Virginia Lawyers Weekly VA Lawyers Weekly
The court affirmed a man’s conviction for distribution of Oxycodone and rejected his claim of ineffective assistance of counsel, finding that although his attorney was twice temporarily suspended while his case was pending, he was afforded licensed counsel at every stage of the proceeding, and he chose to proceed with her in spite of the suspensions.
Background
Appellant was indicted on Nov. 10, 2016. On Feb. 14, 2017, the parties appeared in the trial court for scheduling. Appellant appeared with his trial counsel, Shelly Collette. The trial court entered a discovery order and continued the case to March 10, 2017, for entry of a plea or setting of trial date. Nothing further occurred during the proceeding. On March 10, 2017, the trial court continued the case to March 17, 2017 for a bail determination.
On March 17, 2017, the trial court denied the motion for bail, citing appellant’s criminal history and the severity of the charges. The court scheduled the case for a jury trial on April 27, 2017.
Upon learning that Collette’s law license had been suspended by the Bar, the commonwealth placed the matter on the trial court’s docket on April 21, 2017, to determine how appellant wished to proceed. Appellant appeared without counsel. The trial court explained that Collette was “currently not in good standing with the Bar” but that she had informed the trial court clerk that “everything is about resolved and if it is not resolved it will be resolved Monday.” The trial court inquired of appellant if he wanted to proceed with his trial the following Thursday, April 27, 2017, in the event Collette was reinstated by that time, as expected. Indicating that he “want[ed] to get it over with,” appellant affirmed that he wished to proceed with his trial as scheduled with Collette as his counsel.
On April 27, 2017, due to “the insufficiency of the number of the jury panel,” the trial court continued the case to May 10, 2017. The record reveals that during the pendency of appellant’s case, Collette’s license was suspended for two brief periods – from Feb. 12-24, 2017 and again from April 12-21, 2017. The two suspensions were based solely on Collette’s failure to comply with a subpoena issued by the Bar. Both suspensions were lifted upon Collette’s compliance with the subpoenas.
Appellant was convicted of conspiracy to distribute Oxycodone and distribution of Oxycodone, third or subsequent offense.
Right to counsel
Appellant argues that because of the suspensions, Collette “materially limited her own ability to prepare for trial and thereby prejudiced [appellant’s] due process right to be adequately represented by counsel and for a fair trial.” Appellant also asserts that he did not receive effective assistance of counsel because of Collette’s suspensions during the pendency of his case. He contends that “[t]he instant matter differs from a plain claim for ineffective assistance of counsel” and “instead stands for the proposition that during crucial proceedings in the prosecution against [him], he was wholly without counsel.” Finally, he argues that the trial court “failed to obtain a waiver from [appellant] of counsel and additionally failed to appoint standby court appointed counsel.”
During the Nov. 3, 2017 hearing on appellant’s motion to set aside the verdict, the trial court found that appellant “was represented by licensed counsel at every critical stage of the proceeding.” Because appellant’s substantial rights were not affected during the brief periods of his counsel’s suspension, and appellant made clear his desire to proceed to trial as scheduled knowing that his counsel’s license had been suspended, we find no error with the trial court’s conclusion that appellant was represented by competent counsel during all critical stages of the proceedings.
As appellant was represented by counsel at all critical stages, we find no error with the trial court’s decision not to appoint standby counsel. The trial court determined that appellant knowingly chose to proceed with his retained counsel in spite of her suspensions. The record supports the trial court’s denial of appellant’s motion to set aside the verdict “based on the conduct of trial counsel.”
Recusal
Appellant also contends that “the trial judge abused his discretion in failing to recuse himself in the bench trial, which led to [appellant’s] convictions, due to independent knowledge of evidentiary facts concerning the proceeding and the judge’s past involvement with the subject confidential informant Mr. Shull” while the judge was a commonwealth attorney.
Appellant failed to demonstrate any actual bias or prejudice. The trial judge determined that he was not impacted by the former interactions with the witness and had impartially presided over appellant’s trial. The trial judge had no recollection of having prosecuted the witness. Appellant does not make a claim of bias beyond the judge’s prior dealings with the witness. Nothing in the record suggests that the judge abused his discretion in denying the motion to dismiss due to a conflict of interest.
Affirmed.
Weatherholt v. Commonwealth, Record No. 1797-17-4, Dec. 26, 2018. CAV (Haley) from Frederick Cir. Ct. (Iden). William B. Ashwell for Appellant, John I. Jones IV for Appellee. VLW No. 018-7-340, 8 pp. Unpublished.
