COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Petty and Senior Judge Coleman
Argued at Salem, Virginia
GARY DALE LONDON
OPINION BY
v. Record No. 1224-05-3 CHIEF JUDGE WALTER S. FELTON, JR.
DECEMBER 28, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
J. Patterson Rogers, 3rd for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on briefs), for appellee.
Gary Dale London (“appellant”) appeals his convictions of robbery in violation of Code
§ 18.2-58; use of a firearm in the commission of robbery in violation of Code § 18.2-53.1;
assault and battery of a police officer in violation of Code § 18.2-57(C); attempt to disarm a law
enforcement officer in violation of Code §§ 18.2-57.02 and 18.2-26; and grand larceny in
violation of Code § 18.2-95. He contends that the trial court abused its discretion and violated
his Sixth Amendment right to counsel when it refused to allow him to be represented by his
retained counsel of choice, and abused its discretion when it denied his requests for continuance
to permit his retained counsel a reasonable time to prepare for trial. He also argues that the trial
court abused its discretion in denying his court-appointed attorney’s request for a continuance on
the day of trial. For the reasons that follow, we reverse.
BACKGROUND
In November 2004, appellant was charged with robbery of a convenience store and other
offenses related to that incident. Following the court’s determination of appellant’s indigency,
Public Defender Joseph Schenk was appointed to represent him. In January 2005, a grand jury
also indicted appellant for grand larceny of an unrelated theft of a utility trailer. Schenk was also
appointed to represent appellant in that matter. Appellant made known to Schenk that he was
going to retain John P. Light, an attorney who had previously represented him, to represent him
on all of the matters and that his mother was raising funds to retain Light.
On January 20, 2005, Schenk represented appellant at the preliminary hearing on the
robbery-related charges. Light was present in the courtroom during the preliminary hearing
because appellant’s family had contacted him and expressed a desire to retain him. He
tape-recorded, but did not otherwise participate, in that proceeding. Following the preliminary
hearing, appellant continued to insist to Schenk that Light would represent him at trial.
Subsequently, the trial court granted Schenk’s motion for a mental health evaluation of appellant
to determine his sanity at the time of events leading to his arrest, and his competency to stand
trial. On March 1, 2005, in order to permit time for the evaluation, the trial court set a trial date
of March 30, 2005 on all charges pending against appellant. On March 3, 2005, Dr. Dana
Blackmer, a clinical psychologist appointed by the trial court to evaluate appellant, found him
sane and competent to stand trial.
On March 14, 2005, sixteen days before the scheduled trial date, appellant’s mother
employed Light to represent appellant.1 Four days later, Light filed a motion to be substituted as
appellant’s counsel and requested a continuance to allow him adequate time to prepare. Five
days prior to the scheduled trial date, at the hearing on the motions for substitution of counsel
and the continuance, Mark Williams, Light’s law partner, informed the trial court that appellant
had retained Light but that Light was then on vacation in Canada and would not return until the
1
The receipt provided to appellant’s mother at the time of payment stated that Light’s
representation was “contingent on continuance of 3/30/05 case.”
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following week. Williams presented an order, endorsed by Schenk, to substitute Light as
counsel and to grant a continuance to permit Light a reasonable time to prepare for trial.
Appellant had not previously requested any continuance of the scheduled trial date.
Williams also informed the trial court that Light had been provided with new information
by appellant’s family relevant to appellant’s mental health evaluation. He advised the trial court
that the information he received related to Dr. Blackmer’s evaluation of appellant, and had not
been given to Schenk nor reviewed by Dr. Blackmer.
The Commonwealth’s attorney opposed the continuance, advising the trial court it had
three “very important” witnesses traveling from great distances, including two from out-of-state,
and that “it would really inconvenience the Commonwealth if [it] had to continue the case.” The
trial court denied appellant’s motion for a continuance and the motion to substitute Light as
appellant’s counsel, noting that it had previously set appellant’s trial date late in the term to
accommodate appellant’s mental health evaluation.
Two days before the scheduled trial, Light discussed his representation of appellant with
the Commonwealth’s attorney and the need to have the trial date continued to permit him time to
prepare the defense. The day before the scheduled trial, Light informed the Commonwealth’s
attorney that he would not “get in the case,” the trial court having denied his request for a
continuance.
On the March 30, 2005 trial date, appellant appeared for trial with Schenk as counsel.
Schenk confirmed to the trial court his “understanding [was] that because of the ruling on the
25th [denying the continuance], Mr. Light opted to not get involved in the case.” Schenk then
moved for a continuance, informing the trial court that appellant continued to want Light to
represent him, that he had not been given the names of witnesses that appellant wanted to testify,
and that he was not prepared for trial. The trial court denied the motion and proceeded to trial,
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trying the robbery-related indictments first, after making arrangements for appellant’s requested
witnesses to be present. Appellant was found guilty on all but one of the robbery-related
indictments.
