THE CIRCUIT COURT OF FAIRFAX COUNTY Jane Marum Roush, Judge.
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Lacy, S.J.
ELIZABETH LACY SENIOR JUSTICE
appeal, the Director of the Virginia Department of
Corrections asks us to reverse the judgment of the habeas
court granting a petition for a writ of habeas corpus because
a decision by Daniel Galdamez to reject a plea agreement and
proceed to trial could not be rational as a matter of law
and, therefore, Galdamez could not satisfy the prejudice
prong of Strickland v. Washington, 466 U.S. 668
August 2013, while driving his vehicle out of a parking lot
onto a multi-lane public roadway, Daniel Galdamez failed to
yield to traffic traveling in the northbound lanes. The front
of his vehicle struck the right side of the victim's
vehicle, causing it to "veer to the left, cross over [a]
concrete median[, ] and enter [the southbound] lanes."
The impact occurred at a right angle, with Galdamez traveling
west and the victim traveling north. The police report showed
that the collision caused an estimated $4, 000 in damage to
the front of Galdamez's vehicle and $2, 000 in damage to
the right side of the victim's vehicle. Galdamez did not
stop. He returned to the scene of the accident before the
was charged with felony hit and run, a Class 5 felony with a
maximum sentence of 10 years' imprisonment, Code
§§ 18.2-10(e), 46.2-894, and driving while
intoxicated ("DWI"), Code §18.2-266.
a native of El Salvador, told his attorney that his priority
was not to lose his immigration status in the United States.
Galdamez's attorney negotiated a plea agreement with the
prosecutor that involved reducing the felony hit-and-run
charge to a misdemeanor hit-and-run charge, a Class 1
misdemeanor with a maximum sentence of 12 months in jail,
Code §§ 18.2-11(a), 46.2-894. The plea agreement
included a stipulated sentence of 180 days of incarceration
with 170 days suspended on the hit and run conviction and 90
days, suspended, on the DWI conviction. Galdamez accepted the
plea agreement and did not appeal.
December 2013, the United States Department of Homeland
Security notified Galdamez that his Temporary Protected
Status ("TPS") would be revoked as a result of his
criminal convictions. Under federal immigration regulations,
a noncitizen forfeits his TPS after a conviction of either
one or more felonies or two or more misdemeanors.
See 8 C.F.R. §§ 244.14(a)(1), 244.4(a).
instituted this proceeding by filing a petition for a writ of
habeas corpus asking for an evidentiary hearing. He alleged
that his prior counsel had given him erroneous advice about
the effect of his plea agreement on his immigration status
and, had he been given accurate information, he would have
rejected the plea agreement and gone to trial on the felony
hit and run and DWI charges. In addition, he alleged that he
had defenses he had discussed with counsel, such as returning
to the scene of the accident.
affidavit, Galdamez stated a number of reasons why remaining
in this country was his priority, including that he is
married and has a young child who is a citizen of the United
States and for whom he is the sole financial support, all his
extended family lives in the United States and, if deported,
he would have no place to stay, no family to assist him, few
financial opportunities and be subject to the rampant gang
crime existing in El Salvador. Galdamez also stated in his
affidavit that he spoke with his trial counsel regarding his
defenses to the charges "including the fact that he
never intended not to stop" and that he was present at
the scene of the accident when the police arrived there.
Director moved to dismiss the petition, arguing that Galdamez
had "no viable defenses" to the hit and run charge
because he fled from the scene. Therefore, the Director
concluded, it would have been irrational for Galdamez to
proceed to trial knowing he certainly would face the same
immigration consequences and a longer prison term than if he
accepted the plea agreement.
