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




March 3, 2000

Record No. 990912





F. Bruce Bach, Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.


In this appeal from the denial of a petition
for writ of habeas corpus in the trial court, we primarily
consider whether an attorney’s failure to prepare adequately
for trial because of professional and personal concerns
constitutes a "conflict of interest" with respect to
his representation of the client, resulting in a presumption of
prejudice to the client, and requiring that the conviction of the
client be vacated.


On March 18, 1996, the grand jury of the
Circuit Court of Fairfax County (the trial court) returned an
indictment against Sylvester Moore for the abduction of Nina C.
Heckler with intent to defile in violation of Code
? 18.2-48. On July 30, 1996, the trial court conducted a
jury trial on the indictment. Moore was represented by his
retained counsel, Dominick A. Pilli. Moore elected not to testify
or put on any other evidence at this trial. The jury was unable
to reach a unanimous verdict and, consequently, the trial court
declared a mistrial. The case was continued for retrial on
September 9, 1996.

In the six weeks between the mistrial and the
scheduled retrial, Pilli devoted his time exclusively to other
professional matters, travelling out of state on business
"for another practice" during the first half of August.
While Pilli was out of state, his grandmother died. Pilli delayed
his return to Virginia for another two weeks, returning to
Virginia on September 5, 1996.

During Pilli’s absence, Moore repeatedly
contacted Pilli’s office by telephone, leaving messages for
Pilli. In these messages, Moore indicated that he believed he had
a "valid defense" and that he wanted Pilli to prepare a
motion to suppress a statement Moore had made to the police and a
motion to exclude Moore’s prior criminal record. Moore
further expressed a desire to present "his side of the
story" through his own testimony.

On Friday, September 6, 1996, Pilli filed a
motion for a continuance, asserting that he had not had time to
prepare the motions Moore had requested or to discuss with Moore
his desire to testify. In arguing for the continuance, Pilli was
candid in stating that his "family was more important"
to him than his duty to Moore. The Commonwealth opposed any
continuance because Heckler had moved to Texas and had to make
special arrangements with her employer to return for trial.

The trial court denied the motion for a
continuance, indicating that a written motion to suppress could
be heard on the morning of trial. Pilli then stated that he would
not be able to adequately represent Moore and requested to
withdraw as Moore’s counsel. The trial court indicated that
his motion to withdraw could also be considered on the day of
trial and that Pilli should "spend a good deal of the
weekend working on the case."

On Monday, September 9, 1996, Pilli arrived
late for court and again requested a continuance, asserting that
he had not had time to prepare the suppression, exclusion, and
withdrawal motions and had not been able to consult with Moore
except briefly the previous day. Pilli further asserted that if
the trial court would not grant the continuance, he would ask the
trial court to permit him to withdraw because "Mr. Moore is
not going to want me as his counsel." The trial court denied
both the motion for a continuance and the motion to withdraw.
Pilli then responded, "Your Honor, I’m not going to be
able to do a trial today. I think it would be ineffective
assistance of counsel for Mr. Moore." Pilli further stated
that "emotionally and mentally, . . . I’m not

Thereafter, Moore, who was wearing jail
clothing, was brought to the courtroom. The trial court asked if
he had been given the opportunity to dress in street clothes, and
Moore responded that he "would like to address the
court." Moore contended that he had not dressed in street
clothes because "Mr. Pilli wasn’t all for my
case." Moore then asked the trial court to permit Pilli to
withdraw and appoint new counsel because "I ain’t
getting no fair trial, cause he’s not ready."

The trial court asked Pilli to explain again
why he was not prepared for trial. Pilli reiterated that his
"unique practice" required him to travel and that
following the death of his grandmother he had focused his
attentions on his personal life. Pilli indicated that when Moore
had contacted him about the case, Pilli had told Moore, "Mr.
Moore, at this time I just don’t care." Pilli further
told the trial court that "I still don’t [care] right
now . . . . I cannot sit down right now and just
concentrate on this case."

The trial court denied Moore’s motion,
stating that neither Moore nor Pilli had adequately explained why
Pilli would not be able to represent Moore in a retrial of a case
Pilli had tried only six weeks before. Pilli again asserted that
"I cannot have a trial today . . . I just
can’t do a trial today." The trial court indicated that
Pilli was "verging right on the border of contempt."
After another extended colloquy between Pilli and the trial
court, Pilli concluded by stating "Mr. Moore does not want
me to represent him." The trial court indicated that it
would not change its prior ruling and that the matter would have
to be resolved on appeal.

