Bailey v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia

KIP EDWARD BAILEY, S/K/A
KIP EDWARD BAILEY, SR.
OPINION BY
v. Record No. 0462-00-2 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge

Cullen D. Seltzer (Bowman and Brooke, LLP, on
briefs), for appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales, Attorney
General, on briefs), for appellee.

Kip Edward Bailey was convicted in a bench trial of

possession of cocaine with intent to distribute with a prior

conviction for a like offense, in violation of Code § 18.2-248,

and sentenced to fifty years in prison, with thirty-nine years

and seven months suspended.

Bailey argues that his conviction should be reversed

because he was denied: 1) his statutory right to a speedy trial

because his trial commenced more than five months after the

preliminary hearing, during which time he was held in custody;

and 2) his constitutional right to counsel. We find no error

and affirm Bailey's conviction.
 I.

Background

Upon familiar principles, we state the evidence on appeal

in the light most favorable to the Commonwealth, granting to it

all reasonable inferences fairly deducible therefrom. See

Ferrell v. Commonwealth, 11 Va. App. 380, 383, 399 S.E.2d 614,

615 (1990). Bailey was indicted on March 20, 1997 for

possession of cocaine with intent to distribute, with no second

offense language included. The indictment was returned a true

bill, and the trial was set for April 15, 1997. The case was

continued to May 15, 1997 on motion by the Commonwealth, without

objection.

A grand jury indicted Bailey for possession of cocaine with

intent to distribute, second offense, on May 15, 1997. A true

bill was returned, and trial was set for June 3, 1997. On June

3, the case was again continued on motion by the Commonwealth,

without objection. At docket call on June 19, the case was

passed to be set for trial by agreement with the judge's

secretary. Bailey did not object. The case was eventually set

for trial on August 25, 1997. At the August 25 hearing, Bailey

moved to dismiss the indictment, alleging a violation of the

speedy trial statute. The motion was denied.

Bailey was tried on October 2, 1997. The Commonwealth

nolle prossed the original indictment and proceeded on the

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second indictment that charged Bailey with possession of cocaine

with intent to distribute, second offense. Bailey was convicted

as charged.

In the course of Bailey's trial, the trial court appointed

three attorneys, sequentially, to represent him. While

represented by counsel, Bailey filed pro se motions and insisted

on certain unreasonable strategies. Additionally, Bailey failed

to cooperate with his attorneys and expressed dissatisfaction

with their efforts despite their diligent representation.

Daniel Hall, Bailey's first attorney, filed several speedy

trial motions and vigorously argued on Bailey's behalf at trial.

Yet, at the outset of trial, Bailey complained that Hall had not

subpoenaed certain witnesses. The trial judge did not credit

these complaints, observing that Bailey was "talking, rambling

on about family members. I assume he would have recourse to

write or call his family members if [he] wanted to tell you

about it. This matter has continued on, and on, and on, so

we're going to proceed with the case." After his conviction,

Bailey, in disregard of Hall's status as his attorney, filed

various pro se pleadings and also filed a habeas corpus petition

alleging Hall's ineffective representation. Hall moved to

withdraw, stating that Bailey's conduct made his continued

representation impossible. Hall's motion was granted.

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 The court appointed Paul Bland as Bailey's second attorney.

Despite the appointment, Bailey continued to file pro se motions

and, almost immediately after his appointment, Bland moved to

withdraw, noting that Bailey told him that he had filed "habeas

on all of his cases, including the one that counsel previously

represented him on in 1992." Bland believed that Bailey's

statement "created an adversarial relationship with counsel, and

counsel [felt] it appropriate to withdraw." The court granted

Bland's motion.

Philip DiStanislao was appointed as Bailey's third

attorney. Despite the appointment of yet a third attorney,

Bailey filed a pro se pleading on June 1, 1998. Barely more

than one month after his appointment, DiStanislao moved to

withdraw as counsel because Bailey set forth unreasonable terms

and conditions for his representation, requiring him to

communicate with Bailey by mail only and not in person.

DiStanislao stated that these conditions "ma[de] it impossible

for him to provide effective representation for Mr. Bailey as it

is extremely unlikely that any positive form of attorney-client

relationship can exist."