habeas court entered an order granting Galdamez an
evidentiary hearing and denying the Director's motion for
reconsideration. In its opinion letter granting the
evidentiary hearing, the habeas court determined that if
Galdamez's allegations regarding his counsel's
erroneous advice were true, the performance prong of
Strickland would be satisfied. The habeas court also
concluded that Galdamez stated a colorable claim of prejudice
under Strickland based on his desire to protect his
immigration status and, although he "initially fled the
scene of the accident, " Galdamez alleged "a viable
defense" to the hit and run charge and "[i]t is
possible that the fact finder, under the totality of the
circumstances, would have acquitted Mr. Galdamez of the hit
and run charge."
evidence produced at the evidentiary hearing established that
Galdamez had been in this country for 15 years. He had TPS,
which allowed him to legally work in this country, enroll in
Social Security, and obtain a driver's license and
medical insurance. He had maintained a full-time job as a
painter for six years and had no other criminal record.
testified that he did not know he was in an accident until he
arrived at his destination, that when he "got out of the
car" he realized he had hit something, that he
"return[ed] immediately after" he realized that his
car had been damaged, that he was gone from the scene for
approximately 12 to 15 minutes and returned to the scene
before the police arrived.
testified that he wanted to protect his immigration status
and remain in the United States because his wife and young
daughter are here, that he is the sole financial support for
his daughter, all his extended family is in the United
States, that he would have no financial opportunities in El
Salvador and he did not want to return to El Salvador because
of the gangs and corruption and he feared for his safety. He
also testified, consistent with his allegations, that he told
his prior counsel that his "priority was not to lose his
TPS status" and "to stay with his daughter and
family" and that his prior counsel had advised him that
his immigration status would not be adversely affected should
Galdamez accept the plea agreement.
habeas court found Galdamez to be credible and ruled that his
prior attorney had given Galdamez erroneous advice regarding
the plea agreement's impact on Galdamez's immigration
status and that, had Galdamez been properly advised, he would
have rejected the plea agreement and gone to trial. The
habeas court also stated that it was "possible that the
fact finder, under the totality of the circumstances, would
have acquitted Mr. Galdamez of the hit and run charge."
The habeas court concluded that if Galdamez had been properly
advised, his decision to reject the plea agreement and go to
trial would have been a rational decision, thereby satisfying
the performance and prejudice prongs of Strickland.
The habeas court granted the writ and vacated Galdamez's
convictions, and remanded the case for further proceedings.
Director filed this appeal in which he challenges only the
habeas court's holding that Galdamez satisfied the
prejudice prong of Strickland.
satisfy Strickland's prejudice prong in
circumstances involving counsel's deficient performance
in conjunction with plea agreements, a defendant must show a
reasonable probability that but for counsel's erroneous
advice, the defendant would have rejected the plea agreement
and proceeded to trial and that such a choice would be
rational under the circumstances. Hill v. Lockhart,
474 U.S. 52, 57 (1985). In extending the Sixth Amendment
protection of effective assistance of counsel to instances in
which the plea agreement could impact a noncitizen's
immigration status including possible deportation, the United
States Supreme Court remarked that maintaining one's
right to remain in this country "may be more important
to the client than any potential jail sentence."
Padilla v. Kentucky, 559 U.S. 356, 368 (2010);
see also Zemene v. Clarke, 289 Va. 303, 768 S.E.2d
684 (2015). Thus in such cases, the significance of the
immigration consequences of a plea agreement to the defendant
is a legitimate part of the circumstances to be considered in
the prejudice analysis, particularly whether the decision to
reject a proposed plea agreement and proceed to trial is
Director contends that Code § 46.2-894, the hit and run
statute, is violated if the driver involved in an accident
resulting in property damage does not "immediately"
stop at the scene of the accident. Because Galdamez admits he
did not "immediately" stop at the scene of the
accident, "as a matter of law, [Galdamez] would have
been convicted had he gone to trial." Therefore, the
Director contends a decision to reject the plea agreement
could not, under these circumstances, be rational as a matter
of law and, therefore, the habeas court erred in finding that
Galdamez satisfied the prejudice prong of
Strickland. We disagree.
