In 2020 and 2021, the Virginia legislature passed a series of new laws which made it easier to defend certain cases. In many instances, attorneys have failed to tell their clients about these laws, resulting in many convictions where defendants did not know about the changes. The failure to advise regarding these new laws may be unconstitutional and may allow you to reopen your case if certain conditions are met.
Virginia Code § 8.01-654 allows a convicted defendant to file a petition for habeas corpus, which allows them to request that a court vacate their conviction. It is not part of the criminal case but is instead a civil petition challenging the conviction. In these petitions, the burden is on the Petitioner to prove his conviction was illegally imposed, such as a result of a court’s error or because they received “ineffective assistance” from their attorney.
A petition for habeas corpus must be filed either within two years of the date of the sentencing, or one year from the date that the appellate process had concluded, whichever is later. It applies to both guilty pleas and verdicts after trial.
The petition must be filed in the court which entered the original conviction. If there is a credible allegation that an attorney failed to adequately advise the defendant about new laws, or to make use of these laws prior to a guilty plea, trial, or sentencing, then an evidentiary hearing may be held to assess the likely impact of the failure to properly advise the defendant.
Important new laws which have been recently passed include, but are not limited to:
- Code Section 19.2-392.12: Allows a court to seal most misdemeanor convictions after 7 years, and felony convictions after 10 years, where the offense of conviction is no greater than a class 5 felony, which carries a sentencing range of no more than 10 years imprisonment. If you were convicted of a felony greater than a class 5 felony, and your attorney failed to advise you of this change and/or negotiate a plea to a class 5 felony, you may have a potential claim for habeas relief.
- Code Section 19.2-303.6: Allows a court to defer and dismiss a case where there is a diagnosis or autism or intellectual disability, and those disabilities were substantially related to the offense conduct. If you have such a disability and your attorney failed to present this defense to you, the prosecution, or the court, you may have a potential claim for habeas relief.
If you have a Virginia conviction which occurred within the relevant timeframes listed above and, believe that your attorney failed to apprise you of, or make use of, the newly passed laws, an attorney may be able to help you overturn your conviction.
Our criminal defense lawyers in Virginia have helped dozens of people successfully resolve serious criminal cases in federal and state courts throughout the Commonwealth. Page Pate, Jess Johnson, and Cary Citronberg are licensed Virginia criminal defense lawyers and have decades of experience in serious criminal cases. Contact us in Alexandria VA or Washington DC to see if we can help.
