Webb v. Commonwealth

• Decision Date: 02 May 2000
• Docket Number: Record No. 1578-98-2.
• Citation: 528 S.E.2d 138,32 Va. App. 337
• Court: Virginia Court of Appeals
• Parties: Salahundin David WEBB v. COMMONWEALTH of Virginia.

528 S.E.2d 138

32 Va. App. 337

Salahundin David WEBB v. COMMONWEALTH of Virginia.

Record No. 1578-98-2.

Court of Appeals of Virginia, Richmond.

May 2, 2000.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), Richmond, for appellant.

Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and BRAY, JJ.

COLEMAN, Judge.

Salahundin David Webb was convicted in a bench trial of first degree murder, robbery, possession of a firearm by a convicted felon, four counts of abduction with intent to extort money, and six counts of using a firearm during the commission of a felony. He was sentenced to a total term of life plus 133 years in the penitentiary, with seventy-five years suspended. On appeal, Webb argues that the trial court erred by failing to conduct a pretrial hearing to address an alleged conflict of interest by his court-appointed trial counsel arising from the fact that his counsel was not being adequately compensated because of the statutorily capped court-appointed attorney's fee system. He also contends that the statutory limitation of Code § 19.2-163 is unconstitutional because it imposes an inflexible and inadequate cap on court-appointed attorneys' fees. Because the record fails to demonstrate that Webb was prejudiced by the fees allowed his counsel or that counsel's legal representation fell below an objective standard of reasonableness due to the fee allowance, we affirm.

BACKGROUND

On January 30, 1997, Webb and a codefendant robbed employees of a Friendly's restaurant in Henrico County. During the robbery, the codefendant shot and killed the restaurant manager. The court determined that Webb was indigent and appointed Steven D. Benjamin, an experienced criminal defense attorney, to represent Webb.

One week before trial and nearly seven months after indictment, Benjamin moved to dismiss the charges, asserting that (1) the statutory cap on attorneys' fees contained in Code § 19.2-163 is unconstitutional, (2) the compensation allowable under Code § 19.2-163 is inadequate and operated to deny Webb his right to conflict-free and effective assistance of counsel, and (3) the statutory compensation scheme causes a conflict of interest because it creates a financial disincentive for a lawyer to effectively represent his or her client. At the time Benjamin filed the motion to dismiss, he had already expended more than ninety hours working on the case, exceeding the time for which compensation would be allowed under the statute by more than thirty hours.¹ On January 6, 1998, the day of trial, Benjamin objected to the trial court's failure to conduct a pretrial hearing on the alleged conflict of interest. The trial court took the motion under advisement and proceeded with trial. The day after trial, the court conducted a hearing on the motion to dismiss and subsequently denied the motion, finding the statutorily capped court-appointed attorney's fee system did not create a conflict of interest in this case and no evidence in the case indicated that Webb received "anything but effective assistance of counsel." The court ruled that the statutory compensation scheme was not unconstitutional.

ANALYSIS

A. Post-trial Evidentiary Hearing

Webb argues that the court-appointed compensation scheme creates a financial disincentive and burdens and impairs an attorney's ability to represent his or her client, thus creating an "actual" conflict of interest. Webb, citing Carter v. Commonwealth, 11 Va.App. 569, 400 S.E.2d 540 (1991), argues that the trial court, which had a duty to inquire and take "adequate steps" to determine the extent of the alleged conflict, erred in failing to conduct the inquiry prior to trial. He argues that when an objection is made and a conflict of interest is claimed and shown to exist prior to trial, prejudice and ineffective assistance of counsel are presumed and reversal is automatic.

The trial court denied the motion, holding that Webb received competent and effective assistance of counsel. The court further ruled that the statutory compensation scheme is not unconstitutional. The record supports the trial judge's underlying factual determination and legal conclusion that no conflict of interest existed. We will not disturb the factual finding in the absence of plain error. See Code § 8.01-680.

