ELDESA C. SMITH
TAMMY BROWN, WARDEN, VIRGINIA DEPARTMENT OF CORRECTIONS
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE. Joseph W. Milam, Jr., Judge.
Gregory R. Sheldon (Bain Sheldon, on brief), for appellant.
Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Steven A. Witmer, Senior Assistant Attorney General, on brief), for appellee.
PRESENT: All the Justices
D. ARTHUR KELSEY,
Eldesa C. Smith appeals a dismissal by the circuit court of her habeas corpus petition. The court dismissed the petition on the pleadings without receiving evidence ore tenus or by affidavit. We reverse the dismissal order, remand the case for the presentation of evidence, and direct the circuit court to reconsider the petition after making findings on disputed allegations of material facts.
In 2011, pursuant to a plea agreement, Smith pleaded guilty to felony murder, in violation of Code § 18.2-33, and distribution of a Schedule I controlled substance, as an accommodation, in violation of Code § 18.2-248. Smith filed a habeas corpus petition in 2013, challenging only the felony-murder conviction and sentence. Smith claimed that she had discovered the grounds for her petition only after she " researched the laws and the Felony Murder doctrine after being provided with the evidence of her co-defendant (Timothy Woodard) having been found not guilty in March 2013 by the Virginia Court of Appeals." J.A. at 71.
In particular, Smith alleged that her trial counsel failed to " investigate the evidence and research the felony-murder doctrine" and, consequently, failed to give her reasonable advice on whether to plead guilty to felony murder. Id. at 74. Smith claimed that she would not have pleaded guilty to felony murder if she had been given reasonably competent advice on the elements of the charge, particularly the res gestae factors, and any possible defenses to it.
Smith attached, as an exhibit to her petition, a letter she received from trial counsel prior to pleading guilty. The letter suggested that it summarized earlier in-person conversations. The letter informed Smith that she was " charged with murder under Virginia Code Section 18.2-32" and that, as part of a proposed plea agreement, her " charge of murder would be reduced to manslaughter." Id. at 80. The letter also stated, among other things, that counsel had " explained to [Smith] the legal theories of concert of action, aiding and abetting and being an accessory before the fact." Id. The letter, however, did not make any specific mention of felony-murder principles. The letter concluded with a strong recommendation that Smith accept the proposed plea agreement.
The circuit court dismissed the habeas petition without taking evidence ore tenus or by affidavit. Smith argues on appeal that the court erred by " summarily dismissing" the habeas petition solely on the pleadings. Appellant's Br. at 1; see also Oral Argument Audio at 31:50 to 32:08. We agree.
The common law power of a habeas court to go beyond the pleadings has been long settled. See generally Paul D. Halliday, Habeas Corpus: From England to Empire 110-16 (2010). In Virginia, this power is codified in three statutes. Code § 8.01-654(B)(4) authorizes the consideration of " recorded matters," including records from the prior criminal trial that resulted in the challenged conviction. Code § 8.01-657 permits the habeas court to take evidence of " unrecorded matters of fact relating to any previous judicial proceeding," which would include ore tenus testimony presented at an evidentiary hearing. Finally, Code § 8.01-660 grants the habeas court discretion to consider " affidavits of witnesses" as substantive evidence.
The first question a habeas court must ask is whether the petition can be " fully determined on the basis of recorded matters." Shaikh v. Johnson, 276 Va. 537, 549, 666 S.E.2d 325, 331 (2008) (quoting Code § 8.01-654(B)(4)). This is because the " decision whether to hold an evidentiary hearing in a habeas corpus proceeding depends chiefly on the adequacy of the trial record." Friedline v. Commonwealth, 265 Va. 273, 277, 576 S.E.2d 491, 493 (2003). " Because each trial record is different," however, " such determinations are ...