No legal malpractice claim for oral motion

Where plaintiff pleaded guilty to DUI-maiming and later moved to withdraw his plea, defense counsel’s oral motion, which the trial court denied, is not grounds for a legal malpractice claim.

Prior proceedings

Plaintiff Ascue ran a red light at 65 mph, then rear-ended a car. The car then crashed into another vehicle. The car driver was seriously injured and underwent emergency brain surgery. A blood sample taken after the incident showed that Ascue’s blood alcohol level “was 0.313, almost four time the legal limit.”

Ascue was charged with DUI-maiming. Under a plea agreement, Ascue pleaded guilty and disposition would be taken under advisement for six months. At the disposition hearing, Ascue thought that the charge would be modified or dismissed. When he learned otherwise, he sought to withdraw his plea.

Defense counsel, the defendant in this case, made an oral motion to withdraw the plea. The court denied the motion and imposed a five-year sentence, with two years suspended.

Ascue appealed on the basis that defendant’s lack of a written motion was the reason the trial court denied the motion to withdraw. The Court of Appeals determined that the appeal was not perfected before the deadline and dismissed the case.

Ascue then filed a habeas petition, alleging ineffective assistance of counsel, with the Virginia Supreme Court. The supreme court dismissed and noted that counsel “did not violate the factors articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984).”

Next, Ascue filed this suit, alleging defendant committed malpractice, alleging that she should have submitted a written motion to withdraw the plea. Defendant demurred, “arguing that the withdrawal of a guilty plea is at the discretion of the trial court.”

No malpractice

“In his Complaint, Plaintiff admits that at the disposition hearing … Defendant orally moved to withdraw his guilty plea. He also acknowledges that the trial court heard and denied that oral motion.

“Whether a trial court allows a criminal defendant to withdraw a guilty plea lies within the discretion of the trial court. Because Plaintiff concedes that Defendant moved to withdraw his guilty plea (albeit orally), this cannot constitute malpractice as Defendant did not breach a duty.

“Plaintiff’s grievance seems to be with the trial court that denied his motion, but Defendant cannot be found to have committed malpractice for a trial court properly exercising its discretion over procedural matters.

“Plaintiff also alleges that Defendant’s failure to perfect his appeal to the Court of Appeals constitutes malpractice. Plaintiff fails to allege, however, that the trial court’s denial of his motion to withdraw constituted an abuse of discretion.

“A trial court’s procedural ruling will not be overruled absent a clear abuse of discretion. The abuse of discretion standard draws a line – or rather, demarcates a region – between the unsupportable and the merely mistaken, between the legal error … that a reviewing court may always correct, and the simple disagreement that, on this standard, it may not.

“In this case, Plaintiff does not allege that the trial court abused its discretion by denying his request to withdraw his guilty plea. The Court of Appeals, without the ability to determine that the trial court abused its discretion, could not have overturned the decision of the trial court.

“Thus, the Defendant’s failure to perfect Plaintiff’s appeal could not have been the proximate cause of any damages sustained.”

Defendant’s demurrer to the malpractice claim is sustained.

Contract claim

Plaintiff “alleges that Defendant’s failure to perfect his appeal constituted a breach of her duties to him as a client.

“However, Plaintiff’s failure to allege that the trial court abused its discretion necessarily left the Court of Appeals without a legal basis to reverse the trial court’s decision. Accordingly, any alleged breach of contract could not have been the cause of any alleged injury.”

Defendant’s demurrer to the breach of contract claim is sustained.

Ascue v. Gonzales, Case No. CL20-1664, Feb. 7, 2022, Tazewell County Circuit Court (Carson). Plaintiff appearing pro se, Frederick W. Harman for defendant. VLW 022-8-008, 7 pp.

Editor’s note: This digest previously misidentified the judge who wrote the decision. The opinion was written by Judge David B. Carson.