At a hearing on DiStanislao's motion, Bailey denied that he

refused to speak with his attorney. The trial court warned

Bailey:

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 All right, Mr. Bailey, the Court has tried
to accommodate your interests. This is the
third attorney that has been appointed at
the State's expense to represent you. You
will not get another one. You'll either
decide that Mr. DiStanislao will represent
you and you will act accordingly or else
you'll represent yourself at your hearing.

* * * * * * *

Either you decide you're going to talk to
him and you're not going to lay down the
terms and conditions or you're going to
represent yourself at your hearing.

* * * * * * *

I'm going to let him out if you're going to
be obnoxious and difficult to deal with.

After a brief recess, DiStanislao informed the trial court

that Bailey told him, "if I didn't do what he told me to do it

wasn't going to work." DiStanislao reported this ethical

dilemma to the trial judge and told him "the situation [was]

impossible given [Bailey's] attitude towards representation by

[him] . . . ." 1 The trial court thus ruled that Bailey would

1
Bailey's insistence on directing his attorney's trial
strategy interfered with the attorney's responsibility to act in
Bailey's best interest, while his refusal to communicate with
DiStanislao in person prevented DiStanislao from fulfilling his
duty to communicate with his client. See Virginia Rule of
Professional Conduct 1.2; (lawyer's scope of representation);
Virginia Rule of Professional Conduct 1.4 (lawyer's duty to
communicate). The Comment to Rule 1.4 notes that "a lawyer
ordinarily cannot be expected to describe trial or negotiation
strategy in detail. The guiding principle is that the lawyer
should fulfill reasonable client expectations for information
consistent with the duty to act in the client's best interests,
and the client's overall requirements as to the character of

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represent himself at sentencing and appointed DiStanislao as

stand-by counsel.

Bailey then filed three more pro se pleadings in the

circuit court, including a motion for a new trial and a motion

for a continuance. He did not ask for the appointment of new

counsel. In his motion, Bailey recited that he had

"after-discovered evidence," in the nature of a letter written

by his wife that he claimed demonstrated her motive to testify

falsely against him.

At the sentencing hearing, the trial judge stated that

Bailey was representing himself, with stand-by counsel

available. He denied Bailey's motion for continuance because

Bailey had learned of the evidence before trial. Moreover, the

trial judge stated, "I read the letter anyways [sic], Mr.

Bailey, the copy you sent to the clerk. It makes no difference

in your trial and would not serve as a basis for a new trial.

Your motion for a new trial is denied. So [sic] your motion for

a continuance is denied." The trial court sentenced Bailey to

representation." The Comment to Rule 1.2 provides that "a
lawyer is not required to pursue objectives or employ means
simply because a client may wish that the lawyer do so . . . the
lawyer should assume responsibility for technical and legal
tactical issues . . . ."

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fifty years in prison, with thirty-nine years and seven months

suspended.

II.

Analysis

On appeal, we view the evidence in the light most favorable

to the Commonwealth, the party prevailing below. See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

We, therefore, "discard the evidence of the accused in conflict

with that of the Commonwealth, and regard as true all the

credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom." Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).

The credibility of the witnesses and the weight of the evidence

are matters to be determined solely by the trier of fact.

Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258,

259 (1989). Furthermore, the decision of the trial court will

not be disturbed unless plainly wrong or without evidence to

support it. McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc).

Bailey argues that his conviction should be reversed

because he was denied: 1) his statutory right to a speedy trial

because his trial commenced more than five months after the

preliminary hearing, during which time he was held in custody;

and 2) his constitutional right to counsel. For the following

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reasons, we disagree with each of these contentions and,

therefore, affirm his conviction.

A. Speedy trial

The speedy trial statute provides, in pertinent part:

Where a general district court has found
that there is probable cause to believe that
the accused has committed a felony, the
accused, if he is held continuously in
custody thereafter, shall be forever
discharged from prosecution for such offense
if no trial is commenced in the circuit
court within five months from the date such
probable cause was found by the district
court.

Code § 19.2-243. The statute also notes that periods of delay

caused "by the failure of the accused or his counsel to make a

timely objection to [a motion for a continuance] by the attorney

for the Commonwealth," are excluded from the five-month time

limit. Code § 19.2-243(4); Johnson v. Commonwealth, 259 Va.

