Randor Lee Uzzel, Jr. v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Malveaux
Argued by videoconference
UNPUBLISHED
RANDOR LEE UZZLE, JR.
MEMORANDUM OPINION* BY
v. Record No. 0386-19-1 JUDGE RANDOLPH A. BEALES
DECEMBER 29, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
David W. Lannetti, Judge
Andrew Sebok for appellant.
Leanna C. Minix, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Following a bench trial, appellant Randor Lee Uzzle, Jr. was convicted of rape under
Code § 18.2-61. On appeal, he contends that the trial court erred in failing to grant his motion to
replace his court-appointed defense attorney. He also argues that the “trial court erred in failing
to inquire into the apparent conflict of interest” when it learned at the sentencing hearing that
Uzzle’s attorney had prosecuted him approximately twelve years earlier in what he
acknowledges was an unrelated criminal proceeding.
I. BACKGROUND
Uzzle was charged with raping T.M., his friend’s fourteen-year-old daughter.1 Before his
trial began on September 18, 2018, Uzzle’s court-appointed trial counsel, Asha Pandya, informed
the court that Uzzle wished to address the court directly. After the trial judge granted him
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Uzzle was also charged with aggravated sexual battery under Code § 18.2-67.3 but that
charge was nolle prosequied.
permission to speak, Uzzle stated, “Yes, sir. I just feel like [Pandya] is not trying to act for me at
all.” Uzzle explained, “[L]ike she was supposed to come see me, and I am not prepped. She is
angry because I didn’t take the deal. She slammed the door in my face in the back. She has an
attitude, and I haven’t talked to her.” The trial judge asked Uzzle when he had last spoken with
Pandya, and Uzzle replied, “Like a week or two ago, and she was supposed to come and see me.
This is a very serious case, and I was just now seeing her today, and she was rushing to talk to
me in the back.”
After hearing Uzzle’s concerns, the trial judge turned to Pandya. He inquired about
Uzzle’s allegations and asked if she had agreed to meet with him a week ago. Pandya stated:
It was the end of the week before the hurricane. It was
approximately—less than ten days ago. Mr. Uzzle was completely
prepped for this trial. We’ve talked about all the issues as far as
this being a credibility case. We have even gone through what the
witness testimony would be. We’ve spoken about the guidelines,
both adjusted and unadjusted.
There was an offer made by the Commonwealth Attorney’s
Office. We talked about that on several occasions, and he initially
rejected it. This morning when we came for trial we were
transferred so I advised Mr. Uzzle of some issues dealing with
being in a new courtroom and so on, went over the guidelines
again. It was Mr. Uzzle who upon having a conversation with me
wanted me to reapproach the Commonwealth with a determinative
sentence, and he indicated that was something he was interested in
doing, which I did. I relayed it to them, came back. I told him
throughout I have no agenda, not telling him what he should do. I
never do with my clients. Unfortunately, he doesn’t like the facts,
he doesn’t like the guidelines and he doesn’t really like my legal
advice, as to what I said to him I think is in his best interest as it
relates to his freedom. Other than that I don’t know what else—
The trial judge interjected, asking, “Are you prepared for trial?” and Pandya responded,
“I’m absolutely prepared. I’ve been prepared for weeks.” When the trial judge asked if Uzzle
had any additional comments, Uzzle stated:
Yeah. She said we prepped for witnesses, but when she
came to see me ten or whatever days ago, she said I would be back,
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to come see me so we can prep and so I know what to say and what
not to say, and she never came, so I’m not prepped for trial.
In response, Pandya explained that she had intended to visit Uzzle again but was unable
to do so because of a hurricane. She stated that, for “any major case like this,” she tries to see
her clients multiple times but the fact that she was unable to visit him that last time did not
“mean he wasn’t already prepped as far as that is concerned.”
After listening to Uzzle and his counsel, the trial judge stated, “The Court is going to
deny the motion to withdraw counsel. The Court is going to treat it as a motion to withdraw.”
The trial court then proceeded with the arraignment. During the plea colloquy, the trial
judge asked Uzzle if he was satisfied with the services of his attorney. Uzzle responded, “No.”
