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Hernandez v. Commonwealth

Court of Appeals of Virginia

December 6, 2016

FRANCISCO HERNANDEZ, S/K/A FRANCISCO ALBERTO HERNANDEZ
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge

          Charles E. Haden for appellant.

          Stephen L. Forster, Assistant Attorney General (Mark R Herring, Attorney General; Kathleen B. Martin, * Assistant Attorney General, on brief) for appellee.

          Present: Judges Chafin, Malveaux and Senior Judge Frank Argued at Norfolk, Virginia

          OPINION

          ROBERT P. FRANK, JUDGE

         Francisco Hernandez, appellant, appeals his convictions of breaking and entering, two counts of attempted robbery, four counts of use of a firearm in the commission of felonies, and abduction. Appellant contends the trial court abused its discretion by denying his motion to withdraw his guilty pleas prior to sentencing. We find that the trial court erred by denying the motion because appellant's counsel misadvised her client concerning a valid insanity defense. For the reasons that follow, we reverse the judgment of the trial court.

         Background

         This case originated as three separate proceedings in the lower courts: (1) a probation violation to revoke a suspended sentence imposed in a prior grand larceny conviction; (2) multiple felony charges with an offense date of May 28, 2011; and (3) a felony charge of assault and battery of a law enforcement officer with an offense date in July 2011. The trial court eventually consolidated the new May and July 2011 charges that are the subject of this appeal.

         In May 2011, appellant was released from incarceration, having served the active term of imprisonment for the prior grand larceny conviction. Within approximately a week of his release from incarceration, appellant allegedly committed new offenses. Appellant was indicted for breaking and entering, conspiracy to commit robbery, three counts of attempted robbery, malicious wounding, two counts of abduction, and seven counts of using a firearm in the commission of those felonies, all occurring on May 28, 2011. While in jail on those charges, appellant was charged with assaulting a law enforcement officer on July 13, 2011. The general district court ordered a mental health evaluation to determine appellant's competency to stand trial and sanity at the time of the July 2011 offense. Dr. Earle H. Williams, II, a clinical psychologist, examined appellant on August 30, 2011 and concluded appellant was not competent to stand trial because of his inability to understand issues relating to courtroom and trial personnel, procedures, and concepts. He made no findings of sanity or insanity. Appellant was transferred to Central State Hospital and restored to competency in October 2011. Dr. Williams later determined appellant was legally insane at the time of the July 2011 offense.

         When appellant was released from incarceration on the prior grand larceny charge, he failed to report to the probation office, prompting his probation officer to seek a probation violation. At a January 17, 2012 revocation hearing, the trial court granted appellant's motion to evaluate his sanity at the time of the probation violation.[1] Dr. Williams issued a report on February 13, 2012 in which he concluded appellant was sane at the time of the May 2011 offenses.[2] This report contained the case number for the probation violation, but discussed the May 2011 offenses. The report notes that one of the "sources of data" Dr. Williams used was a packet of information from the Commonwealth's Attorney containing the warrants for the May 2011 offenses.

         At a January 23, 2012 hearing on the May 2011 charges, the trial court granted appellant's motion to evaluate appellant's sanity at the time of the May 2011 offenses. Dr. Williams prepared a new report, dated March 19, 2012, and concluded appellant was insane during the time period alleged in the probation violation, May 24, 2011 - May 30, 2011, which encompassed May 28, 2011, the date of the new felony offenses. Dr. Williams did not mention his report of February 13, 2012, which was inconsistent with the new report. In the March 19, 2012 report, Dr. Williams concluded the following:

Given these facts it is possible that Mr. Hernandez was psychotic during the first week of his release from jail. The nature of his disorder is such that his reality testing abilities were compromised. It appears that he did not have the ability to tell right from wrong nor the capacity to understand the nature, character or consequences of his behavior at the time of his alleged offense. This is a case where he had considerable difficulty confining his actions to the limit of the law. Because of his assumed psychotic episode the requirements for an insanity defense are met. Mr. Francisco Hernandez was insane at the time of the alleged offense of probation violation.

         On May 18, 2012, appellant pled guilty to eight of the charges arising from the May 28, 2011 offenses and the charge of assault on a law enforcement officer. On July 18, 2012 appellant filed a pro se motion to withdraw his guilty pleas, alleging poor communication with counsel and counsel's failure to provide him with "paper work." On November 9, 2012, new counsel, Nikeva S. Bailey, filed a motion to withdraw appellant's guilty pleas, noting the inconsistencies in Dr. Williams' report of February 13, 2012 (sane) and his report of March 19, 2012 (insane) and citing excerpts from each report. Bailey argued that in light of the March 19, 2012 finding of insanity, appellant did not make a voluntary or informed decision as to his pleas. Based on the conflicting reports, finding appellant both sane and insane, during the same time period in May 2011, the Commonwealth agreed to, and the trial court granted, the motion to withdraw the guilty pleas. At the hearing on the motion, appellant made a motion for a new psychological evaluation and concurred in the Commonwealth's request for the evaluation to be performed by a different doctor. The trial court appointed Dr. William L. Pappadake, a clinical psychologist, to conduct a new evaluation. Dr. Pappadake found appellant competent to stand trial and sane at the time of the offenses.[3]

         On June 11, 2013, approximately four months after the trial court granted appellant's motion to withdraw his first guilty pleas, appellant entered pleas of guilt, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to breaking and entering, two counts of attempted robbery, four counts of use of a firearm in the commission of felonies, and abduction.[4] The trial court found that appellant's pleas were "knowingly, freely, and intelligently made."

         On November 1, 2013, appellant appeared in the trial court, the cases having been set for hearings on the probation revocation and sentencing for the May 2011 charges. Appellant advised the trial court he wanted to plead not guilty by reason of insanity for the May 2011 offenses and the probation revocation proceeding. On December 20, 2013, Bailey filed a written "Motion for Judgment of Acquittal by Reason of Insanity or New Trial."

         In support of appellant's motions, Bailey notified the trial court she noticed errors in Dr. Williams' reports while preparing for the probation violation proceeding. She determined the reports and the trial court's orders for evaluation did not coincide and that the reports contained incorrect case numbers. Based on when the trial court issued orders for evaluation, Bailey opined that the first report -- finding appellant was sane -- should have been for the probation violation and that the second report -- finding appellant was insane -- should have been for the robbery related charges. She asserted that these were substantial errors that caused her to believe appellant could not present an insanity defense for the substantive charges.[5] Bailey represented that she misadvised appellant that he could not rely on the previous reports and that Dr. Pappadake's finding of sanity "trumped" Dr. Williams' findings. She claimed she thought appellant was "statutorily barred" from presenting the insanity defense because both doctors found appellant was sane for the May 2011 offenses. She claimed that it was not until she noted the errors in Dr. Williams' reports that she realized appellant could have had a valid insanity defense.

         On September 10, 2014, the trial court conducted a hearing wherein Dr. Williams and Dr. Pappadake testified. Dr. Williams explained the February 2012 and March 2012 reports differed in opinion because, subsequent to his February report, he obtained additional information concerning appellant's medication. That information caused him to then believe appellant was insane during the relevant time period encompassing the probation violation and the May 2011 ...


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