654, 669, 529 S.E.2d 769, 777 (2000); Robinson v. Commonwealth,

28 Va. App. 148, 154, 502 S.E.2d 704, 707 (1998) (holding that

delay resulting from a continuance granted upon the

Commonwealth's motion and without objection by the defendant is

charged to the defendant).

In this case, Bailey was indicted on March 20, 1997 and

tried on October 2, 1997. He did not object to a continuance of

his case from April 15, 1997 to May 15, 1997, or continuances

from June 3, 1997 to August 25, 1997. Subtracting these delays,

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Bailey's trial was held within three months of his indictment

and well within the statutory time limit. Accordingly, we will

not disturb his conviction on this ground.

B. Right to counsel

The Commonwealth argues Bailey waived his right to counsel

by "engag[ing] in a variety of obstructionist, dilatory tactics

and repeatedly manifest[ing] a desire to represent himself by

filing a raft of pro se pleadings." Bailey contends he did not

waive his right to counsel and, therefore, his conviction should

be reversed. For the reasons that follow, we agree with the

Commonwealth and affirm Bailey's conviction.

"If the accused has not competently and intelligently

waived [his] constitutional right [to counsel], the Sixth

Amendment stands as a jurisdictional bar to a valid conviction

and sentence depriving him of his life or liberty." Edwards v.

Commonwealth, 21 Va. App. 116, 123, 462 S.E.2d 566, 570 (1995)

(citing Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). "The

burden [is] on the Commonwealth to prove the essentials of a

waiver of the right to counsel by clear, precise, and

unequivocal evidence." Lemke v. Commonwealth, 218 Va. 870, 873,

241 S.E.2d 789, 791 (1978).

[T]he Sixth Amendment right to counsel,
while fundamental, is not a right without
limitation. Specifically, it is not a right
subject to endless abuse by a defendant.
Instead, the right is qualified in its

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 exercise and merely affords a defendant an
absolute right to a "fair opportunity" to
representation by counsel. Sampley v.
Attorney General of North Carolina, 786 F.2d
610, 613 (4th Cir. 1986). This limitation
derives from the important and valid state
interest in proceeding with prosecutions in
an orderly and expeditious manner, taking
into account the practical difficulties of
"'assembling the witnesses, lawyers, and
jurors at the same place at the same time'"
as well as the concerns and interests of the
victims, witnesses and general public, and
the appropriate use of judicial resources.

McNair v. Commonwealth, 37 Va. App. 687, 695, 561 S.E.2d 26, 30

(2002) (en banc) (citations omitted). "[C]ertain dilatory

conduct on the part of a defendant may also be properly viewed

as an effective de facto waiver of Sixth Amendment protections

[or a constructive discharge of counsel]." Id. 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. See Bolden v. Commonwealth, 11 Va. App. 187, 191, 397

S.E.2d 534, 537 (1990) ("[Defendant's] failure to have counsel

[present] was the result of dilatory conduct on his

part . . . ."); accord Paris v. Commonwealth, 9 Va. App. 454,

461, 389 S.E.2d 718, 722 (1990); see also United States v.

Attar, 38 F.3d 727, 735 (4th Cir. 1994) (holding that dilatory

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or unreasonable conduct may be viewed as a constructive

discharge of counsel); Sampley, 786 F.2d at 615 (holding that

court may deny request for continuance to obtain counsel where

the request "proceeds from a 'transparent ploy for delay . . .'"

(internal citation and quotation omitted)); Illinois v. Hughes,

733 N.E.2d 705, 710 (Ill. App. Ct. 2000) (observing that, when

determining whether a defendant has forfeited the right to

counsel by his conduct, Illinois courts focus on the "delay in

proceeding to trial and the authority the court has to refuse to

allow defendant to seek new counsel or obtain counsel on the eve

of trial"); Tacoma v. Bishop, 920 P.2d 214, 219 (Wash. Ct. App.

1997) (noting that a forfeiture, or waiver by conduct of the

right to counsel results where the defendant engages in dilatory

tactics).