After Moore entered a plea of not guilty, he
again told the trial court that he was not satisfied with
Pilli’s representation and that he was not ready for trial.
The trial court proceeded with the trial. Pilli actively
participated in the voir dire of the potential jurors and made an
opening statement. The Commonwealth called Heckler as its first
witness. During the direct examination of Heckler, Pilli raised
an objection to certain aspects of her testimony. The trial was
recessed for the day before the conclusion of the
Commonwealth’s direct examination of Heckler.

The following morning, Pilli was again late for
court. When the trial court requested an explanation, Pilli
asserted that he "had five cases to get continued this
morning" and complained that the trial court was not
sympathetic to his circumstances, stating, "I’m about
at the edge with you. I’m trying to be proper. I know
I’m stepping on the bounds, but I did
. . . ." At that point, the trial court
interrupted Pilli and held him in summary contempt of court.

The trial continued, with Pilli again actively
participating in cross-examination of Heckler and the
Commonwealth’s other witnesses. The evidence as developed at
trial showed that Moore, a stranger to Heckler, had entered her
vehicle while she was stopped at a gasoline station. Although
Heckler screamed for him to get out of the car, Moore refused.
Heckler drove for several blocks hoping that Moore would then
leave the car. Heckler stopped at another gasoline station, got
out of her car, and demanded that Moore leave the vehicle. Moore
responded that she should "[g]et back in the car, or
I’m going to kill you." Heckler obeyed and after
driving several more blocks, Moore grabbed Heckler’s thigh
and told her that he planned to engage in sexual activity with

Heckler was ultimately able to escape from
Moore by feigning acquiescence and then taking refuge in the home
of a stranger who assisted her in calling the police. Moore
attempted to follow Heckler inside this home, but was arrested
outside the home by police responding to Heckler’s call. In
a statement to police, Moore admitted that he had "been
smoking marijuana and drinking and that he just got into the car
to get himself together." Moore denied touching Heckler and
making sexually suggestive comments to her.

At the conclusion of the Commonwealth’s
evidence, Pilli made a motion to strike the Commonwealth’s
evidence, which was denied. Pilli then indicated that the defense
would not present any evidence. Pilli offered jury instructions,
opposed the Commonwealth’s instructions, and made a closing
statement to the jury. After the jury returned a verdict against
Moore, the Commonwealth, without objection, presented evidence of
Moore’s prior criminal record. Pilli presented no evidence
during the sentencing phase, but did argue to the jury that Moore
was a "productive citizen" and that the jury should
impose a lenient sentence.

The jury returned a verdict for life
imprisonment. The trial court confirmed the verdict and sentenced
Moore to a term of life imprisonment, suspending all but ten
years of the sentence.

Moore filed an appeal in the Court of Appeals
of Virginia asserting, inter alia, that the trial court
erred in denying the two motions for continuances and that Pilli
had been ineffective as counsel. The Court of Appeals refused
Moore’s petition with respect to the continuances issue,
holding that "[d]espite [Pilli’s] assertion that he was
unprepared for trial, he never demonstrated how the circumstances
had changed after having represented [Moore] at trial six weeks
earlier . . . [Pilli] did not proffer the evidence he
claimed [Moore] wanted him to present at the second trial, nor
did he vouch how that evidence might affect his representation of
[Moore]." The Court further noted that claims of ineffective
assistance of counsel may not be raised on direct appeal.
Although Moore was awarded an appeal on another issue, he
subsequently sought to withdraw his appeal, and the appeal was
ultimately dismissed for failure to file an opening brief.

