Three More Opinions for the Court of Appeals (sort of) – Three more Affirmances (mostly)

William R. Winters v. Cleome J. Winters, is, as the case suggests, a domestic relations case, but what it actually involves is the violation of a court order to seal part of the record.  The part of the record at issues was a psychological report ordered by the circuit court to assist in in determining the best interest of the couples three children with respect to custody.  After the father disclosed the contents of the sealed report, the circuit court imposed as a sanction the dismissal of the case, which as is typical in such situations was an appeal de novo from the Juvenile & Domestic Relations District Court.  Additionally, the court imposed substantial attorney’s fees against the father in favor of the mother and also denied a motion to have the expert “recused and dismissed,” which the court found to be part and parcel with his original improper action in disclosing the report – in effect he wanted the expert recused because his opinion would be tainted by father’s action.

Let’s start with the part of this case that makes the headline accurate in stating that the three opinions today are “Affirmances (mostly).”  The Court of Appeals held that the dismissal of the de novo appeal was unduly harsh and remands for the circuit court to determine a “a more measured sanction.”  The Court upholds that award of attorney’s fees and further rules that the circuit court did not err in refusing to consider the motion to recuse the expert.

A further interesting tidbit is that the father had remarried, and his current wife was the party to whom the report was disclosed, and he attempted to claim that the disclosure to her was proper because she was an “expert” herself.  Alas, her alleged expertise was 1) not disclosed to the court prior to the improper publication of the sealed report, and 2) not remotely relevant to the issue at hand, thus ruling our any possibility that she would have been approved as an expert.  Additionally, the stepmother wrote a 13-page letter to the real expert which was, shall we say, less than complimentary.

Oh, and the Court makes the point that father was self-represented the whole time, though he acquired counsel for the appeal.

Nicholas DeLuca, s/k/a Nicholas Tyler DeLuca v. Commonwealth of Virginia involves consolidated appeals – but the Court’s explanation in a footnote says that the appeals were the result of two separate notices of appeal being filed in the same proceeding.  My guess is that the attorney who filed the appeals didn’t realize that he could file a consolidated brief.  Anyway, that’s why the post says that the Court issued “three opinions (sort of),” DeLuca’s is a two-fer because of the way it was filed, but really, it’s just one opinion.

DeLuca was indicted on six counts of taking indecent liberties with a child with whom he had a custodial or supervisory relationship.  He agreed to enter a plea and matters proceeding as they normally would in such instances, with the Commonwealth indicating that the sexual abuse of the victim had begin when the victim was 13 years of age.  DeLuca was subsequently hired by the victim’s parents to tutor the victim and assist him with online studies and exams and the abuse continued during this time.

Then, while the pre-sentence report and psychological evaluation were being prepared, DeLuca had a change of heart.  He alleged that we had not understood that by accepting the plea he would be classified as sex offender and be required to register as such for life.  This resulted in a hearing that, excepting the seriousness of the charges, would have been comical.

DeLuca testified concerning his alleged misunderstanding of the requirement that he register as a sex offender, saying that he had been improperly advised by both his current counsel and two prior counsel (remember this fact), and that he and members of his family had researched the issue as well, leading him to believe that he would be required to register only for ten years.  In response, the Commonwealth presented a tape of a phone conversation between DeLuca, who was incarcerated, and his brother (who wasn’t) – yeah, they really do record those conversations just like the sign on the wall says – in which he discussed his desire to withdraw his plea.  Nowhere in that conversation does DeLuca mention his concern about being a registered sex offender, instead, he tells his brother that he believes the victim will not testify after so long a time and the case would not go to trial (remember this fact).

The Commonwealth asked DeLuca if he had told his brother that by getting the pleas withdrawn, he hoped to avoid a conviction – which is very like what he said on the tape – but DeLuca said that is not what he meant (remember this fact).  He was then asked whether he had saved any of this supposed research that showed he would be required to register for only ten years.  His counsel objected that there could be no such research because, of course, no such law existed (remember this fact).

