Van Sant v. Gondles, Civ. A. No. 82-1142-A.

• Decision Date: 01 February 1983
• Docket Number: Civ. A. No. 82-1142-A.
• Citation: 596 F. Supp. 484
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Victor Howard VAN SANT, Petitioner, v. James GONDLES, Sheriff of Arlington County, Respondent, and The Attorney General of the Commonwealth of Virginia, Additional Respondent.

596 F. Supp. 484

Victor Howard VAN SANT, Petitioner, v. James GONDLES, Sheriff of Arlington County, Respondent and The Attorney General of the Commonwealth of Virginia, Additional Respondent.

Civ. A. No. 82-1142-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 1, 1983.

Irving Starr, Arlington, Va., for petitioner.

William S. Fields, Asst. Com. Atty., Arlington, Va., for respondent Gondles.

Jacqueline G. Epps, Senior Asst. Atty. Gen., Richmond, Va., for respondent Atty. Gen.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter comes before the court on petitioner's application under 28 U.S.C. § 2254 for a writ of habeas corpus. See Rules Governing Section 2254 Cases in United States District Courts, Rule 2. Respondents have answered, as required under Rule 5. The matter is now ripe for this court's determination. See Rule 8(a). The court finds that an evidentiary hearing is not required, and for reasons stated below, concludes that the petition is meritorious. Accordingly, petitioner's application for a writ of habeas corpus is granted.

I. FACTUAL BACKGROUND

The events surrounding this case began October 1, 1980, when a police officer visited petitioner's home in response to a vandalism incident allegedly involving petitioner's son. The officer involved had not previously known or heard of petitioner or his family. Petitioner's wife invited the police officer into their home, but petitioner intervened and ordered the officer to leave. Petitioner allegedly threatened the officer with a knife and a shotgun. When the officer departed, the petitioner allegedly followed the departing officer into the yard. The officer testified that the petitioner was yelling, and that the petitioner continued to yell curses and threats even after the officer had entered his vehicle and begun backing down the driveway. The officer concluded that petitioner represented a threat to public peace. The officer radioed for assistance and got out of his vehicle to arrest petitioner.

The officer attempted to inform petitioner he was under arrest for being drunk in public. A scuffle ensued, in which the officer was apparently burned on his neck by petitioner's lit cigar. The officer found it necessary to strike petitioner on the head with his nightstick to subdue the petitioner. After petitioner was subdued, he was arrested and charged with being drunk in public, obstructing justice, and assault and battery.

On December 17, 1980, petitioner appeared with retained counsel for trial in the General District Court for the County of Arlington, Virginia. Petitioner was found not guilty of the drunk in public charge, but guilty of obstructing justice and assault and battery. On January 9, 1981, petitioner was sentenced to 90 days in jail, with 85 days suspended. Petitioner noted his appeal. His appeal was set for April 28, 1981.

Following petitioner's trial in General District Court, petitioner became dissatisfied with the attorney who represented him in General District Court. On February 17, 1981, the petitioner appeared before Judge Brown to ask the court for appointment of counsel on the grounds of indigency. Judge Brown apparently did not have petitioner supply an affidavit of indigency, but asked petitioner a series of questions about his financial condition. Judge Brown ordered petitioner to locate four Arlington County attorneys and submit to the Judge the attorneys' stated fees.

Petitioner followed Judge Brown's instructions and consulted with various Arlington County Attorneys. On April 17, 1981 petitioner filed a motion for a 60-day continuance on the grounds that he had been unable to find counsel he felt he could afford, that he desired to represent himself, and that he was unprepared to present his defense.

On April 24, 1981, Judge Russell heard petitioner's motion for a continuance. Judge Russell observed there was no affidavit of indigence in the record, but petitioner continued to assert his indigence. Petitioner acknowledged that he had previously retained an attorney to represent him throughout the case and that he had paid the attorney $1000. Petitioner explained that he was unable to communicate with his attorney, and that he was dissatisfied with his attorney's services. He then told the court that he felt "adequately capable of representing himself in this case ... I feel I am just as competent as any counsel in this room..." The petitioner also stated that he had represented himself before the Fourth Circuit in a civil case, and that he felt competent to handle this criminal case. He added that he did not want a court-appointed lawyer. On inquiry from the judge, petitioner stated that he had not formally discharged his attorney.