On October 26, 1998, Moore filed a pro se
petition for a writ of habeas corpus in the trial court. In a
supporting brief, Moore asserted that Pilli’s representation
of Moore had been adversely affected by a "conflict of
interest" as a result of Pilli’s having devoted his
time between Moore’s first and second trial to other
professional and personal matters.
[2] Moore contended
that Pilli’s efforts on Moore’s behalf in the second
trial fell below the acceptable standard for effective assistance
of counsel, and, since the ineffective representation arose from
a conflict of interest, no showing of actual prejudice to his
case was required to establish that he had not received a fair
trial. Moore further contended that if a showing of prejudice was
required, Pilli’s failure to counsel Moore about his right
to testify or to prepare him to testify, Pilli’s failure to
prepare and present the motions to suppress Moore’s
statement to the police and to exclude his prior criminal record,
Pilli’s failure to conduct "meaning[ful] cross-examination of the complaining witness," and
Moore’s loss of opportunity to appear before the jury in
street clothes, were all inherently prejudicial to Moore’s

The Commonwealth responded to Moore’s
petition by filing a motion to dismiss. Without conceding that
Pilli’s representation of Moore was ineffective, the
Commonwealth contended that there was no "conflict of
interest" in Pilli’s representation of Moore since both
were united in their request for a continuance and Moore voiced
no objection to Pilli’s continuing representation if that
continuance were granted. The Commonwealth further contended that
if Pilli’s representation was nonetheless ineffective, Moore
had failed to demonstrate actual prejudice by showing that the
motions to suppress Moore’s statement to the police and to
exclude his prior criminal record were meritorious. Similarly,
the Commonwealth contended that Moore failed to proffer the
evidence he would have given if allowed to testify, or what other
evidence Pilli might have developed on cross-examination of the
Commonwealth’s witnesses or by direct examination of
witnesses not called. The Commonwealth did not address
Moore’s contention that appearing in jail clothing was
prejudicial to his case.

On February 9, 1999, the trial court granted
the Commonwealth’s motion to dismiss. In doing so, the trial
court conducted an independent review of the trial record, but
did not hold an evidentiary hearing. In the order dismissing the
petition, the trial court incorporated into the record by
reference the record of Moore’s second trial. This appeal


In order to prove a claim of ineffective
assistance of counsel, the defendant must first demonstrate that
his attorney’s conduct "fell below an objective
standard of reasonableness." Strickland v. Washington,
466 U.S. 668, 688 (1984). Furthermore, the defendant bears the
burden of showing not only that his counsel’s performance
was deficient but also that he was actually prejudiced as a
result. Murray v. Griffith, 243 Va. 384, 388, 416 S.E.2d
219, 221 (1992). In order to establish prejudice, the evidence
must show that "there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different." Strickland,
466 U.S. at 694. However, prejudice will be presumed where
"an actual conflict of interest adversely affected [the] lawyer’s performance." Cuyler v. Sullivan, 446
U.S. 335, 350 (1980). An actual conflict of interest exists when
the attorney’s interests and the defendant’s interests
"diverge with respect to a material factual or legal issue
or to a course of action." Id. at 356 n.3.

A. Pilli’s Conduct as an Attorney

When a petition for a writ of habeas corpus
raises the question of ineffective assistance of counsel, the
initial inquiry must be whether the attorney’s
representation was so deficient as to fall below the minimum
acceptable standard of care and skill which a reasonably
competent attorney would exercise under the factual circumstances
of the particular case.
[4] The Commonwealth contends that under the standard
discussed in Strickland, Moore has failed to establish
that Pilli’s representation was deficient. We disagree.

In Strickland, the Supreme Court said
that "the defendant must show . . . that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. The Court
cautioned, however, against second-guessing counsel’s
representation through hindsight. Instead, the Court stated that
"a court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of
counsel’s conduct." Id. at 690. Furthermore, the
Court recognized that "[t]he reasonableness of
counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or
actions." Id. at 691.

Here, the record clearly demonstrates that
Pilli’s conduct prior to the retrial fell well below any
acceptable standard of reasonable and adequate preparation for
trial. Although Pilli’s desire to attend to his other area
of practice and the unforeseen family responsibilities that arose
thereafter were understandable impediments to his ability to give
his full attention to Moore’s case, the fact remains that
until four days prior to the retrial Pilli had no direct
communication with Moore and had done nothing to prepare for the
retrial. Moreover, despite the trial court’s willingness to
allow Pilli to prepare the suppression and withdrawal motions
over the intervening weekend and to argue them prior to trial,
Pilli made no effort to take advantage of this opportunity. These
tasks are clearly within the ability of a reasonably competent
attorney. Pilli’s explanation for his lack of
conscientiousness does not excuse his failure to comport with
minimal professional standards.

