Shearer v. Commonwealth , 9 Va. App. 394 ( 1990 )

Benton, J.,

dissenting.

Fred Alexander Shearer was charged with committing felonies in the City of Lynchburg and in Campbell County. He was represented by the same court appointed legal counsel in both jurisdictions. On September 23, 1986, the day before Shearer was scheduled to be tried in Campbell County for statutory burglary, two counts of grand larceny, and three counts of petit larceny, Shearer’s court-appointed counsel filed a motion to withdraw. The motion stated that Shearer “is mighty dissatisfied with counsel’s representation in Lynchburg felony defenses.” The Lynchburg trials occurred in May 1986.

On the day of the scheduled Campbell County trial, Shearer was arraigned for the second time and indicated his readiness to be tried by jury. In response to the trial judge’s inquiry, Shearer stated that he was satisfied with his court-appointed counsel. Shearer’s counsel then requested to be relieved, stating:

We had a trial on a number of statutory burglaries, three common law burglaries and several grand larcenies in Lynchburg in March — in May, and this man was sentenced on July 2.

Since that time, he has been tried — that was a bench trial — since that time he has been tried by jury in Lynch-burg and convicted on all.

I have been [to see] him in the Lynchburg City jail a number of times, received a countless number of collect telephone calls from him and more letters than I can read. In each case, he is ordering me to do things that I think are both frivolous and harmful to his case; and I respectfully request to withdraw from the case — from his representation in Campbell County.

The majority opinion states that Shearer’s counsel was referring to difficulties in connection with the Campbell County cases. I disagree. The motion to withdraw unequivocally states that Shearer’s counsel believes that Shearer “is mighty dissatisfied with counsel’s representation in Lynchburg felony defense” (emphasis added). In addition, the written motion contains no allegations that counsel was unable to prepare adequately for the trial in Campbell County. The motion stated that counsel wanted to be relieved in Campbell County because “counsel . . . believ[ed] that [Shearer] will never be satisfied with her representation and [may] seek appeal alleging ineffective counsel.” I believe that counsel’s statement to the trial judge related solely to counsel’s perceived difficulties with respect to the conduct of the appeals of Shearer’s Lynchburg convictions.

Furthermore, the trial judge undoubtedly understood that Shearer’s counsel was addressing the difficulties with the Lynch-burg appeals. It was the trial judge who then sought to make a connection between the Lynchburg appeals and counsel’s preparation for the Campbell County trial:

THE COURT: Have you been able to properly prepare his case under the circumstances?

DEFENSE COUNSEL: No, sir, I have not, because — I have not. It’s not possible for me to say gracefully all of his complaints about what has — has happened and what he wants done in order to get to what I personally consider is important, Judge.

I have spent five or six weekends and many evenings interviewing witnesses just because I could not get them in the daytime, answering his calls and was trying to answer his letters.

He requires justification on my part for everything I have not done for him on the appeals. And there is just — there is not enough time for anybody — for me to represent him properly (emphasis added).

Counsel’s response should remove all doubt whether the communication difficulties that counsel perceived related to the Lynchburg “appeals” or the Campbell County trials.

Although, in response to the trial judge’s inquiry, counsel shifted the basis for the motion to withdraw from the initial allegation, pleaded in the written motion, that Shearer was “mighty dissatisfied” to counsel’s alleged lack of preparation, first voiced on the morning of the scheduled trial, I believe that the record does not support the trial judge’s granting of the motion to withdraw. Shearer responded to the colloquy between the trial judge and counsel as follows:

MR. SHEARER: .... I don’t have a problem with Ms. Drake’s representation or what not. I wrote some letters and called her several times to indicate some things I wanted done. She said she couldn’t do these things because they were frivolous.

Okay. But she didn’t give me any kind of valid explanation as to why she would not do them. She just said that it would be harmful in my attack of whatever my appeals or whatnot, and she still has not explained them to me fully so that I can understand what she is trying to do.

THE COURT: Uh-huh.

MR. SHEARER: And I feel like, you know, me being in this position, I should be informed as to what is going on since it directly involves me.

THE COURT: So there have been some problems between you, that’s fair to say, isn’t it?

MR. SHEARER: Uh — more or less, yes.

THE COURT: All right, would you be — would you be more comfortable having another attorney and having the case continued and having another attorney represent you?

MR. SHEARER: No.

THE COURT: You would not?

MR. SHEARER: No.

Despite Shearer’s objection, the trial judge appointed another attorney, who was not present in court, to represent Shearer. Shearer then responded as follows:

MR. SHEARER: .... Your Honor, may I be allowed to speak? I don’t feel like this situation is as bad as what everyone is making it out to be, and I feel like this right here is interfering with my constitutional right to a speedy trial.

THE COURT: Uh-huh.

