Humphries v. DETCH

their courts did not abuse lower in- determining discretion there change to show that a

sufficient evidence custody materially promote would

child reviewing the child. In

welfare of cases this, Court must remember

family judge position see and court facts in a are not.

assess the manner that we I

Consequently, cannot dissent from the of the lower courts’ de-

Court’s affirmation respect with

terminations this issue.

Therefore, found because the lower courts appears thriving edu- the child be socially ar-

cationally and under the current I

rangement, concur with the the rea-

there is no abuse discretion in family

soned conclusions court change custody

circuit that a would materially promote his welfare.

Therefore, above, I reasons stated

concur.

712 S.E.2d 795 HUMPHRIES, Eugene

Carroll Below, Appellant

Plaintiff DETCH,

Paul S. Defendant

Below, Appellee.

No. 35649.

Supreme Appeals Court of Virginia.

Submitted Feb. 2011.

Decided June

judge, have Appellee’s who would denied the motion to dismiss.

Based par- Court’s review of the argument, record, ties’ briefs and the all and Court, other matters submitted before the the decision of the circuit court is affirmed. I. History Facts Procedural Forbes, Forbes, Esq., C. William W. Jesse Appellant the was convicted of Offices, PLLC, Law Esq., Forbes Charles- being accessory an before the fact to first ton, WV, Appellant. for degree and conspiracy murder to commit Stephen Crislip, Esq., R. M. McFar- Ben murder in connection with the 1976 murder land, PLLC, Charleston, Kelly Esq., Jackson Billy Ray Appellant Abshire. The WV, Appellee. for years prison sentenced to one to five in the conspiracy to commit murder conviction WORKMAN, Chief Justice: prison possibility and life in with a parole upon matter is before the an This Court years after accessory ten before the by appeal Appellant taken the Eu- Carroll fact to murder commit conviction. gene Humphries from an De- Order entered Appellant appealed his 18, 2009, by cember the Court of Circuit Court, petition but on refused County, Virginia, granting Putnam West Thereafter, October Appellant, 2000. Appellee S. Paul Deteh’s motion to dismiss se, pro petition filed a for a writ of habeas pursuant Virginia West Rule of Civil Pro- corpus in the Circuit Court of Greenbrier 12(b)(6). Appellant argues cedure that County, Virginia, summarily West which was 1) dismissing court the circuit erred: in Appellant denied.1 The then coun- retained by determining Appellant action sel, an petition who filed amended for writ of must the additional establish element actu- corpus, again habeas which was denied after al in a innocence action hearing by was held omnibus the circuit 2) attorney; against a criminal in defense court. One of the several issues raised dismissing determining action corpus petition amended habeas was ineffec- conduct, Appellant’s own criminal his de- tive assistance counsel. attorney’s alleged negligence, fense was the 28, 2001, On Appellant March filed an proximate cause of the Appellant’s damages; appeal petition denial of of his for writ of 3) dismissing by determining in the action Court, corpus Supreme habeas with the Appellant’s claiming deny- the circuit court had erred in Appellant establishing barred relief, ing corpus him habeas because 4) innocence; in allowing a nolo contendere in suffered ineffective assistance of counsel plea to affect the circuit in court’s decision underlying criminal case. This Court Virginia violation of West Rule of Evidence granted On petition. habeas 5) 410; dismissing the action under collat- 23, 2007, April this Court reversed the circuit when a estoppel eral not need does court’s and remanded the decision matter innocence order to succeed a new trial. See State ex rel. Hum- a criminal McBride, phries v. 647 S.E.2d attorney, or even if a needs (2007). element, present proof of such a nolo remand, Upon charges brought in a criminal should again matter were however, subject estoppel not be the of collateral than Appellant; rather action; trial, prevent proof of opting Appellant innocence in a civil volun- a new 6) reversing tarily pleaded an earlier made decision contendere to the crime open court accessory court different circuit the fact to murder in the before by Appellant. 1. The was transferred matter to the Circuit Court motion filed County, Virginia, of Putnam based any dispositive motions whether when the indicate July degree.2 On second sought. or pending were otherwise plea, it advised the accepted the court circuit a Re- Appellee to file prompted the agree- This by entering Support of Previous- Memorandum incriminating himself as newed he would be ment 12(b)(6) Thus, Motion to Dismiss. ly Filed Rule accessory before fact. being an motion was filed October Appellant guilty of The renewed adjudged the circuit court hearing held on December and a him to an indetermi- and sentenced the crime By Order dated December years prison. eighteen nate term of five Appellee’s mo- granted time served for the circuit receiving credit for After conviction, eight years, seven which was tion.3 six Appellant served an additional days, the Review II. Standard of prison was released before he months “circuit review of a This Court’s February of 2008. motion to dismiss granting order court’s 31, 2007, Appellant instituted July On part, Syl. Pt. complaint de novo.” Appellee, against action Stowers, 224 680 S.E.2d 66 W.Va. Hill upon the reversal predicated was which (2009) part, State ex rel. McGraw (quoting, assis- for ineffective original his Pontiac-Buick, Inc., 194 Runyan v. Scott responding to the com- counsel. In tance of (1995)). 770, 461 S.E.2d 516 W.Va. him, Appellee filed an against plaint filed pursuant to dismiss to and a motion answer 12(b), Procedure of Law Virginia Rule of Civil III. Discussion

