“Chutzpah” by an Arsonist

Appeal to Remove Guilty Plea Ridiculous

Arson is the most dangerous and vicious of insurance crimes. Firefighters, residents, neighbors, passers by, pets and other animals often die as a result of an arson for profit. “Chutzpah” as readers of this blog know is a Yiddish word meaning unmitigated gall usually defined as a criminal defendant who is convicted of murdering his parents seeks mercy because he is an orphan.

When an arsonist is given the opportunity to plead guilty in exchange by removing many of the charges available to the state the defendant can obtain a lesser sentence than if convicted of all of the charges against the arsonist. When, as in Gloria Eun Hye Lee, a/k/a Gloria Eunhye Lee v. The State Of Nevada, No. 72653, Supreme Court Of The State Of Nevada (April 10, 2018) is greater than expected the defendant will attempt to change the plea and seek a new trial claiming inadequacy of counsel.

CONTENTIONS

Gloria Eun Hye Lee contends that the district court erred in denying claims that her counsel was ineffective. She asserts that, had counsel more effectively challenged the charges pretrial, she would not have pleaded guilty and would have insisted upon going to trial. She also argues that counsel was ineffective at sentencing.

ANALYSIS

To establish ineffective assistance of counsel, a petitioner must demonstrate counsel’s performance was deficient because it fell below an objective standard of reasonableness, and resulting prejudice in that there is a reasonable probability, but for counsel’s errors, the petitioner would not have pleaded guilty and would have insisted on going to trial. The Supreme Court will always give deference to the district court’s factual findings if supported by substantial evidence and not clearly erroneous.

First, Lee argues that trial counsel was ineffective for failing to successfully dismiss the charge of first-degree arson or challenge the statute at sentencing because the business she was accused of setting ablaze, a pet store, was unoccupied and not a dwelling. Lee failed to demonstrate deficient performance because the pet store was an “other structure” within the plain language of NRS 205.010(1) and, under the same provision, whether that structure was occupied is irrelevant. Therefore, the district court did not err in denying this claim.

Second, Lee argues that trial counsel was ineffective for failing to challenge the charges of first-degree arson, arson with intent to defraud, and insurance fraud as violations of double jeopardy. Separate charges for these offences do not offend double jeopardy. First-degree arson and burning with intent to defraud an insurer are not the same offense. First-degree arson requires the willful and malicious setting of a fire to a structure. Setting a fire with intent to defraud an insurer requires the willful setting of a fire with the intent to defraud the insurer. The arson offenses were completed upon the setting of the fires and insurance fraud was alleged to have occurred afterward. Lee has not demonstrated prejudice considering the significant benefits she received in pleading guilty. The State dropped charges of conspiracy to commit burglary, burglary, conspiracy to commit arson, 26 counts of attempted cruelty to animals, one count of arson with intent to defraud insurer, and attempted theft. Therefore, the district court did not err in denying these claims.

Third, Lee contends that counsel should have argued that there is no felony crime of attempted cruelty to an animal as the statute only operates where actual harm has come to an animal and she did not intend to commit animal cruelty as her alleged actions only incidentally endangered the dogs. Lee failed to demonstrate deficient performance. She has cited no authority suggesting that starting a fire in a building could not amount to willfully and maliciously attempting to kill the dogs kept therein. Therefore, the district court did not err in denying this claim.

Fourth, Lee argues that the district court erred in denying her claim that trial counsel failed to investigate mitigating circumstances before her guilty plea and sentencing. She asserts that counsel should have introduced evidence concerning Lee’s medical and mental health history, specifically, her drug addiction. This argument lacks merit. Counsel introduced Lee’s medical and mental health history through a sentencing memorandum and letters from Lee, her family, friends, and associates. These documents referenced Lee’s miscarriages, high-risk pregnancy, migraines, abuse of pain medications, depression and attendant medication, and history of counseling. Notably, Lee’s letter to the court did not reference drug addiction and counsel could not recall Lee ever informing them of serious drug addiction. Given this evidence, the district court’s conclusion that counsel was not deficient for not unearthing additional comparable evidence and that such evidence would not have affected the outcome of the sentencing is supported by substantial evidence. As this proposed evidence was unlikely to have affected the outcome of sentencing, Lee failed to demonstrate that it was so compelling as to have demonstrated a legal excuse for the crimes such that she would have forgone the significant benefits of the guilty plea agreement and insisted upon going to trial. Therefore, the district court did not err in denying this claim.

Fifth, Lee argues that the district court erred in denying her claim that the cumulative effect of the ineffectiveness of counsel, prosecutorial misconduct, and trial court error deprived her of due process. Lee has cited no authority that requires consideration of the cumulative effect of defaulted claims with properly raised claims of ineffective assistance of counsel.

ZALMA OPINION

Lee set fire to her pet shop in order to obtain money from her insurance company ignoring the fact the pet shop was filled with animals who could have died from the results of the fire, not to mention firefighters and neighbors. She was charged with many crimes and pleaded guilty to one to avoid a very long sentence. Then, with Chutzpah greater than that expressed by Bernie Madoff, she tried to withdraw her guilty plea and get a trial. Thankfully, the Supreme Court of Nevada did not fall for her claims and she will spend the full sentence in prison.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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