Bailey v. Com.

• Decision Date: 27 August 2002
• Docket Number: Record No. 0462-00-2.
• Citation: 38 Va. App. 794,568 S.E.2d 440
• Parties: Kip Edward BAILEY, s/k/a Kip Edward Bailey, Sr., v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

568 S.E.2d 440

38 Va. App. 794

Kip Edward BAILEY, s/k/a Kip Edward Bailey, Sr., v. COMMONWEALTH of Virginia.

Record No. 0462-00-2.

Court of Appeals of Virginia, Richmond.

August 27, 2002.

Cullen D. Seltzer (Bowman and Brooke, LLP, on briefs), Richmond, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Randolph A. Beales, Attorney General, on briefs), for appellee.

Present: BENTON, ANNUNZIATA and HUMPHREYS, JJ.

ROSEMARIE ANNUNZIATA, Judge.

Kip Edward Bailey was convicted in a bench trial of possession of cocaine with intent to distribute with a prior conviction for a like offense, in violation of Code § 18.2-248, and sentenced to fifty years in prison, with thirty-nine years and seven months suspended.

Bailey argues that his conviction should be reversed because he was denied: 1) his statutory right to a speedy trial because his trial commenced more than five months after the preliminary hearing, during which time he was held in custody; and 2) his constitutional right to counsel. We find no error and affirm Bailey's conviction.

I. Background

Upon familiar principles, we state the evidence on appeal in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Ferrell v. Commonwealth, 11 Va.App. 380, 383, 399 S.E.2d 614, 615 (1990)

. Bailey was indicted on March 20, 1997 for possession of cocaine with intent to distribute, with no second offense language included. The indictment was returned a true bill, and the trial was set for April 15, 1997. The case was continued to May 15, 1997 on motion by the Commonwealth, without objection.

A grand jury indicted Bailey for possession of cocaine with intent to distribute, second offense, on May 15, 1997. A true bill was returned, and trial was set for June 3, 1997. On June 3, the case was again continued on motion by the Commonwealth, without objection. At docket call on June 19, the case was passed to be set for trial by agreement with the judge's secretary. Bailey did not object. The case was eventually set for trial on August 25, 1997. At the August 25 hearing, Bailey moved to dismiss the indictment, alleging a violation of the speedy trial statute. The motion was denied.

Bailey was tried on October 2, 1997. The Commonwealth nolle prossed the original indictment and proceeded on the second indictment that charged Bailey with possession of cocaine with intent to distribute, second offense. Bailey was convicted as charged.

In the course of Bailey's trial, the trial court appointed three attorneys, sequentially, to represent him. While represented by counsel, Bailey filed pro se motions and insisted on certain unreasonable strategies. Additionally, Bailey failed to cooperate with his attorneys and expressed dissatisfaction with their efforts despite their diligent representation.

Daniel Hall, Bailey's first attorney, filed several speedy trial motions and vigorously argued on Bailey's behalf at trial. Yet, at the outset of trial, Bailey complained that Hall had not subpoenaed certain witnesses. The trial judge did not credit these complaints, observing that Bailey was "talking, rambling on about family members. I assume he would have recourse to write or call his family members if [he] wanted to tell you about it. This matter has continued on, and on, and on, so we're going to proceed with the case." After his conviction, Bailey, in disregard of Hall's status as his attorney, filed various pro se pleadings and also filed a habeas corpus petition alleging Hall's ineffective representation. Hall moved to withdraw, stating that Bailey's conduct made his continued representation impossible. Hall's motion was granted. The court appointed Paul Bland as Bailey's second attorney. Despite the appointment, Bailey continued to file pro se motions and, almost immediately after his appointment, Bland moved to withdraw, noting that Bailey told him that he had filed "habeas on all of his cases, including the one that counsel previously represented him on in 1992." Bland believed that Bailey's statement "created an adversarial relationship with counsel, and counsel [felt] it appropriate to withdraw." The court granted Bland's motion.