West Appellant’s nolo the due to the claiming that Appellant could not Element A. Actual Innocence prevail in order to prove actual innocence his appeal upon the neces- The instant centers malpractice action. The motion legal in his malpractice claim sary legal of a elements Judge Eagloski on De- argued before

was attorney and against a criminal defense Judge Eagloski indicated cember include of those elements should whether one deny Ap- that he would from the bench his requirement that a establish however, dismiss; to no order pellee’s motion Appel- The innocence to the offense. was entered. necessary to argues that the elements lant hearing, Appellant took Following that malpractice against a criminal legal establish against prosecute steps no his any attorney than are no different defense March Appellee from December until malpractice Appellant legal claim. other inactivity prompt- in the case 2009. The require a Court should not posits that this Stowers, Judge replaced had Judge ed who innocence to plaintiff to establish his actual Eagloski, file a Notice of Intent to Dismiss legal malpractice action the offense in a prosecute. the matter for failure it his criminal mat- Appellant opposed the dismissal and the public policy.4 The the State’s would violate Judge Spaulding. ter then was transferred to however, Appellee, avers assert- jurisdictions require plaintiff, who is Spaulding parties Judge notified arising from the de- ing legal malpractice proceed, based the matter would action, that he fense of a criminal dismissal. The cir- Appellant’s opposition to crimes he actually innocent of both the parties to was cuit court further instructed case, Ap- 4.Interestingly, while the accessory in the instant before the fact 2. The crime of an degree pellant argues inclusion of in the was a lesser the Court's to murder second Ap- legal requirement which the included offense to the crime for innocence the actual action, originally pellant Appellant convicted. also cause of Humphries argues only al- does Mr. "[n]ot innocent, lege he looks forward to that he is 3. The Court finds no merit to the in this case.” proving innocence at the trial argument, any supporting made without authori- complaint, the pending to amend his In a motion ty, abused its discretion and that the circuit court original complaint to amend his legitimate powers authority seeks exceeded its allegation innocence. Judge Eagloski. of actual reversing to include the earlier decision of (1996) (“[A] any convicted lesser included of- client who has acknowl- Further, Appellee edged fenses. asserts that guilt cannot assert that his attor- public policy requires proof prevent ney’s poor performance caused his incarcera- profiting wrong- criminal from from his own tion.”); Manweiler, Lamb v. 129 Idaho doing and to assure that an innocent (1996) (“Lamb 923 P.2d does not person wrongfully convicted due to inade- dispute proposition legal that in a mal- quate representation compen- has suffered a practice action arising representation issue, injury. ruling sable on this a defendant in a criminal proceeding, the circuit court found that a criminal defendant person pursuing the claim must establish the “must be able to establish that he actual- additional element of actual innocence of the ly innocent of the criminal conduct involved underlying charges.”); Stone, Ray v. matter[,]” underlying opining that “[a] (“Be- 952 S.W.2d 224 (Ky.Ct.App.1997) contrary holding would lead to absurd results fore it can be demonstrated that the attor- public policy and violate the of the State for ney’s actions proximate were the cause of his Virginia.” damages, must establish his in- nocence. Tf a criminal defendant obtains The essential elements of a mal post-conviction relief proves by pre- and a practice syllabus point claim are set forth in ponderance of the evidence that he is inno- 684, Scharf, one of Calvert v. 619 offense, underlying cent of the (2005): he has then “Generally, S.E.2d 197 in a suit prerequisite satisfied this may and be able to against negligence, plain an the prove attorney’s malpractice prove was the things tiff must three in order to re (1) (citation (2) proximate injuries.’”) cause of his attorney’s employment; cover: the omitted); (3) Aiken, 699, v. neglect duty; of a reasonable Glenn 409 Mass. and 569 his/her 783, (1991) negligence (“Thus, that N.E.2d resulted in and 788 was order to recover, proximate plaintiff.” justify right cause of a plaintiff loss to the Id. a asserting 685, 198, Syl. at 619 S.E.2d at Pt. 1. This an error of type Glenn asserts in this Court, however, has never addressed the is [referring case legal malpractice] to criminal plaintiff brings legal sue of whether a who a prove by must preponderance a of the evi- malpractice action a criminal defense dence, only not negligence that attorney must show actual innocence as an harm, attorney defendant caused him but legal additional element of malpractice a ac also that he is innocent of the crime tion. Nielsen, charged.”); Rodriguez v. 259 Neb. 264, (2000) (“A 368, 609 N.W.2d 370 convicted jurisdictions A review of other reveals that legal criminal who files a malpractice claim majority a jurisdictions of those that have against his or her defense counsel must al- precise considered the issue before the Court lege prove that he or she is innocent of adopted have the additional “actual inno- crime.”); underlying Lunney, Carmel v. requirement. cence” See Ronald E. Mallen 169, 605, 70 N.Y.2d 518 N.Y.S.2d 511 N.E.2d Smith, Jeffery Legal M. Malpractice 3 (1987) (“To 1126, (2011 1128 state ed.); a cause of Note, § action 27.13 see also A Defense arising negligent Bar: Requirement The “Proof of Innocence” representation Claims, proceeding, a criminal Malpractice Criminal 5 Ohio St. (2007) (“In plaintiff allege must states, innocence or a color- J.Crim. 341 most a civil able claim of innocence underlying prove must her innocence of criminal ..., long offense wrongdoing so as the in order determination to recover in a malpractice guilt of his of suit that offense remains her former criminal undis- turbed, lie.”); no attorney.”); defense cause of action will see Coscia v. McKenna Maho- Cuneo, 1194, Shaheen, Gordon, ney Cappiello, & 25 Cal.4th v. Cal.Rptr.2d 108 Stein & 471, 670, (2001) (“[Pjublic P.A., 491, 996, 25 policy P.3d 674 143 N.H. 727 A.2d 998-999 (1999) (“Public require however, policy, considerations that an innocent dictates an person wrongly augmented convicted malpractice be deemed to have standard in criminal legally harm[.]”); suffered compensable a requires actions. While such an action all Peters, 57, Ga.App. Gomez v. 221 proof 470 S.E.2d malpractice essential to a civil 632

