COURT OF APPEALS OF VIRGINIA<\/p>\n
Present: Judges Bray, Frank and Senior Judge Baker
\nArgued at Norfolk, Virginia<\/p>\n
BRAM PATRICK DAGGS
\n MEMORANDUM OPINION* BY
\nv. Record No. 2124-98-1 JUDGE JOSEPH E. BAKER
\n AUGUST 10, 1999
\nCOMMONWEALTH OF VIRGINIA<\/p>\n
FROM THE CIRCUIT COURT OF YORK COUNTY
\nN. Prentis Smiley, Jr., Judge<\/p>\n
Charles E. Haden for appellant.<\/p>\n
John H. McLees, Jr., Assistant Attorney
\nGeneral (Mark L. Earley, Attorney General, on
\nbrief), for appellee.<\/p>\n
Bram Patrick Daggs (appellant) appeals from his bench trial
\nconvictions by the Circuit Court of York County (trial court) of
\ntwo counts of robbery. Appellant first contends that the trial
\ncourt committed reversible error when it denied appellant’s motion
\nfor a continuance to enable him to employ new counsel to replace
\nhis court-appointed attorney. Appellant also contends that the
\nevidence was insufficient to support the robbery convictions.
\nFinding no error, we affirm the judgment of the trial court.
\nI.
\n On March 18, 1998, appellant executed an affidavit asserting
\nthat he was indigent. His request for appointed counsel for the<\/p>\n
* Pursuant to Code ? 17.1-413, recodifying Code
\n? 17-116.010, this opinion is not designated for publication.
\npreliminary hearing was granted prior to that hearing held on May
\n12, 1998. On May 19, 1998, true bills were returned by a grand
\njury, charging that appellant robbed Daniel Ablits and Thomas Law.
\nOn May 19, 1998, the trial court appointed M. Tracy McMurtrie1 to
\nrepresent appellant on the charges before the trial court. The
\ntrial then was scheduled for July 16, 1998. Until that date,
\nappellant did not move for change of counsel.
\n As appellant was about to be arraigned, his court-appointed
\ncounsel requested the court for permission to “withdraw as
\ncounsel” for the reason that she “understood” appellant’s family
\nhad on the day before sought to retain “Attorney Ashton Wray” to
\nrepresent appellant. She further stated that appellant joined in
\nthat request.
\n The trial court refused to permit counsel to withdraw, noting
\nthat appellant had sworn he was indigent, that counsel had twice
\nbeen appointed to represent appellant, and that several months had
\npassed between the date of the affidavit and the date of the
\nmotion to withdraw without any action by appellant or anyone on
\nhis behalf to obtain other counsel. Appellant was then arraigned
\nand pled not guilty.
\n Prior to accepting the pleas, the trial court extensively
\nquestioned appellant pursuant to Rule 3A:8. Appellant stated that
\nhe understood the charges and that he had discussed them with his<\/p>\n
1 McMurtrie had served as appointed counsel for appellant at
\nthe general district court preliminary hearing.
\n– 2 –
\nattorney. Appellant asserted, however, that he had not had enough
\ntime to discuss the charges with his court-appointed lawyer.
\nCounsel for appellant subpoenaed the only witness that appellant
\nasked to be subpoenaed, and she represented to the court that she
\nwas able to communicate sufficiently with appellant to prepare for
\ntrial.
\n Appellant claimed that his attorney always seemed “in a rush”
\nwhen she saw him and that he did not have time to tell her his
\n“version of the story.” When the court asked how much time he
\nneeded to talk with his attorney, appellant said “about thirty
\nminutes.” Appellant and his attorney then privately conferred,
\nafter which appellant told the trial court that he was satisfied,
\nthat counsel and he had discussed his case, that he understood all
\nthe questions the court had asked him, and that he was ready for
\n“trial today.”
\n Generally, a motion for withdrawal of counsel is addressed to
\nthe sound discretion of the trial court, and our review is limited
\nto determining whether the trial court’s denial of the motion
\nconstituted an abuse of discretion. See Payne v. Commonwealth,
\n233 Va. 460, 473, 357 S.E.2d 500, 508 (1987); Paris v.
\nCommonwealth, 9 Va. App. 454, 459, 389 S.E.2d 718, 722 (1980).
\n“In order to justify a continuance ‘by the last minute change of
\ncounsel, exceptional circumstances must exist.'” Feigley v.
\nCommonwealth, 16 Va. App. 717, 721, 432 S.E.2d 520, 523 (1993)<\/p>\n
– 3 –
\n(quoting Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d
\n316, 320 (1977)).
\n Counsel for appellant represented to the trial court that she
\ncommunicated enough with appellant to prepare for trial. After
\nbeing given an additional opportunity by the court to confer with
\nhis counsel, appellant indicated that he was satisfied and
\nprepared to go forward with the trial. Accordingly, we find that
\nthe trial court did not abuse its discretion when it denied
\nappellant’s motion for a continuance to retain a new attorney.
\nII.
\n Upon familiar principles of appellate review, we examine the
\nevidence in the light most favorable to the Commonwealth, the
\nprevailing party below, granting to it all reasonable inferences
\nfairly deducible therefrom. See Martin v. Commonwealth, 4 Va.
\nApp. 438, 443, 358 S.E.2d 415, 418 (1987).
\n Stated thusly, the record discloses that Stephanie Henderson
\nwas with Michael Blunt, “Lamar” and “T.J.” when they saw Ablits
\nand Law walking nearby. T.J. stated “[w]e should get them,”
\nreferring to Ablits and Law. When appellant re-joined the group,
\nBlunt, Lamar, and T.J. discussed their plan with appellant.
\nShortly thereafter, Henderson saw appellant grab Ablits from
\nbehind while T.J. took Ablits’ wallet and keys. Following that
\naction, Henderson saw Blunt and appellant run up to Law and knock
\nhim to the ground. Appellant and Blunt then kicked and hit Law,
\nand appellant took Law’s class ring.<\/p>\n
– 4 –
\n Ablits and Law were unable to identify any of their
\nassailants. Each testified, however, that a person generally
\nmatching Henderson’s description was present at the scene of the
\nrobberies.
\n Blunt denied that he or appellant participated in the
\nrobberies. Appellant denied being present at the time the
\nrobberies were alleged to have occurred and stated he was, in
\nfact, elsewhere with a girl named Jennifer.
\n The evidence, when viewed in the light most favorable to the
\nCommonwealth, sufficiently proved that appellant was an active
\nparticipant in the Ablits and Law robberies. The trial court
\nbelieved the Commonwealth’s evidence and rejected appellant’s
\nevidence. “The credibility of the witnesses and the weight
\naccorded the evidence are matters solely for the fact finder who
\nhas the opportunity to see and hear that evidence as it is
\npresented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
\nS.E.2d 730, 732 (1995). The Commonwealth’s evidence was
\ncompetent, was not inherently incredible, and was sufficient to
\nprove beyond a reasonable doubt that appellant was guilty of the
\ntwo robberies.
\n For the reasons stated, the judgment order of the trial court
\nis affirmed.
\n Affirmed.<\/p>\n
– 5 –<\/p>\n","protected":false},"excerpt":{"rendered":"
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