COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
JUNE ALLISON JONES
OPINION BY
v. Record No. 1564-96-1 JUDGE JERE M. H. WILLIS, JR.
MAY 6, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Robert F. Hagans, Jr., for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from her bench trial conviction of distributing
cocaine, June Allison Jones contends that she was denied her
statutory and constitutional right to trial by jury and that the
trial court abused its discretion in denying her motion for a
continuance. Because the trial court erroneously denied Ms.
Jones her right to a jury trial, we reverse her conviction. We
need not address the continuance issue.
On December 6, 1995, Ms. Jones was indicted for distributing
cocaine. On that date, the trial court entered a scheduling
order, which stated that the case would be tried on January 18,
1996. A checked box noted that "The Defendant requests trial by
the court without a jury." Ms. Jones' attorney, the attorney for
the Commonwealth and the trial judge signed this order. Ms.
Jones did not.
On January 16, 1996, the trial court granted Ms. Jones a
continuance until February 21, 1996. The continuance order was
signed by the attorney for the Commonwealth, the trial judge and
Ms. Jones' counsel. The continuance order noted that Ms. Jones
had requested a bench trial.
On February 21, 1996, Ms. Jones was arraigned and the
following dialogue ensued:
THE CLERK: Do you wish to be tried by this
court or by a jury?
THE DEFENDANT: By a jury.
THE COURT: Denied.
* * * * * * *
BY THE COURT:
Q. All right. Ma'am, had you
informed your attorney before now
that you wanted to be tried by a
jury?
A. We talked about it. We never
made a decision.
Q. All right. And you were
indicted December the 6th of 1995.
You had -- Was there a preliminary
hearing?
COMMONWEALTH'S ATTORNEY: There was, Judge.
We had the preliminary hearing on November 8,
1995, at which time the charges were
certified by Judge Spencer.
THE COURT: All right. The order was signed
and entered December 6th of '95, indicating
by the court without a jury, and so we will
be proceeding with your trial at this time.
Ms. Jones contends that she never waived her right to a jury
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trial. 1 To waive trial by jury, the accused must give express
and intelligent consent, McCormick v. City of Virginia Beach, 5
Va. App. 369, 372, 363 S.E.2d 124, 125 (1987), and that consent,
with the concurrence of the attorney for the Commonwealth and the
trial judge, must be entered of record. Va. Const. Art. I, § 8;
Wright v.Commonwealth, 4 Va. App. 303, 308, 357 S.E.2d 547, 550
(1987); Rule 3A:13(b).
The Commonwealth contends that the record establishes that
Ms. Jones waived her right to a jury trial. In pertinent part,
the felony trial order recites that:
After being first advised by his [sic]
counsel and by the Court of his [sic] right
to trial by jury, the defendant, in person,
knowingly and voluntarily waived a trial by
jury and with the concurrence of the Attorney
for the Commonwealth and the Court, here
entered of record, the court proceeded to try
the case without the intervention of a jury,
as provided by law.
"A court speaks only through its orders." Cunningham v. Smith,
205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). We "'presume that
the order, as the final pronouncement on the subject, rather than
a transcript that may be flawed by omissions, accurately reflects
what transpired.'" Kern v. Commonwealth, 2 Va. App. 84, 88, 341
S.E.2d 397, 400 (1986) (citation omitted).
1
The Commonwealth argues that Ms. Jones failed to preserve
this issue for appeal, in accordance with Rule 5A:18. We
conclude from the transcript that Ms. Jones specifically
requested a jury trial and that the trial judge considered and
ruled on the question. Therefore, Rule 5A:18 does not bar our
review of the merits of this appeal. See Wright v. Commonwealth,
4 Va. App. 303, 305, 357 S.E.2d 547, 549 (1987).
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While we presume the correctness of the felony trial order's
recitation of the proceedings, the record unquestionably refutes
the order's recital that Ms. Jones expressly and intelligently
waived her right to a jury trial. She did not consent to be
tried without a jury. Rather, she asserted her right to a jury
trial. The trial court erroneously rejected her demand. It did
not advise Ms. Jones of her right to a jury trial. It did not
ascertain that she understood that right. It did not inquire as
to the extent of her discussions with her attorney concerning a
jury trial or whether she had authorized her attorney to waive a
jury on her behalf. Thus, beyond question, the record of the
proceedings does not support a finding that Ms. Jones had
"knowingly and voluntarily waived a trial by jury."
Rule 3A:13(b) sets forth the requisite procedures by which
an accused may validly waive a trial by jury:
If an accused who has pleaded not guilty in a
circuit court consents to trial without a
jury, the court may, with the concurrence of
the Commonwealth's attorney, try the case
without a jury. The court shall determine
before trial that the accused's consent was
voluntarily and intelligently given, and his
consent and the concurrence of the court and
the Commonwealth's attorney shall be entered
of record.
(Emphasis added).
In this case, the trial court erroneously relied upon the
scheduling order and failed to determine whether Ms. Jones
voluntarily and intelligently consented to trial without a jury.
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Despite the scheduling order's notation that Ms. Jones elected
trial by the court without a jury, the requirement remained that
her consent be manifested by "a showing of some deliberate action
by the accused indicating an election to forego [her] right to a
jury trial." Wright, 4 Va. App. at 306, 357 S.E.2d at 549
(emphasis added). To the contrary, at her arraignment, Ms. Jones
specifically requested a jury trial and stated her prior
indecision regarding waiver in discussions with her attorney.
This is not a case where an accused validly waives a jury
trial and then seeks to withdraw that waiver. See Patterson v.
Commonwealth, 19 Va. App. 698, 454 S.E.2d 367 (1995). Rather,
the narrow question presented by this appeal is whether an
attorney may, without authorization, surrender an accused's right
to a jury trial, and, thereby, permit the trial court to presume
conclusively the effectuation of a valid waiver. Rule 3A:13(b)
forbids this practice. Because waiver of a constitutional
guarantee requires express and intelligent consent by the
accused, a trial court may not rely on a defense attorney's
waiver of an accused's right to a jury trial, by itself, as a de
facto manifestation of voluntary and intelligent consent by the
accused. See Norton v. Commonwealth, 19 Va. App. 97, 99-100, 448
S.E.2d 892, 893 (1994).
While we recognize the difficulty in accommodating last
minute requests for jury trials, trial courts "should not
transfer to the attorney for the Commonwealth or to defense
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counsel the sole responsibility to timely determine the need for
a jury." Wright, 4 Va. App. at 309, 357 S.E.2d at 551. Indeed,
"[i]f defense counsel declines -- or is unable because his client
has not made the decision -- to advise the court as to whether
the defendant will waive trial by jury, Code § 19.2-257 provides
a vehicle to prevent the reoccurrence of the delay caused by a
defendant's last hour election" by permitting the Commonwealth or
the trial court to "demand the presence of a jury on the date the
matter is scheduled." Carter v. Commonwealth, 2 Va. App. 392,
398, 345 S.E.2d 5, 9 (1986).
Because we conclude that Ms. Jones did not validly waive her
right to a jury trial, we reverse her conviction and remand the
case for a new trial, if the Commonwealth be so advised.
Reversed and remanded.
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