claim, doesn’t the defendant did not malpractice5 will fail mean criminal allege [or commit crime for which he prove, she] not does if the claimant tried; evidence, government means is that actual inno- all it of preponderance beyond a added); Martin, prove reasonable cence.”) (footnote not able to Ang v. (2005) 637, defendant] doubt that committed it.” [the 114 P.3d 642 154 Wash.2d (“Unless Kling, supra. Consequently, Levine v. malpractice plaintiffs can criminal cases, malpractice acquittal criminal of evidence prove by preponderance (cid:127) proof alone will not “suffice of inno their charges, their innocence actual Owens, Ill.App.3d cence.” v. 298 acts, alleged Moore negligence own bad Ill.Dec. 698 N.E.2d 707 counsel, regarded be as the should (1998). Instead, Likewise, has harm. if their cause in fact of proving [by greater prepon “burden prove cannot evidence] she] [or derance of under the civil stan- their innocence establish, charged dard, light [crimes] innocent of unable to they will be considerations, proceeding.” underlying criminal v. policy Glenn public of significant Aiken, N.E.2d supra at 783. We alleged negligence of their defense harm.”); majority require States are legal cause their counsel was the proof Wiley innocence. See of actual Nunnery, 253 Hicks Wis.2d County Diego, supra (Wis.Ct.App.2002), [19 San Cal.4th review N.W.2d Cal.Rptr.2d 532] at P.2d denied, N.W.2d 706 259 Wis.2d (“clear [(Cal. 1998)] (2003)(“[P]ublic of courts policy requires plaintiff in question have considered also re he is innocent of the position Hicks’s innocence”). quire proof of actual charges which he was convicted in order to legal malpractice[.]”).6 of prevail on a claim Correia, 227 at 233-34. N.E.2d 891 necessary of a deciding the elements reasoning The relied most common brought action malpractice that is by adopting the actual innocence courts attorney, the Su- a criminal public policy rule is that it would violate to of preme Court Massachusetts found Judicial person profit participating a allow to “ by prove preponder- ‘must that a a 672, illegal Cal.Rptr.2d Wiley, an 79 966 act. evidence, negli- not ance of the Further, P.2d at the States 986. Unites attorney gence defendant caused [the of the Seventh Appeals Court of Circuit harm, plaintiffs] plaintiff] but also that [the (7th Cir.1997), Kling, Levine v. 123 F.3d 580 ” charged.’ is of the crime Correia innocent predict how the when asked to Illinois Su- 120, 227, 891 233 Fagan, v. 452 Mass. N.E.2d issue, preme would rule on the rea- Court (2008) Aiken, v. 409 Mass. (quoting Glenn require proof soned Illinois would of that 699, 783, (1991)). 788 The Mas- 569 N.E.2d innocence, stating opined that sachusetts court entitles criminal defen- [c]riminal law counsel, context, [i]nnoeence, but competent “ac- dant the con- refers to innocence, incompetent sequence is simply legal inno- if counsel [and] tual Martin, 484, trial, supra 114 is a new not an Ang v. at conviction results cence.” Page, heavy acquittal. E.g., Holman v. burden 95 F.3d “[B]ecause P.3d 637. Cir.1996). (7th case, If the acquittal criminal defendant proof of an malpractice” malpractice e.g. element claim. 5. "criminal has been of a criminal See The term " ‘ "legal malpractice (Colo. widely Kaufman, in reference to used v. 109 P.3d 134-35 Rantz defending of a 2005) the course of client accused (refusing require showing "actual ' ” Fagan, crime.” N.E.2d Correia Mass. relief,” "post-conviction stating innocence” or (2008) Ang (quoting n. 12 requirement in Colorado "the client Martin, 640 n. 1 154 Wash.2d P.3d case,’ meaning within a must the 'case Mallen, (2005) (quoting Misguiding Kaus & underlying claim or she show that "the must Mal- Hand "Criminal Counsel-Reflections of should have been if successful (1974))). practice," 21 L.Rev. 1191 n. 2 UCLA attorney acted in accordance with his or had duties,” sufficient). her recognizes minority juris- 6. that a The Court require an do not actual innocence as dictions law, eventually guilty proba- by he will conduct preponderance same is Consequently, evidence. there bly competently rep- is no cause be convicted even if long action as as the be. To determination of the he should award resented-and plaintiffs guilt of eventually justly that offense remains defendant undis- convicted Thus, (here turbed.7 the circuit court did not err imprisoned money substantial in its legal malprac- determination that the sought) million is loss of his $3.5 pursued claim by tice included liberty, any money, or for that matter is an element of actual innocence of the under- law, give him relief to which lying the Appellant crimes for which right and the federal constitutional convicted, including any lesser included of- counsel, him. does not entitle involving fenses the same conduct.8 Levine, 123 at Another F.3d rationale adopting the actual innocence element B. Nolo Contendere Plea protects against impermissible it impact, any, The next issue if is what responsibility for the crime from shift nolo contendere has on his person attorney. to his defense convicted legal malpractice action. The circuit court Wiley, Cal.Rptr.2d 966 P.2d at 986. found Supreme opined, Court of California As plaintiffs bars “ plaintiffs engaged ‘if in the criminal conduct him establishing that [Mr.] Deteh’s of, they they are accused then alone should alleged negligence proximately caused his responsibility consequences full bear such, imprisonment, plaintiffs and as com- acts, including imprisonment. Any of their plaint plaintiffs fails on face. The [sic] it’s subsequent by negligent plaintiffs conduct proximately incarceration was not caused superseded by greater culpa Detch, the actions of the defendant bility plaintiffs criminal conduct.” Id. inadequate. however incar- (quoting Dept. Shaw v. rel State ex Ad ceration proximately caused min., (Alaska 1993)). 861 P.2d felony conviction of offense of accessory before the fact murder in the Following jurisdic degree. second previously that have decided tions this issue relying upon reasoning ju those Appellant the maintains circuit court above, risdictions as discussed the Court incorrectly found that the nolo contendere legal that to of holds state a cause action for plea establishes that own the con- arising negligent malpractice repre from the proximate injuries. duct was the cause of his pro Further, of a defendant in a criminal sentation argues Appellant the that a nolo ceeding, plaintiff pre a must establish a plea guilt contendere admission is not an of ponderance actually of the that he is pursuant Virginia evidence and to West Rule of Evi- of underlying any innocent the criminal offense dence 410 is not in civil admissible action which originally against for he was convicted person plea. the made the In who and/or contrast, any involving lesser included Appellee offenses asserts that a nolo ” Correia, attorney ap- malpractice 7. The Court notes that a claim.’ [criminal] defense 891 pointed represent Coscia, to a in criminal defendant a (quoting N.E.2d at 234 n. 108 Cal. prosecution immunity federal has absolute 671). Thus, Rptr.2d in 25 P.3d at these legal purely malpractice state law claims of that jurisdictions plaintiff, proving a in addition to representation out arise underlying in the innocence, must also establish that he or proceeding. Syl. criminal Pt. Moo- sought granted post-conviction she and was relief Frazier, ney v. 225 W.Va. 693 S.E.2d 333 as an element of of the cause action. Devin (2010). Likewise, § Virginia West Code 29-21- Bennardo, Note, A Bar: The Defense of "Proof (1989), provides attorney ap- defense that a Requirement Malpractice Innocence” in Criminal pointed a or State circuit court this Court is Claims, (2007). L. 5 Ohio St. J.Crim. arising liability repre- "immune from from that post-conviction The issue of whether exoneration in and sentation the same manner to the same granted prerequisite prevailing must be a to in as attorneys prosecuting extent that from are immune type legal malpractice this action was not liability.” Mooney, 225 W.Va. at 29-21-20). undisputed (quoting § raised in the as it is that at 338 W. Va.Code instant case S.E.2d granted a new trial due to " Many 'postconviction require a 8. states also ineffective assistance of counsel. prevailing prerequisite to [as] exoneration a on a rule, pursuant a to the actual innocence equivalent guilty plea plea is contendere decision in State pursuant the Court’s his under the profit and cannot conviction Evans, 508 S.E.2d 606 Further, Appellee maintains that plea.” (1998), resulted from the the conviction that found a nolo contende- other have courts action in this plea is admissible a to a guilty plea re or bar Virginia does not violate admission recovery damages legal a this 410. The basis for Rule of Evidence Theos, 345 S.C. action. See Brown consequences of the nolo assertion is (2001).9 550 S.E.2d 304 a plea equivalent that of are contendere Although the court relied circuit his conten- plea. Consequently, nolo guilty conviction, Carolina court’s decision Brown his “and South plea dere establishes plea Virginia. Id. at 306-07 Brown dere mined dence incarceration. court reasoned as follows in and three through then Carolina innocent defense ceedings. neys’ negligence, innocence order to establish turned contendere contest as of counsel. of action erred in Carolina court was S.E.2d drug purposes, Then, test ing legal Additionally, inal The South Carolina court affirmed the decision practice action quences find claimant’s test nally represented not offended contest caused charges duct) post-conviction the intermediate plaintiff must plaintiff’s In the was admissible: Brown, plea filed a trafficking to the plea also when the that Mr. Brown had not at 306. plea broke the chain of causation. 550 attorneys should the Brown court examined the a new deciding legal malpractice under counts Brown, (or are context of [was] Id. The of a is a examined the plea it is charges. which malpractice action (footnotes incarceration. charges arising from the same con- concerned, legal malpractice reasoned: by forbidding Id. operate after Thus, trial, conviction, and, crime and plaintiff’s the South crime, the South fatal to his cause of action.” Id. to one S.E.2d not his plaintiff of distribution. show innocence against 550 S.E.2d liability." guilty plea malpractice claim relief for precise whether the court is similar appellate drug the client has the cause of Mr. Brown’s omitted). "the count of at 305. Instead of as a bar to underlying claimant. plaintiff use of the we find Attorneys’ no contest original issue before the South distribution Carolina that "failure to ineffective assistance Id. general Carolina attorney so at 306. Because granted court, deciding client and not his attor- plea. against far as for drug because Id. The alleged arising public policy entered a nolo conviction had no cause criminal pled nolo conten- Rule of a all the crime Brown's court to the same standard negligence, first The Brown a new trial The South who trafficking the conse- a no was over- impact of practical case, of West no plaintiff out of a appeals he was his no noting bring- deter- going plead origi- crim- mal- con- con- Evi- pro- we his no Pub. home); Brown, thus insurer was not dere to action. Evidence between his no contest compensation Sixth Circuit’s (finding admissible as Brown’s dence of ful arrest were admissible ject so The South Carolina court then Schaeffer], tect a preted tiff is after party attempts dant] cate no tween case seeks civil clude criminal matter his own a civil civil or criminal Rules of against Brown is respect to events in template adequately advised him courts have found Rule 410 of ations. cover this 1988)] the civil action We find this F.Supp. as to allow determining Safety, a former criminal defendant liability. offensively, charges having 550 S.E.2d see police.’’). to use his no contest and is therefore liability. Rule Id.; that the proceeding. using plaintiff’s litigating argument that there was a to be an admission a defendant civil 410 and Rule (“We also benefit. This is not a case Evidence Levin State Farm Fire & type 236 evidence plea to for fire liability admitted facts which would indi type the nolo contendere interpretation Delong arising precluded from We decline to find a plaintiff, plaintiff’s pleas rule of (E.D.Mich.1990) (following to use a no contest F.2d nolo at 307 liability P.2d defendant’s in order to obtain whether those former brought holding SORE was never intended to case. defend himself from future who becomes does not Instead, proceeding plea. in out of an on damage the no 410 was contendere ^[138] material plea evidence State submitting plea n. 2. defense of Mr. defensively during not a defendant. He defendants to use the Furthermore, inapplicable. a defendant that the defendant against See plea and a part which would at (Ok.Civ.App.1998) Brown as ex ret. Ok. interpret contest using bar use of use of the to the intended to allegedly Federal Rule introducing Attorneys’ of nolo conten also Walker [v. difference at issue offensively does not con plea rejected plea to guilty plea, insurer subsequent distinction [(6th plaintiff's damages, plea Cas. where establish liable in to arson Brown’s the rule Federal Dept. a federal negoti [defen unlaw plain Here, inter pleas with [sic] sub pro pre Cir. Co., Mr. evi be for a a support finding its decision civil denying case from the essential alle- plea gations was admis- of the criminal offense of which she sible, existing Virginia sup- law in adjudged guilty. West also The court stated: ports the trial Virgi- court’s decision.10 West Hazard, As Geoffrey Professor C. Jr. provides nia Evidence Rule of that nolo written, has “[t]he clearest case for such pleas any contendere are not admissible “in an estoppel is pleads where a defendant proceeding, civil or criminal ... guilty to a substantial charge Id.; plea____” defendant who made the see and then litigation seeks in civil concern- 11(e)(6) R.Crim. (“Except W. Va. as other- P. ing the same transaction to assert that provided paragraph, wise in this evidence of he did not commit the criminal act.” not, following any civil or criminal Id. proceeding, admissible a defendant Thus, there has been recog a clear plea who made participant or was a nition of the distinction between a nolo con (B) plea ... plea discussions: A of nolo plea tendere and a resulting contendere____”). The Court finds no rea- a nolo plea contendere for purposes of West son to evidentiary deviate from this basic Virginia end, Rule of Evidence 410. To that principle interpreted as the Court has never Evans, in State v. 203 W.Va. 508 S.E.2d Virginia Rule West of Evidence 410 to allow (1998), this Court found that plea introduction of a nolo contendere prohibited by what is the rules of evidence when defensively such evidence is used and criminal procedure rules of is use of offensively and not as was the case Brown. plea the fact of the of nolo contendere in However, in Virginia West once the subsequent civil or criminal proceedings to nolo is entered a defen prove that the defendant committed the dant, consequences from that “[a]s offense to which he entered plea. See practical matter ... essentially Israel, [are] supra, rules, however, at 801. The guilty plea----” same as a 1 Franklin D. proscribe do not the use of a conviction Cleckley, Handbook on Evidence West premised plea. on such a nolo The distinc 4-10(C)(2) Virginia (4th Lawyers, § at prohibited tion between the use ed.2000). indicates, As our case law permissible “[t]he versus the use of the convic benefits of a nolo contendere have been tion recognized by is critical. As the Fifth greatly Virginia.” diminished in West Williams, Circuit in United States v. Cleckley, Franklin D. (5th Handbook on West Cir.1981), convicted, F.2d 136 “[o]nce Virginia p. Criminal Procedure at 1-788 guilty, whether as a result of a (2010 Supp). Cumm. Cleckley contendere, Justice [trial], has or ... convictions stand recognized: footing____” on the same Id. at fact, Evans, suggested court Leach11 610; 203 W.Va. at 508 S.E.2d at even convictions based on nolo contendere Virginia Handbook Evidence

