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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Salem, Virginia
Record No. 3318-02-3
SHERMAN O. DAVIS
COMMONWEALTH OF VIRGINIA
BY JUDGE ROBERT J. HUMPHREYS
DECEMBER 2, 2003
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Robert T. Garnett, Assistant Public Defender (Office of the
Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
Sherman O. Davis appeals his conviction, entered after a bench
trial, for delivering or
conspiring to deliver marijuana to an inmate, in violation of
Code ? 18.2-474.1. Davis contends
the trial court erred in denying his request for a jury trial.
For the reasons that follow, we affirm
the judgment of the trial court.
Davis was indicted on April 22, 2002 for delivering or
conspiring to deliver marijuana to
a prisoner. On May 13, 2002, the court appointed counsel from
the public defender’s office to
represent Davis and scheduled the trial for August 28, 2002.
Sometime between the date counsel
was appointed and the trial date, Davis’s counsel contacted
the court and informed the judge that
he expected the trial to "take four hours" and that
Davis had requested a bench trial. The
Commonwealth subsequently agreed.
During Davis’s arraignment on August 28, 2002, Davis refused
to provide the court with
his date of birth, contending that he had "used so many
aliases in the years," he "couldn’t recall
[his] date of birth." Davis then pleaded not guilty and
advised the court that he was not satisfied
with the services of his counsel. Davis further stated that he
was not ready for trial and claimed
that he had requested a jury trial.
Upon questioning by the court, Davis’s counsel informed the
court that Davis had
"instructed" him to request a bench trial. Counsel
stated he had discussed the matter with Davis,
but claimed "he never asked me to ask that the case be set
with a jury. My office – I asked this
court to schedule it for a bench trial on his
Noting that Davis’s counsel was "advised that [Davis] didn’t want a jury," the trial court
found that Davis "knowingly, intentionally, and voluntarily
waived his right to a jury." After
further noting that the Commonwealth and the court consented to
Davis’s trial without a jury, the
trial court denied Davis’s demand for a jury trial and
commenced with the trial. The trial court
subsequently found Davis guilty of the offense charged.
Prior to sentencing, Davis filed a motion to set aside the
verdict contending the trial court
erred in refusing to grant Davis’s request for a jury trial.
Specifically, Davis argued that,
pursuant to "Virginia Rule 3A:13," and "Virginia
case law," his conviction must be set aside
because the trial court failed to "include in the
record" his "consent to waive his right to be tried
by a jury." At the sentencing hearing, the trial court
considered argument on Davis’s motion, but
denied it, finding that because of the "time difficulties
getting these cases done,"Davis’s
demeanor before the court, Davis’s counsel’s communication
to the court that he had requested a
bench trial, and Davis’s failure to reasonably notify the
court of his changed decision prior to
trial, Davis "waived his right to a jury."
On appeal, Davis contends the trial court erred in refusing his
request for a jury trial.
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,
Wright v.Commonwealth, 4 Va. App. 303, 308, 357 S.E.2d 547,
550 (1987); Rule 3A:13(b).
Jones v. Commonwealth, 24 Va. App. 636, 639, 484 S.E.2d 618, 620
(1997). Rule 3A:13(b) sets
forth the procedures by which an accused may validly waive a
trial by jury:
If an accused who has pleaded not guilty in a circuit court
to trial without a jury, the court may, with the concurrence of
Commonwealth’s attorney, try the case without a jury. The
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.
Id. at 640, 484 S.E.2d at 620 (emphasis in original).
"[O]nce a defendant makes a voluntary and
intelligent waiver of this right, his request to withdraw that
waiver and be tried by a jury is
subject to the [trial] court’s discretion." Commonwealth
v. Williams, 262 Va. 661, 670, 553
S.E.2d 760, 764 (2001).
Davis argues the trial court erred because it failed to note in
the record his knowing and
voluntary consent to be tried by a jury. However, our review of
the record reveals that the trial
court made an explicit factual finding that Davis waived his
right to a jury trial by "instructing"
his counsel to request a bench trial. Davis denied giving his
counsel such an "instruction," but
Davis’s counsel proffered to the court that Davis had
instructed him to contact the court and
request a bench trial. Accordingly, Davis’s counsel contacted
the court, prior to the trial, and
informed the court of Davis’s request. We find the evidence
sufficient to support this finding.
