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Walker v. Forbes

Supreme Court of Virginia

September 8, 2016



         PRESENT: All the Justices



         In this appeal, we consider whether the circuit court erred in ruling that a defendant has a federal constitutional right to counsel in a probation revocation hearing.


         On January 24, 2001, Christopher Forbes (Forbes) entered a guilty plea in the Circuit Court of Fairfax County to petit larceny as a third offense. On June 2, 2001, he was sentenced to four years' imprisonment, with two years and ten months suspended, and probation upon his release. On February 14, 2005, after his release and while still on probation for the petit larceny as a third offense conviction, Forbes pled guilty to robbery and abduction, and on May 5, 2005, he was sentenced to 15 and 20 years' imprisonment for those respective convictions, with 10 years suspended on each count, and five years' probation upon his release.

         Because the new convictions constituted a violation of Forbes' probation on the 2001 petit larceny as a third offense conviction, the circuit court issued a warrant and, while Forbes was still incarcerated on the robbery and abduction convictions, held a probation revocation hearing.[1] At that hearing, Forbes did not deny that he had committed new crimes while on probation. However, he asked for a less severe punishment than the one year recommended by the Commonwealth. The circuit court found Forbes in violation of the terms of his probation on the 2001 petit larceny conviction, and ordered that Forbes serve nine months of his suspended sentence. It entered an order to that effect on December 13, 2013.

         On December 30, 2013, Forbes wrote to his appointed counsel claiming that the circuit court had lacked an indictment for the 2001 petit larceny charge, and requesting that counsel either appeal the re-imposed nine-month sentence, or inform Forbes in writing why no appeal was necessary. Counsel responded in a January 3, 2014 letter that included a copy of the 2001 indictment, stating that "frankly, there is no legal basis to pursue on appeal" because "during the plea colloquy you informed the court that you had received a copy of the indictment before being called on to plea, " and he directed Forbes to hire a new attorney if he still wished to appeal. Forbes did not respond.

         On October 31, 2014, Forbes filed a petition for a writ of habeas corpus in the circuit court, alleging "a 'manifest injustice' occurred and that he was prejudiced as a result of counsels [sic] ineffective assistance in violation of the Constitution, " citing the Sixth and Fourteenth Amendments to the Constitution of the United States. He argued that counsel was ineffective in failing to inform the court that it lacked jurisdiction for want of an indictment, in failing to present Forbes with information concerning that jurisdictional ground for a direct appeal, and in "refus[ing] to file an appeal after his client made known his desire to do so."

         The Warden of the Lunenburg Correctional Center responded by moving to dismiss the petition. In the motion to dismiss, the Warden relied on Gagnon v. Scarpelli, 411 U.S. 778, 787-89 (1973), in which the United States Supreme Court held that there is no per se constitutional right to counsel at a probation revocation proceeding, to argue that, because Forbes was not constitutionally entitled to counsel at the revocation hearing, he was not entitled to effective assistance of counsel on appeal.

         By letter opinion on July 22, 2015, the habeas court denied the Warden's motion to dismiss and granted Forbes a delayed appeal to the Court of Appeals of Virginia. The habeas court stated that Gagnon did not say that counsel was never required at probation revocation hearings, but rather that "the decision as to the need of counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with the responsibility for administering the probation and parole system." (quoting Gagnon, 411 U.S. at 790). The habeas court then distinguished Gagnon-in which the Supreme Court determined that no counsel was constitutionally required-from this case on the ground that the revocation proceeding in Gagnon resembled a parole revocation hearing in Virginia, whereas Forbes' probation revocation "very much resembled a criminal trial."

         The habeas court then stated that, in Virginia, the authority charged with determining when counsel is needed is the General Assembly, which has enacted Code §§ 19.2-157 and -158, requiring the court to inform probationers facing revocation of their right to counsel. Thus, it concluded that Virginia defendants have a statutory right to counsel during probation revocation hearings and appeals. The habeas court concluded by ruling that counsel's performance was deficient because he failed to file the requested appeal, and granted Forbes leave to file an appeal.

         The Warden moved for reconsideration, arguing that Virginia's statutory appointment of counsel at probation revocation hearings does not create a constitutional right to counsel or to the effective assistance of counsel, and asked the habeas court to find that although Forbes had a statutory right to counsel at the revocation hearing, he did not have a constitutional right to effective assistance of counsel at the hearing or on appeal. He continued that Forbes' hearing did not give rise to a constitutional due process right to counsel under Gagnon because it was "routine." The habeas court denied the motion for reconsideration, and this Court granted the Warden's appeal on the following assignment of error:

The habeas court erred in ruling that Forbes was denied the effective assistance of counsel in appealing the revocation ...

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