He continued, “I shouldn’t have to argue with my lawyer and the prosecutor. That’s it.” Uzzle
entered a plea of not guilty and, following a bench trial, was found guilty of rape.
On February 15, 2019, Uzzle appeared before the trial court for a sentencing hearing,
where he chose to testify. At the beginning of his testimony, Uzzle stated, “First of all, I wanted
to say that I feel like, you know, my case as in a whole wasn’t really hand[l]ed professionally in
my point of view.” Following this statement, both Pandya and the trial judge explained the
purpose of the sentencing hearing, and Pandya asked Uzzle to leave for appeal any issues not
relevant to the sentencing. Pandya then proceeded with direct examination, and Uzzle testified
about his experiences working multiple jobs after being released from custody in 2010 following
a manslaughter conviction. Pandya and Uzzle then engaged in the following conversation:
[Pandya]: And just so we’re clear, you and I spoke about [how] I
was actually the prosecutor on this case.
[Uzzle]: You was the prosecutor on the case.
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[Pandya]: So I’m very familiar with the actual details of what that
case was and what it was not.
[Uzzle]: Of everything.
After Uzzle testified, the Commonwealth argued for a sentence “around the high end [of
the sentencing guidelines] of 27 years” of incarceration, describing Uzzle’s prior manslaughter
conviction as “a crime entrenched in violence” and arguing that Uzzle’s criminal record
conveyed a pattern of violent behavior. Pandya argued for a sentence at the low end of the
guidelines. As part of her argument for a lower sentence for Uzzle, she provided the trial court
with additional information regarding the manslaughter conviction which she had gained from
her role as the prosecutor in that case. She stated that, while there was an “official version” of
the facts that led to Uzzle’s conviction, there was also “a lot more to th[at] case.” She explained
that Uzzle had originally been charged with murder but, upon investigation, it was found that the
shooting was clearly an “accidental shooting by Mr. Uzzle” of one of his friends. She stated that
he “either accidentally pulled the trigger on the gun, or it went off accidentally.” Pandya
represented that Uzzle “was overcharged” when the Commonwealth initially charged him with
murder, leading her to offer Uzzle a plea agreement for involuntary manslaughter because “it
was the right disposition in that particular time.”
Pandya also explained how Uzzle “took personal responsibility” for his actions. She
stated, “And I can tell you from being the prosecutor, he felt a tremendous amount of remorse.
This gentleman cried at the sentencing. He cried at the time he took the offer. This was one of
his very best friends.” Pandya reiterated that she was able to tell the trial court these details
about Uzzle’s manslaughter conviction “because [she] happen[ed] to be [the] prosecutor that
handled them.”
At the conclusion of the hearing, the trial court gave Uzzle a twenty-year active sentence.
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II. ANALYSIS
A. The Motion to Withdraw
In his first assignment of error, Uzzle contends, “The trial court erred in denying the
defendant’s Motion to have his defense attorney replaced.” (Emphasis in original.) Uzzle argues
that by denying his motion, the trial court violated his Sixth Amendment right to counsel. He
contends that “[a]t a minimum, the statements made by Ms. Pandya and Mr. Uzzle to the trial
court clearly demonstrate that there was a significant breakdown of communication between
Mr. Uzzle and Ms. Pandya to the point where the client did not trust his attorney.” He also
claims that, if the trial court had inquired further regarding Pandya’s preparedness, it likely
would have discovered the alleged conflict of interest for Pandya regarding representing Uzzle.
The trial court stated that it was treating Uzzle’s complaints about Pandya’s performance
as a motion to withdraw. “Motions for counsel to be permitted to withdraw . . . are addressed to
the sound discretion of the trial court.” Spence v. Commonwealth, 60 Va. App. 355, 369 (2012)
(quoting Payne v. Commonwealth, 233 Va. 460, 473 (1987)). “The Sixth Amendment
guarantees that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.’” Brown v. Commonwealth, 288 Va. 439, 442 (2014)
(quoting U.S. Const. amend. VI). “It is well established that this constitutional guarantee entitles
indigent criminal defendants to court appointed counsel in felony cases and other criminal cases
resulting in a sentence of imprisonment.” Id. However, the Virginia Supreme Court has
emphasized that the right to effective assistance of counsel “does not guarantee that the
defendant will be represented by a particular attorney,” Hummel v. Commonwealth, 219 Va.