MR. SHEARER: And I am — that is my right. Am I right?

THE COURT: Well, you’ll get a speedy trial; and as a matter of fact, I would have no problem in coming back down here and trying the case myself if Judge Johnston wants to switch with me. I really don’t — it makes no difference at all.

The judge then continued the case “until further order of this Court.” However, no further court orders were entered until December 23, 1986, when the case was again “continued until further Order from this Court” because Shearer “failed to appear.”

Upon this record, the trial judge’s decision to allow Shearer’s counsel to withdraw was plainly wrong and an abuse of discretion. There is no justification shown in this record for granting counsel’s motion on the day of trial, particularly when Shearer expressed in open court his satisfaction with his counsel and invoked his right to a speedy trial. The trial judge’s action, taken four months and twenty-one days from the date the five month speedy trial requirement began to run, was done with total disregard for the statutory right then being asserted by Shearer. See Code § 19.2-243.

This record contains no evidence upon which to charge Shearer with the delay. Despite trial counsel’s claim that Shearer was “mighty dissatisfied with counsel’s representation” the motion to withdraw was not filed until the day before trial. In addition, the dissatisfaction that counsel attributed to Shearer concerned the conduct of an appeal of an earlier, unrelated conviction in another jurisdiction. The motion contained no allegation concerning the criminal matter to be tried the next day in Campbell County. Furthermore, on at least three occasions Shearer, in open court, stated his satisfaction with counsel and his desire to proceed with the trial. The trial judge clearly was aware that Shearer was directly and explicitly invoking his “constitutional right to a speedy trial.” In view of Shearer’s invocation of this right and his express desire to proceed to trial with his then counsel, it was incumbent upon the trial judge to make further inquiry before accommodating trial counsel at the expense of depriving Shearer of his right to a speedy trial. The bare statement of inconvenience in an unrelated matter by Shearer’s trial counsel, made one day before trial, was insufficient justification for circumventing the legislatively mandated speedy trial requirement.

The majority also concludes that the continuance ordered by the trial judge on September 24, the scheduled trial date, was attributable to Shearer and that Shearer’s “newly appointed counsel requested or concurred in two subsequent continuances.” I believe that none of those continuances can be attributed to Shearer. The record reflects that Shearer demanded a speedy trial on September 24. He did not request a continuance. Because the trial judge erred in permitting Shearer’s counsel to withdraw on the day of trial under the circumstances shown on this record, the continuance cannot logically be charged to Shearer.

Shearer asserts that any continuance which occurred after September 24 was without his consent or knowledge. I agree with the majority that Shearer’s brief states that Shearer’s newly appointed trial counsel “obtained [subsequent] continuances.” However, the record reflects that Shearer promptly informed his newly appointed trial counsel that “he wanted the matter brought on for trial.” According to Shearer’s newly appointed trial counsel, the trial “was scheduled [for] sometime in December.” Shearer’s newly appointed trial counsel stated only that he concurred in two continuances subsequent to the December continuances. The only evidence in the record concerning the setting of a December trial date is a letter dated October 29, 1986, from the Commonwealth’s attorney to Shearer’s newly appointed trial counsel. In that letter, written more than five months after the finding of probable cause, the Commonwealth’s attorney states “that the . . . case has been continued, with your consent to December 23, 1986.” In making the determination whether Shearer’s right to a speedy trial was violated, the Commonwealth’s attorney’s letter cannot be taken to establish that Shearer consented or waived his rights.

After the general continuance was ordered on September 24, 1986, no court order was entered setting a new trial date. The next order in the record was entered on December 23, 1986. In addition, no order has been entered in this case reflecting that Shearer or his counsel consented to a continuance. The letter of the Commonwealth’s attorney cannot speak for the trial court. “A court speaks only through its order.” Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). As the Supreme Court stated in Woodard v. Commonwealth, 214 Va. 495, 201 S.E.2d 785 (1974):

The Attorney General asserts that the July term continuance was similar to one granted on Woodard’s motion, which would have been excusable under clause (4) of Code § 19.1-191. This argument is based on the Commonwealth’s Attorney’s statement at trial that the continuance from the July term to the November term was agreed to in order to benefit Woodard by permitting him to cooperate with law enforcement agents. This position, however, is untenable, for we cannot take cognizance of the Commonwealth’s Attorney’s statement. The order granting the continuance, containing no suggestion of an agreement, speaks for itself.

Id. at 499, 201 S.E.2d at 788. The absence of a court order in this case is equally significant. See Heflin v. Commonwealth, 211 Va. 407, 408, 177 S.E.2d 644, 645 (1970) (“[S]ince no court entry upon the record reflects any such continuance by agreement,' we cannot accept that finding”).

For these reasons and in accordance with the provisions of Code § 19.2-243, I would reverse Shearer’s conviction and dismiss the indictment.