Nicholas DeLuca, s/k/a Nicholas Tyler DeLuca v. Commonwealth of Virginia

Citation: Not availableDocket: 1150204

Court: Court of Appeals of Virginia; October 26, 2021; Virginia; State Appellate Court

Original Court Document: View Document

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Nicholas DeLuca appealed a decision from the Circuit Court of Alexandria, arguing that the trial court improperly required his defense counsel to testify during his motion to withdraw guilty pleas, claiming this violated his right to counsel at a critical stage. He also contended that the court erred by denying his motion to withdraw the pleas prior to sentencing. The Court of Appeals affirmed the trial court's judgment, consolidating DeLuca's two separate notices of appeal due to the related facts and issues.

DeLuca faced multiple charges, including indecent liberties with a child and using a communications system to solicit a child. On March 2, 2020, he entered a written plea agreement, acknowledging the legal consequences of his guilty pleas, including registration requirements under the Sex Offender Registry. During the plea hearing, the court confirmed DeLuca's understanding of the charges and the voluntary nature of his plea, ultimately accepting it after determining it was made freely and intelligently. The prosecution provided evidence of DeLuca's online interactions with a thirteen-year-old victim, including text messages that detailed inappropriate requests made by DeLuca.

Between October 2017 and June 2018, DeLuca was compensated $11,603.51 for 746 hours of work assisting the victim with online high school classes, as documented by invoices and checks provided by the victim’s mother. After accepting guilty pleas, the trial court convicted DeLuca and ordered a psychosexual evaluation and presentence report, scheduling sentencing for September 2020. Prior to this hearing, DeLuca filed a motion to withdraw his guilty pleas, claiming he was misinformed about the consequences, specifically believing he would only need to register as a sex offender for ten years instead of for life. During a combined hearing on September 24, 2020, DeLuca testified about his misunderstanding, citing inaccurate information from prior attorneys and his own research. He also claimed he was not the victim’s supervisor. The Commonwealth introduced a jailhouse phone call where DeLuca suggested the victim might not want to proceed with the case. When questioned about his belief regarding the registration duration, DeLuca could not provide any documentation to support his claim. His counsel sought to present further evidence related to discussions with the prosecutor, but the trial court refused to engage in settlement matters, leading to a brief exchange about counsel's dual role in the hearing, which was ultimately resolved by swearing in DeLuca’s counsel.

DeLuca's counsel testified that he learned of DeLuca's desire to withdraw his guilty pleas from the prosecutor, who had heard DeLuca's jail phone recordings. During discussions, DeLuca claimed he misunderstood the lifetime registration requirement as a sex offender. Counsel acknowledged he did not verify DeLuca’s understanding and took responsibility for the misinformation, attributing it to DeLuca's prior counsel and poor research. Counsel argued that DeLuca was not engaging in gamesmanship and that the Commonwealth would not be prejudiced by allowing the withdrawal.

The trial court denied DeLuca's motion, rejecting the factual basis for it, noting DeLuca had acknowledged understanding the registration consequences at the guilty plea hearing. The court found DeLuca's claim of receiving consistent erroneous information from multiple sources incredible. It highlighted the potential prejudice to the Commonwealth due to the lapse of time and memory loss, and stated that DeLuca had not shown a good faith defense. The court concluded that DeLuca was not mistaken regarding his pleas and proceeded to sentence him accordingly.

On appeal, DeLuca argued that the trial court erred in requiring his counsel to testify, which he claimed deprived him of his right to counsel during a critical stage. He also contended that the court erred in denying his motion to withdraw his pleas. The appeal raises a constitutional question regarding the right to counsel, which is subject to de novo review.

Review of DeLuca's argument regarding the trial court's denial of his motion to withdraw guilty pleas is conducted under an abuse of discretion standard. An abuse of discretion can only be found if reasonable jurists would unanimously agree on a different outcome. Reversal of the trial court's decision requires clear evidence of judicial unsoundness, and historical facts determined by the trial court are upheld unless clearly erroneous or unsupported. 

DeLuca asserts a violation of his Sixth Amendment right to counsel during a critical stage—the hearing on his motion to withdraw his plea. He claims that requiring his attorney to testify compromised his right to counsel, as an attorney cannot simultaneously serve as a witness. However, the precedent set in Browning v. Commonwealth does not support DeLuca's position. In Browning, the attorney was compelled to testify against the client's interests, thereby depriving the defendant of counsel. In contrast, DeLuca did not object to his counsel testifying and did not seek to remove him. Counsel’s testimony did not adversely affect DeLuca, who was represented throughout the proceedings and had counsel advocate for him after testifying. The distinctions between DeLuca's case and Browning are significant, leading to the conclusion that DeLuca was not deprived of his right to counsel.

DeLuca’s counsel consistently supported DeLuca's position during testimony, although he acknowledged he was not the original source of DeLuca's belief that his registration requirement would last ten years. Counsel accepted responsibility for this misunderstanding, which reduced potential harm to DeLuca and refuted any claim that DeLuca lacked effective counsel. This situation distinguished it from the precedent set in Browning, where counsel's interests diverged from the client's. The lawyer-witness rule, outlined in Rule 3.7 of the Rules of Professional Conduct, generally prohibits lawyers from acting as advocates in cases where they are likely witnesses. However, exceptions exist, particularly RPC 3.7(a)(3), which permits a lawyer to serve as both counsel and witness if disqualification would cause substantial hardship to the client. RPC 3.7(b) allows continued representation if the lawyer learns they may be called as a witness, provided such testimony would not prejudice the client. Since counsel's testimony did not harm DeLuca's interests, his dual role was permissible. DeLuca's assertion of being deprived of counsel lacks merit, as counsel effectively represented him throughout the hearing. 

Regarding the withdrawal of guilty pleas, Code § 19.2-296 stipulates that such motions may only be made before sentencing and are not automatically granted. To be successful, the movant must demonstrate: 1) the plea was based on an honest mistake or was induced by fraud or coercion; 2) there exists a reasonable defense to the charge; 3) granting the motion would not unduly prejudice the Commonwealth; and 4) the motion was not filed in bad faith or to delay justice.

A defendant must substantiate assertions with evidence, as demonstrated in Justus, 274 Va. at 153, and Parris, 189 Va. at 325. The trial court found that DeLuca did not meet the necessary burden of proof, specifically refuting his claim of being misinformed about his reporting obligation at the time of his pleas. The court deemed it implausible that four independent sources provided the same incorrect information. This led to an implicit conclusion that DeLuca's reason for wanting to withdraw his pleas was dishonest, indicating that the motion was not filed in good faith. Supporting this conclusion, a jailhouse phone call recording revealed DeLuca's intent to withdraw his pleas in hopes of influencing the proceedings favorably, particularly as the victim was now an adult. The appellate court is bound by the trial court's factual findings unless clearly erroneous. The record substantiates that DeLuca was not mistaken regarding his reporting obligation and that his motion was submitted with bad faith. Consequently, the trial court acted correctly in denying DeLuca's request to withdraw his pleas. The court affirmed the trial court's judgment, noting that the denial also had other grounds, such as lack of good faith and potential prejudice to the Commonwealth, but these were not necessary to address for the appeal's resolution.