pleas estop party subsequent 4-10(C)(2)(“[T]his would Lawyers, supra, §at rule validity charges (1965); probable cause for the S.E.2d 466 see also Cumberland Chevro arrest). Cadillac, Corp., let Oldsmobile Inc. v. Gen. Motors 420 S.E.2d 298 n. 4 though 10. Even necessarily the Court does not (1992) (stating reasoning that "even if the of a adopt by upon the rationale relied the circuit by trial court inis error ... we are not bound regarding admissibility court the of the nolo con- reasoning”); trial court's erroneous State ex rel. plea being tendere and the use of such 263, 274, Dandy Thompson, 148 W.Va. Virginia allowed under West Rule of Evidence 730, 737, denied, S.E.2d cert. 379 U.S. manner, Court, 410 in a defensive the nonethe- (1964) (stating S.Ct. 13 L.Ed.2d 30 in crimi less, affirms the circuit court’s decision. The nal context that "correctness of ... [trial court’s] that, consistently appeal, Court has held on it consideration, final action is the material may judgment “[a]ffirm the of the lower court not the stated [the reasons for trial tak court's] appears judgment when it any that such is correct on action”). ing such record, legal ground by regard- disclosed the ground, theory assigned less of by the reason or judgment.” Schlaegel, the lower court as the 11. basis for its See State ex rel. v. (1994). Leach 191 W.Va. Syl. Wolfolk, Pt. Barnett 447 S.E.2d action, plaintiff In his the received of a even civil