"The sixth amendment fundamental right to effective assistance of counsel is so basic to a fair trial that an infraction of that right can never be dismissed as harmless error." Carter, 11 Va.App. at 573, 400 S.E.2d at 542; see also Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978)

(stating that where a Sixth Amendment violation taints the entire criminal proceeding, the violation can never be considered harmless). In order to prove ineffective assistance of counsel, a defendant must first demonstrate that his "attorney's conduct fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Second, the defendant must show that "there is a reasonable probability that, but for this deficient conduct the result of the trial would have been different." Id. at 694, 104 S.Ct. at 2068. Prejudice against a defendant's case is presumed when "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). "Hence, if the defendant shows that his counsel actively represented actual conflicting interests that adversely affected his counsel's performance, prejudice is presumed." Carter, 11 Va.App. at 573,

400 S.E.2d at 543. "Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Cuyler, 446 U.S. at 347,

100 S.Ct. at 1717.

In Carter, defense counsel moved to withdraw after allegations of misconduct were levied against counsel by the Commonwealth's attorney and were acknowledged by the trial court. The Commonwealth's attorney alleged that defense counsel harassed the victim's mother and pressured her into signing a release of the victim's psychological records. The mother revoked the release. The trial court conducted a hearing, which focused on the Commonwealth's allegation of misconduct rather than the revocation of the release. The trial court did not rule on defense counsel's alleged impropriety; rather, the court informed the Commonwealth's attorney that he could initiate whatever disciplinary action he deemed appropriate. After the hearing, defense counsel moved to withdraw, contending that a conflict of interest had arisen which forced counsel to protect their own interests rather than the defendant's interest. Defense counsel asserted that the Commonwealth's attorney's threat of initiating disciplinary proceedings would hamper their ability to properly defend their client during the impending trial. The trial court denied the motion to withdraw without making further inquiry. The defendant was subsequently convicted on all charges.

We held in Carter that when defense counsel moved to withdraw, arguing that their representation of the defendant was compromised because of their own interests, the trial judge knew or should have known that a possible conflict of interest existed. We held that when a trial court fails to initiate an inquiry when the court knows or reasonably should know that a particular conflict exists, the law presumes the conflict resulted in ineffective assistance of counsel. See Carter, 11 Va.App. at 573-74,

400 S.E.2d at 543. We vacated the convictions and remanded the case to the trial court for the purpose of conducting a hearing to determine whether a conflict of interest actually existed that denied the defendant his right to effective assistance of counsel.

Here, no factual basis supports Webb's argument that his attorney had a conflict of interest or that a purported conflict was reasonably apparent to the trial judge, requiring a pretrial inquiry. Benjamin asserts that the alleged conflict of interest was initially raised by Webb during an interview with a forensic psychologist who had been designated to evaluate Webb's competency to stand trial. The psychologist stated, as an example of Webb's inability to rationally communicate and cooperate with his attorney, that Webb believed Benjamin could not render adequate representation because Benjamin was court-appointed and because the statutory compensation scheme does not provide an economic incentive for court-appointed attorneys representing indigent defendants to provide the same level and quality of representation as they would for non-indigent clients. Based on Webb's statement to the psychologist, the trial court was not obligated to conduct a pretrial inquiry on whether Benjamin had a conflict of interest by continuing to represent Webb.

Additionally, Benjamin proved that Virginia is ranked fifty-first amongst the states and the District of Columbia for allowable compensation for court-appointed attorneys and that the disparity between Virginia and the other states is overwhelming. Benjamin also introduced evidence that recent developments in criminal law, including bifurcated proceedings in felony cases and technological advancements in evidence gathering and legal research, have increased the burdens, obligations, and overhead costs of court-appointed attorneys in adequately preparing cases. Although Benjamin made a bare claim that this situation creates a potential conflict of interest because an attorney must choose between not being adequately compensated or not adequately representing his client, Benjamin neither alleged nor presented evidence that he labored under an actual conflict of interest. Understandably, he did not allege that he was unable or unwilling to zealously represent Webb...