IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2017 Term _____________ FILED November 1, 2017 released at 3:00 p.m. No. 16-1069 EDYTHE NASH GAISER, CLERK _____________ SUPREME COURT OF APPEALS OF WEST VIRGINIA STATE OF WEST VIRGINIA, Respondent V. ORVILLE M. HUTTON, Petitioner ____________________________________________________________________ Appeal from the Circuit Court of Harrison County Honorable James A. Matish, Judge Criminal Action No. 13-P-119 REVERSED AND REMANDED ____________________________________________________________________ Submitted: October 18, 2014 Filed: November 1, 2017 Wiley W. Newbold Patrick Morrisey Morgantown, West Virginia Attorney General Attorney for Petitioner Elbert Lin Solicitor General Thomas M. Johnson, Jr. Deputy Assistant Attorney General Gilbert Dickey Assistant Attorney General Zachary Viglianco Assistant Attorney General Charleston, West Virginia Attorneys for Respondent JUSTICE DAVIS delivered the Opinion of the Court. CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion. JUSTICE WALKER dissents and reserves the right to file a dissenting opinion. SYLLABUS BY THE COURT 1. “Under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the Sixth Amendment requires defense counsel to warn an immigrant client of the deportation consequences of a guilty plea. When the deportation consequence is succinct, clear, and explicit under the applicable law, counsel must provide correct advice to the client. When the law is not succinct or straightforward, counsel is required only to advise the client that the criminal charges may carry a risk of adverse immigration consequences.” Syllabus point 4, State v. Hutton, 235 W. Va. 724, 776 S.E.2d 621 (2015). 2. “A claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) there exists a substantial adverse consequence from the conviction; and (4) the error presents a denial of a fundamental constitutional right.” Syllabus point 5, State v. Hutton, 235 W. Va. 724, 776 S.E.2d 621 (2015). 3. “In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, i but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). ii Davis, Justice: Petitioner, Orville M. Hutton (“Mr. Hutton”), appeals from an order of the Circuit Court of Harrison County that denied him relief in his petition for a writ of error coram nobis. In this appeal, Mr. Hutton contends that he satisfied the four-part test for coram nobis relief.1 After carefully reviewing the briefs, the arguments of the parties, the legal authority cited, and the record presented for consideration, we reverse and remand for further proceedings consistent ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals