COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
SALAHUNDIN DAVID WEBB
OPINION BY
v. Record No. 1578-98-2 JUDGE SAM W. COLEMAN III
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Salahundin David Webb was convicted in a bench trial of first
degree murder, robbery, possession of a firearm by a convicted
felon, four counts of abduction with intent to extort money, and
six counts of using a firearm during the commission of a felony.
He was sentenced to a total term of life plus 133 years in the
penitentiary, with seventy-five years suspended. On appeal, Webb
argues that the trial court erred by failing to conduct a pretrial
hearing to address an alleged conflict of interest by his
court-appointed trial counsel arising from the fact that his
counsel was not being adequately compensated because of the
statutorily capped court-appointed attorney's fee system. He also
contends that the statutory limitation of Code § 19.2-163 is
unconstitutional because it imposes an inflexible and inadequate
cap on court-appointed attorneys' fees. Because the record fails
to demonstrate that Webb was prejudiced by the fees allowed his
counsel or that counsel's legal representation fell below an
objective standard of reasonableness due to the fee allowance, we
affirm.
BACKGROUND
On January 30, 1997, Webb and a codefendant robbed employees
of a Friendly's restaurant in Henrico County. During the robbery,
the codefendant shot and killed the restaurant manager. The court
determined that Webb was indigent and appointed Steven D.
Benjamin, an experienced criminal defense attorney, to represent
Webb.
One week before trial and nearly seven months after
indictment, Benjamin moved to dismiss the charges, asserting that
(1) the statutory cap on attorneys' fees contained in Code
§ 19.2-163 is unconstitutional, (2) the compensation allowable
under Code § 19.2-163 is inadequate and operated to deny Webb his
right to conflict-free and effective assistance of counsel, and
(3) the statutory compensation scheme causes a conflict of
interest because it creates a financial disincentive for a lawyer
to effectively represent his or her client. At the time Benjamin
filed the motion to dismiss, he had already expended more than
ninety hours working on the case, exceeding the time for which
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compensation would be allowed under the statute by more than
thirty hours. 1 On January 6, 1998, the day of trial, Benjamin
objected to the trial court's failure to conduct a pretrial
hearing on the alleged conflict of interest. The trial court took
the motion under advisement and proceeded with trial. The day
after trial, the court conducted a hearing on the motion to
dismiss and subsequently denied the motion, finding the
statutorily capped court-appointed attorney's fee system did not
create a conflict of interest in this case and no evidence in the
case indicated that Webb received "anything but effective
assistance of counsel." The court ruled that the statutory
compensation scheme was not unconstitutional.
1
Code § 19.2-163 provided, as of the date of trial in this
case, a maximum fee of $735 for the representation of a
defendant charged with a felony punishable by confinement for
more than twenty years; for representation in connection with
any other felony charge, $265; and for any misdemeanor
punishable by confinement, $132. Count-appointed counsel also
may receive reimbursement for "reasonable expenses incurred" in
the defense of an indigent client. The statute provided for "a
reasonable fee" for defending capital cases with no cap.
For multiple violations of the same offense tried in the
same proceeding, a single fee shall be allowed. The fees are
based on time and effort expended and were to be compensated at
the hourly rates established by the Supreme Court guidelines of
$40 for out-of-court work and $60 for in-court work.
The General Assembly amended the statute in 1997 to provide
for increases in 1998 and 1999.
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ANALYSIS
A. Post-trial Evidentiary Hearing
Webb argues that the court-appointed compensation scheme
creates a financial disincentive and burdens and impairs an
attorney's ability to represent his or her client, thus creating
an "actual" conflict of interest. Webb, citing Carter v.
Commonwealth, 11 Va. App. 569, 400 S.E.2d 540 (1991), argues that
the trial court, which had a duty to inquire and take "adequate
steps" to determine the extent of the alleged conflict, erred in
failing to conduct the inquiry prior to trial. He argues that
when an objection is made and a conflict of interest is claimed
and shown to exist prior to trial, prejudice and ineffective
assistance of counsel are presumed and reversal is automatic.
The trial court denied the motion, holding that Webb received
competent and effective assistance of counsel. The court further
ruled that the statutory compensation scheme is not
unconstitutional. The record supports the trial judge's
underlying factual determination and legal conclusion that no
conflict of interest existed. We will not disturb the factual
finding in the absence of plain error. See Code § 8.01-680.
"The sixth amendment fundamental right to effective
assistance of counsel is so basic to a fair trial that an
infraction of that right can never be dismissed as harmless
error." Carter, 11 Va. App. at 573, 400 S.E.2d at 542; see also
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Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978) (stating that
where a Sixth Amendment violation taints the entire criminal
proceeding, the violation can never be considered harmless). In
order to prove ineffective assistance of counsel, a defendant must
first demonstrate that his "attorney's conduct fell below an
objective standard of reasonableness." Strickland v. Washington,
466 U.S. 668, 688 (1984). Second, the defendant must show that
"there is a reasonable probability that, but for this deficient
conduct the result of the trial would have been different." Id.
at 694. Prejudice against a defendant's case is presumed when "an
actual conflict of interest adversely affected his lawyer's
performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
"Hence, if the defendant shows that his counsel actively
represented actual conflicting interests that adversely affected
his counsel's performance, prejudice is presumed." Carter, 11 Va.
App. at 573, 400 S.E.2d at 543. "Unless the trial court knows or
reasonably should know that a particular conflict exists, the
court need not initiate an inquiry." Cuyler, 446 U.S. at 347.
In Carter, defense counsel moved to withdraw after
allegations of misconduct were levied against counsel by the
Commonwealth's attorney and were acknowledged by the trial court.
The Commonwealth's attorney alleged that defense counsel harassed
the victim's mother and pressured her into signing a release of
the victim's psychological records. The mother revoked the
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release. The trial court conducted a hearing, which focused on
the Commonwealth's allegation of misconduct rather than the
revocation of the release. The trial court did not rule on
defense counsel's alleged impropriety; rather, the court informed
the Commonwealth's attorney that he could initiate whatever
disciplinary action he deemed appropriate. After the hearing,
defense counsel moved to withdraw, contending that a conflict of
interest had arisen which forced counsel to protect their own
interests rather than the defendant's interest. Defense counsel
asserted that the Commonwealth's attorney's threat of initiating
disciplinary proceedings would hamper their ability to properly
defend their client during the impending trial. The trial court
denied the motion to withdraw without making further inquiry. The
defendant was subsequently convicted on all charges.
We held in Carter that when defense counsel moved to
withdraw, arguing that their representation of the defendant was
compromised because of their own interests, the trial judge knew
or should have known that a possible conflict of interest existed.
We held that when a trial court fails to initiate an inquiry when
the court knows or reasonably should know that a particular
conflict exists, the law presumes the conflict resulted in
ineffective assistance of counsel. See Carter, 11 Va. App. at
573-74, 400 S.E.2d at 543. We vacated the convictions and
remanded the case to the trial court for the purpose of conducting
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a hearing to determine whether a conflict of interest actually
existed that denied the defendant his right to effective
assistance of counsel.
Here, no factual basis supports Webb's argument that his
attorney had a conflict of interest or that a purported conflict
was reasonably apparent to the trial judge, requiring a pretrial
inquiry. Benjamin asserts that the alleged conflict of interest
was initially raised by Webb during an interview with a forensic
psychologist who had been designated to evaluate Webb's competency
to stand trial. The psychologist stated, as an example of Webb's
inability to rationally communicate and cooperate with his
attorney, that Webb believed Benjamin could not render adequate
representation because Benjamin was court-appointed and because
the statutory compensation scheme does not provide an economic
incentive for court-appointed attorneys representing indigent
defendants to provide the same level and quality of representation
as they would for non-indigent clients. Based on Webb's statement
to the psychologist, the trial court was not obligated to conduct
a pretrial inquiry on whether Benjamin had a conflict of interest
by continuing to represent Webb.
Additionally, Benjamin proved that Virginia is ranked
fifty-first amongst the states and the District of Columbia for
allowable compensation for court-appointed attorneys and that the
disparity between Virginia and the other states is overwhelming.
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Benjamin also introduced evidence that recent developments in
criminal law, including bifurcated proceedings in felony cases and
technological advancements in evidence gathering and legal
research, have increased the burdens, obligations, and overhead
costs of court-appointed attorneys in adequately preparing cases.
Although Benjamin made a bare claim that this situation creates a
potential conflict of interest because an attorney must choose
between not being adequately compensated or not adequately
representing his client, Benjamin neither alleged nor presented
evidence that he labored under an actual conflict of interest.
Understandably, he did not allege that he was unable or unwilling
to zealously represent Webb because of financial constraints or
considerations.
Moreover, his claim that the court-appointed compensation
scheme created a financial disincentive to provide competent,
quality representation in this case is belied by the record. By
Benjamin's own account, he expended countless hours for which he
was fully aware he would not receive compensation and, even after
he filed the motion to dismiss asserting the conflict, Benjamin
continued to vigorously represent and defend Webb at trial. We
note, as did the trial court, that Benjamin never moved to
withdraw from representation. Although we acknowledge the
apparent dilemma created by an attorney's ethical obligation to
zealously represent his or her client and the economic constraints
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on the time he or she can devote to a case, we will not overturn a
criminal conviction merely because the dilemma exists where no
actual conflict is shown to exist and no ineffective assistance of
counsel is proven. 2
Given counsel's level of representation of his client, it
could not reasonably have been apparent to the trial court that an
actual conflict of interest existed. The evidence does not prove
that Benjamin had an actual conflict of interest that adversely
affected his representation of Webb. Webb had a hearing, as we
provided in Carter, to consider whether a conflict of interest
existed and whether he was prejudiced. See Carter, 11 Va. App. at
574, 400 S.E.2d at 543 (vacating and remanding for hearing to
determine if counsel labored under a conflict of interest). The
trial court conducted the hearing, albeit at the end of trial, and
concluded counsel failed to establish that an actual conflict of
interest existed or that Webb was prejudiced. We find the
evidence supports the trial court's determination that defense
counsel had no actual conflict of interest that rendered his
representation of Webb ineffective.
2
A lawyer also has an ethical obligation to participate in
serving the disadvantaged; thus, representing the disadvantaged
for a "nominal" fee cannot, on its face, be deemed to create an
actual conflict of interest. See Virginia Code of Professional
Responsibility EC2-27 (1999).
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B. Constitutionality of Code § 19.2-163
Webb argues that Code § 19.2-163 creates an actual conflict
of interest because the fee caps are unreasonably low and
inflexible. Webb reasons that because the compensation scheme of
Code § 19.2-163 is so low and inflexible, the statute negates the
Supreme Court's mandate in Gideon v. Wainwright, 372 U.S. 335
(1963), and the Sixth Amendment guarantee that an indigent
defendant shall be entitled to effective assistance of counsel,
thus rendering the statute unconstitutional. Additionally, Webb
argues that Code § 19.2-163 is unconstitutional because it
violates his due process rights.
"'In assessing the constitutionality of a statute[,] . . .
[t]he burden is on the challenger to prove the alleged
constitutional defect.'" Woolfolk v. Commonwealth, 18 Va. App.
840, 848, 447 S.E.2d 530, 534 (1994) (quoting Perkins v.
Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)).
"Every act of the legislature is presumed to
be constitutional, and the Constitution is
to be given a liberal construction so as to
sustain the enactment in question, if
practicable." Bosang v. Iron Belt Bldg. &
Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440,
441 (1898). "When the constitutionality of
an act is challenged, a heavy burden of proof
is thrust upon the party making the
challenge. All laws are presumed to be
constitutional and this presumption is one of
the strongest known to the law." Harrison v.
Day, 200 Va. 764, 770, 107 S.E.2d 594, 598
(1959).
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Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498 S.E.2d 451,
454 (1998).
Due process is satisfied if an enactment has a "'reasonable
relation to a proper purpose and [is] neither arbitrary nor
discriminatory.'" Etheridge v. Medical Ctr. Hosps., 237 Va. 87,
97, 376 S.E.2d 525, 530 (1989) (quoting Duke v. County of
Pulaski, 219 Va. 428, 437-38, 247 S.E.2d 824, 829 (1978)).
Therefore, under the general rule, a statute is not violative of
due process if it withstands the "rational basis" test. See
Etheridge, 237 Va. at 97, 376 S.E.2d at 530. When legislation
affects a "'fundamental right,' the constitutionality of the
enactment will be judged according to the 'strict scrutiny' test,
i.e., the law must be necessary to promote a compelling or
overriding governmental interest." Id. at 97-98, 376 S.E.2d at
530 (citations omitted).
Code § 19.2-163 affects a fundamental right. "The right to
have the assistance of counsel is a 'fundamental' right, although
such right is not explicitly set out in the Constitution of
Virginia." Commonwealth v. Edwards, 235 Va. 499, 505, 370 S.E.2d
296, 298-99 (1988); see also Browning v. Commonwealth, 19 Va. App.
295, 298, 452 S.E.2d 360, 362 (1994) (finding that the Sixth
Amendment right to counsel is a fundamental right guaranteed to an
accused by the Bill of Rights of the Virginia Constitution).
Therefore, the fee caps in Code § 19.2-163 must be subjected to
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strict scrutiny and can be justified only if the legislation is
narrowly tailored to serve a compelling governmental interest.
See generally Austin v. Michigan Chamber of Commerce, 494 U.S.
652, 657 (1990).