does bar evidence conviction not plea.”); compensatory damages a nolo Hand- for though based on million $1.5 it is Procedure, degree Virginia imprisonment the first murder book West Criminal this on on (“It award, however, jury also supra, significant p. at 1-788 conviction. Id. The upon by of convictions based district court and a new note that the use overturned pleas does not Rule damages nolo violated trial on was ordered. Id. At the contendere trial, injury not nature of 410. the conviction the the It is second civil evidence from trig- degree the introduced that for first mur- that incarceration rule.”). Court, excluded, The gers estoppel Ev- but evidence of other dam- der ans, ultimately ages “[a] that conviction de- his murder and held associated with trial may jury nolo be The rived contendere conviction was allowed. Id. second purposes damages plaintiff state’s recidivist and used for awarded $6000 Evans, sentencing laws.” W.Va. at appealed, seeking reinstatement of the first 607, Syl. Pt. 1. jury’s damage 508 S.E.2d at award. Id. similarly have jurisdictions conclud- Other In district affirming the court’s decision apply Evidence 410 ed Rule of does not that trial, ordering appellate court the second to a and sentence that arises conviction relied grounds by relied on not instance, plea. For contendere nolo Specifically, district court. Id. the United (1st Correiro, Cir.1999), F.3d 52 Olsen v. Appeals States Court of for the First Circuit Appeals Court of