252, 258 (1978), and the United States Supreme Court has “reject[ed] the claim that the Sixth
Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel[,]”
Morris v. Slappy, 461 U.S. 1, 14 (1983). Furthermore, “the right to choice of counsel ‘does not
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extend to defendants who require [court appointed] counsel.’” Brown, 288 Va. at 442 (alteration
in original) (quoting United States v. Gonzalez–Lopez, 548 U.S. 140, 144 (2006)). “An indigent
defendant cannot have his original attorney replaced unless he shows good cause.” Kinard v.
Commonwealth, 16 Va. App. 524, 526 (1993).
The trial court in this case heard from both Uzzle and his counsel and concluded that
there was no basis for granting the “motion to withdraw.” Although Uzzle stated that he was not
prepared, Pandya represented that she had met with Uzzle less than ten days prior to the trial and
that they were both completely prepared. She explained that they had discussed how the case
would turn on credibility, had “gone through what the witness testimony would be,” and had
spoken about the guidelines and the Commonwealth’s plea offer.2 She explained that, although
she had hoped to visit Uzzle again, she was unable to do so because of a hurricane. Based on
Pandya’s adamancy that both she and Uzzle were prepared for trial and the details she provided
to the trial court about their preparation, we cannot say that the trial court abused its discretion in
denying the motion for new counsel.3
2
On appeal, Uzzle claims that Pandya represented to the trial court that she had prepped
witnesses for trial. He claims that her statement was clearly a misrepresentation because the only
witness she called was Uzzle. However, the transcript shows that Pandya only told the trial court
that she and Uzzle had “gone through what the witness testimony would be,” which could refer
to her preparing Uzzle for the anticipated testimony of the Commonwealth’s witnesses. Thus,
her statement to the trial court does not appear to be a misrepresentation.
3
We do not consider Uzzle’s allegation that Pandya’s prior prosecution of him created a
conflict of interest in connection with this assignment of error because, as Uzzle states in his
brief to this Court, the trial court was unaware of her role in the prior prosecution at the time of
the motion. Moreover, Uzzle’s contention that the trial court would have discovered the alleged
conflict if the court had continued to inquire as to her preparedness is simply speculative. The
trial court gave both Pandya and Uzzle the time and opportunity to explain why they felt they
were or were not prepared, and Pandya’s prior prosecution of Uzzle was never mentioned during
this conversation.
Uzzle also claims that the trial court erred in not treating the motion to withdraw as a
motion to continue, but he provides no authority to establish that it was error for a trial court to
treat his statements to the trial court as a motion to withdraw. While he cites to London v.
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B. The Alleged Conflict of Interest
In his second assignment of error, Uzzle argues that the “trial court erred in failing to
inquire into the apparent conflict of interest of the defense attorney when it learned that the same
attorney had prosecuted Mr. Uzzle in a previous unrelated felony conviction.” He contends that
Pandya’s prior prosecution of him for his 2006 manslaughter conviction created an apparent
conflict that required the trial judge “to conduct an inquiry into the extent and effect of the
conflict.” In addition, he argues that the conflict of interest resulted in his having inadequate
legal counsel in violation of his Sixth Amendment right to counsel and his due process rights.
He maintains that “the conflict [of interest] is a structural error because it is pervasive,
undermines the reliability of the entire case below and cannot be remedied.”
In support of their arguments, the parties discuss four cases from the United States
Supreme Court addressing conflicts of interest and the trial court’s duty to inquire into the nature
and extent of those conflicts: Holloway v. Arkansas, 435 U.S. 475, 484 (1978); Cuyler v.
Sullivan, 446 U.S. 335 (1980); Wood v. Georgia, 450 U.S. 261 (1981); and Mickens v. Taylor,
535 U.S. 162 (2002).
In Holloway, the petitioners, three co-defendants, were represented by the same
court-appointed defense counsel in a consolidated trial. 435 U.S. at 477. A few weeks before
the trial commenced, their counsel moved for the appointment of separate counsel for each
petitioner based on the possibility of a conflict of interest. Id. That motion was denied. Id.Before the jury was empaneled on the day of trial, counsel again moved for the appointment of
Commonwealth, 49 Va. App. 230 (2006), and Johnson v. Commonwealth, 51 Va. App. 369, 374
(2008), those cases involved requests for continuances to allow indigent defendants to replace
their court-appointed counsel with new, retained counsel. That was not the situation presented in
the case at bar. Uzzle did not request a continuance, and he did not represent to the trial court
that he was planning to proceed with retained counsel. Therefore, we cannot say that the trial
court erred in treating Uzzle’s statements as a motion to withdraw or in denying that motion.
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separate counsel, stating “that one or two of the defendants may testify and if they do, then I will
not be able to cross-examine them because I have received confidential information from them.”
Id. at 478. The motion was again denied. Id. On the second day of trial, defense counsel
notified the court that his clients intended to testify, reiterated his concerns about representing all
three defendants, and informed the court that he would be unable to protect each of their
interests. Id. at 478-79. The trial court required counsel to proceed as counsel for all three
defendants. Id. at 480.
Upon review, the Supreme Court noted the divergent treatment of cases involving joint
representation in appellate courts where trial counsel does not alert the trial court to the potential
conflict. Id. at 483. Given the facts of Holloway, however, the Supreme Court concluded that it
did not need to resolve that issue. Id. at 484. Because trial counsel had repeatedly alerted the
trial court to the probable conflict of interest prior to trial and “the judge then failed either to
appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to
warrant separate counsel,” the Court held that the petitioners’ right to the assistance of counsel
was violated. Id.Two years later, in Cuyler v. Sullivan, 446 U.S. 335 (1980), the Court again addressed a
potential conflict of interest presented by joint representation of co-defendants. Sullivan had
been indicted with two co-defendants for first-degree murder. Id. at 337. All three
co-defendants were represented by the same two privately retained lawyers throughout the state
proceedings following the indictment. Id. Neither Sullivan nor his attorneys ever objected to the
multiple representation. Id. at 337-38. Sullivan was tried first and convicted, and his
co-defendants were subsequently acquitted in separate trials. Id. at 338. After exhausting his
state remedies, Sullivan sought habeas relief. Id. at 339.
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Sullivan required the Supreme Court to answer a question not addressed in Holloway:
“whether a state trial judge must inquire into the propriety of multiple representation even though
no party lodges an objection.” Id. at 345 (emphasis added). The Court recognized that, while
“Holloway requires state trial courts to investigate timely objections to multiple
representation[,]” Holloway did not mandate that trial courts make inquiries in every case
involving joint representation. Id. at 346. It stated that “[a]bsent special circumstances,
therefore, trial courts may assume either that multiple representation entails no conflict or that
the lawyer and his clients knowingly accept such risk of conflict as may exist.” Id. at 346-47.
Accordingly, the Court concluded that “[u]nless the trial court knows or reasonably should know
that a particular conflict exists, the court need not initiate an inquiry.” Id. at 348.
After considering the facts of the case, the Court concluded that the trial court did not
have an affirmative duty to inquire about a conflict of interest. Id. at 347. It noted that none of
the participants in Sullivan’s trial ever objected to the joint representation, that the defendants
were tried in separate trials, and that the opening statement of Sullivan’s counsel “outlined a
defense compatible with the view that none of the defendants was connected with the murders.”
Id. Under these circumstances, the Supreme Court concluded that the trial court was not
required to inquire into the potential conflict created by the joint representation. Id. at 348.
