Raymont D. Armstead v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
RAYMONT D. ARMSTEAD
MEMORANDUM OPINION * BY
v. Record No. 2251-96-1 JUDGE RICHARD S. BRAY
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Theophlise L. Twitty for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Raymont D. Armstead (defendant) was convicted in a bench
trial on indictments charging two counts of cocaine distribution.
Defendant complains on appeal that the trial court erroneously
denied his motion for a continuance, necessary to accommodate the
substitution of appointed counsel with retained counsel,
resulting in violations of both Code § 19.2-159.1 and the Sixth
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Amendment right to counsel. Finding no error, we affirm the
convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts essential to a
disposition of the appeal.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Although the Commonwealth contends that these arguments
were procedurally defaulted, we find that defendant adequately
presented the issues to the trial court.
Code § 19.2-159.1 provides, in pertinent part, that:
In the event the defendant undergoes a change
of circumstances so that he is no longer
indigent, the defendant shall thereupon
obtain private counsel and shall forthwith
advise the court of the change of
circumstances. The court shall grant
reasonable continuance to allow counsel to be
obtained and to prepare for trial. When
private counsel has been retained, appointed
counsel shall forthwith be relieved of
further responsibility and compensated for
his services, pro rata, pursuant to
§ 19.2-163.
Here, although defendant's father had apparently undertaken to
retain counsel for him immediately prior to trial, defendant
advised the court that he "didn't have anything to do with" this
effort, had not spoken with such attorney and remained unable to
compensate counsel. Under such circumstances, defendant's
continuance motion was clearly not one contemplated by Code
§ 19.2-159.1.
We acknowledge that a "criminal defendant's [constitutional]
right to counsel includes 'not only an indigent's right to have
the government appoint an attorney to represent him, but also the
right of any accused, if he can provide counsel for himself by
his own resources or through the aid of his family or friends, to
be represented by an attorney of his own choosing.'" Paris v.
Commonwealth, 9 Va. App. 454, 460, 389 S.E.2d 718, 721 (1990)
(quoting Thacker v. Slayton, 375 F. Supp. 1332, 1335-36 (E.D. Va.
1974)). However, such is
"a qualified right which is limited by a
countervailing state interest in proceeding
with prosecutions on an orderly and
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expeditious basis." Bolden v. Commonwealth,
11 Va. App. 187, 190, 397 S.E.2d 534, 536
(1990). Further, "broad discretion is
afforded the trial court in determining
whether a continuance to obtain counsel
should be granted. Only an unreasoning and
arbitrary insistence on expeditiousness in
the face of a justifiable request for a delay
violates the right to the assistance of
counsel." Id. at 191, 397 S.E.2d at 536.
Mills v. Commonwealth, 24 Va. App. 95, 99-100, 480 S.E.2d 746,
748 (1997). Thus, "[i]n order to justify a continuance 'by the
last minute change of counsel, exceptional circumstances must
exist.'" Feigley v. Commonwealth, 16 Va. App. 717, 721, 432
S.E.2d 520, 523 (1993) (quoting Shifflett v. Commonwealth, 218
Va. 25, 30, 235 S.E.2d 316, 320 (1977)).
A trial court's decision to deny a continuance "will not be
reversed on appeal unless there was a clear abuse of discretion
and prejudice to the defendant." Id. (emphasis added). The
requisite prejudice must be established by affirmative proof, see
Cardwell v. Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151
(1994), which may include evidence "that the court-appointed
attorney conducted an inadequate investigation, was unprepared
for trial, or failed to pursue a vigorous defense." Feigley, 16
Va. App. at 721, 432 S.E.2d at 523.
The instant record discloses that defendant's
court-appointed counsel was ready for trial, and that defendant
had "prepared . . . [a] defense to the charges with [the]
lawyer," had no witnesses and was also ready to proceed. The
Commonwealth's case was substantively dependent upon the
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testimony of a single witness, the detective that purchased the
offending drugs from defendant, and nothing suggests either the
existence of evidence favorable to defendant or inadequate
representation of counsel. Even assuming, arguendo, that the
court improperly denied defendant's motion because he was unable
to pay court-appointed counsel, the record demonstrates no
prejudice to defendant from the ruling.
Accordingly, we affirm the convictions.
Affirmed.
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