Similarly, despite the fact that Pilli actively
participated in the trial as it developed, the record
demonstrates that Pilli did not represent Moore in accordance
with Moore’s wishes. Nothing in the record suggests that
Pilli’s failure to present the requested motions or to call
Moore to testify on his own behalf resulted from strategic
decisions made by Pilli. Rather, as Pilli’s and Moore’s
own comments demonstrate, Pilli simply had no regard for
Moore’s requests and no desire to do more than "go
through the motions" of representing Moore during the trial.

Based on the foregoing facts, we conclude that
Pilli’s actions were not acceptable conduct for an attorney
and amounted to a deficient representation of Moore during his
second trial.

B. The "Conflict of Interest"

As noted above, to prevail on the
constitutional claim of ineffective assistance of counsel, Moore
must demonstrate that Pilli’s deficient conduct resulted in
prejudice to him, either because it arose from an actual conflict
of interest or because the failure to present evidence or to
prevent the Commonwealth from presenting evidence would have
altered the jury’s verdict. Moore first contends that
Pilli’s attention to other matters, professional and
personal, constitutes a "conflict of interest" which
gives rise to the presumption of prejudice. We disagree.

An actual conflict of interest exists where
counsel has responsibilities to other clients or personal
concerns that are actively in opposition to the best interests of
the defendant. See Strickland, 466 U.S. at 692; Cuyler,
446 U.S. at 349-50. An actual conflict may arise, for example, in
the circumstance of counsel’s representation of more than
one defendant in connection with the same criminal charge, see,
e.g., Cuyler, 446 U.S. at 348; Holloway v.
, 435 U.S. 475, 482 (1978), or where a
defendant’s counsel has a professional relationship with the
prosecution. See, e.g., United States v. Goot,
894 F.2d 231, 236-37 (7th Cir.), cert. denied, 498 U.S.
811 (1990).

Nothing in the record suggests that
Pilli’s other practice obligation or his family
responsibilities conflicted with his representation of Moore in
the sense that these matters were in opposition to the best
interests of Moore. Rather, these were matters that simply
competed for Pilli’s time. In this respect, Pilli is no
different from any other attorney who must manage professional
and personal responsibilities. The mere fact that an attorney
fails to properly manage his time, resulting in the interests of
some clients being addressed to the detriment of others or the
interests of all being subordinated to the attorney’s
personal concerns, does not give rise to an "actual conflict
of interest" in the context of a claim of ineffective
assistance of counsel.

Moreover, while such mismanagement may give
rise to a possible disciplinary complaint against the attorney,
an attorney’s desire to protect himself against a later
charge of ineffective assistance of counsel, standing alone, does
not constitute a per se conflict of interest. See O’Dell
v. Commonwealth
, 234 Va. 672, 688, 364 S.E.2d 491, 500, cert.
, 488 U.S. 871 (1988); Carter v. Commonwealth,
16 Va. App. 42, 47, 427 S.E.2d 736, 740 (1993). Here, the record
demonstrates that Pilli was fully cognizant of the possibility
that he might be subject to a charge of ineffective assistance of
counsel by Moore, and, accordingly, there can be no presumption
that Pilli would have acted to conceal his alleged misbehavior to
Moore’s detriment. See Carter, 16 Va. App. at
47, 427 S.E.2d at 740. To the contrary, Pilli was wholly
forthcoming to both Moore and the trial court in expressing his
belief that he was not able adequately to represent Moore.

Accordingly, we hold that Moore has failed to
demonstrate that Pilli had an actual conflict of interest that
would give rise to a presumption of prejudice to the outcome of
Moore’s second trial.

C. Actual Prejudice

Finally, Moore contends that, even if
Pilli’s deficient representation did not arise from an
actual conflict of interest, the record supports a finding that
Moore was actually prejudiced by Pilli’s representation. We

Moore’s burden in the trial court was to
show that there was a "reasonable probability" that but
for Pilli’s deficient representation the outcome of the
trial would have been different. In order to demonstrate this
reasonable probability, a petitioner must not simply indicate
what actions a competent attorney would have taken on his behalf,
but also show that the impact of those actions would almost
certainly have resulted in the reduction of the charge against
him or in his acquittal.