evidence before the habeas court, including the testimony of
Galdamez, demonstrates that there were a number of factual
issues that could have been contested or tested had the case
gone to trial.[*] As the Director acknowledges in his
brief to this Court, the hit and run statute has four
elements, each of which must be established by the
Commonwealth beyond a reasonable doubt to secure a
conviction. To convict a defendant of a violation of that
statute the jury or fact-finder must find: (1) that the
defendant was the driver of a vehicle that he knew was
involved in an accident; and (2) that the accident caused
property damage or bodily injury; and (3) that the defendant
knew or should have known that property was damaged by the
accident; and (4) that the defendant failed to do
any of the following: (a) stop immediately, (b) render
reasonably necessary assistance, or (c) report his
identification information to law enforcement or the other
person involved in the accident. Payne v.
Commonwealth, 277 Va. 531, 544-45, 674 S.E.2d 835, 842
(2009); Herchenbach v. Commonwealth, 185 Va. 217,
220, 38 S.E.2d 328, 329 (1946); Johnson v.
Commonwealth, 14 Va.App. 769, 772, 418 S.E.2d 729, 731
(1992); Dawson v. Commonwealth, Record No.
0220-11-4, 2011 Va.App. LEXIS 413, at *10-12 (December 28,
2011)(unpublished); Jones v. Commonwealth, Record
No. 0863-97-2, 1998 Va.App. LEXIS 674, at *14-15 (December
22, 1998) (unpublished). In Herchenbach, we held
[k]nowledge necessarily is an essential element of the crime
. . . . [I]n order to be guilty of violating the statute,
"the driver must be aware that harm has been done; it
must be present in his mind that there has been an injury;
and then, with that in his mind, he must deliberately go away
without making himself known."
Id. at 220, 38 S.E.2d at 329. In that case, the
defendant, a bus driver, was convicted of violating the hit
and run statute under former Code § 2154(104) (now Code
§ 46.2-894). A person lying next to a motorbike with a
flat tire with his body extended into the roadway was run
over by a bus the defendant was driving. The defendant did
not stop, but continued his route, discharged his passengers,
returned the bus to the station and went home. An
investigation led the police to the bus station where they
discovered hair and blood on the bus tire, which led to a
warrant for the bus driver's arrest that the police
executed at the driver's home several hours after the
accident occurred. Herchenbach appealed his conviction and
argued to this Court that the Commonwealth failed to prove
that he knew his bus had been involved in an accident. This
Court held that the conceded facts, that the body was lying
in the roadway and testimony of witnesses that the bus drove
over the person's head were "not sufficient to
establish one essential element of the offense, to-wit, that
the accused knew his bus had struck [the] decedent."
Id. at 221, 38 S.E.2d at 330. The conviction was
reversed. See also Tooke v. Commonwealth, 47 Va.App.
759, 766-67, 627 S.E.2d 533, 536-37 (2006) (holding actual
knowledge is an element of the hit and run crime); Gormus
v. Commonwealth, Record No. 0982-99-3, 2000 Va.App.
LEXIS 317, at *13-14 (May 2, 2000) (unpublished) (same).
in his affidavit, his testimony at the evidentiary hearing,
and his counsel's argument before this Court, contended
that Galdamez did not know that he was in an accident until
he arrived at his destination. In his affidavit Galdamez
stated he "never had the intent to fail to stop."
At trial he testified that when he arrived at his
friend's house and "got out of the car, [he]
realized that well, I [had] to [have] hit something. It had
[to have] been something more serious than I thought and I
returned immediately to the scene" and that he returned
"immediately after [he] realized that [his] car had been
damaged." The schematic of the incident as reflected on
the police report in the record shows that Galdamez proceeded
with a left turn and the other vehicle proceeded in the
opposite direction, which could have made it possible that
Galdamez did not see the path of the other car. There is
evidence to support the conclusion that whether Galdamez
"knew or should have known" that he was involved in
an accident was an issue of fact to be resolved by the
fact-finder at trial -- an opportunity Galdamez was denied.