In this case, Bailey's conduct delayed trial and evinced an

intent to represent himself at sentencing. Before his

sentencing, and while his first attorney investigated filing

certain post-trial motions on Bailey's behalf, Bailey filed

several pro se motions. He also filed a habeas corpus petition

against his first attorney, claiming ineffective assistance of

counsel. Bailey's trial attorney was thus permitted to withdraw

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upon his motion filed on April 27, 1998, and new counsel was

appointed to represent Bailey's interest on May 4, 1998. 2

Three days later, and notwithstanding the appointment of

new counsel, Bailey filed a pro se motion to strike the

evidence, with an accompanying brief. He also advised his

second counsel on May 12, 1998 that he had filed habeas

petitions in all of his cases, including a case in which second

counsel had represented him in 1992. Bailey told counsel that

the 1992 habeas petition against him was based on a claim of

ineffective assistance of counsel. As a result of Bailey's

implicit contention that theirs was an adverse relationship, new

counsel sought leave to withdraw in a motion filed on May 14,

1998; the motion was granted, and Bailey's third counsel was

appointed by the court on May 26, 1998.

Six days later, Bailey continued his effort to represent

himself, and filed a pro se amended brief in support of his

motion to strike. On July 2, 1998, Bailey's third

court-appointed attorney filed a motion to withdraw as counsel

to Bailey. At a hearing on the motion, this third attorney told

the trial court that Bailey had refused to speak to him in

person and had required that all of their communication be by

2
Notwithstanding his withdrawal, counsel was present when
an order correcting a clerical error in the order of February 2,
1997 was entered on April 28, 1998.

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mail. The trial judge, frustrated with Bailey's behavior, asked

him whether he wanted an attorney to represent him in the

sentencing proceeding. Bailey responded twice in the negative.

Notwithstanding Bailey's express refusal of counsel and his

attorney's avowal that Bailey's condition that they communicate

solely by mail made it extremely unlikely that "any positive

form of attorney-client relationship can exist," the court

suggested that the attorney meet privately with Bailey to

resolve the situation and deferred ruling on the motion.

Later that day, Bailey's third counsel told the court that

Bailey continued to refuse to communicate in person. The

attorney told the court that he found "the situation impossible

given [Bailey's] attitude toward representation by me."

Bailey's attitude toward his attorney thus unreasonably and

unjustifiably delayed trial, and the trial court found that

Bailey had thus waived his right to counsel. See Attar, 38 F.3d

at 735 ("[T]he belated creation by a defendant of an

inextricable ethical predicament for his counsel . . . can

properly be viewed as a constructive discharge of counsel

undertaken for dilatory or unreasonable purposes . . . .").

Bailey's intent to delay trial is further evidenced by his

pro se filing of two frivolous motions just one week before his

sentencing hearing. Bailey filed a motion for a continuance and

a motion for a new trial premised on a claim of

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"after-discovered evidence." In his motion, he argued that he

needed a new trial because he now had in his possession a letter

written by his wife that he claimed demonstrated her motive to

testify falsely against him. At trial, however, Bailey revealed

that he had knowledge of the letter and its contents before

trial. The court denied the motion, finding his grounds to be

wholly without merit.

In short, the trial court found Bailey's complaints about

his attorneys to be without merit, and credited the attorneys'

reports of the adversarial nature of the relationship that

Bailey had created, making it impossible to properly and

effectively represent him. See Attar, 38 F.3d at 735 (holding

that defendant's creation "of an inextricable ethical

predicament for his counsel . . . can properly be viewed as a

constructive discharge of counsel undertaken for dilatory or

unreasonable purposes . . . ."); see also Sampley, 786 F.2d at

615 (holding that trial court's implicit rejection of

defendant's asserted justification for delay was a credibility

determination to which deference is owed). In addition, because

his attorneys believed they could not serve his best interests,

their continued representation of him would violate the Rules of

Professional Conduct. Virginia Rule of Professional Conduct 1.3

(requiring a lawyer to serve his or her client's best

interests); see also Virginia Rule of Professional Conduct

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1.16(a) (providing that a lawyer may withdraw from

representation if representation "has been rendered unreasonably

difficult by the client . . ."). Thus, withdrawal was required.

Virginia Rule of Professional Conduct 1.16(a) (providing that a

lawyer must withdraw from representation if representation "will

result in violation of the Rules of Professional Conduct

. . .").