Judge Russell ignored both petitioner's expressions of dissatisfaction with the retained counsel (a dissatisfaction actively manifest since at least February 17th), and petitioner's expressions of desire to represent himself. Instead, Judge Russell denied the petitioner's motion for a continuance, and directed the petitioner to contact his retained attorney and have that attorney appear at trial. Judge Russell made no attempt to discover whether petitioner had good cause for dissatisfaction with his attorney, or even to determine the attorney's level of preparedness.

On April 28, 1981, petitioner appeared without counsel before Judge Russell for trial in the Circuit Court for the County of Arlington. The Judge did not ask whether petitioner had communicated the court's order to his attorney. The Judge apparently did not even ask where petitioner's attorney was. Judge Russell made no attempt to determine whether petitioner was prepared to represent himself, or, indeed, whether petitioner really wanted to represent himself. The Judge simply asked if petitioner was ready to proceed, to which the petitioner replied "as ready as I'll ever be with three days preparation."

The jury convicted petitioner of both charges, and sentenced petitioner to nine months for assault and battery and 6 months for resisting arrest, and to payment of fines. On June 26, 1981, Judge Russell imposed the jury's sentence for resisting arrest, but suspended the sentence for assault and battery.

Petitioner employed new counsel and filed a motion to set aside the verdict and grant a new trial. The trial judge denied the motion. Petitioner's newly retained counsel appealed his conviction to the Supreme Court of Virginia. On October 15, 1982, the Supreme Court of Virginia affirmed his conviction, 224 Va. 269, 295 S.E.2d 883, and on December 3, 1982, denied his motion for rehearing. Petitioner was ordered to begin serving his sentence at the Arlington County Detention Center on December 13, 1982.

On December 9, 1982, petitioner brought the present application for a writ of habeas corpus. Petitioner also moved for a stay of execution of the state court criminal judgment under 28 U.S.C. § 2251. On December 10, 1982, this court denied petitioner's motion for a stay. On December 13, 1981, Judge Murnaghan of the United States Court of Appeals for the Fourth Circuit affirmed the court's ruling. However, on January 7, 1983, a panel of three Fourth Circuit judge's granted petitioner's motion staying further incarceration and continuing bail pending resolution of petitioner's application for a writ of habeas corpus.

II. LEGAL ANALYSIS

Petitioner's principal claim before this court relates to his ability to mount an adequate criminal defense in the April 28, 1981 trial in the Arlington County Circuit Court. The Sixth Amendment, as applied to the states by the Fourteenth 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. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, the state may not compel a defendant to accept a lawyer he does not want. Faretta v. California, 422 U.S. 806, 833, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). A criminal defendant has the affirmative right to represent himself at trial; but the decision to proceed pro se must be knowingly and intelligently made. Id. at 836, 95 S.Ct. at 2541.

When petitioner appeared before Judge Russell on April 24th, 1981, to ask for a continuance and to ask permission to proceed pro se, he was effectively asserting his undoubted constitutional right to represent himself in his own defense. But Judge Russell, possibly sensing misconduct on petitioner's lawyer's part, refused to permit the lawyer's dismissal. While Judge Russell's concern for the lawyer's conduct appears well-founded, his actions do not seem to have been calculated to either remedy the lawyer's apparent lack of industry nor protect petitioner's ability to mount his own defense.

Without specifically ordering the lawyer to appear before the court, the court could not assess petitioner's claims of dissatisfaction or even the lawyer's level of preparedness. But, more to the point, Judge Russell simply refused to acknowledge petitioner's repeated requests to represent himself. Judge Russell's attempt to force petitioner to accept representation of a lawyer he did not want is directly contrary to Faretta.

Finally, when petitioner appeared before Judge Russell four days later for trial, it was as if the April 24th hearing never took place. It does not appear in the record whether Judge Russell ever inquired where petitioner's lawyer was, or even whether petitioner had communicated to the lawyer the Judge's command to appear on April 28th. It appears as if the Judge had been prepared all along to accept petitioner's pro se defense.

But such self-representation is proper only if the waiver of the right to counsel is knowingly and intelligently made. In determining whether the waiver of the right to counsel is knowingly and intelligently made, the court should entertain every reasonable presumption against...