Paris v. Com., 0827-88-4

• Decision Date: 20 February 1990
• Docket Number: No. 0827-88-4,0827-88-4
• Citation: 9 Va.App. 454,389 S.E.2d 718
• Court: Virginia Court of Appeals
• Parties: Raymond PARIS v. COMMONWEALTH of Virginia. Record

Page 718

389 S.E.2d 718

9 Va.App. 454

Raymond PARIS v. COMMONWEALTH of Virginia.

Record No. 0827-88-4.

Court of Appeals of Virginia.

Feb. 20, 1990.

John W. Shanley (William T. Newman, Jr., Arlington, on briefs), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: COLEMAN, DUFF and KEENAN, JJ.

KEENAN, Judge.

Raymond Paris appeals his convictions on two counts of robbery and use of a firearm in the commission of robbery, two counts of abduction and one count of breaking and entering. The issue presented in this appeal is whether Paris was denied his sixth amendment right to counsel. We find that Paris was afforded the right to counsel throughout the proceedings, and, accordingly, affirm his convictions.

Paris first appeared in the Circuit Court of Arlington County on June 22, 1987. On that day the trial court appointed counsel to represent him and continued the case to June 24, 1987, for appearance of counsel and setting a trial date. On June 24, 1987, trial was set for September 16, 1987.

On September 15, 1987, Paris again appeared in court with his court-appointed counsel. This time he also had retained counsel with him. ¹ His retained counsel requested a continuance of the trial date since Paris had only recently retained him. The prosecutor and court-appointed counsel informed the court that they were prepared for trial the following day. The trial court granted Paris' motion for a continuance and trial was reset for December 14, 1987. Court-appointed counsel was granted leave to withdraw from the case.

On December 14, 1987, the case was continued to February 1, 1988, for the entry of a plea agreement. On February 1, 1988, Paris' counsel and the prosecutor informed the trial court that, although they had anticipated entering a plea agreement that day, the agreement had not been reached. A joint motion for a continuance was granted and trial was set for April 5, 1988.

On February 22, 1988, Paris filed a motion to withdraw counsel, stating that counsel had failed to perform his duties adequately, that counsel was negligent in failing to keep appointments, that counsel had failed to properly investigate the case, and that counsel had denied Paris access to the courts. On March 16, 1988, Paris sent a letter to the trial court stating that he had terminated his counsel and asking the court to appoint counsel to represent him. On March 24, 1988, with Paris and retained counsel present, the court denied Paris' motion to withdraw counsel and instructed counsel to be prepared for trial on the April 5, 1988 trial date.

On April 5, 1988, Paris appeared in court with retained counsel and was arraigned. He then advised the trial court that he was without counsel since he had fired his attorneys and was not prepared to go to trial. He also informed the court that he did not wish to represent himself. Counsel informed the court that they had been instructed repeatedly by Paris not to do anything further on his behalf and therefore had done nothing in the month preceding trial. They stated that they were not prepared to go to trial, requested to be declared ineffective and asked for a continuance to allow Paris to obtain counsel. The trial court denied their motion. After conferring with Paris, counsel informed the court that they would sit silently through Paris' trial pursuant to his continuing directive that they were not to act as his lawyers.

Paris' counsel did not participate at trial, although Paris occasionally did consult with them. Counsel did not participate in the selection of the jury and peremptory strikes were exercised by the clerk. Counsel likewise did not request a rule on witnesses. They raised no objections during the trial, did not question the witnesses, did not make either opening or closing statements, and proffered no instructions to the court. The jury found Paris guilty on all charges.

Paris filed a motion to set aside the verdict on the ground of ineffective assistance of counsel. An evidentiary hearing was held over a two day period, during which Paris was represented by newly retained counsel. His former retained counsel testified at the hearing. Paris also testified at this time. The trial court denied Paris' motion and imposed the ninety-six year sentence as set by the jury verdict.

On appeal, Paris argues that he was denied his constitutional rights to a fair trial and the assistance of counsel by the following: (1) the trial court's failure to conduct an adequate hearing relating to his dissatisfaction with retained counsel; (2) the trial court's failure to grant his motions for appointment of new counsel; (3) the trial court's failure to grant counsel's motion to be declared ineffective, as well as counsel's motion for a short continuance; and (4) counsel's failure, once the court had denied all motions to terminate counsel's representation, to participate at trial and assist in his defense. ² In addition, Paris argues that he did not waive his right to counsel, but was, because of the trial court's actions, nevertheless required to stand trial without the assistance of counsel.

