NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.





Present: Judges Humphreys, Felton and Kelsey

Argued at Salem, Virginia

Record No. 3318-02-3






DECEMBER 2, 2003


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.

I. Background

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,"[2]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."

II. Analysis

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,
? 8;

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





[1]Pursuant to
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



[2]The trial
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