COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Fitzpatrick
Argued at Richmond, Virginia
YANCY BLUE
OPINION BY
v. Record No. 2036-04-4 JUDGE JOHANNA L. FITZPARTICK
MAY 15, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
James G. Connell, III (Devine & Connell, P.L.C., on brief), for
appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General; Elizabeth L. Stewart, Third Year
Law Student, on brief), for appellee.
Yancy Blue was convicted of statutory burglary and grand larceny. On appeal, Blue
contends the trial court erred in denying his request for court-appointed counsel. For the reasons
that follow, we reverse his convictions and remand for a new trial.
BACKGROUND
On June 3, 2002, Blue was indicted for statutory burglary and grand larceny. On July 1,
2002, Blue appeared for arraignment with retained counsel and trial was set for January 10,
2003. On January 10, 2003, Blue appeared with his counsel and the trial judge granted Blue’s
motion to continue the trial to April 22, 2003. On March 27, 2003, Blue appeared for a hearing
on the Commonwealth’s motion to continue his trial. Blue’s counsel did not appear, but she had
informed the Commonwealth that she did not object to the continuance. The trial judge granted
the Commonwealth’s motion and set trial for August 19, 2003. At a hearing on August 4, 2003,
Blue appeared without his counsel and informed the trial judge that he had been unable to
contact his retained attorney and needed time to hire new counsel. Blue’s retained attorney had
surrendered her license to practice law and had not returned his retainer. The trial judge
continued the case until December 1, 2003, for a status review.
At the status review on December 1, 2003, Blue again appeared without retained counsel
and told the trial judge that he made too much money to qualify for court-appointed counsel.
The trial judge told Blue that he needed to sign a waiver of counsel form. The trial judge stated
that the signed waiver “doesn’t mean that you can’t have a lawyer, but it means we’re going to
trial without one if you don’t have one.” The trial judge stated that Blue had adequate time to
retain new counsel, that Blue was playing “fast and loose with the Court,” that they would pick a
trial date, and that the trial would be held on the agreed upon date whether or not Blue had
retained counsel. The Commonwealth argued that the victim wanted to resolve the charges and
requested a trial date within three to four months, but the trial judge denied the request and set
trial for June 2, 2004.
On May 20, 2004, Blue informed the trial judge that his circumstances had changed and
he was unable to afford counsel and requested court-appointed counsel. The trial judge told Blue
to complete a financial statement, and if Blue qualified, he would appoint counsel. Blue told the
trial judge that he lost his prior job because his employer went out of business and he was
currently working for a business building retaining walls. Because Blue had difficulties reading,
he completed a sworn financial statement with the help of his mother. Blue listed a monthly
income of $800 to $1,000 and total monthly expenses of $950. Blue also indicated on the
statement that he was currently separated from his employment due to weather. Under medical
expenses, Blue listed $750 per month. When asked about the medical expenses, Blue stated he
did not have monthly medical expenses of $750, but the $750 was for rent and other bills. Blue
listed $200 per month in child care payments. When asked about the child care payments, Blue
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explained that he was separated from his wife and he gave her the money to care for their son.
According to the financial statement, there were two individuals in his household and he
supported one dependent. His child care payments were not paid pursuant to a court order. The
trial judge reviewed the financial statement and found that Blue made a false representation
regarding his medical expenses, that his child care payments were not court ordered, and as a
result, he did not qualify for court-appointed counsel. He also confirmed the trial date of June 2,
2004. On June 2, 2004, Blue appeared for trial without an attorney, and after discussions with
his mother and wife, he entered nolo contendere pleas to the charges.1
ANALYSIS
On appeal, Blue contends the trial judge’s denial of his request for court-appointed
counsel was reversible error. In support of that contention, Blue argues he did not voluntarily
waive his right to counsel when he signed the waiver on December 4, 2003, his conduct in
attempting to obtain counsel did not constitute a de facto waiver of his right to counsel, and he
established on May 20, 2004, that he was qualified for court-appointed counsel under Code
§ 19.2-157. We agree.