the United States whether examined the issues of the evidence Federal Evi- First ruled that Rule of Circuit manslaughter conviction and sentence dence not bar the of a 410 did admission plaintiffs nolo that resulted contende- and manslaughter conviction sentence to re have been admitted in evi- should plaintiff was for incarcerated and dence and what effect conviction Olsen, plaintiff at 62. murder. Id. on plain- sentence time served had for brought city rights a civil right damages impris- tiffs to recover for his police original and after his convic- officers onment. Id. parole degree tion without first to life admissibility at Regarding overturned. Id. 55. In over- the convic- murder was conviction, resulting plain- tion and from the the court determined sentence turning the police tiffs nolo Circuit investigating officers’ failure contendere First Rule of audiotape with the determined that Federal Evidence disclose an interview admissibility prohibit 410 did prosecution’s chief witness not necessitated held plaintiff, go- conviction and sentence.13 new trial. Id. The rather than trial, ... does not bar admis- ing through pleaded another murder “Rule 410 manslaughter manslaughter sion of sentence and nolo and was Olsen’s contendere prove that he was prosecution crime. Id. The conviction to incarcerated convicted of that at 62. The federal for murder....” Id. recommended a sentence time served12 court, recognizing that there followed after were both the trial court that recommen- accepted dation, federal courts that had suspending the balance of the ten to and state evidentiary year manslaughter plac- difference between a nolo fifteen sentence conviction,14 nolo rea- ing probation years. five contendere soned that Id. ing admissibility years a nolo contendere

12. five when his convic- had served F.3d at 55. conviction overturned. Rule of Evidence 410 and tion under Federal 11, stating Procedure Federal Rule of Criminal Appeals States Court The United preclude "[t]hese two rules do use of First declined to follow the anal- Circuit Olsen in an administrative ysis Ap- the United Court of utilized States First, prohibit proceeding. the rules use of "a Schaeffer, peals in the Sixth Circuit Walker v. contendere,” pursu- plea of not a nolo conviction Cir.1988). Olsen, (6th F.3d at 854 F.2d 138 189 plea____"); ant to United States v. a nolo 62 n. 12. 136, (5th Cir.1981) Williams, 138-40 642 F.2d (upholding admissibility prior of the defendant’s Sec'y Myers Human See Health and of 840, (6th Servs., plea Cir.1990)(uphold- bribery on state conviction based of nolo F.2d 843 893

