The “Chutzpah” of Insurance Fraud Perpetrators

After Sentencing Defendant Attempts to Change his Plea of Guilty

Aug 26, 2021

BACKGROUND

After being charged Soliz signed and filed, in each trial court cause number, a “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” in which he pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument and admitted that he committed the acts alleged in each indictment. Trial counsel representing Soliz also signed the waivers affirming that he believed that appellant had entered his guilty pleas knowingly, voluntarily, and after a full discussion of the consequences of the pleas. Trial counsel affirmed that he believed that appellant was competent to stand trial.

As to the right to appeal, appellant signed the “Advice of Defendant’s Right to Appeal,” in which the trial court advised him that Texas law gives a defendant the right to appeal his conviction, but if he pleaded “guilty or no contest and accepted the punishment recommended by the [State],” he “c[ould not] appeal [his] conviction unless th[e] [c]ourt g[ave] [him] permission.”

The trial court found sufficient evidence of appellant’s guilt and that appellant had entered his guilty pleas freely, knowingly, and voluntarily.

Before his sentencing hearing, appellant filed a motion to withdraw his guilty plea in each trial court cause number. He asserted that his inability to effectively communicate with trial counsel contributed to his mistaken understanding, and he pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument under duress because of his lack of confidence in his trial counsel’s preparedness for trial.

At the hearing on his motion to withdraw his guilty pleas, appellant testified that he “want[ed] to go to trial.” According to appellant, he was given and signed the written admonishments, then pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument. He claimed, though, that he misunderstood the effect of his guilty pleas.

James Smith his trial counsel, testified to the contrary and that the trial court made it clear to appellant that he was giving up his right to a trial and was instead entering guilty pleas and requesting a presentence investigation. The trial court denied appellant’s motion to withdraw his guilty pleas.

ANALYSIS

A defendant may withdraw his guilty plea at any time before judgment is pronounced or the trial court takes the plea under advisement. A guilty plea constitutes a waiver of three constitutional rights: (1) the right to a jury trial, (2) the right to confront one’s accusers, and (3) the right not to incriminate oneself. To be consistent with due process, a guilty plea must be entered knowingly, intelligently, and voluntarily.

A plea of guilty based on misinformation is involuntary. However, a defendant’s uncorroborated testimony that he was misinformed by his trial counsel does not meet his burden to show that his plea was involuntary. The record established a prima facie showing that appellant entered his guilty pleas voluntarily and with knowledge of the consequences of entering them.

Although appellant testified at the hearing on his motion to withdraw his guilty pleas that he misunderstood the effect of his guilty pleas, appellant’s testimony conflicts with his previous acknowledgment that he understood the written admonishments. Because appellant did not meet his burden to show that his guilty pleas were involuntary, we hold that the trial court did not err in denying appellant’s motion to withdraw his guilty pleas.

RESTITUTION ORDER

In his third issue, appellant argues that the record does not support the trial court’s restitution order because “[t]he restitution amount is improper” and “the case should be remanded for a restitution hearing.”

To the extent that appellant, in his restitution issue, challenges the sufficiency of the evidence supporting the trial court’s $2,200 restitution order in the written judgment related to the insurance fraud offense, he may raise that challenge for the first time on appeal.

The judicial confession constitutes sufficient evidence for the trial court to have exercised its discretion in ordering appellant to pay $2, 200 in restitution in connection with his insurance fraud offense. Sufficient evidence supports the trial court’s $2,200 restitution order contained in its written judgment.

ZALMA OPINION

The guilt of Mr. Soliz was overwhelming. His lawyer advised him to plead guilty because he would go to jail if convicted at trial. He did so voluntarily and was admonished about the effect of his plea multiple times by the prosecutor, his defense counsel and the judge, was sentenced only to probation and only $2,200 in restitution. Then, after giving up his right to appeal, he appealed claiming he was misled. Chuzpah personified. He deserved to have his probation removed and the for breach of probation and be sentenced to serve time in jail. The court, regardless, kept the kind sentence.

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 54 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. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/ podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4