Philip DiStanislao was appointed as Bailey's third attorney. Despite the appointment of yet a third attorney, Bailey filed a pro se pleading on June 1, 1998. Barely more than one month after his appointment, DiStanislao moved to withdraw as counsel because Bailey set forth unreasonable terms and conditions for his representation, requiring him to communicate with Bailey by mail only and not in person. DiStanislao stated that these conditions "ma[de] it impossible for him to provide effective representation for Mr. Bailey as it is extremely unlikely that any positive form of attorney-client relationship can exist."

At a hearing on DiStanislao's motion, Bailey denied that he refused to speak with his attorney. The trial court warned Bailey:

All right, Mr. Bailey, the Court has tried to accommodate your interests. This is the third attorney that has been appointed at the State's expense to represent you. You will not get another one. You'll either decide that Mr. DiStanislao will represent you and you will act accordingly or else you'll represent yourself at your hearing.

Either you decide you're going to talk to him and you're not going to lay down the terms and conditions or you're going to represent yourself at your hearing.

* * * * * *

I'm going to let him out if you're going to be obnoxious and difficult to deal with.

After a brief recess, DiStanislao informed the trial court that Bailey told him, "if I didn't do what he told me to do it wasn't going to work." DiStanislao reported this ethical dilemma to the trial judge and told him "the situation [was] impossible given [Bailey's] attitude towards representation by [him]. . ."¹ The trial court thus ruled that Bailey would represent himself at sentencing and appointed DiStanislao as stand-by counsel.

Bailey then filed three more pro se pleadings in the circuit court, including a motion for a new trial and a motion for a continuance. He did not ask for the appointment of new counsel. In his motion, Bailey recited that he had "after-discovered evidence," in the nature of a letter written by his wife that he claimed demonstrated her motive to testify falsely against him.

At the sentencing hearing, the trial judge stated that Bailey was representing himself, with stand-by counsel available. He denied Bailey's motion for continuance because Bailey had learned of the evidence before trial. Moreover, the trial judge stated, "I read the letter anyways [sic], Mr. Bailey, the copy you sent to the clerk. It makes no difference in your trial and would not serve as a basis for a new trial. Your motion for a new trial is denied. So [sic] your motion for a continuance is denied." The trial court sentenced Bailey to fifty years in prison, with thirty-nine years and seven months suspended.

II Analysis

On appeal, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below. See Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)

. We, therefore, "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998). The credibility of the witnesses and the weight of the evidence are matters to be determined solely by the trier of fact. Swanson v. Commonwealth, 8 Va.App. 376, 378-79, 382 S.E.2d 258, 259 (1989). Furthermore, the decision of the trial court will not be disturbed unless plainly wrong or without evidence to support it. McGee v. Commonwealth, 25 Va.App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).

Bailey argues that his conviction should be reversed because he was denied: 1) his statutory right to a speedy trial because his trial commenced more than five months after the preliminary hearing, during which time he was held in custody; and 2) his constitutional right to counsel. For the following reasons, we disagree with each of these contentions and, therefore, affirm his conviction.

A. Speedy trial

The speedy trial statute provides, in pertinent part:

Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court.

Code § 19.2-243. The statute also notes that periods of delay caused "by the failure of the accused or his counsel to make a timely objection to [a motion for a continuance] by the attorney for the Commonwealth," are excluded from the five-month time limit. Code § 19.2-243(4); Johnson v. Commonwealth, 259 Va. 654, 669, 529 S.E.2d 769, 777 (2000); Robinson v. Commonwealth, 28 Va. App. 148, 154, 502 S.E.2d 704, 707 (1998). (holding that delay resulting from a continuance granted upon the Commonwealth's motion and without objection by the defendant is charged to the defendant).

In this case, Bailey was indicted on March 20, 1997 and tried on October 2, 1997. He did not object to a continuance of his case from April 15, 1997 to May 15, 1997, or continuances from June 3, 1997 to August 25, 1997. Subtracting these delays, Bailey's trial was held within three months of his indictment and well within the statutory time limit. Accordingly, we will not disturb his conviction on this ground.

B. Right to counsel

The Commonwealth argues Bailey waived his right to counsel by "engag[ing] in a variety of obstructionist, dilatory tactics and repeatedly manifest[ing] a desire to represent himself by filing a raft of pro se ple...