637 manslaughter attorney arising sen- out of the [introduction in plaintiff subsequently in this ease was not conviction which the and conviction tence was awarded a new criminal trial and actually sought prove to that Olsen com- plaintiff pleads thereafter nolo contendere suggest manslaughter, or to that he mitted retried, being Virginia rather than West Rule actually guilty criminal act. In- of a prohibit of Evidence 410 does not stead, convic primarily the sentence was offered tion sentence that results from the nolo counter Olsen’s claim incarceration- to plea being contendere admitted evi as by showing that damages he was based dence in the action to something other than the incarcerated that of was convicted the crime context, In the murder conviction. subject that was the of nolo contendere punishment, for the the existence of reason plea. underlying culpability, is irrelevant. It is ... punishment the existence of the that matter, granted the instant the Court matters. Appellant a pro- new trial habeas retried, ceeding. being Ap- Rather than (footnote omitted). Id. at 61-62 pleaded pellant nolo that contendere resulted previously by As mentioned Appellant in the being convicted of an Evans, jurisdic to other Court addition accessory before the fact murder in the issue,15 tions have addressed neither degree. second This conviction resulted a 410, Virginia West Rule of Evidence nor years, of five eighteen sentence but the Virginia Rule of Criminal Procedure Appellant received credit for time served for 11(e)(6), prohibits the admission into evi his 1999 Notwithstanding conviction. the re- sentencing of a dence conviction and result served, ceipt of credit for time Therefore, plea. from a ing nolo contendere spend prison had still more time for his Court brings holds that a pursuant when a conviction plea previously spent his criminal than he had for his purposes impeachment stating contendere for under that "[t]he rule is that a 609, stating plea may Rule conviction on a Federal of Evidence of nolo contendere be "[a] inquired cross-examining of in a judgment plea defendant a entered on of nolo a contendere subsequent trial. a conviction While of the de- adjudicates guilt finality with the same force upon plea fendant nolo of contendere 'is not judgment pursuant guilty plea entered to a as guilt, an admission of so that the defendant is trial[,]” following aor conviction and that estopped proceeding denying in a civil convicted, plea whether as a result of a "[o]nce contendere, pleaded the facts to which nolo contendere, (fol guilty, guilty nolo or of not upon plea may the fact of his conviction be trial), stand on the lowed convictions same proceeding, shown in a later and such a convic- footing, specific creating unless there be a statute subjects tion to all the defendant the conse- difference”); Frederickson, United States 601 quences way of a conviction in same as if it 1358, (8th Cir.1979), denied, F.2d 1365 n. 10 cert. ”); plea guilty guilty.’ were after a Lewis, or not In re 281, 934, 444 U.S. 100 S.Ct. 62 L.Ed.2d 193 389 Mich. 209 N.W.2d 209 (1979)(upholding admissibility of a conviction re (1973) (stating majority position "[t]he dif- sulting plea from a nolo contendere under Feder allowing ferentiates between the collateral use of 404, stating al Rule of Evidence reason, see ”[w]e no plea as an admission misconduct and purposes admissibility under allowing the of the fact collateral use of convic- distinguish judg Fed.R.Evid. between a position preserves tion. This benefits of the plea ment of conviction based of nolo con of nolo contendere to defendant who fears judgment and a tendere of conviction obtained subsequent based civil liabilities an admis- any comporting process. other manner with due charge. guilt sion of time, however, to a At the same It well-settled that a of nolo contendere majority looks to the convic- 'every constitutes admission of essential ele imposed tion and sentence the court after the (that is) pleaded well ment offense and finds the conviction conclusive as a States, charge.’); Lott v. 367 United U.S. guilty conviction en- entered after or 1563, 1567, (1961)); 81 S.Ct. L.Ed.2d 940 guilty.”); tered after a trial and a of not see Lair, (8th Drechsler, States v. F. generally United Cir. Nolo Plea Contendere or 1912)”); State, Contendere, §§ Ark. Lewis v. Non Vult A.L.R.2d 540 45[a], (1963 Supp.). inquiry (1975)(upholding & 1999 S.W.2d into during cross-exami impeachment purposes supra 15. See nation defendant for note 14. conviction, potential for additional and the of the Evidence conviction.16 previous trial continuing Ensuring the imprisonment. would be and sentence Appellant’s that we availability pleas requires at trial. of nolo admitted properly force and avoid the full not allow Olsen to Furthermore, of the conse- the assessment plea. effect of his admitting plaintiffs sentence quences of parcel with an part and goes and conviction finality preven- and the policies These ability to of the examination convic- attack on criminal tion of collateral explained: As the Olsen causation. permitting Olsen dictate tions part of a pled nolo as Here Olsen imprisonment. his damages for recover prosecution, and he now bargain with finality of question Olsen is not free quite bargain that is attempts enforce a action for imprisonment his valid society bargain offered from the different damages. Olsen’s val- incarceration-based Latin English translation him. and sentence manslaughter conviction id “I will “nolo contendere” phrase legal of his incarcera- the sole cause are Dictionary 1048 Black’s Law contest it.” tion. (6th ed.l990)(internal quotation marks (citation omitted). 189 F.3d at 69-70 nolo, omitted). agreed By pleading Olsen already as the of time served to a sentence Thus, a defendant who enters manslaughter convic- punishment for the and sen contendere and is convicted of nolo admit to commit- he did not tion. While contend a result thereof cannot tenced as did, by pleading ting manslaughter, proxi attorney’s negligence was the nolo, agree that both his sentence Consequently, of such sentence. mate cause compel- valid. There are conviction were brought by a malpractice action legal in a bargain: per- ling reasons to enforce this plaintiff against his criminal defense does not contest the mitting party who plaintiffs conviction in arising out of the bring authority punish him to court’s plaintiff subsequently was awarded which the subsequent proceeding in which he is able thereaf a new criminal trial and improper punishment was to claim that his rather than pleads nolo contendere ter finality bar- would undermine retried, plaintiffs conviction evidence of the society’s gains jeopardize interest conten resulting from the nolo and sentence crimi- system compromise resolution of recovering dere bars nal cases. damages. In such any incareerated-related dam- Allowing the incarceration-related circumstances, plaintiffs valid conviction undermine the ages Olsen seeks would for his and sentence are the sole cause Although nolo availability pleas. of nolo damages. and related incarceration ques- compromise on the pleas represent judice, the admission society accepts them because the case sub guilt, tion of into evi- Appellant’s conviction and sentence they produce and sentences convictions necessarily precludes Appellant prospect of dence are final. Faced with the alleged damages for proving that his continuing litigation possible and a dam- peni- award, being “wrongfully ages prosecutors agree will not incarcerated solely attorney’s tentiary” caused making pleas less available were pleas, nolo court, negligence. The circuit there- alleged in this to defendants. As is demonstrated fore, Appellant’s case, dismissing to defen- did not err pleas are of benefit trial, of causation.17 possible complaint based a lack avoided a dants: Olsen holdings regarding argument the ele- Appellant disingenuous 17. Given the reached 16. The in his only admissibility nolo contendere he was that under the sentenced to six months and ment of innocence and the that "6 months is impact Appellant’s conviction and years.” considerably than 5 to 18 shorter for incarceration-related sentence on his claim sentence the received as a result of assign- damages, the resolution of the eighteen years five to concerning estoppel is of ment of error collateral months addi- for which he had to serve six no moment. that he received credit tional time due to the fact already prison. served in time upon foregoing, Based decision of criminal case without the consent of County 11(b), of Putnam the Circuit Court is here- court. Rule Rules Criminal Proce- of by also, affirmed. C.J.S., dure. See Criminal Law 519; Poellnitz, § United States v. 372 F.3d Affirmed. (3rd Cir.2004) (“While plea is indisputably conviction, tantamount to a it is Justice KETCHUM dissents and reserves necessarily not tantamount to an admission right separate opinion. to file a guilt.”) of factual KETCHUM, J., dissenting: Our Court logic embraced this when it plea The obliteration nolo contende- of of adopted Virginia’s Rules Criminal re, lle(6) of lib Rules and the Rules of of Procedure and Rules Evidence. The of Procedure, 410(2) Criminal and Rules Rules Criminal Procedure and Rules of 803(22) of and the Rules Evidence of of Evidence pleas make it clear that of nolo The Humphries’ plea allows Mr. contendere are not guilt, admissions of and of nolo contendere in a criminal ease be are later proof inadmissible as that a defen- against used him in a civil case to establish any 11(b) dant in way guilty. Rules and guilt in ruling or fault the civil case. This (e)(6) of the Rules Criminal Procedure of year’s legal precedent, overturns 148 of our provide, part: in Procedure, Rules Criminal and our Rules of (b) Nolo may Contendere. —A defendant Evidence, by all of which were established of plead nolo only with the con- yet, this Court. Worse it a crimi- obliterates sent of the plea court. Such a shall be plea very nal purpose. that served a useful accepted by the court after due con- past, plea In the a nolo contendere meant parties sideration of the views of the “I do not wish to charges against contest the public interest of the in the effective plea guilty me.” It was not a of and could justice.... administration of against not be used the defendant in a subse (6) Inadmissibility pleas, plea discus- quent Sylla civil action. weAs once said in sions, and related Except as statements. — McNinch, bus Point of Schad v. provided otherwise paragraph, evi- 44, 136 (1927): S.E. 865 not, following any dence of the is civil or contendere, pleaA accept- of nolo when proceeding, against admissible court, is, ed upon its effect plea defendant who made the or was a case, equivalent plea guilty. to a It is participant plea ... discussions: implied guilt only, confession of (B) pleaA of nolo contendere. cannot be used the defendant anas any admission in civil suit for the same act. Rules 410 of the Rules Evidence makes judgment The upon conviction follows plea inadmissible, evidence of a nolo upon plea as well guilty. says: But there is a difference between the two Except provided as otherwise in this pleas in that plead the defendant cannot rule, not, following evidence of the nolo contendere without leave of the court. any civil proceeding, or criminal admissible tendered, plea If such may the court the defendant who made the accept or decline it in its discretion. participant or was a discus- purpose modern is “to avoid ____ sions exacting an admission which could be used as contendere____ (2) pleaA of nolo potential an admission in litigation.” other 803(22) Similarly, Rule indicates that a nolo Jones, F.Supp. United States v. plea is inadmissible: (S.D.Cal.1954). also, See “Plea of Nolo Con- Contendere,” following tendere or Non Vult are not excluded (1963). rule, hearsay though A.L.R.2d 540 even the declarant is available as witness: ... Because a was tanta- (22) mount to a conviction and was not an Judgment admis- previous conviction.— guilt, sion of plead factual it could not be Evidence judgment, of a final entered after (but guilty and ineffective assistance of a trial carelessness or lawyer. contendere), adjudging upon plea of nolo ... person guilty of crime disagree majority, respect- I with fully dissent. adopted proce- Our these rules Court now, contrary dure and evidence —but rules, that a nolo

these well-established holds plea in a criminal ease can be case. The

considered absolutely Hum- bars Mr. opinion

phries any possibility proving

civil case that he was innocent of the

charges, prison was sent because of

Case Details

Case Name: Humphries v. DETCH

Court Name: West Virginia Supreme Court

Date Published: Jun 22, 2011

Citation: 712 S.E.2d 795

Docket Number: 35649

Court Abbreviation: W. Va.