Desetti v. Chester

Present: All the Justices
JUDY GAYLE DESETTI
OPINION BY
v. Record No. 141239 JUSTICE LEROY F. MILLETTE, JR.
June 4, 2015
FRANCIS CHESTER, ET AL.
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
A. Joseph Canada, Jr., Judge
In this appeal we determine whether a plaintiff
sufficiently pled a claim for legal malpractice that occurred
during the course of an attorney's representation of the
plaintiff in a criminal matter.
I. FACTS AND PROCEEDINGS
This appeal comes to us upon the circuit court sustaining
a demurrer. "For purposes of evaluating a demurrer, a court
assumes that all material facts, implied facts[,] and
reasonable inferences from those facts that are properly
alleged in the complaint are true." Brown v. Jacobs, ___ Va.
___, ___ n.2, 768 S.E.2d 421, 423 n.2 (2015). Accordingly, the
relevant facts alleged in the complaint are as follows.
Judy Desetti, her husband Joel Desetti, and her son Ryan
Desetti were involved in a criminal incident with a law
enforcement officer at the Desetti home. Arising from that
incident, Judy was charged with felony assault and battery of a
law enforcement officer in violation of Code § 18.2-57, and
misdemeanor obstruction of justice in violation of Code § 18.2-
460. Also arising from that incident, Joel and Ryan were
charged with misdemeanor obstruction of justice in violation of
Code § 18.2-460.
Judy employed Francis Chester of the firm Chester-Cestari
Law, P.C., to represent her in this criminal matter. Chester
was also retained by Joel and Ryan to represent them in their
own criminal proceedings.
Joel's and Ryan's charges of misdemeanor obstruction of
justice went to trial first. Chester called Judy as a witness.
During the course of her direct examination, Judy admitted that
she struck the law enforcement officer who had entered the
Desetti home. At the conclusion of trial, both Joel and Ryan
were found guilty.
Subsequent to that trial, the Commonwealth conveyed to
Chester a plea offer on Judy's charges. The offer allowed Judy
to plead guilty to a misdemeanor assault and battery, rather
than to the felony assault and battery that she had been
charged with. Chester never conveyed this plea offer to Judy
or responded to the Commonwealth. Instead, Chester advised
Judy that she should plead not guilty and go to a jury trial
because "she had a 'slam dunk' case." Chester also failed to
inform Judy that a guilty verdict on her felony charge would
entail a mandatory minimum sentence of six months of
incarceration.
2
Based on Chester's advice, Judy pled not guilty and
requested a jury trial. Judy asserts that various aspects of
Chester's representation during the trial constituted legal
malpractice. Among these allegations of malpractice is
Chester's unilateral decision, without consulting with Judy, to
reject the Commonwealth's jury instruction that incorporated
the lesser-included offense of misdemeanor assault and battery
because Chester was employing a "felony or freedom" strategy.
At the conclusion of that trial, the jury returned a guilty
verdict on the felony assault and battery charge, and Judy was
sentenced to the mandatory minimum of six months of
incarceration. Judy unsuccessfully exhausted her direct
appeals.
One month into her sentence, Judy filed a petition for
writ of habeas corpus alleging that Chester's representation
was so deficient and prejudicial that it deprived her of her
constitutional right to effective assistance of counsel. One
year later, the habeas court granted Judy's habeas petition on
the basis that Chester's ineffective assistance of counsel
prejudiced Judy in the criminal matter. The habeas court held
that Chester's representation was constitutionally deficient
because of (1) Chester's concurrent representation of Judy,
Joel, and Ryan, (2) Chester's failure to convey and explain the
Commonwealth's plea offer, and (3) Chester's failure to advise
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and consult with Judy regarding the inclusion of a lesser-
included misdemeanor offense in the jury instructions.
The habeas court vacated Judy's felony assault and battery
conviction. The Commonwealth elected to retry Judy for her
actions giving rise to her original charges. During the course
of this second criminal matter, Judy pled guilty to misdemeanor
assault and battery. Pursuant to this plea, Judy was convicted
of misdemeanor assault and battery and was sentenced to ten
days of incarceration, with all ten days suspended.
Judy subsequently filed a legal malpractice claim against
Chester and the firm Chester-Cestari Law. This legal
malpractice claim alleged multiple bases of Chester's
malpractice for actions during the original criminal matter.
Chester and Chester-Cestari Law filed a demurrer to Judy's
complaint. The demurrer asserted that Judy failed to state a
claim upon which relief could be granted because she was not
actually innocent of the criminal act of assault that gave rise
to the criminal matter in which the alleged legal malpractice
occurred. That is, although Judy's felony assault and battery
conviction had been vacated, Judy subsequently admitted guilt
to misdemeanor assault and battery, and it was that guilt of a
criminal act, rather than a guilty verdict for any given crime,
which proximately caused injuries Judy suffered from the
original criminal matter.
