Bowles v. Nance

374 S.E.2d 19, 236 Va. 310, 5 Va. Law Rep. 915, 1988 Va. LEXIS 144
CourtSupreme Court of Virginia
DecidedNovember 18, 1988
DocketRecord No. 870703
StatusPublished
Cited by3 cases

This text of 374 S.E.2d 19 (Bowles v. Nance) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowles v. Nance, 374 S.E.2d 19, 236 Va. 310, 5 Va. Law Rep. 915, 1988 Va. LEXIS 144 (Va. 1988).

Opinion

POFF, J.,

delivered the opinion of the Court.

In this appeal from a judgment denying a petition for a writ of habeas corpus, we consider whether the defendant was denied effective assistance of counsel when his trial attorney advised him to plead guilty.

On November 23, 1983, Kevin Mark Bowles pled guilty to a charge of grand larceny, and the trial judge convicted him of the felony. In a sentencing hearing conducted January 10, 1984, the court “suspend [ed] the imposition of sentence in this case during . . . good behavior.” Alleging that he had a bona fide “claim-of-right” defense to the charge and that his attorney had been guilty of unprofessional error in advising him to enter a guilty plea, Bowles filed a petition for a writ of habeas corpus.

At a plenary hearing, Bowles testified that he was a self-employed house painter and a part-time college student. He owned a small garage building in which he allowed individuals to store their personal effects for a monthly fee. Laura Hurst agreed to [312]*312pay him $75 to pick up and deliver her belongings to his garage and to pay him $15 a month for storage.

According to Bowles, Hurst paid him the first month’s fee “up front” but nothing for the transportation service. Receiving no further payments from her for two months, Bowles took two antique dolls belonging to Hurst and sold them to an antique shop for $200. Some time later, he also removed a number of the violins Hurst had stored in his garage.

Hurst obtained a civil judgment awarding her damages against Bowles in the sum of $1900 and pressed criminal charges against him. Bowles hired an attorney, discharged him, and employed new counsel to defend him against the grand larceny indictment. Bowles claimed that, in addition to the unpaid storage and transportation charges, Hurst had become indebted to him because she had left the garage door open and someone had stolen $600 worth of his tools. He insisted that he had told his new attorney that Hurst had given him express permission to sell her property to pay her arrearages and that he acted under the belief that he had a legal right to do so. Bowles testified that his attorney advised him to plead guilty because “it may be dangerous to put this thing in front of a jury, that I might get time for it.” Bowles said that he had accepted his lawyer’s advice because “I felt if I pled guilty, one way or another, I would be able to get a pardon or the whole thing would be erased off my record at some time”.

Other evidence adduced at the plenary hearing and summarized later in this opinion contradicted Bowles’ testimony. Commenting upon that evidence, the habeas court found an “absence of a bona fide claim of right” and a lack of “proof of ineffective counsel”. The court dismissed the petition, and we awarded the defendant an appeal.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness”, id. at 688, and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”, id. at 694. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.

[313]*313The Strickland test, applied by this Court in Va. Dept. of Corrections v. Clark, 227 Va. 525, 318 S.E.2d 399 (1984),

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Related

Lewis v. WARDEN OF FLUVANNA
645 S.E.2d 492 (Supreme Court of Virginia, 2007)
Galen L. Burkholder v. Commonwealth of Virginia
Court of Appeals of Virginia, 2001
Hameed v. Commonwealth
28 Va. Cir. 129 (Fairfax County Circuit Court, 1992)

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Bluebook (online)
374 S.E.2d 19, 236 Va. 310, 5 Va. Law Rep. 915, 1988 Va. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowles-v-nance-va-1988.