DeLuca v. Commonwealth

• Decision Date: 26 October 2021
• Docket Number: Record No. 1151-20-4,Record No. 1150-20-4
• Citation: 73 Va.App. 567,863 S.E.2d 861
• Parties: Nicholas DELUCA, s/k/a Nicholas Tyler DeLuca v. COMMONWEALTH of Virginia Nicholas DeLuca v. Commonwealth of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 567

863 S.E.2d 861

Nicholas DELUCA, s/k/a Nicholas Tyler DeLuca

v.COMMONWEALTH of Virginia

Nicholas DeLuca

v.Commonwealth of Virginia

Record No. 1150-20-4

Record No. 1151-20-4

Court of Appeals of Virginia.

OCTOBER 26, 2021

Yancey Ellis (Carmichael Ellis & Brock, PLLC, on briefs), for appellant.

Craig W. Stallard, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Russell and Senior Judge Haley

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

In this consolidated appeal,¹ Nicholas DeLuca argues the trial court erred in requiring his defense counsel to testify during DeLuca's motion to withdraw his guilty pleas. He specifically argues that, by doing so, the trial court deprived him of his right to counsel at a critical stage of the proceedings. DeLuca also claims the trial court erred in denying his motion to withdraw his guilty pleas prior to sentencing. We disagree with DeLuca and affirm the judgment of the trial court.

BACKGROUND

DeLuca was indicted on six counts of taking indecent liberties with a child with whom he had a custodial or supervisory relationship in violation of Code § 18.2-370.1(A)(iii), and one count of using a communications system to solicit a child in violation of Code § 18.2-374.3(D). On March 2, 2020, DeLuca entered into a written plea agreement with the Commonwealth regarding the charges. Per its terms, DeLuca pled guilty to the charges and, among other stipulations, represented that he had "discussed with my attorney any registration consequences under the Sex Offender and Crimes Against Minors Registry Act pursuant to Virginia Code § 9.1-900 et seq. " and also affirmed that he "underst[ood] that as a consequence of this stipulation, my plea[s] will implicate a statutory duty to register under the Sex Offender and Crimes Against Minors Registry Act pursuant to Virginia Code ... § 9.1-900 et seq. " The agreement was signed by DeLuca, his counsel, and the assistant Commonwealth's attorney prosecuting the case.

At the plea hearing, the trial court reviewed the agreement with DeLuca and conducted a standard plea colloquy. During the colloquy, DeLuca acknowledged that he had reviewed the written agreement with his attorney, signed it, and that he was pleading guilty freely, voluntarily, and with full understanding of the charges against him because he was guilty of the charged crimes. He confirmed that the pleas were not coerced by anyone, that he had discussed the possible punishments with his attorney, that he understood the potential sentence he faced, that it was his own decision to plead guilty, and that he was satisfied with his lawyer's services. The trial court accepted DeLuca's guilty pleas after finding that DeLuca entered them freely, intelligently, and voluntarily.

At the hearing, the prosecutor, without objection, proffered evidence regarding DeLuca's online contacts with, and eventual sexual abuse of, the victim, who was thirteen years old when he first encountered DeLuca. The child victim first met DeLuca online through an application called Discord, which facilitated the exchange of voice and text messages. The Commonwealth introduced copies of text messages exchanged between DeLuca and the victim from March 2016 to January 2019, and proffered evidence that DeLuca requested, and the victim submitted to, various sexual activities, including anal intercourse. The Commonwealth further proffered that between October 2017 and June 2018 the victim's parents were paying DeLuca to assist the victim with his online high school classes and his exams. The victim's mother provided the police with spreadsheet invoices that DeLuca had produced documenting his hours of work with the victim, as well as copies of the checks she wrote to DeLuca for that work; the victim's parents paid DeLuca a total of $11,603.51 for 746 hours of work.

Having accepted the pleas and heard the evidence, the trial court convicted DeLuca of the offenses and ordered a psychosexual evaluation of DeLuca and a presentence report. The sentencing hearing eventually was set for September 2020.

Prior to the sentencing hearing, DeLuca, by counsel, filed a motion to withdraw his guilty pleas, alleging that when he entered his pleas, he was "greatly mistaken about the consequences of his guilty pleas." Specifically, he argued that he thought he would be "automatically removed from the sex offender registry after a period of ten years" when, in reality, his convictions would require him to be on the sex offender registry for the remainder of his life.