The Due Process clause requires that an indigent defendant
receive an "adequate opportunity to present [his] claims fairly
within the adversary system." Ross v. Moffitt, 417 U.S. 600,
612 (1974). The General Assembly has provided for a system
where counsel is appointed to represent indigent defendants in
the absence of waiver of counsel. 3 The statute provides a scheme
and guidelines for compensating court-appointed counsel based
upon an hourly rate to be set by the Supreme Court for time and
effort expended with a cap for the types of cases. The issue is
whether the legislation proscribing statutory caps on
court-appointed attorneys' fees is narrowly tailored to serve a
compelling state interest.
On March 3, 1994, the General Assembly adopted House Joint
Resolution No. 147, authorizing a study and report examining the
costs and effectiveness of the policies, practices, and
priorities of Virginia's criminal justice system. See H.R. Res.
147, Va. Gen. Assem. (1995). Although the statutory fee caps
3
The General Assembly has also provided for a system of
public defenders in certain localities. See Code §§ 19.2-163.1
to -163.4.
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for court-appointed attorneys' fees were not specifically
mentioned in the resolution and the results of the study were
not published, 4 the resolution mentioned the overall increase in
the criminal court caseload and that spending for the judiciary,
prosecution, and court-appointed criminal defense lawyers also
continued to grow. The resolution noted that continued or
increased funding of current criminal justice policies,
practices, and priorities would come only at the expense of
other pressing public needs in education and economic and human
resource development. We cannot say the General Assembly was
wrong in how it established its budgetary priorities. Accepting
for purposes of this opinion Webb's contention that the
statutory caps on attorneys' fees must be subjected to strict
scrutiny and that they can be upheld only if they are justified
by a compelling state interest, we cannot say on this record
that the state has deprived indigent defendants of their
constitutional right to effective assistance of counsel by the
method that it has budgeted and appropriated funds for this
4
In 1985, the General Assembly adopted House Joint
Resolution No. 324 authorizing a study and report on the defense
of indigent defendants in the Commonwealth. The published
results of that study recommended that a 100% increase in the
maximum fee schedule was necessary to bring the fees up to the
national average. The report recommended that a minimum 15%
increase be instituted. The report stated that the increase in
the maximum fee schedule was essential in order to meet the
constitutional obligation of providing counsel to indigent
defendants. See H.R. Res. 324, Va. Gen. Assem. (1985).
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purpose. Code § 19.2-163 has structured a fee schedule for
payment of fees that recognizes and incorporates the different
needs and circumstances of representing indigent defendants for
different types of offenses in the various courts. The statute
provides for different hourly rates for different types of
cases, including a higher hourly rate for more serious cases,
and funds for "reasonable expenses incurred." Although in some
instances determining whether legislation is narrowly tailored
to serve a compelling governmental interest may require that the
least restrictive approach be utilized, here we must look to
whether the statute addresses the needs and financial demands
inherent in defending against a criminal prosecution. In doing
so, we find that Code § 19.2-163 is narrowly tailored to serve a
compelling governmental interest; and, therefore, it is not
unconstitutional.
Additionally, Webb has failed to show that the statute is
unconstitutional as applied to him. He failed to show that the
statutory cap on court-appointed attorneys' fees as applied to
his attorney deprived him of his constitutional right to
effective counsel and due process. As the trial court found,
Benjamin rendered competent and effective assistance of counsel,
and, in fact, worked many hours in excess of the number of hours
that would be compensated within the statutory authorized
maximum.
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Finally, Webb claims the statutory compensation scheme
renders any indigent defendant's Sixth Amendment right to
effective counsel a nullity because it forces the
court-appointed attorney to choose between two masters, the
indigent defendant and the financial cost of doing business.
However, to the extent Webb asserts that all court-appointed
attorneys labor under this conflict of interest, he is precluded
from raising this argument. "[G]enerally, a litigant may
challenge the constitutionality of a law only as it applies to him
or her." Coleman v. City of Richmond, 5 Va. App. 459, 463, 364
S.E.2d 239, 241-42 (1988). "That the statute may apply
unconstitutionally to another is irrelevant; one cannot raise
third party rights." Id. at 463, 364 S.E.2d at 242. But see
Lewis v. Iowa Dist. Court for Des Moines County, 555 N.W.2d 216,
217-19 (Iowa 1996) (finding that court-appointed attorneys had
standing to challenge the constitutionality of a statutory fee
schedule in which the attorneys alleged violations of indigent
defendants' rights because defendant's right to effective
assistance of counsel and attorney's right to fair compensation
are "inextricably intertwined"). To the extent Webb claims that
the statutory caps for court-appointed counsel fees for indigent
defendants are woefully inadequate, redress must come from the
General Assembly. On this record, we do not find that the fee
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schedule is so inadequate as to violate the Sixth or Fourteenth
Amendments.
Accordingly, we find that Code § 19.2-163 is not
unconstitutional, and we affirm Webb's convictions.
Affirmed.
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