Moreover, in addition to assuming an adverse stance

relative to his attorneys' representation and compelling each to

withdraw, he expressly stated his preference to represent

himself before the court and acted on that preference. Bailey

consistently exhibited an intent to represent himself at the

sentencing hearing. He routinely filed pro se motions,

notwithstanding the presence of counsel in the case. He created

an adversarial relationship with each of his three

court-appointed attorneys despite the trial court's warning that

he would have to proceed without representation. After

compelling each of his three court-appointed attorneys to

withdraw, Bailey filed a pro se motion for a new trial and a pro

se motion to continue his sentencing hearing. He did not

petition the court for new counsel in his motion for a

continuance. He never claimed he needed a continuance to obtain

the services of an attorney, or that he was not prepared to

proceed without representation.

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 Based on Bailey's conduct in its totality, we hold that he

constructively discharged counsel and that the trial court

properly exercised its discretion in granting DiStanislao's

motion to withdraw and requiring Bailey to proceed with

sentencing pro se. See Paris, 9 Va. App. at 459, 389 S.E.2d at

721 (1991) (noting that trial court has discretion in ruling on

motions for withdrawal of counsel). 3 While no single act by

Bailey proves that he constructively waived counsel, his

behavior throughout the course of the litigation toward the

three attorneys appointed to represent him, when viewed in its

totality, together with his intent to proceed pro se, constitute

"clear, precise, and unequivocal evidence" that Bailey

constructively waived his right to counsel in the sentencing

hearing. Lemke, 218 Va. at 873, 241 S.E.2d at 791.

3
Although the "better practice would be to . . . include a
specific recitation of how the defendant's conduct shows an
unequivocal intent to relinquish his right to counsel, either as
a constructive discharge of counsel or a de facto waiver of
counsel," we note that the trial court's "failure to explicitly
address the basis for its conclusion that defendant
constructively discharged counsel, or de facto waived the right
to counsel, [does] not per se constitute reversible error
. . . ." McNair, 37 Va. App. at 697-98, 697, 561 S.E.2d at 31,
31. Where, as here, the record is sufficient to establish "a
course of conduct evidencing the constructive discharge of
counsel or the de facto waiver of the right to counsel," we will
uphold the trial court's decision. Id. at 698-99, 561 S.E.2d at
32.

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Accordingly, the trial court did not abuse its discretion in

finding that Bailey had waived his right to counsel and

requiring him to proceed with the sentencing hearing with

stand-by counsel to assist if necessary.

Affirmed.

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Benton, J., concurring, in part, and dissenting, in part.

I.

For the reasons that follow, I concur in the majority

opinion's holding that Kip Bailey's trial was not barred by the

speedy trial statute.

The evidence proved that on March 7, 1997, when the

preliminary hearing occurred for this narcotics offense, Bailey

was in custody, albeit for another offense. In denying Bailey's

motion to dismiss, the trial judge misinterpreted the speedy

trial law. The trial judge ruled as follows:

I think I understand what you're saying,
and I'm certainly going to dismiss the
challenge to the speedy trial provisions of
the code. . . . If he's being held on
another charge, not for this charge.

After the probable cause determination, Bailey remained

continuously in custody through the trial on October 2, 1997.

In Knott v. Commonwealth, 215 Va. 531, 211 S.E.2d 86 (1975), the

Supreme Court addressed a similar circumstance. Applying the

predecessor statute to Code § 19.2-243, the Court held that an

accused was "held" continuously in custody if the accused

remained incarcerated, even if on an unrelated charge. Id. at

533, 211 S.E.2d at 87-88; see also Funk v. Commonwealth, 16

Va. App. 694, 432 S.E.2d 193 (1993). Thus, the reasoning

underlying the trial judge's ruling is contrary to Knott.

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 The majority opinion upholds the trial judge's ruling for a

reason not articulated by the trial judge. I agree that the

record does not establish a speedy trial violation. The

stipulation entered at trial between Bailey's trial attorney and

the Commonwealth clearly indicates that "on June 3, 1997, [when]

the Commonwealth moved to continue the [trial, Bailey] . . . did

not object." Code § 19.2-243 unambiguously provides that "[t]he

provisions of this section shall not apply to such period of

time as the failure to try the accused was caused . . . by the

failure of the accused or his counsel to make a timely objection

to . . . a motion [for continuance] by the attorney for the

Commonwealth." When this time is subtracted from the period

between the probable cause determination and the trial, the

record establishes no violation of Code § 19.2-243.

II.