Trial on the indictment for grand larceny also commenced on March 30, 2005. In the
colloquy with the trial court at the beginning of trial, appellant told the trial court that he was not
aware that the grand larceny direct indictment was also going to be tried on that date and that he
had witnesses that he wanted to be present to testify for him. Schenk told the trial court that he
was not certain that he advised appellant that the grand larceny charge was to be tried on March
30, 2005. The trial court then began the trial, allowing the Commonwealth to put on its
witnesses, and permitting the defense to put on its case at a later date. As the trial progressed
into the evening, the Commonwealth did not complete its case. The trial was continued to April
6, 2005 to permit the Commonwealth to complete presentation of its case, to permit
Dr. Blackmer to review the additional mental health information, and to allow appellant to obtain
the presence of his witnesses. During the period between March 30, 2005 and April 6, 2005,
Dr. Blackmer reviewed the additional mental health information and reported that it did not alter
his earlier determination that appellant was sane and competent to stand trial. At the conclusion
of the grand larceny trial on April 6, 2005, the trial court found appellant guilty. This appeal
followed.
ANALYSIS
Appellant contends that the trial court abused its discretion and violated his Sixth
Amendment right to counsel when it denied his motion to substitute his retained counsel, Light,
as trial counsel, and his motion for a continuance from the initial trial date to provide Light a
reasonable time to prepare for trial. He also contends the trial court abused its discretion when it
denied Schenk’s motion for a continuance on the trial date to provide him time to prepare for
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trial. The Commonwealth argues the trial court did not err by requiring the trial to proceed on
the scheduled trial date and in “not permitting the defendant to profit from his own lack of
cooperation with his [appointed] attorney.”
“An accused’s right to be represented by counsel is a fundamental component of our
criminal justice system . . . long . . . recognized in Virginia . . . [to be] a fundamental one
guaranteed to an accused by the Bill of Rights of the Virginia Constitution.” Paris v.
Commonwealth, 9 Va. App. 454, 459, 389 S.E.2d 718, 721 (1990) (citations omitted).2 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 or through the aid of his family or friends, to be represented by an attorney
of his own choosing.” Id. at 460, 389 S.E.2d at 721 (citing Thacker v. Slayton, 375 F. Supp.
1332, 1335 (E.D. Va. 1974)).
We have previously held that an accused’s right to be represented by retained counsel,
however, 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, 9 Va. App. at 460, 389 S.E.2d
at 721-22), and “only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face
of a justifiable request for delay’ violates the right to the assistance of counsel.” Paris, 9
Va. App. at 461, 389 S.E.2d at 722 (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).
In cases where a previously indigent accused is able to retain counsel of his choice, Code
§ 19.2-159.1(B) provides that the accused must “obtain private counsel and . . . forthwith advise
the court of the change of circumstances.” Once the trial court is notified that the accused has
2
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defen[s]e.” U.S. Constitution, amend. VI.
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retained counsel, the statute provides that “appointed counsel shall be relieved of further
responsibility,” and the trial court “shall grant [a] reasonable continuance to allow [retained]
counsel to . . . prepare for trial.” Id. “Courts before which criminal proceedings are pending
shall afford such continuances and take such other action as necessary” to comply with Code
§ 19.2-159.1(B). Code § 19.2-162. See also Cherricks v. Commonwealth, 11 Va. App. 96, 99,
396 S.E.2d 397, 399 (1990) (citing Code § 19.2-162).
Not every denial of a request for continuance to permit substitution of retained counsel
will constitute an abuse of discretion. In Shifflett v. Commonwealth, 218 Va. 25, 235 S.E.2d
316 (1977), the defendant sought a continuance on the day of trial to allow him the opportunity
to hire retained counsel, citing his displeasure with court-appointed counsel. There, our Supreme
Court concluded that “[i]n order to work a delay by the last minute change of counsel,
exceptional circumstances must exist.” Id. at 30, 235 S.E.2d at 319.
When a previously indigent accused obtains retained counsel, under the circumstances
shown in this record, the trial court’s failure to substitute retained counsel, and to grant a
reasonable continuance to permit retained counsel an opportunity to prepare for trial, is
inconsistent with the requirements of Code § 19.2-159.1(B). “[A]lthough granting or denying a
continuance is within the discretion of the trial court, it must exercise its discretion with due
regard to the provisions of the Bill of Rights, which secure to one accused of crime a fair and
impartial trial . . . .” Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d 784, 787 (1984)
(citations omitted). Thus, “[w]hen a court has no reason to believe that a motion for a
continuance is spurious, it should seriously consider whether a failure to grant the continuance
may ‘imperil the just determination of the cause.’” Id. (quoting Myers v. Trice, 86 Va. 835, 842,
11 S.E. 428, 430 (1890)).
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The United States Supreme Court recently addressed the Sixth Amendment right to
retained counsel in United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), holding that:
[w]here the right to be assisted by counsel of one’s choice is
wrongly denied . . . a Sixth Amendment violation [is established].