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The circuit court agreed with Chester and the firm
Chester-Cestari Law, and sustained the demurrer without leave
to amend. Judy timely appealed to this Court.
II. DISCUSSION
Although we granted three assignments of error, we need
only address the first assignment because our resolution of the
issue of proximate causation resolves this appeal. 1 Jimenez v.
Corr, 288 Va. 395, 404, 764 S.E.2d 115, 118 (2014).
Assignment of error 1 reads:
1. The trial court erred in sustaining Defendants'
Demurrer because it thereby decided, as a matter of
law, that [Judy] could not prove that Chester's
negligence was the proximate cause of [Judy]'s harm
when the trial court had already established by prior
order granting [Judy]'s Petition for Writ of Habeas
Corpus that it was reasonably probable that Chester's
ineffective assistance of counsel caused [Judy] Harm.
A. Standard Of Review
"A trial court's decision sustaining a demurrer presents a
question of law which we review de novo." Harris v. Kreutzer,
271 Va. 188, 195, 624 S.E.2d 24, 28 (2006). "A demurrer
accepts as true all facts properly pled, as well as reasonable
inferences from those facts." Steward v. Holland Family
Props., LLC, 284 Va. 282, 286, 726 S.E.2d 251, 253 (2012).
1
Assignment of error 2 pertains to whether Judy's guilty
plea to the misdemeanor charge was equivalent to being
convicted of the felony charge.
Assignment of error 3 pertains to whether Judy was
required to plead actual innocence of all criminal culpability
to state a legal malpractice cause of action.
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B. The Elements Of A Legal Malpractice Claim
"A cause of action for legal malpractice requires the
existence of an attorney-client relationship which gave rise to
a duty, breach of that duty by the defendant attorney, and that
the [pecuniary] damages claimed by the plaintiff client must
have been proximately caused by the defendant attorney's
breach." Shevlin Smith v. McLaughlin, ___ Va. ___, ___, 769
S.E.2d 7, 9 (2015) (internal quotation marks and citation
omitted). This is all that must be pled by a legal malpractice
plaintiff who alleges that malpractice occurred during the
course of a civil matter.
However, a legal malpractice plaintiff who alleges that
malpractice occurred during the course of a criminal matter has
additional burdens of pleading. These additional burdens are
to ensure that "courts [do] not assist the participant in an
illegal act who seeks to profit from the act's commission."
Zysk v. Zysk, 239 Va. 32, 34, 404 S.E.2d 721, 722 (1990). That
is, it is the policy throughout the Commonwealth that a
criminal defendant may not profit from a crime in a subsequent
legal malpractice action. See Taylor v. Davis, 265 Va. 187,
191, 576 S.E.2d 445, 447 (2003); Adkins v. Dixon, 253 Va. 275,
281-82, 482 S.E.2d 797, 801-02 (1997).
Consequently, "actual guilt is a material consideration
[because] courts will not permit a guilty party to profit from
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his own crime." Adkins, 253 Va. at 282, 482 S.E.2d at 802.
Relevant to this appeal, we have held that this "material
consideration" requires a legal malpractice plaintiff, who
alleges that malpractice occurred during the course of a
criminal matter, to plead that the damages to be recovered were
proximately caused by the attorney's negligence and were not
proximately caused by the legal malpractice plaintiff's own
criminal actions. Id. (holding that it is proper to sustain a
demurrer if the legal malpractice plaintiff fails to satisfy
this "material consideration"). Consequently, a legal
malpractice plaintiff who alleges that malpractice occurred
during the course of a criminal matter must plead facts
establishing this element of the cause of action: that the
damages to be recovered were proximately caused by the
attorney's negligence but were not proximately caused by the
legal malpractice plaintiff's own criminal actions. W.S.
Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 384, 478
S.E.2d 295, 300 (1996) ("A demurrer will be sustained if the
pleading, considered in the light most favorable to the
plaintiff, fails to state a valid cause of action.").
C. Judy's Legal Malpractice Complaint
Judy pled that she employed Chester of the firm Chester-
Cestari Law for purposes of representing Judy in a criminal
matter, and that this employment created an attorney-client
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relationship. Judy pled that Chester breached his duties
arising out of that attorney-client contractual relationship.
And Judy pled that Chester's breach proximately caused certain
pecuniary loss. 2 Had the alleged malpractice occurred in a
civil matter, this would be sufficient for Judy's complaint to
survive demurrer. However, Judy's pleading failed to satisfy
the additional burden that a legal malpractice plaintiff's
damages cannot be proximately caused by the plaintiff's
criminal actions.