Moore first points to Pilli’s failure to
prepare for trial and to meet with him at length. As discussed
above, this lack of diligence on Pilli’s part contributed to
his inability to provide Moore with effective representation.
However, these failures do not in and of themselves demonstrate
prejudice to Moore’s case. The record must show what a
reasonably competent attorney would have accomplished by avoiding

Moore contends that had Pilli adequately
prepared for trial and consulted with Moore, Moore would have
been able to testify in his own behalf. However, the record is
devoid of any evidence or proffer of what Moore would have
testified had he decided to do so. The record contains only the
bare assertion that Moore believed he had a "valid
defense" and wanted to tell the jury "his side of the

During oral argument, Moore’s counsel
conceded that the record was insufficient to establish that Moore
might have given credible testimony to rebut the
Commonwealth’s evidence. Counsel asserted, however, that a
reasonable inference from the record would be that Moore would
have, at a minimum, affirmatively stated his innocence and that
this testimony might have influenced the jury in his favor.
However, the wholly speculative nature of what effect such
testimony might have had on the jury, being nothing more than a
reiteration of Moore’s plea of not guilty, is so remote as
to fall well short of the standard of "reasonable
probability" needed to find actual prejudice to the outcome
of Moore’s trial.

Moore further contends that he was prejudiced
by appearing in jail clothing rather than in street clothes.
Moore asserts that having lost confidence in his attorney, his
decision to forego appearing in street clothes arose from
Pilli’s ineffective representation. Although the
Commonwealth failed to address this issue at trial or on appeal,
the record is clear that Moore was afforded the opportunity to
change into street clothes, but voluntarily declined to do so.
Regardless of his motivation for so doing, under the
"invited error" doctrine Moore may not benefit from his
voluntary choice to place himself at a disadvantage. See, e.g.,
Saunders v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d
637, 638 (1970); Clark v. Commonwealth, 202 Va. 787, 791,
120 S.E.2d 270, 273 (1961); Hundley v. Commonwealth, 193
Va. 449, 454, 69 S.E.2d 336, 339 (1952).

In the concluding paragraph of his brief, Moore
recounts without elaboration Pilli’s other failures as
counsel, including the failure to file the suppression motion,
the lack of "meaningful cross-examination" of the
victim, and the failure to present any evidence during the
sentencing phase of the trial. In each of these instances, the
record contains nothing from which we can determine what the
content or import of these actions would have been had Pilli
carried through with Moore’s instruction to oppose the
introduction of his statement, pursue a more vigorous
cross-examination, or put on evidence relevant to sentencing. In
short, Moore relies on the facts that establish Pilli’s
deficient representation, rather than pointing to any meaningful
evidence that he was prejudiced by that representation.

The Commonwealth’s evidence at trial fully
supports the jury’s verdict, and nothing in the record of
the subsequent habeas corpus proceeding contradicts that
evidence. Accordingly, we hold that Moore has failed to establish
that Pilli’s deficient representation prejudiced his case
such that there was a "reasonable probability" that the
outcome of the trial would have been different.


For these reasons, we hold that the trial court
did not err in dismissing Moore’s petition for writ of
habeas corpus. Accordingly, the judgment will be affirmed.




[1] Justice Compton participated in the hearing and
decision of this case prior to the effective date of his
retirement on February 2, 2000.

[2] In the petition, Moore also made reference to the fact
that on January 9, 1998, in response to a complaint filed by
Moore, the Virginia State Bar took disciplinary action in the
form of a private reprimand with terms against Pilli. We note,
however, that a determination that a disciplinary rule has been
violated does not in itself establish that the conduct in
question fell below the constitutional standard for effective
assistance of counsel. Jones v. Barnes, 463 U.S. 745, 753
n.6 (1983).

[3] Throughout these proceedings,
Moore did not proffer any evidence to support his requested
motions to suppress his statements to the police or to exclude
his prior criminal record or in support of his "valid
defense" that had not been advanced during the first trial.

[4] The Commonwealth contends that
Moore failed to raise the issue of whether Pilli’s
representation of Moore constituted ineffective assistance of
counsel in the absence of a conflict of interest within the
question presented by his petition for a writ of habeas corpus.
However, Moore’s claim of prejudice arising from a conflict
of interest necessarily includes a claim of ineffective
assistance of counsel generally. Moreover, the thrust of
Moore’s argument in his supporting memorandum clearly
implicates the alternative theories of prejudice arising from a
conflict of interest and actual prejudice, the Commonwealth
responded to both of these arguments in its motion to dismiss,
and the trial court ruled on each theory when granting the motion
to dismiss. Accordingly, we hold that Moore adequately preserved
both issues for appeal, and we will address both issues in this