Deprivation of the right is “complete” when the defendant is
erroneously prevented from being represented by the lawyer he
wants, regardless of the quality of the representation he received.
Id. at 2563. 3 In Gonzalez-Lopez, the accused’s retained counsel represented him at his
preliminary hearing pursuant to a provisional grant of authority to act pro hac vice. However,
the trial court revoked retained counsel’s provisional permission and denied him admission pro
hac vice to represent Gonzalez-Lopez at trial. Id. at 2560. The government conceded, under the
circumstances presented, the trial court erred in denying Gonzalez-Lopez representation by his
retained counsel. However, it contended that, because Gonzalez-Lopez received effective
representation by counsel at trial, any error on the part of the trial court denying representation
by retained counsel did not prejudice Gonzalez-Lopez, and at most was harmless error. The
Supreme Court concluded that the trial court erred in denying defendant his right to be
represented by his retained counsel of choice, noting that “the right at stake here [was] the right
to counsel of [defendant’s] choice . . . and that right was violated because the deprivation of
counsel was erroneous. No additional showing of prejudice [was] required to make the violation
‘complete.’” Id. at 2562.
In Gonzalez-Lopez, the Court noted that the erroneous deprivation of counsel of choice
has “consequences that are necessarily unquantifiable and indeterminate . . . .” Id. at 2564
(citations omitted).
3
We requested both parties to provide additional briefing to address the impact of
Gonzalez-Lopez, 126 S. Ct. 2557, decided June 2006, after this appeal was granted, on the issues
before us.
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Different attorneys will pursue different strategies with regard to
investigation and discovery, development of the theory of defense,
selection of the jury, presentation of the witnesses, and style of
witness examination and jury argument. And the choice of
attorney will affect whether and on what terms the defendant
cooperates with the prosecution, plea bargains, or decides instead
to go to trial. In light of these myriad aspects of representation, the
erroneous denial of counsel bears directly on the framework within
which the trial proceeds, or indeed on whether it proceeds at all. It
is impossible to know what different choices the rejected counsel
would have made, and then to quantify the impact of those
different choices on the outcome of the proceedings. Many
counseled decisions, including those involving plea bargains and
cooperation with the government, do not even concern the conduct
of the trial at all. Harmless-error analysis in such a context would
be a speculative inquiry into what might have occurred in an
alternate universe.
Id. at 2564-65 (citations omitted).
Prior to the decision in Gonzalez-Lopez, we have concluded that a trial court’s denial of a
motion for continuance to permit substitution of counsel and, where necessary, a continuance to
allow counsel to prepare “will not be reversed on appeal unless there was a clear abuse of
discretion and prejudice to the defendant.” Feigley v. Commonwealth, 16 Va. App. 717, 721,
432 S.E.2d 520, 523 (1993) (citing Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d
508, 509 (1990)) (emphasis added). However, Gonzalez-Lopez calls into question our prior
holdings requiring prejudice be shown, instructing that once a defendant is erroneously denied
his right to counsel of choice, “[n]o additional showing of prejudice is required to make the
violation ‘complete.’” Id. at 2562.
Under the circumstances demonstrated on the record before us, where appellant
continuously insisted that Light would represent him at trial, where his family had actually
retained Light sixteen days prior to the scheduled trial date, where the trial court was notified by
retained counsel of that event four days later, and where no prior continuances had been granted
at his request, the trial court abused its discretion in failing to grant appellant’s motion to
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substitute Light, his retained counsel of choice, as his trial counsel, and in failing to grant him a
reasonable continuance to prepare for trial. Code §§ 19.2-159.1(B) and 19.2-162.
On this record, we find the circumstances required substitution of counsel retained in
advance of the trial date, and a continuance of the trial date for a reasonable period of time to
permit counsel to prepare. Failure to do so constituted an abuse of discretion and denial of
appellant’s right to be represented by his retained counsel.
CONCLUSION
From the record before us, where no prior continuances had been requested by appellant,
where the motion for the substitution of counsel, and for a reasonable continuance to permit
retained counsel the opportunity to prepare for trial, were timely presented, we conclude that the
trial court abused its discretion by not permitting the substitution of retained counsel and in not
granting a reasonable opportunity for him to prepare for trial. Accordingly, we reverse
appellant’s convictions and remand to the trial court for a new trial if the Commonwealth be so
advised.
Reversed and remanded.
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