Indeed, contrary to Davis’s contention, this is not a case
where the trial court relied upon
a scheduling order, signed only by Davis’s counsel and the
trial court, to determine that Davis
voluntarily and intelligently consented to trial without a jury.
See Jones, 24 Va. App. at 640-41,
484 S.E.2d at 620. In Jones, we found that "an attorney may
[not], 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." Id. at
641, 484 S.E.2d at 621. In that case,
Jones informed the court that, despite her counsel’s signature
on a scheduling order waiving a
jury trial, she had not waived her right to a jury, indicating
that she had spoken about the issue
with her attorney, but that she never reached a decision. We
held that "[b]ecause 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." Id. (emphasis added).
Here, the record demonstrates more than simply Davis’s counsel’s
waiver of Davis’s
right to a jury trial. The record reflects that Davis’s
counsel specifically informed the court that
he had spoken with Davis about his right to a jury trial and
that Davis had "instructed" him to
request a bench trial. Indeed, Davis agreed that he spoke with
his counsel about his right to a
jury trial, but denied that he instructed his counsel to request
a bench trial. We thus find no error
in the trial court’s determination that Davis voluntarily and
knowingly waived his right to a jury
trial, prior to the commencement of trial. See Wright, 4 Va.
App. at 306, 357 S.E.2d at 549
(noting that where the Commonwealth asserts that an accused
"‘elected a bench trial,’" "‘[i]t
is . . . necessary that this consent be in some manner made
manifest. Something more than
simple silence must appear.’" (quoting Boaze v.
Commonwealth, 165 Va. 786, 792, 183 S.E.
263, 265 (1936))).
We consider whether the trial court erred in granting what was
effectively a request by
Davis to withdraw his waiver of a jury trial. In Thomas v.
Commonwealth, 218 Va. 553, 238
S.E.2d 834 (1977), the Supreme Court of Virginia stated the
general rule regarding the
withdrawal of a waiver of jury trial:
Whether one accused of crime who has regularly waived a jury
trial will be permitted to withdraw the waiver and have his case
tried before a jury is ordinarily within the discretion of the
court. The rule, as expressed in some cases, is that if an
application for withdrawal of waiver is made in due season so as
not to substantially delay or impede the cause of justice, the
court should allow the waiver to be withdrawn.
The authorities are uniformly to the effect that a motion for
withdrawal of waiver made after the commencement of the trial is
not timely and should not be allowed. Whether a motion for the
withdrawal of a waiver of trial by jury made prior to the actual
commencement of the trial of the case is timely depends
upon the facts and circumstances of the individual case. Where
there is no showing that granting the motion would unduly delay
the trial or would otherwise impede justice, the motion is
held to be timely. In some cases, however, it has been held that
motion for withdrawal of a waiver of jury trial, although made
prior to the trial, was not timely and was properly denied by
trial court, the decisions in these cases being based primarily
the ground that granting the motion would have resulted in an
unreasonable delay of the trial.
218 Va. at 554, 238 S.E.2d at 835 (citations omitted); see also
Patterson v. Commonwealth, 19
Va. App. 698, 454 S.E.2d 347 (1995).
The record here reflects that Davis had ample time to notify the
court of his decision to
revoke his waiver, prior to the trial. We thus find that his
attempt to withdraw his waiver, made
on the day of trial, was untimely. Indeed, as the trial court
indicated, granting Davis’s request
would have required rescheduling the trial for a later date,
thus delaying its orderly progress, and
would have left the case pending on the docket. See Patterson,
19 Va. App. at 701, 454 S.E.2d at
369. Accordingly, we hold that the trial court did not abuse its
discretion in denying Davis’s
Code ? 17.1-413, this opinion is not designated for publication. Further,
because this opinion has no precedential value, we recite only
those facts essential to our
court specifically noted in this regard that Davis’s case was "getting
close to the speedy trial time" and that "in this
case, we had no date – absolutely no date at all
available. . . . [T]he court’s docket was full through several