("A defendant can never
'knowingly and intelligently waive, as part of a plea agreement,
the right to appeal a sentence that has yet to be imposed at the
time he or she enters into the plea agreement; such a 'waiver' is
inherently uninformed and unintelligent."); United States v.
Schmidt, 47 F.3d 188, 190 (7th Cir. 1995) ("[d]espite a valid
waiver of the right to appeal, a defendant could appeal his
sentence if the trial court relied on a constitutionally
impermissible factor"); United States v. Raynor, ___ F.Supp. ___
(D.C. 1997) ("defendant cannot knowingly, intelligently and
voluntarily give up the right to appeal a sentence that has not
yet been imposed and about which the defendant has no knowledge
as to what will occur at the time of sentencing").
In Virginia, both the Supreme Court and this Court have
considered the appeals of sentences of defendants who have
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pleaded guilty to the underlying offenses. See, e.g., Linton v.
Commonwealth, 192 Va. 437, 65 S.E.2d 534 (1951) (although
defendant pleaded guilty to perjury, Court on appeal considered
whether defendant's right to counsel was violated when defendant
was sentenced without notice to her counsel and without affording
counsel opportunity to cross-examine probation officer who
completed presentence report or to present additional facts
bearing on sentencing); Harris v. Commonwealth, 26 Va. App. 794,
497 S.E.2d 165 (1988) (although defendant pleaded guilty to
charge of possession with intent to distribute, Court on appeal
considered defendant's argument that trial judge violated
defendant's due process rights by admitting certain evidence at
sentencing hearing). See also Nichols v. United States, 511 U.S.
738 (1994) (although defendant pleaded guilty to federal felony
drug charges, Court considered defendant's claim that his right
to counsel had been violated by trial judge's consideration of
certain evidence at sentencing).
Terry contends his Sixth Amendment right to counsel was
violated when the judge admitted evidence obtained in violation
of the requirement that counsel must be present during a
confrontation between an accused and a state agent. See Maine v.
Moulton, 474 U.S. 159, 168-69 (1985). This alleged
constitutional violation occurred at the sentencing hearing. See
Satterwhite v. Texas, 486 U.S. 249, 255-56 (1988) (holding that
use of illegally obtained evidence at defendant's sentencing
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hearing violated Sixth Amendment). Therefore, we hold that when
Terry pleaded guilty, he did not waive his right to challenge a
violation of his constitutional rights which occurred at the
sentencing hearing.
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III.
The Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense." U.S. Const. Amend. VI.
The right to the assistance of counsel guaranteed
by the Sixth and Fourteenth Amendments is
indispensable to the fair administration of our
adversarial system of criminal justice. Embodying
a "realistic recognition of the obvious truth that
the average defendant does not have the
professional legal skill to protect himself," the
right to counsel safeguards the other rights
deemed essential for the fair prosecution of a
criminal proceeding.
Moulton, 474 U.S. at 168-69 (1985) (citation omitted). The
principle is well established that "[t]he Sixth Amendment
guarantees the accused, at least after the initiation of formal
charges, the right to rely on counsel as a 'medium' between him
and the [Commonwealth]." Id. at 176. Thus, the state violates
the defendant's Sixth Amendment rights "when the State obtains
incriminating statements by knowingly circumventing the accused's
right to have counsel present in a confrontation between the
accused and a state agent." Id.
Evidence obtained in violation of the defendant's Sixth
Amendment right to counsel is inadmissible in a sentencing
proceeding for a charge to which the right to counsel has
attached. See Powell v. Texas, 492 U.S. 680, 686
(1989); Satterwhite, 486 U.S. at 255-56. In Powell and
Satterwhite, the Court held that because defense counsel had not
been given notice that a psychiatric evaluation of the defendant
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would encompass the issue of future dangerousness, the admission
of the psychiatrist's testimony at the sentencing proceeding
violated the defendant's Sixth Amendment right to counsel.
"Because the evidence of future dangerousness was taken in
deprivation of the [defendant's] right to the assistance of
counsel," the Court held that the admission of the evidence at
the sentencing proceeding violated the Sixth Amendment. Powell,
492 U.S. at 686. See also Satterwhite, 486 U.S. at 255-56
(holding that "the use of [the psychiatrist's] testimony at the
. . . sentencing proceeding . . . violated the Sixth Amendment").
In this case, the social worker and the officers initiated
contact with Terry at the jail and questioned him about his
contacts with the child. At the time of this interview, Terry's
Sixth Amendment right to counsel had attached and had been
invoked with respect to the pending charge of felony carnal
knowledge. This interview took place outside the presence of
Terry's counsel, without counsel's knowledge or consent.
Therefore, any evidence obtained at that interview that would in
any way incriminate Terry on the charge of felony carnal
knowledge, for which he had invoked his right to counsel, could
not be used in a proceeding against him. "Because the evidence
. . . was taken in deprivation of [Terry's] right to the
assistance of counsel," Powell, 492 U.S. at 686, we hold that the
admission of the evidence at the sentencing proceeding violated
the Sixth Amendment.
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IV.
"A federal constitutional error is harmless, and thus
excusable, only if it appears 'beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.'"
Quinn v. Commonwealth, 25 Va. App. 702, 719, 492 S.E.2d 470, 479
(1997) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
See also Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407
S.E.2d 910, 911 (1991). Applying this standard, we have ruled
that "[t]he admission of evidence obtained in violation of the
federal constitution is reversible error if 'there is a
reasonable possibility that the evidence complained of might have
contributed to the [sentence].'" Quinn, 25 Va. App. at 719, 492
S.E.2d at 479 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87
(1963)).
Testifying regarding Terry's statements, the social worker
supplied evidence that Terry had had several ongoing sexual
encounters with the victim. This testimony was presented to
demonstrate to the sentencing judge that the one count of carnal
knowledge to which Terry pleaded guilty was not an isolated
incident. Relying on the social worker's testimony, the
prosecutor argued that Terry had engaged in ongoing sexual
contact with the child, or had at least fantasized about similar
contact, and should be kept in jail to prevent the child and
other children from being exposed to Terry.
Without the statements attributed to Terry, the only
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evidence before the trial judge to consider for sentencing
purposes was Terry's record of prior misdemeanor convictions, the
child's testimony denying any other sexual encounters except for
the one charged, and the testimony of the victim's mother that
Terry could return to her residence upon being released from
jail. The evidence obtained in violation of Terry's right to
counsel tended to prove a pattern of abuse and provided a
foundation for the trial judge's substantial upward deviation
from the voluntary sentencing guidelines. Accordingly, we find a
reasonable possibility that the unlawfully gained testimony
contributed to Terry's sentence. Thus, we cannot conclude that
the admission of the social worker's testimony at the sentencing
hearing was harmless beyond a reasonable doubt.
For the foregoing reasons, we reverse the decision of the
trial judge and remand for resentencing in accordance with this
opinion.
Reversed and remanded.
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