FROM THE CIRCUIT COURT OF AUGUSTA COUNTY. A. Joseph Canada, Jr., Judge.
W. Michael Lewis (Dean E. Lhospital; Lewis & Lhospital, on briefs), for appellant.
Sabrina N. Chester for appellees.
Present: All the Justices
LEROY F. MILLETTE, JR.,
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, 289 Va. 209, 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.
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 ...