Then DeLuca’s counsel wanted to proffer a conversation he had with the Commonwealth’s attorney.  The Commonwealth naturally objected to the attorney becoming a witness, and the court stated that it would not become involved in hearing about any plea negotiations.  DeLuca’s counsel insisted that he had a right to testify and the court directed him to take the witness stand and “say what you want to say.”  Unlike a renowned attorney of Roanoke, counsel did not attempt to ask himself questions from the rostrum and then answer them from the dock.

Counsel statement was not particularly helpful to DeLuca – in fact, I would say it was down right unhelpful and might warrant some consideration from the Bar – specifically he said that he “didn’t think” he had given DeLuca incorrect information.  He further suggested that DeLuca had conducted “faulty research.”  He further indicated that he first learned of DeLuca’s desire to withdraw the guilty plea from the prosecutor who advised him of the contents of the phone conversation (remember this fact).  He did conclude by saying that if there was any confusion as to the duty to register for life, that was “on me.”

In arguing the motion, DeLuca’s counsel asserted that his client was engaging in gamesmanship, that he had presented a reasonable defense (he claimed he was never in a supervisory role with respect to the victim – remember this fact), and that the Commonwealth would suffer no prejudice if DeLuca were allowed to withdraw his guilty pleas.  The circuit court disagreed as to each of these assertions, further finding the DeLuca had in his colloquy stated that he fully understood the implications of the plea, which expressly stated that he had discussed and understood the requirement to register as a sex offender.

Now comes the interesting part – DeLuca’s first issue is that by permitting his counsel to testify, the Court deprived him of his right to counsel.  Now there is a case fairly on point here, Browning v. Commonwealth, 19 Va. App. 295, 298 (1994), and at first blush it seems that DeLuca might have a winner – but no.  The main problem here is that in Browning the court ordered the attorney to testify over his objection.  Here, however unwise it proved to be, counsel asked to make the proffer and DeLuca was all for it.  The objection to having counsel “testify” was made by the Commonwealth, not DeLuca.

I use scare quotes there because I am not sure that the attorney testified.  The opinion does not say that he was sworn in and he did no more than what he had originally asked, that is to proffer what he wanted to on the record.

The Court of Appeals concludes that as the proffer was ultimately beneficial to DeLuca (because the counsel said the confusion was “on him” even though he clearly said “not really, though”) and there was no objection from the party seeking to have the issue addressed, DeLuca was out of luck.

The court concludes that trial court also did not err in not permitting DeLuca to withdraw his guilty pleas, finding that the motion was in bad faith.  And here we reach the point where I ask, do you remember the facts that I asked you to?  No?  OK, I will wait until you glance back up to see what they were.

Those facts are all about DeLuca’s counsel’s assertion that the motion to withdraw the plea was not “gamesmanship.”  DeLuca had two prior attorneys who, according to him, gave him bad information about the sex offender register requirement for his offense.  This tells us two things: 1) DeLuca changed counsel twice before reaching a plea agreement – or did he?  A common tactic by defendant’s trying to “run of the clock” for some reason (usually to cause the victim to become tired of the delay), is to cooperate with their attorney until a resolution appears to be on the horizon and then manufacture a conflict.  Courts will tolerate this to an extreme degree (the record that I am aware of is 12 changes of counsel), but once a plea is entered, it becomes a more difficult sell.  Remember also that DeLuca’s counsel knew nothing about the desire to withdraw his pleas until after DeLuca’s conversation with his brother during which there was no discussion of the alleged “research by him and his family,” but some pretty strong indications that DeLuca was hoping the victim would not want the matter to go to trial, his protestations to the contrary notwithstanding. 2) DeLuca must be an unlucky son-of-a-gun if he had three consecutive attorneys who misread the Sex Offender Registry law that badly — and it appears they were even bad at reading the criminal code as well, as indicated in the final point,

DeLuca’s sudden realization that the Commonwealth couldn’t prove (according to DeLuca) that he was ever in a supervisory role with the victim.  This surely would have been the first thing that any competent defense attorney would have looked into – and I am going to presume that at least on of the three was competent – yet raising the issue after a plea has been entered seems awfully convenient.  I am going along with the Court of Appeals here on the finding of bad faith in the motion to with draw — game, set and match to the Commonwealth.