I dissent from the holding that Bailey waived his right to

counsel before the sentencing hearing occurred.

"If the accused . . . has not competently and intelligently

waived his constitutional right [to counsel], the Sixth

Amendment stands as a jurisdictional bar to a valid conviction

and sentence depriving him of his life or his liberty." Johnson

v. Zerbst, 304 U.S. 458, 468 (1938). The burden is on the

Commonwealth to prove a waiver. Brewer v. Williams, 430 U.S.

387, 404 (1977). To meet that burden, the record must establish

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that such a waiver was voluntarily, knowingly, and intelligently

made. Faretta v. California, 422 U.S. 806, 835 (1975).

[It is] incumbent upon the State to prove
"an intentional relinquishment or
abandonment of a known right or privilege."
. . . [T]he right to counsel does not depend
upon a request by the defendant, and . . .
courts [must] indulge in every reasonable
presumption against waiver. This strict
standard applies equally to an alleged
waiver of the right to counsel whether at
trial or at a critical stage of pretrial
proceedings.

Brewer, 430 U.S. at 404 (citations omitted). Thus, when the

Commonwealth relies upon such a waiver, it "must prove [the]

essentials [of the waiver] by 'clear, precise and unequivocal

evidence . . . [, which] must not leave the matter to mere

inference or conjecture but must be certain in every

particular.'" Church v. Commonwealth, 230 Va. 208, 215, 335

S.E.2d 823, 827-28 (1985) (citation omitted).

Bailey did not request to represent himself or to have his

attorney relieved from representing him. Prior to the

sentencing hearing, the trial judge granted the motion of

Bailey's court-appointed attorney to withdraw. The record

reflects only in a general way that Bailey and his attorney had

some sort of disagreement concerning Bailey's defense.

The record does not reflect that an ethical dilemma was at

the core of the disagreement. The attorney informed the judge

that Bailey had certain "terms and conditions" he wanted to

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establish and that Bailey said "if [the attorney] didn't do what

he told [the attorney] to do it wasn't going to work." We do

not know from this record that Bailey was not seeking assurance

that his attorney would comport with his obligation under

Virginia Rule of Professional Conduct 1.2(a), which provides

that an attorney "shall abide by [the] client's decisions

concerning the objectives of representation." Absent some

impropriety, a client may decide the objectives of the

representation. The record does not establish that Bailey's

attorney advanced any of the reasons enumerated in Rule of

Professional Conduct 1.16 to support his motion to withdraw.

Moreover, the Commonwealth has not proved an ethical issue was

the source of the difficulty. Without knowing the source of the

friction, the trial judge allowed the attorney to withdraw and

placed upon Bailey the burden of representing himself.

As compensation for the lack of evidence proving that

Bailey waived his right to the attorney, the Commonwealth argues

Bailey was an "obstructionist" who failed to cooperate with two

prior attorneys that the judge permitted to withdraw. Without

delving into the minutia of those withdrawals, which bear little

on the issue whether the removal of the last attorney comported

with Sixth Amendment standards, it seems to me sufficient to

note that we have decided adverse to Bailey his speedy trial

claim because one of those attorneys failed to object at trial

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to the Commonwealth's requests for continuances and that the

second attorney, who represented Bailey in an earlier unrelated

proceeding, was the subject of a claim by Bailey of inadequate

representation. 4 Simply put, on this record Bailey had an

arguable basis for objecting to both of those representations.

For the reasons more fully stated in McNair v.

Commonwealth, 37 Va. App. 687, 700, 561 S.E.2d 26, 32 (2002)

(Benton, J., with whom Elder, J., joins, concurring), and McNair

v. Commonwealth, 35 Va. App. 587, 596-604, 546 S.E.2d 756,

760-64 (2001) (Benton, J., dissenting), I would hold that the

record failed to prove Bailey waived his Sixth Amendment right

to counsel prior to the sentencing hearing. Thus, I would

affirm the conviction, vacate the sentence, and remand to the

trial court with instructions to appoint an attorney for Bailey

and to hold a new sentencing hearing.

4
That attorney has been suspended from the practice of law
for a period of months by the Virginia State Bar for violating
former Disciplinary Rules 6-101(B), (C), and (D) and 7-101(A) of
the Virginia Rules of Professional Responsibility in his
representation of other clients.

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