The crux of Judy's argument is that her criminal conduct,
in the absence of legal malpractice, would have resulted in a
misdemeanor conviction with a ten-day incarceration sentence –
which is what Judy was actually convicted of and sentenced to
in the second criminal proceeding. Judy concedes, as she must,
that any injury flowing from a misdemeanor conviction and a
ten-day incarceration sentence for her assault on the law
enforcement officer was therefore proximately caused by her
criminal actions, and damages therefor are not recoverable in a
2
In her complaint, Judy pled both pecuniary and non-
pecuniary damages. However, Judy's complaint was filed before
we issued our opinion in Shevlin Smith v. McLaughlin, ___ Va.
___, 769 S.E.2d 7 (2015). In that case, we clarified that "[a]
legal malpractice plaintiff may recover only pecuniary damages
proximately caused by an attorney's breach of the contractually
implied duties" arising from the "attorney-client contract" of
representation. Id. at ___, ___, 769 S.E.2d at 15, 20. At
oral argument, Judy's counsel conceded that Judy could recover
only those pecuniary damages identified in the complaint.
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legal malpractice action. But Judy contends that any damages
proximately caused by her felony conviction and her six month
incarceration sentence were not proximately caused by her
criminal actions, and instead these damages were proximately
caused by Chester's malpractice. According to Judy, absent
Chester's malpractice, she would not have been convicted of a
felony and would not have served a six month sentence, which
led to her pecuniary damages.
Judy's pleadings fail to support her arguments. That is,
Judy failed to adequately plead that her attorney's legal
malpractice, as opposed to her own commission of a criminal
act, proximately caused the pecuniary damages alleged in her
complaint.
1. Wrongful Severity Of Conviction: Legal Malpractice
Proximately Causing The Felony Conviction
The first aspect of Judy's original conviction that she
alleges was proximately caused by Chester's legal malpractice
is the fact that Judy was convicted of a felony, rather than of
a misdemeanor. Judy's pleading adequately alleges that she
would have been convicted of a misdemeanor, in the absence of
Chester's legal malpractice, because she would have accepted
the original misdemeanor plea offer. But this only satisfies
half of Judy's burden. To adequately plead proximate
causation, Judy must plead that the damages she seeks to
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recover were proximately caused by legal malpractice and not by
her own criminal conduct. Adkins, 253 Va. at 282, 482 S.E.2d
at 802; W.S. Carnes, 252 Va. at 384, 478 S.E.2d at 300. In the
context of this allegation and Judy's theory of the case, Judy
must plead that the damages she seeks to recover were caused by
her felony conviction, which was entered only because of legal
malpractice, and would not have been caused by her misdemeanor
conviction, which was properly entered as punishment for her
criminal actions.
The only relevant pecuniary damage, as pled in the
complaint, was that Judy's "nursing license was suspended . . .
as a direct result of her felony conviction." This allegation
can reasonably be understood to relate to the general averments
in her complaint that she has "been prevented from working and
will be so prevented in the future," and having "suffered lost
wages[ and] damages related to her job and career." However,
there is no allegation stating that, but for the felony
conviction entered pursuant to Chester's negligence, Judy would
not have lost her nursing license and suffered the
corresponding pecuniary harm. Alternatively stated, Judy
failed to plead that she would not have lost her nursing
license based upon her conviction of misdemeanor assault and
battery. And there is no reasonable basis, from the facts
pled, to infer that Judy would have kept her nursing license if
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she had been convicted of a misdemeanor. Therefore, Judy
failed to plead damages flowing from her felony conviction that
would not have been proximately caused by her misdemeanor
conviction.
2. Wrongful Duration Of Sentence: Legal Malpractice
Proximately Causing The Six Months Incarceration
The second aspect of Judy's original conviction that she
alleges was proximately caused by legal malpractice is that she
was sentenced to six months of incarceration, rather than to
the later sentence of ten days of incarceration with all ten
days suspended. As an initial matter, Judy failed to
specifically allege that she would have been sentenced to any
particular length of incarceration absent Chester's
malpractice. Instead, Judy's complaint quotes the habeas
court's determination that "there is a reasonabl[e] probability
that but for [Chester's] deficient performance, the results of
the [original criminal] proceeding would have been less severe
than the judgment and sentence imposed." By incorporating the
habeas court's determination as to prejudice affecting
sentencing, Judy's pleading adequately alleges that she would
have been sentenced to less than six months of incarceration.
