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Clarke v. Galdamez

Supreme Court of Virginia

June 9, 2016

HAROLD CLARKE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS
v.
DANIEL GALDAMEZ

         FROM 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.

          OPINION

          ELIZABETH LACY SENIOR JUSTICE

         In this 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 (1984).

         BACKGROUND

         In 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 police arrived.

         Galdamez 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.

         Galdamez, 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.

         In 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).

         HABEAS CORPUS PROCEEDING

         Galdamez 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.

         In his 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.

         The 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.

         The 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."

         The 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.

         Galdamez 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.

         Galdamez 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.

         The 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.

         The Director filed this appeal in which he challenges only the habeas court's holding that Galdamez satisfied the prejudice prong of Strickland.

         ANALYSIS

         To 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 rational.

         The 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.

         The 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 that

[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).

         Galdamez, 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.

         Similarly, 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 determine.

         We do 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.

         Where, 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.

         The 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.

         Accordingly, the judgment of the habeas court is affirmed.

          JUSTICE KELSEY, with whom CHIEF JUSTICE LEMONS and JUSTICE McCLANAHAN join, dissenting.

         Daniel 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 ...


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