In Wood v. Georgia, 450 U.S. 261 (1981), the Supreme Court applied the principles in
Holloway and Sullivan to a potential conflict of interest created by a third-party’s payment of the
petitioners’ attorney. In Wood, three defendants were convicted of distributing obscene material
while working for their employer. Id. at 262. They were sentenced to probation upon the
condition that they make payments toward fines, and when they failed to make those payments,
their probations were revoked. Id. Although they appealed the revocations based on an alleged
violation of the Equal Protection Clause, the Supreme Court did not address the merits of their
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claims. Id. at 263. Instead, the Court remanded the case for additional findings of fact regarding
a potential due process violation because the record in the case suggested “that petitioners may
be in their present predicament because of the divided loyalties of their counsel.” Id. The record
showed that the petitioners had been represented throughout the proceedings by a lawyer paid by
their employer, that their employer had promised petitioners legal counsel and the payment of
any fines and bonds necessary, and that these promises were largely kept except for the payment
of the fines that led to the revocation of the petitioners’ probations. Id. at 266. The Court stated
that these facts “suggest[ed] the possibility that [the employer] was seeking—in its own
interest—a resolution of the equal protection claim raised” in the appeal. Id. at 267. The Court
found “a clear possibility of conflict of interests on these facts.” Id.Particularly relevant to Uzzle’s appeal were the Supreme Court’s statements regarding
the duty of the trial court to inquire into the conflict of interest. The Supreme Court found “that
the possibility of a conflict of interest was sufficiently apparent at the time of the revocation
hearing to impose upon the court a duty to inquire further.” Id. at 272 (emphasis in original). In
addition to the trial court’s awareness in Wood of all of the facts surrounding the payment
arrangement, the Court found that the trial court “must have known that it had imposed
disproportionately large fines” based on an assumption that the employer would be paying them
and that the trial court knew the employer-retained counsel was making a constitutional
argument instead of arguments for leniency for the petitioners. Id. at 266, 272. Furthermore,
“[a]ny doubt as to whether the [trial] court should have been aware of the problem [was]
dispelled by the fact that the State raised the conflict problem explicitly and requested that the
court look into it.” Id. at 272-73. Consequently, the Supreme Court remanded the case for a
determination of whether the petitioners’ due process rights were violated due to their
representation by the employer-paid attorney at the revocation hearing.
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In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court examined Holloway,
Sullivan, and Wood in addressing another alleged conflict of interest. In Mickens, the petitioner,
who had been convicted of capital murder and then sentenced to death, filed a habeas petition
claiming ineffective assistance of counsel based on his court-appointed attorney’s representation
of the victim on assault and concealed weapons charges at the time of the murder. Id. at 164.
The attorney did not disclose to the petitioner, to his co-counsel, or to the trial court that he had
previously represented the victim. Id. at 165. Before the United States Supreme Court, the
petitioner argued that “where the trial judge neglects a duty to inquire into a potential conflict,
the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a
conflict of interest, and need not show that the conflict adversely affected counsel’s
performance.” Id. at 170. The Supreme Court rejected this argument, explaining that “when the
trial judge is not aware of the conflict (and thus not obligated to inquire),” the Court will only
presume prejudice “if the conflict has significantly affected counsel’s performance.” Id. at
172-73. Because the petitioner failed “to establish that the conflict of interest adversely affected
his counsel’s performance,” the Supreme Court affirmed the denial of habeas relief. Id. at 174.
As part of its analysis, the Court again touched on what circumstances give rise to a trial
court’s duty to inquire into a potential conflict of interest. The Supreme Court, relying on
Sullivan’s construction of Holloway, explained that the duty to inquire arises when “the trial
court knows or reasonably should know that a particular conflict exists.” Id. at 168 (quoting
Sullivan, 446 U.S. at 347). The Supreme Court made clear, however, that the trial court has no
duty to inquire when it is only “aware of a vague, unspecified possibility of conflict, such as that
which ‘inheres in almost every instance of multiple representation.’” Id. at 169 (quoting
Sullivan, 446 U.S. at 348).
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Turning to the case now before us, we hold that the trial court was not obligated under
these particular circumstances to inquire into the potential conflict of interest now alleged
because the trial court was only presented with a “vague, unspecified possibility of conflict.”
See id. While Pandya’s representation of Uzzle presented the possibility of a conflict, that
possibility was not “sufficiently apparent” to actually trigger a duty to inquire by the trial court.