See McCord v. Bailey, 636 F.2d 606, 609 (D.C. Cir. 1980)
("[T]he legal standards for ineffective assistance of counsel
in [the criminal defendant/legal malpractice plaintiff's]
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criminal proceedings and for legal malpractice in this action
are equivalent."); Shaw v. Department of Admin., Pub. Defender
Agency, 816 P.2d 1358, 1361 n.4 (Ala. 1991) ("The burden of
proof in the two proceedings[, an ineffective assistance
proceeding and a legal malpractice proceeding,] is similar.");
Glaze v. Larsen, 83 P.3d 26, 31 (Ariz. 2004) ("Although the
standard of proof imposed under Strickland arguably does not
correspond precisely to the burden placed on a plaintiff in a
legal malpractice action, the inquiry in each case is at the
very least so similar that post-conviction proceedings often
will provide definitive guidance as to whether any alleged
legal malpractice actually occurred and/or was the cause of the
defendant's conviction."); Barner v. Leeds, 13 P.3d 704, 712
(Cal. 2000) ("The same standard of care governing claims of
ineffective assistance of counsel applies in a civil legal
malpractice action."); Rantz v. Kaufman, 109 P.3d 132, 139
(Colo. 2005) ("[T]he standard for demonstrating prejudice in an
ineffective assistance of counsel claim and the standard for
establishing causation in a malpractice claim involve
equivalent analyses."); Sanders v. Malik, 711 A.2d 32, 34 (Del.
1998) ("The standards for proving ineffective assistance of
counsel in a criminal proceeding are equivalent to the
standards for proving legal malpractice in a civil
proceeding."); Zeidwig v. Ward, 548 So. 2d 209, 214 (Fla. 1989)
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(concluding that "the standards for determining ineffective
assistance of counsel in malpractice [are] essentially the
same"); Glenn v. Aiken, 569 N.E.2d 783, 785 (Mass. 1991) ("[A]n
appellate court's ruling that counsel was not ineffective may
well justify precluding a criminal defendant from maintaining a
malpractice action against his trial counsel.").
However, this again only satisfies half of Judy's burden.
The result of the habeas corpus proceeding does not answer the
issue before us. A habeas court's determination on the
ineffectiveness of a criminal defendant's counsel and
subsequent prejudice to that defendant establishes that
constitutionally deficient performance proximately caused the
outcome in the original criminal proceeding. See Strickland v.
Washington, 466 U.S. 668, 686 (1984). However, we must also
look to the damages flowing from the outcome of the criminal
matter. We must determine whether the pleadings properly
allege that any of those damages were proximately caused by
legal malpractice, rather than by the legal malpractice
plaintiff's own criminal actions. Adkins, 253 Va. at 282, 482
S.E.2d at 802; W.S. Carnes, 252 Va. at 384, 478 S.E.2d at 300.
Judy's complaint, as pled, fails to identify any pecuniary
damages that were specifically caused by her six months of
incarceration, and not by a sentence imposed absent Chester's
malpractice – that is, and not by a sentence imposed because of
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Judy's own criminal actions. And such damages cannot be
reasonably inferred because there is no basis to determine what
sentence a circuit court would have imposed in the original
criminal proceeding had Chester not been negligent.
This inability to determine such a sentence arises from
the fact that a defendant convicted of misdemeanor assault and
battery under Code § 18.2-57 is subject to a sentence of not
more than twelve months of incarceration and a fine of $2,500,
either or both. Code §§ 18.2-11(a); 18.2-57(A). Although Judy
was eventually sentenced to only ten days, with all ten days
suspended, that sentence and suspension occurred after she had
already served her original six month sentence. According to
Judy's complaint, the original misdemeanor plea offer was not
accompanied by a sentence recommended by the Commonwealth.
Even if such a recommendation had been made, there are no facts
pled from which to draw the inference that, absent the legal
malpractice, the circuit court would have imposed any shorter
sentence than the six months that was imposed.
A reviewing court has no basis to infer a particular
sentence that the circuit court would have imposed had Judy
been convicted of a misdemeanor, much less a sentence less than
the six months of incarceration Judy endured pursuant to
Chester's malpractice. We cannot reasonably infer, based upon
the bare allegation that the circuit court imposed a ten day
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suspended sentence after Judy had already been incarcerated for
six months for the now-vacated felony, what compensable injury,
if any, was caused by the sentence imposed in the first
proceeding which was subject to the legal malpractice and not
by Judy's own criminal actions.
III. CONCLUSION
Judy is a legal malpractice plaintiff who alleged that
malpractice occurred during the course of a criminal
proceeding. However, Judy failed to satisfy her burden of
pleading that the pecuniary injury she seeks to recover was
proximately caused by her attorney's legal malpractice, rather
than being proximately caused by her criminal actions. We
therefore will affirm the circuit court's judgment sustaining
the demurrer.
Affirmed.
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