The Commonwealth argues that the trial court did not err in denying Paris' motions for appointment of new counsel and a continuance because the trial court found that Paris had repeatedly engaged in obstructionist tactics to avoid going to trial. In addition, the Commonwealth contends that there was ample evidence before the trial court of Paris' reasons for wanting new counsel, and therefore no further hearing on the merits of that request was necessary.

Initially, we reject Paris' argument that he was required to stand trial without the assistance of counsel. Counsel was appointed to represent Paris when he first appeared in court in June 1987. Paris decided to retain counsel in August 1987 and his trial was continued to allow retained counsel to prepare for trial. Counsel continued to represent Paris over a period of seven months, pursuing several plea agreements, investigating the evidence against Paris and preparing, in the event it became necessary, to take his case to trial. Paris first informed counsel in March 1988 that he was not satisfied with their services and petitioned the court to appoint him new counsel. That motion, and a subsequent motion made on the day of trial, were denied by the court. Counsel were directed by the court to be ready for trial on April 5, 1988. They appeared with Paris for trial and were available to him throughout the trial. We therefore find that Paris was represented by counsel throughout the criminal proceedings against him, and, accordingly, do not address his contention that his sixth amendment right was violated because he did not make a knowing and voluntary waiver of his right to counsel.

We also reject Paris' argument that he was denied a fair trial and his right to effective counsel because the court summarily denied his pre-trial motions without adequate inquiry into the sources of his dissatisfaction with counsel. Paris asserts that the sixth amendment requires an on-the-record hearing to determine whether counsel is rendering effective assistance, citing McMahon v. Fulcomer, 821 F.2d 934 (3rd Cir.1987) and Fields v. United States, 466 A.2d 822 (D.C.) cert. denied, 464 U.S. 998, 104 S.Ct. 497, 78 L.Ed.2d 690 (1983). Paris filed a one-page motion with the trial court, supplemented by a three-page letter, asserting that he was generally dissatisfied with counsel. ³ In addition, during a subsequent motion to set aside the verdict, the court heard testimony over a two-day period directed specifically to counsel's ineffectiveness. At that hearing, Paris was represented by retained counsel of his choosing.

At the post-trial hearing, Paris alleged only general dissatisfaction with counsel's representation, although ample opportunity was provided for Paris to provide the trial court specific examples of their allegedly ineffective representation. Also, the pre-trial preparations made by counsel from the period of August 1987 to April 1988 were detailed to the court at this time. Therefore, although the court did not conduct any inquiry into Paris' reasons for wanting counsel removed at the hearing on March 24, 1988, or prior to the trial on April 5, 1988, we find that the subsequent hearing was sufficient to enable the court to determine whether Paris had received adequate representation in accordance with his sixth amendment right to counsel. ⁴

Further, we find that the trial court did not err in denying Paris' motions for withdrawal of counsel and a continuance. Such motions are addressed to the sound discretion of the trial court and our review is limited to determining whether the trial court's denial of these motions constituted an abuse of discretion. Payne v. Commonwealth, 233 Va. 460, 473, 357 S.E.2d 500, 508 (1987), cert. denied, 484 U.S. 933, 108 S.Ct. 308, 98 L.Ed.2d 267 (1987), reh. denied, 484 U.S. 1021, 108 S.Ct. 738, 98 L.Ed.2d 685 (1988). We find no such abuse of discretion here.

"An accused's right to be represented by counsel is a fundamental component of our criminal justice system." United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657 (1984). It has long been recognized in Virginia that the right to assistance of counsel is a fundamental one guaranteed to an accused by the Bill of Rights of the Virginia Constitution. Fitzgerald v. Smyth, 194 Va. 681, 690, 74 S.E.2d 810 (1953); Cottrell v. Commonwealth, 187 Va. 351, 46 S.E.2d 413 (1948). Furthermore, the sixth amendment guarantees a defendant in a state criminal proceeding the right to assistance of counsel before he can be validly convicted and punished with imprisonment. Van Sant v. Gondles, 596 F.Supp. 484, 487 (E.D.Va.1983), aff'd, 742 F.2d 1450 (4th Cir.1984).

A criminal defendant's right to counsel includes "not only an indigent's right to have the government appoint an...