Waiver of the Right to Counsel
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to . . . the assistance of counsel for his defense.” This case involves the waiver of
a fundamental constitutional right—the right to trial counsel. Commonwealth v. Edwards, 235
Va. 499, 505, 370 S.E.2d 296, 298 (1988).
1
Although Blue entered nolo contendere pleas to the charges, unless an accused
intelligently waives his right to counsel, “‘the Sixth Amendment stands as a jurisdictional bar to
a valid conviction and sentence depriving him of his life or liberty.’” Bailey v. Commonwealth,
38 Va. App. 794, 802, 568 S.E.2d 440, 444 (2002) (quoting Edwards v. Commonwealth, 21
Va. App. 116, 123, 462 S.E.2d 566, 570 (1995)). Thus, Blue’s nolo contendere pleas do not bar
consideration of his appeal.
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“We review the trial court’s findings of historical fact only for ‘clear error,’ but we
review de novo the trial court’s application of defined legal standards to the particular facts of a
case.” Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475-76 (1997) (citing
Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996)). In this context,
although we review the trial court’s factual findings only for clear error, whether Blue’s actions
and statements constituted a waiver is a “‘legal determination that we review de novo.’”
Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002) (quoting United
States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)).
This right to counsel includes “not only an indigent’s right to have
the government appoint an attorney to represent him, but also the
right of any accused, if he can provide counsel for himself by his
own resources . . . to be represented by an attorney of his own
choosing.” Thacker v. Slayton, 375 F. Supp. 1332, 1335 (E.D. Va.
1974). However, this right is a qualified right which is limited by
a “countervailing state interest . . . in proceeding with prosecutions
on an orderly and expeditious basis.”
Bolden v. Commonwealth, 11 Va. App. 187, 190, 397 S.E.2d 534, 536 (1990) (quoting Paris v.
Commonwealth, 9 Va. App. 454, 460, 389 S.E.2d 718, 721-22 (1990)).
It is well settled that “absent a knowing and intelligent waiver, no person may be
imprisoned for any offense unless he was represented at trial by an attorney.” Lemke v.
Commonwealth, 218 Va. 870, 872, 241 S.E.2d 789, 791 (1978). While we view the evidence in
this case in the light most favorable to the Commonwealth, we must also “indulge every
reasonable presumption against waiver of counsel.” McNair v. Commonwealth, 37 Va. App.
687, 698, 561 S.E.2d 26, 32 (2002) (en banc). “The burden rests upon the party relying on a
waiver to prove the essentials of such waiver by clear, precise and unequivocal evidence. The
evidence must not leave the matter to mere inference or conjecture but must be certain in every
particular.” White v. Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974).
“‘Whether a waiver is voluntary and competent depends upon the particular circumstances of
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each case, including the defendant’s background, experience, and conduct, but no particular
cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va. App. 335, 343,
494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215, 335 S.E.2d
823, 828 (1985)).
“[I]t is clear that certain dilatory conduct on the part of a defendant may also be properly
viewed as an effective de facto waiver of Sixth Amendment protections.” McNair, 37 Va. App.
at 696, 561 S.E.2d at 31. “To establish a de facto waiver or a constructive discharge, Virginia
law requires that we view the defendant’s conduct in its entirety, together with all the other
circumstances of the case, that support the conclusion his or her conduct tended to unreasonably
and unjustifiably delay trial.” Bailey v. Commonwealth, 38 Va. App. 794, 803, 568 S.E.2d 440,
445 (2002).
Blue appeared at the first hearing with retained counsel, and she continued to represent
him until she surrendered her law license. Blue then requested on two occasions that the trial
judge allow him time to retain new counsel and stated he was trying to get the funds to do so
because he had been told he did not qualify for court-appointed counsel. Although, on the
second occasion, the trial judge granted another continuance, he required Blue sign a waiver of
his right to counsel at that time stating, “[The waiver] doesn’t mean that you can’t have a lawyer,
but it means we’re going to trial without one if you don’t have one.”