the dollar amount of damage to the vehicles was the estimate
of the police officer. There were no photographs of the
vehicles and no opportunity to test the actual extent and
cost of the damage inflicted. The estimates of damage,
although in the thousands of dollars, are not conclusive
regarding the damage that resulted. It is possible, given the
expense of car repairs generally, that the damage was not
particularly extensive, despite the estimated costs of car
repairs. The police officer's estimated damage amount is
insufficient in this context to decide, as a matter of law,
that the damage was significant enough to demonstrate that
Galdamez's testimony that he was not aware of the
incident until he exited the car was inherently incredible.
At trial, that would be a fact issue for the fact-finder to
not dispute that the hit and run statute requires a defendant
to stop "immediately." However, that requirement is
predicated on the defendant knowing he was involved
in an accident that he knew or should have known
involved personal injury or property damage. Galdamez's
concession that he did not stop "immediately" at
the scene of the accident but proceeded to a friend's
house before he returned to the scene, is not a concession
that he knew he was in an accident causing personal injury or
property damage. The Director's contention that Galdamez
had no legally viable defense to the hit and run charge
because he did not stop "immediately" at the scene
is based on a limited slice of evidence and ignores the
elements of proof that the Commonwealth would have to prove
at trial under the statute as well as Herchenbach
and its progeny.
as here, there has been an evidentiary hearing in a habeas
corpus case, the habeas court's factual findings are
entitled to deference and are binding on this Court unless
those findings are plainly wrong or without evidence to
support them. Velasquez-Lopez v. Clarke, 290 Va.
443, 448, 778 S.E.2d 504, 507 (2015). The habeas court's
findings and conclusions are subject to review to determine
whether the court correctly applied the law to the facts.
Dominguez v. Pruett, 287 Va. 434, 440, 756 S.E.2d
911, 914 (2014) (quoting Hash v. Director,
Dep't of Corr., 278 Va. 664, 672, 686 S.E.2d
208, 212 (2009)); See Curo v. Becker, 254 Va. 486,
489, 493 S.E.2d 368, 369 (1997). According to
well-established Virginia precedent, an appellate court will
affirm a trial court's judgment unless it appears from
the evidence that the judgment is plainly wrong or without
evidence to support it. Cardinal Dev. Co. v. Stanley
Constr. Co., 255 Va. 300, 302, 497 S.E.2d 847, 849
(1998); Code § 8.01-680.
habeas court concluded the evidence supported Galdamez's
contention that had he been properly advised, he would have
rejected the plea agreement and gone to trial, and that the
decision to do so was rational in light of all the
circumstances. Our review of the record demonstrates that it
supports those findings: Galdamez demonstrated that he had a
strong desire to and a basis for wishing to maintain his
immigration status and remain in this country, a position he
conveyed to his prior attorney prior to accepting the plea
agreement. His evidence supported a finding that, if properly
advised, Galdamez would have rejected the plea agreement and
proceeded to trial. The evidence further supported a finding
that a fact-finder could have found him not guilty of the hit
and run offense. The record therefore supports the judgment
of the trial court that a decision by Galdamez to reject the
plea agreement and proceed to trial would have been a
rational decision. The judgment of the habeas court is not
plainly wrong or without evidence to support it.
the judgment of the habeas court is affirmed.
JUSTICE KELSEY, with whom CHIEF JUSTICE LEMONS and JUSTICE
McCLANAHAN join, dissenting.
Galdamez, a drunk driver, T-boned the victim's vehicle
and caused it to veer to the left, cross over a concrete
median, and enter lanes of oncoming traffic. The wreck
produced an estimated $4, 000 in damages to his vehicle and
$2, 000 in damages to the victim's vehicle. Instead of
stopping to see if the victim was injured, Galdamez fled the
scene of the accident and drove to a friend's house
where, by his own testimony, he consumed alcohol. About
fifteen minutes later, his friend drove him back ...