See Wood, 450 U.S. at 272. Unlike in Holloway and Wood, Pandya was not actively
representing an interest that conflicted with Uzzle’s, and thus her representation of Uzzle would
not have immediately alerted the trial judge of a duty to inquire about a potential conflict. More
significantly, no participant at the trial ever objected to Pandya’s representation of Uzzle based
on her role in prosecuting him years before for his completely unrelated manslaughter
conviction. Although Uzzle was repeatedly given the opportunity to speak for himself about
Pandya’s representation (and did in fact complain about several aspects of her representation), he
never told the trial judge that the reason for his dissatisfaction with Pandya’s performance was
her role in the unrelated prosecution approximately twelve years earlier.4 Even assuming that the
revelation of Pandya’s prior prosecution of Uzzle presented the possibility of a conflict of
interest in her representing Uzzle twelve years later on an unrelated separate matter, Pandya’s
argument at the sentencing hearing allowed the trial court to dismiss that possibility because
Pandya used the information that she had learned while prosecuting Uzzle to his benefit in
attempting to reduce his prison sentence. She used her prior knowledge of Uzzle to counter the
4
The record is clear that Uzzle certainly was aware at least prior to the sentencing
hearing of Pandya’s previous prosecution of him for involuntary manslaughter twelve years
earlier.
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Commonwealth’s argument that Uzzle had exhibited a pattern of violent behavior. 5 See
Sullivan, 446 U.S. at 347-48 (holding trial court did not have an affirmative duty to inquire into
joint representation where no party objected and counsel’s opening statement indicated a theory
of the case consistent with all the defendants’ innocence). Under these circumstances, the trial
court did not actually err by apparently assuming either that no conflict existed or “that [Pandya]
and [Uzzle] knowingly accept[ed] such risk of conflict as may exist.” See id. at 347.
Furthermore, even if the trial court had erred in failing to inquire, Uzzle would not be
entitled to an automatic reversal of his conviction because he has failed to show “‘an actual
conflict of interest’ mean[ing] precisely a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties.’” Mickens, 535 U.S. at 171 (emphasis in
original). To obtain a reversal, Uzzle was required to “establish that the conflict of interest
adversely affected his counsel’s performance.” Id. at 174; see also Beaver v. Thompson, 93 F.3d
1186, 1192 (4th Cir. 1996) (“To prevail on a claim of conflict of interest, [the defendant] must
present convincing evidence of an actual conflict and a resulting adverse effect on
performance.”).
While Uzzle asserts that this was a “structural error” that penetrated the entire trial, he
fails to specifically identify how the alleged conflict adversely affected Pandya’s performance.
He does not explain how her prosecution of him twelve years earlier in an unrelated case had any
impact on her defense of him in the rape proceedings. The record demonstrates that the only
point in the rape proceedings where Uzzle’s earlier manslaughter conviction was relevant was at
the sentencing hearing, and, rather than hindering Pandya’s representation of Uzzle, her role as
5
We note that the Commonwealth – Pandya’s “former client” – never objected to
Pandya’s representation of Uzzle or to her using information she had learned in the prosecution
of him in arguing against the Commonwealth’s position here.
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his prior prosecutor worked to his benefit. Pandya used the information she gained as his former
prosecutor to combat the Commonwealth’s argument that Uzzle’s criminal record showed a
pattern of violent behavior. She provided more facts about Uzzle’s manslaughter conviction to
argue that it truly was an accidental killing and that Uzzle had not shown a pattern over time of
intentional violent behavior. She also used her knowledge about the case to tell the court about
how Uzzle was highly remorseful and how he took responsibility for his actions. Consequently,
because the record fails to reflect how Pandya’s prior prosecution of Uzzle adversely affected her
performance in the case now before us, Uzzle is not entitled to a reversal of his rape conviction.
We note that we do not hold that an attorney’s former prosecution of a defendant never
creates a conflict of interest for a future representation of that defendant in even an unrelated
future matter as we limit our holding to the circumstances of this particular case. Case law from
Virginia and other jurisdictions generally supports the conclusion that successive representation
of the prosecution and the defense in unrelated matters does not create a per se conflict of
interest and that the facts and circumstances of each case must be considered. See Juniper v.