The Supreme Court has never required that trial courts use a particular procedure or set of
inquiries in ascertaining whether a waiver of trial counsel was voluntary and intelligent. Harris
v. Commonwealth, 20 Va. App. 194, 196, 455 S.E.2d 759, 760 (1995). However, the defendant
“should be made aware of the dangers and disadvantages of self-representation so that the record
will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Church,
230 Va. at 215, 335 S.E.2d at 828 (emphasis in original) (quoting Faretta v. California, 422 U.S.
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806, 835 (1975)). There is no evidence in the record that the trial judge made Blue aware of the
dangers and disadvantages of waiving his right to counsel when Blue signed the written waiver
form. Thus, Blue did not knowingly and intelligently waive his right to counsel when he signed
the written waiver form on December 1, 2003.
Likewise, Blue’s actions did not constitute a de facto waiver of his right to counsel. See
McNair, 37 Va. App. at 698, 561 S.E.2d at 32. In McNair, the trial judge granted
court-appointed counsel’s request to withdraw due to a breakdown in communication. Id. at
691-92, 561 S.E.2d at 28. The trial judge appointed counsel, who was McNair’s fifth appointed
counsel. He then told McNair that this was his last counsel. Id. at 692, 561 S.E.2d at 28. On the
scheduled trial date, McNair expressed dissatisfaction with his counsel, but counsel stated she
was prepared for trial. Id. at 692, 561 S.E.2d at 29. The trial judge granted counsel’s motion to
withdraw, but asked her to remain in the courtroom as standby counsel and he told McNair the
trial would proceed with McNair acting pro se. McNair told the trial judge that he was not
prepared to proceed without the assistance of counsel. Id. at 693, 561 S.E.2d at 29. In holding
that there was no de facto waiver of counsel by McNair, this Court stated that McNair was
“difficult,” but that his behavior did not show a “pattern of conduct calculated to prevent his trial
from ever occurring.” Id. at 698, 561 S.E.2d at 32.
In contrast, in Bolden we held that the trial judge did not err in requiring Bolden to go to
trial without the assistance of counsel. Bolden, 11 Va. App. at 189, 397 S.E.2d at 535. Bolden
appeared for trial with retained counsel, but requested a continuance to retain different counsel.
Id. The trial judge granted Bolden a continuance to retain counsel; however, Bolden failed to
retain new counsel and on the day of his continued trial, he requested a second continuance to
retain counsel.2 Id. at 189-90, 397 S.E.2d at 536. The trial judge granted a short continuance
2
There was no evidence that Bolden lacked funds to retain counsel.
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and told Bolden that if he appeared without counsel, the court would consider Bolden to have
waived his right to be represented by counsel. Id. at 189, 397 S.E.2d at 536. The trial judge also
offered Bolden the services of court-appointed counsel, which Bolden refused. Id. at 190, 397
S.E.2d at 536. The Commonwealth’s witnesses had appeared for trial each time Bolden
requested a continuance. Id. at 189-90, 397 S.E.2d at 536. After the second continuance, Bolden
again appeared without retained counsel. The trial judge denied Bolden’s third request for a
continuance to retain counsel, and tried Bolden without the assistance of counsel. Id. at 190, 397
S.E.2d at 536. We held that Bolden had waived his right to counsel due to his dilatory conduct
because Bolden was given a reasonable opportunity to obtain counsel, he was advised that the
failure to appear without counsel could be deemed a waiver of his right to counsel, the
Commonwealth’s witnesses were present each time Bolden requested a continuance, and he
declined the court’s offer to appoint counsel pursuant to Code § 19.2-157. Id. at 192-93, 397
S.E.2d at 537.
In this case, after being abandoned by his retained counsel, Blue attempted to employ
other retained counsel, but was unable to do so due to the lack of funds. When Blue appeared on
December 1, 2003, and explained his difficulties in retaining counsel, trial had not been set and
there was no evidence that the Commonwealth’s witnesses were present and ready for trial. Blue
never indicated to the court that he wanted to waive counsel and in fact continued to attempt to
get representation. Although the trial judge acquiesced in both his requests and the
Commonwealth’s request for continuances, the record does not support the finding that Blue’s
conduct, when viewed in its entirety, was calculated to prevent his trial from ever occurring.
