3 Things Your lawyer must tell you about your driver’s license, civil lawsuits and appeals before you plead no contest (nolo contendere)

There are sometimes situations where a lawyer must advise a client on the ramifications of civil and criminal plea proceedings where there is a danger that evidence from each proceeding could be admissible in either case.

For a lawyer who focuses his area on criminal defense, clients will sometimes ask that we provide counsel on civil liability when the alleged victim sustains property damage, injury, in a drunk driving matter, or even death, in the case of a murder or a manslaughter charge. Advice in this area is especially important when we advise the client to enter a plea and accept responsibility for some type of wrongful act.

The Procedural Effect of No Contest and Guilty Pleas

Procedurally, an accused person must plead not guilty, guilty, or, with the consent of the judge, nolo contendere (no contest.)  If the defendant refuses to plead, the judge will enter a not guilty on the defendant’s behalf.  When there is a plea agreement, the terms must be stated in open court, in the presence of the defendant, unless the judge orders, for good cause shown, that specific conditions in the agreement be placed on the record in camera and the record sealed.

Following a plea, the judge conducts an inquiry or colloquy of the defendant on the record to determine whether he or she understands and voluntarily accepts the terms on which the guilty plea or a plea of no contest is based. 

At a minimum the judge should ask the following during a plea colloquy :

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or no contest?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the right to trial?

(4) Does the defendant understand that he or she is presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any agreement tendered unless the judge accepts such agreement?  See.  Pa.R.Crim.P. Rule 590

While negotiated and open pleas require a client to admit to certain facts during a plea colloquy, a plea of no contest or nolo contendere is much different. Procedurally, all pleas have the same effect on a case in that it resolves the matter prior to trial. In most situations, a client will receive a benefit toward a potential sentence given that he or she does not only spare the victim, and or a family further harm or suffering of often a long trial, but also saves the Commonwealth considerable time, resources and expenses which can be devoted to other matters.

While any plea option will result in a non-trial disposition, a no contest plea provides a client with additional protections which could dramatically affect a related civil matter.  Pennsylvania Courts have addressed this issue and found that while the procedural effect of a no contest, negotiated, or open plea are the same, a no contest plea is not an admission of guilt.

Unlike a guilty plea, a no contest plea does not involve any acknowledgment as to having committed an illegal act but rather admits that the allegations, if proven beyond a reasonable doubt, meet the elements of the offense or offenses charged.  The difference, therefore, between a no contest plea and a guilty plea is that a plea of guilt is a binding confession of the defendant and the no contest plea has no effect beyond those criminal proceedings.

The Effect of No Contest Pleas on Findings of Negligence

It is important to keep in mind that even if a no contest plea is mentioned during the course of civil proceedings, it does not provide grounds for an appeal, provided that the Court clearly states that the conviction was not the evidence by which it arrived at a finding of negligence.    

This is what occurred in Trotman v. Mecchella, where the Pedestrian (Trotman) brought a personal injury action against driver of automobile (Mecchella) after the pedestrian was shot in eye with BB gun fired by passenger in Mechella’s automobile.

The Court of Common Pleas, Philadelphia County, entered judgment against Mecchella and awarded compensatory and punitive damages. After the court denied Mecchella’s posttrial motions, he appealed. The Superior Court held that the court’s finding of negligence was supported by competent evidence, even though the court mentioned Mecchella’s  no contest plea to the charge of criminal conspiracy.  The court stated, on the record, the reasons for its liability finding, and clearly stated that the conviction was not evidence by which the court relied to arrive at a finding of negligence.  See Trotman v. Mecchella.  Trotman v. Mecchella, 421 Pa.Super. 620 (1992)

The Effect of No Contest Pleas on Prior Bad Acts Evidence

While a no contest plea is admissible for impeachment as to a conviction itself, an opposing party or the prosecution cannot use facts elicited during no contest proceedings. 

In Commonwealth v. Moser, a Step-grandfather was charged with indecent assault, unlawful contact with a minor, and corruption of a minor after he allegedly placed his hand under his 13-year-old step-granddaughter’s shirt. The Court of Common Pleas, York County, denied Commonwealth’s motion to introduce the step-grandfather’s nolo contendere plea to indecent assault. 

