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Reasonable defense warranted withdrawal of child neglect plea

Nick Hurston//November 20, 2023

Pills being removed from bottle


Reasonable defense warranted withdrawal of child neglect plea

Nick Hurston//November 20, 2023//

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A circuit court improperly refused to allow a mother to withdraw her no contest plea to felony child neglect after her prior counsel failed to inform her that lack of intent was a reasonable affirmative defense, the Court of Appeals of Virginia held.

The mother claimed she accidentally gave her child methadone instead of decongestant and only moved to withdraw the plea after learning of a defense from her new counsel. The circuit court refused her motion but made no findings of fact.

Judge Lisa M. Lorish, however, said the mother’s defense was reasonable, made in good faith and lacked any indicia of bad faith.

“We find that [mother] met her burden here and that the Commonwealth failed to offset that showing with any undue prejudice, relying only on the inherent inconvenience of trial as compared to a plea,” Lorish wrote for the court.

Judges Dominique A. Callins and Stuart A. Raphael joined Lorish in reversing and remanding Holland v. Commonwealth (VLW 023-7-420).

Accidental medication

An ambulance transported Tanya Holland’s 3-year-old son to the hospital after she found him unconscious and breathing abnormally. The hospital notified the sheriff and social services after finding methadone in the child’s system.

When questioned at the hospital, Holland explained that her son was congested so she gave him medicine from a prescription bottle with a partially removed label. Instead of a decongestant, the bottle contained methadone prescribed to Holland for back pain.

Holland’s son survived. Although she claimed to have accidentally given her son methadone, Holland was indicted for felony child neglect and she retained private counsel. One year later, Holland tendered a plea of no contest.

The court accepted her plea. Less than a week before sentencing, Holland’s attorney was suspended from practicing law. The court continued the sentencing hearing and Holland was appointed counsel.

The day before her sentencing, Holland moved to withdraw her guilty plea as “improvident and not intelligently made.” She pointed out that her prior counsel failed to mention that intent was an element of felony child neglect; her new counsel told her she had a defense.

In its objection, the commonwealth argued that it would be difficult to marshal its 17 witnesses for trial and that the timing of Holland’s motion suggested dilatory intent. Holland offered a factual stipulation to alleviate the commonwealth’s concern about witnesses.

The Henry County Circuit Court denied Holland’s motion to withdraw; it made no factual findings or explanation of its rationale.

Holland appealed.

Reasonable defense

“Reversal for abuse of discretion ‘is appropriate only upon “clear evidence that [the decision] was not judicially sound,”’” Lorish pointed out. “‘Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.’”

In 1949, the Supreme Court of Virginia confirmed in Parris v. Commonwealth that a liberal standard allowed the withdrawal of a plea before sentencing within the sound discretion of the trial court. The General Assembly codified that right but offered no standard or criteria.

Since Parris, the Supreme Court has established that withdrawal of a guilty plea must be granted before sentencing if a defendant makes a prima facie showing of a reasonable defense, good faith in making the original plea, and the absence of bad faith.

However, the equities favoring withdrawal must not be outweighed by undue prejudice to the commonwealth.

The commonwealth conceded that Holland’s defense based on her lack of willful action was reasonable. According to the commonwealth’s statement of facts, Holland has always maintained that she accidentally gave her son methadone.

“Whether she has presented a winning defense is a question for a future factfinder,” Lorish wrote. “At this stage, Holland made a prima facie showing of a reasonable defense to the charge and that is all that was required to meet this prong.”

Good faith plea

“A plea is made in ‘good faith’ if entered under ‘an honest mistake of material fact’ or ‘induced by fraud, coercion or undue influence,’ such that the plea ‘would not otherwise have been made,’” Lorish explained.

The judge noted that good faith pleas have been withdrawn when made because of poor or erroneous advice of counsel, as well as misunderstanding of a plea’s effect.

Here, the judge found evidence in the record corroborating Holland’s claim that her prior counsel hadn’t reviewed elements of the offense with her and she was unaware of her possible defense.

“A defendant is more likely to have entered a plea based on poor advice from counsel if she has a potentially strong defense yet pleads guilty or no contest anyway — particularly when, as here, she lacks a plea agreement and thus gains little benefit from pleading no contest,” she wrote.

Lorish rejected the commonwealth’s claim that Holland’s proffer, rather than production of evidence at the hearing, was insufficient to establish good faith.

No bad faith

Courts have found that motions to withdraw a plea were made in bad faith when filed merely to cause undue delay or when the defendant’s opinion of the plea changed due to new information unrelated to innocence.

The commonwealth contended that Holland acted in bad faith because she moved to withdraw the day before the sentencing hearing and four months after new counsel was appointed.

Holland responded that she filed after her new counsel examined and explained the charge to her.

“The Commonwealth relies on the timing of the motion alone as dispositive in showing bad faith,” Lorish wrote. “But neither we nor our Supreme Court has found that the timing of a motion to withdraw is dispositive of bad faith.”

Holland provided affirmative evidence that she wasn’t acting in bad faith. Holland’s new counsel said he investigated the case during the time before filing the motion.

“It is entirely reasonable that a defendant might, upon learning her counsel’s license had been suspended, have questions about the plea she entered on that counsel’s advice,” the judge said.

It wasn’t a “reasonably debatable inference” to find bad faith in the timing of Holland’s motion.

No prejudice

The commonwealth argued that granting Holland’s motion would “cause chaos” because it would be difficult to call certain witnesses and the passage of time since the alleged offense would have caused witnesses’ memories to fade.

But Lorish said the commonwealth failed to identify any specific witness that would be particularly difficult to call, let alone unavailable at trial or unreachable by subpoena.

The Supreme Court’s 2016 opinion from Small v. Commonwealth was the only case in which the passage of time constituted per se significant prejudice to the commonwealth after the defendant moved to withdraw his plea nearly three years after entering it.

“For Holland, the balance tilts far the other direction,” Lorish said, noting that “she filed her motion four months after she first had any reason to reconsider the plea she entered, while [the defendant in] Small waited three years.”

Holland also didn’t have a plea agreement by which the commonwealth gave up a benefit at the time she attempted to withdraw her plea.

“[T]he only ‘chaos’ alleged was the typical chaos of proceeding to trial, which is always more time-consuming than a guilty plea,” Lorish wrote. “The mere inconvenience of proceeding to trial cannot alone constitute undue prejudice.”

Lorish reversed the trial court’s judgment and remanded the case for trial.

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