Thus, under the facts of this case, Blue’s actions were not a de facto waiver of his right to
counsel.
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Code § 19.2-159
Code § 19.2-157 provides in pertinent part:
[W]henever a person charged with a criminal offense the penalty
for which may be . . . confinement in the state correctional facility
or jail . . . appears before any court without being represented by
counsel, the court shall inform him of his right to counsel. The
accused shall be allowed a reasonable opportunity to employ
counsel or, if appropriate, the statement of indigence provided for
in § 19.2-159 may be executed.
Code § 19.2-159(A) provides in pertinent part:
If the accused shall claim that he is indigent, and the charge against
him is a criminal offense which may be punishable by . . .
confinement in the state correctional facility or jail . . . the court
shall determine from oral examination of the accused or other
competent evidence whether or not the accused is indigent within
the contemplation of law pursuant to the guidelines set forth in this
section.
The guidelines set forth in Code § 19.2-159(B) require the trial court to take into
consideration the “net income of the accused,” “all assets of the accused which are convertible
into cash within a reasonable period of time without causing a substantial hardship or
jeopardizing the ability of the accused to maintain a home” and “exceptional expenses,” which
“shall include but not be limited to costs for medical care, family support obligations, and child
care payments.” Code § 19.2-159(B)(3) provides that an accused is entitled to appointed counsel
if his “available funds are equal to or below 125 percent of the federal poverty income guidelines
prescribed for the size of the household of the accused by the federal Department of Health and
Human Services.”
According to the Department of Health and Human Services, in 2004 the poverty
guideline was $9,310 for a household of one and $12,490 for a household of two. Annual
Update of the HHS Poverty Guidelines, 69 Fed. Reg. 7336 (February 13, 2004). Therefore
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125% of the poverty guidelines in 2004 was $11,638 for a household of one and $15,613 for a
household of two.
In his financial statement of May 20, 2004, Blue listed a weekly income of $200 to $250;
thus, his annual income was $10,400 to $13,000. Blue’s financial statement listed no assets
other than twelve dollars in cash. Blue initially incorrectly listed $750 for medical expenses on
the financial statement. However, the record reflects that Blue’s mother helped him complete the
information because he had difficulties reading and he did not understand the form. Upon
further questioning by the court, Blue stated he believed that the $750 was for living expenses
rather than medical expenses. The trial judge disallowed the expense of $750. Blue also listed
in the financial statement an expense of $200 per month for child care for his child. The trial
judge noted that Blue was not under a court order to provide the child care payments and
disallowed the expense.
Nothing in Code § 19.2-159 or in the financial statement form requires the child care
payments to be made pursuant to a court order. In fact it would be contrary to the intent of the
child support statutory requirements to penalize voluntary payments of a support obligation. See
Code § 20-61; Lehman v. Lehman, 38 Va. App. 598, 605, 567 S.E.2d 571, 575 (2002) (finding
that both parents owe a duty of support to their minor child). Blue supported himself and one
child. Blue’s annual income was $10,400 to $13,000. At a minimum, deducting Blue’s child
care payments, his annual income was well below 125% of the 2004 federal poverty guidelines
for an individual with one dependant, and he was entitled to court-appointed counsel.
Although Blue had retained counsel in 2002 when this case began, that fact does not
prove that he was ineligible for court-appointed counsel in May 2004 when his circumstances
had changed. See Lemke, 218 Va. at 874, 241 S.E.2d at 792 (finding that although the defendant
was represented by retained counsel in a lower court proceeding, that fact did not necessarily
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prove she was ineligible to receive the benefit of court-appointed counsel on appeal to the circuit
court).
CONCLUSION
For these reasons, we hold the trial court erred in denying Blue’s request for
court-appointed counsel. Accordingly, we reverse Blue’s convictions and remand for a new trial
if the Commonwealth is so advised.
Reversed and remanded.
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