The prosecution had attempted to introduce it as Rule 404 (b) evidence in a subsequent prosecution for a similar incident to prove absence of mistake or accident.  The Superior Court in Mosser found Rule 410 (a) provides that evidence of a no contest plea is not admissible in any civil or criminal proceeding against the Defendant. See Commonwealth v. Mosser 999 A.2d 602 (2010). 

The Effect of No Contest Pleas and New Jersey Guilty Pleas with Civil Reservations on Driver License Suspensions

For those practitioners who maintain practices in Pennsylvania and New Jersey, they should understand that a no contest plea in Pennsylvania is the equivalent of a civil reservation plea in New Jersey when it involves matters pertaining to driver license suspensions.   

In the Bourdeev v. Department of Transportation, the Commonwealth Court ruled that PENNDOT could use a Plaintiff’s guilty plea pursuant to civil reservations in New Jersey against him for the purposes of determining a license suspension in Pennsylvania. The Defendant in that case was a Pennsylvania driver who was convicted of DWI in New Jersey. The Court found the Commonwealth’s use of a foreign conviction for driving under the influence obtained from a guilty plea with civil reservations did not violate the full faith in credit clause.  

Section 1581 of the Vehicle Code requires PENNDOT to treat out of state convictions as though they had occurred in Pennsylvania.  As a result of PENNDOT receiving notification from New Jersey of the conviction equivalent to a violation of Pennsylvania’s Vehicle Code for driving under the influence, it could suspend driving privileges within the Commonwealth. 

In its opinion, the trial court emphasized that while licensee did plead guilty to the driving under the influence (DUI) charges, the plea was nevertheless entered pursuant to a “civil reservation.”  The Commonwealth court found that the trial court correctly concluded that PENNDOT could not rely solely upon the DUI plea entered in New Jersey as a basis for license suspension.

While the New Jersey Rule of Court which allows a civil reservation with guilty pleas prohibits the use of the plea itself in any civil proceeding, it does not bar the introduction of evidence of the conviction that resulted from the plea for driver license suspensions.  In the Bourdeev case, it was the conviction, not the guilty plea, that triggered New Jersey’s report to PENNDOT and the eventual suspension.  See Bourdeev v. Com., Dept. of Transp., Bureau of Driver Licensing, 755 A.2d 59 (2000).

The Effect of No Contest Pleas on Post Sentence Rights

Finally, while a Defendant does not make an admission of guilt during no contest proceeding, this does not prevent a Court from finding that he or she entered a plea knowingly and voluntarily if he or she attempts to withdraw the no contest plea. 

In Commonwealth v. Lewis, the Superior Court found that a no contest plea was entered into knowingly and voluntarily and denied an appeal to withdraw it.  The Court specifically found that while a no contest plea does not require the Defendant to admit guilt, it nevertheless has the same effect of a guilty plea in that it requires the Defendant to waive his or her right to trial and authorizes the Court to treat him or her as guilty for the purpose of sentencing.

In Lewis, Appellant had entered a negotiated plea of nolo contendere to the charge of murder in the third degree. After a colloquy hearing, the trial court sentenced the appellant to the term of incarceration, pursuant to the plea agreement, specifically twelve and one-half (12-1/2) to twenty five (25) years incarceration.   The appellant, represented by newly retained counsel, filed a post sentence motion to withdraw the plea on the basis that it was not entered into knowingly and voluntarily. The trial court denied the motion and was affirmed on appeal.  The Superior Court further found that the Pennsylvania Constitution does not prohibit the imposition of a prison sentence on an accused who is unwilling to expressly admit guilt but waives his right to trial and acceptance of sentence. See Com. v. Lewis, 791 A.2d 1227 (2002)

Conclusion

No contest plea offers a client the opportunity to obtain most, if not all, the benefits of a guilty plea but also protect his or her civil interests.  No contest pleas, however, can still cause negative consequences in civil proceedings.  Despite these consequences, no contest pleas are still advisable in most cases where civil liability is a concern.  From a criminal defense standpoint, a no contest plea does leave open the possibility that the prosecution will argue that a defendant has not accepted responsibility or shown a lack of remorse for a wrongful act.  The defense, however, can address these concerns through a negotiated sentence that a judge will likely accept.  In the event that a no contest plea is not negotiated (open), defense counsel must have a strong understanding of not only applicable sentencing guidelines, offense gravity scores but also potential prosecution aggravation arguments along with the sentencing judge’s individual tendencies based on his or her history to obtain the best possible result for the client.