The trial court held a combined hearing on DeLuca's motion to withdraw his pleas and his sentencing on September 24, 2020. Before hearing evidence on sentencing, the trial court allowed DeLuca to testify as to why he wished to withdraw his guilty pleas. DeLuca stated he was "mistaken as to the effect" of the pleas because he believed he would need to register as a sex offender for only ten years and not for the remainder of his life. He claimed that two prior attorneys and the retained counsel that represented him at the time of his pleas had provided inaccurate information regarding his registration obligation. He also claimed to have "look[ed]" at books in the law library at the Alexandria Detention Center and conducted research on the internet that confirmed his mistaken belief that his registration obligation would last only ten years. He testified that his family also had done research that confirmed his mistaken view that the obligation would expire after ten years. In addition to his testimony regarding his registration obligation, DeLuca, who did not deny sending the messages to the victim, claimed that he was never the victim's "supervisor."

During cross-examination, the Commonwealth played a recording of a jailhouse phone call between DeLuca and his brother. During their conversation, DeLuca discussed his thoughts about seeking to withdraw his guilty pleas. DeLuca implied that the victim likely would not want to go forward with the case because "he's going to just want it gone and done and over with." When asked by the prosecution if he stated to his brother that the victim, now an adult, would not be interested in trying the case, DeLuca answered, "I do not believe I said exactly that." During the phone conversation from jail, DeLuca also expressed his preference to have a different judge sentence him.

The trial court then asked DeLuca if he had saved from his research "a single document which you've read that you can present to the [c]ourt in which you saw that there was a ten-year registration requirement?" Counsel interposed that no such document exists because it is a "completely mistaken fact."

In further support of DeLuca's motion, his counsel offered to proffer the conversation he had had with the prosecutor regarding DeLuca's motion to withdraw his pleas. The trial court indicated that it was not getting involved in the parties’ settlement discussions. Counsel explained to the trial court, "That's what I'm asking, to present evidence." The trial court responded, "All right. Get up on the stand." The prosecutor observed, "I don't know that [counsel] can testify in this hearing and be counsel in this hearing at the same time." DeLuca's counsel replied, "Well, there's no other way to do it[,]" to which the prosecutor suggested counsel withdraw from his representation of DeLuca. DeLuca's counsel responded that the Commonwealth's suggestion that he cease being counsel was not an "appropriate request."

The trial court then swore in DeLuca's counsel. The trial court opened the "questioning" by instructing DeLuca's counsel to "[s]ay what you want to say."

Counsel testified that he first learned of DeLuca's desire to withdraw his guilty pleas from the prosecutor, who had listened to DeLuca's phone recordings from jail wherein DeLuca stated that he planned to withdraw his pleas. In counsel's subsequent discussions with DeLuca, counsel learned of DeLuca's claim that he had misunderstood that the registration requirement would last for the remainder of his life. Counsel conceded that he did not "know whether I gave him that incorrect information[,]" but stated that he did not "think it originated with me." Counsel thought DeLuca had developed the misimpression through "faulty research" and bad advice from prior counsel. Counsel confirmed that DeLuca had asked him to verify his understanding and that counsel had failed to "verify it correctly." Later summarizing his testimony in argument, counsel stated "I don't think that he had ... the right information on that, Your Honor. And I take responsibility for that."

In subsequent argument on the motion, counsel argued that DeLuca was not engaging in gamesmanship as the Commonwealth suggested, that he had presented a reasonable defense concerning the nature of his relationship with the victim, and that the Commonwealth would suffer no prejudice if DeLuca were allowed to withdraw his guilty pleas.

The trial court denied DeLuca's motion to withdraw his pleas, specifically rejecting the claimed factual basis underlying the motion. The trial court noted that at the guilty plea hearing DeLuca had attested that he understood the consequence of having to register as a sex offender under Virginia law, which "explicitly set forth registration requirements that are far more rigid than the ten years that Mr. DeLuca would have the [c]ourt believe he learned from" other sources. The trial court found that when DeLuca entered his guilty pleas, he understood the consequences of having to register as a sex offender. The trial court found incredible DeLuca's claim that multiple separate sources each provided DeLuca with the exact same erroneous information, stating, "[i]t's amazing that those suggestions from independent sources would've been as consistent as Mr. DeLuca claims them to be, when, in fact, they were all wrong." When asked by the Commonwealth to make specific factual...