Commonwealth, 271 Va. 362, 391 (2006) (holding by the Supreme Court that the trial court did
not err in refusing to disqualify Commonwealth’s attorney who had represented the defendant
ten years earlier in an unrelated matter); John Wesley Hall, Jr., Prof. Resp. Crim. Def. Prac.
§ 13:13 Former Prosecutors as Defense Counsel (3d ed. 2020) (“A defense attorney representing
someone he or she previously prosecuted does not necessarily create a conflict of interest.”).6
6
See also Turner v. Commonwealth, 259 Va. 816, 820 (2000) (holding by the Supreme
Court that the trial court did not abuse its discretion in finding that a defense attorney’s
submission of an application for employment with the Office of the Commonwealth’s Attorney
fourteen days prior to defendant’s trial did not create an impermissible conflict); Beaver, 93 F.3d
at 1193 (rejecting argument that defense counsel’s role as a part-time Commonwealth’s attorney
in a neighboring county created a per se conflict of interest which would disqualify the attorney);
Pipkin v. United States, D.S.C. No. 4:05-CR-01129-TLW, 2015 WL 1810911, at *7 (D.S.C.
Apr. 20, 2015) (holding that the fact that petitioner’s counsel was a former prosecutor who had
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Having considered the facts and circumstances of this particular case, we conclude that the trial
court did not err in not inquiring into the “vague, unspecified possibility of conflict,” Mickens,
535 U.S. at 169, presented by Pandya’s representation of Uzzle and that Uzzle has failed to show
an actual conflict of interest.
III. CONCLUSION
In short, we cannot say that the trial court abused its discretion in denying Uzzle’s motion
to have his court-appointed counsel replaced with new counsel. The trial court gave Uzzle and
Pandya the time and opportunity to present their arguments about their level of preparedness, and
the trial court was convinced by Pandya’s presentation. She told the trial court she had met with
Uzzle and discussed the case, the likely witness testimony, the sentencing guidelines, and the
Commonwealth’s offer. She represented that Uzzle “was completely prepped for this trial” and
that she had been ready for weeks. She also explained that a hurricane prevented her from
returning to see Uzzle, but because he was already prepared for trial, her inability to visit him on
that day did not impact their level of readiness for trial. Under these circumstances, the trial
court did not err in denying the motion.
We also cannot say that the trial court erred in failing later to inquire into the “vague,
unspecified possibility of conflict,” as discussed by the United States Supreme Court in Mickens,
535 U.S. at 169, presented by Pandya’s prior role as the prosecutor in Uzzle’s completely
unrelated manslaughter conviction twelve years earlier. No party ever objected to Pandya’s
representation of Uzzle on the grounds that she had once prosecuted him – or even alerted the
prosecuted petitioner in an unrelated case did not present a conflict of interest). We also note
that, in some rural jurisdictions with few attorneys, there is sometimes little practical choice but
to allow former prosecutors to represent defendants and that the particular facts of each case are
relevant in determining whether the trial court has a duty to inquire about the existence of an
actual conflict.
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trial court to these circumstances until Uzzle testified at the sentencing hearing. In addition, the
manner in which these circumstances were finally presented to the trial court likely would have
gone a long way toward alleviating any concerns the trial court may have had about a potential
conflict of interest. Pandya used the information that she had gained through prosecuting Uzzle
actually to his advantage in her efforts to show that he was not a violent person. Furthermore,
even if we were to assume that the trial court did err in not conducting an inquiry, Uzzle would
not be entitled to a reversal of his conviction because he has not shown how Pandya’s
representation of him in this matter was adversely affected by the alleged conflict. The record
indicates that Pandya’s knowledge from her previous experience prosecuting Uzzle actually
helped her represent Uzzle here – rather than hurt her representation of him.
Consequently, for all of these reasons, we affirm the trial court’s conviction of Uzzle for
rape.
Affirmed.
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