                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Retired Judge Benton∗
Argued at Alexandria, Virginia


VIRGINIA ANN KILBY
                                                             MEMORANDUM OPINION∗* BY
v.     Record No. 1427-06-4                                  JUDGE RANDOLPH A. BEALES
                                                                  OCTOBER 2, 2007
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                  John R. Cullen, Judge

                 David P. Baugh for appellant.

                 Robert H. Anderson, III, Senior Assistant Attorney General
                 (Robert F. McDonnell, Attorney General, on brief), for appellee.


       A jury convicted Virginia Ann Kilby (appellant) on one count of cruelty and injury to a

child in violation of Code § 40.1-103 and three counts of contributing to the delinquency of a

minor in violation of Code § 18.2-371. Appellant asserts that retained counsel’s representation

of both her and co-defendant/husband at their joint trial resulted in an impermissible conflict of

interest in violation of Rule 1.7 of the Virginia Rules of Professional Conduct. Appellant urges

this Court to apply the ends of justice exception to Rule 5A:18 in order to consider this issue

since it was never raised before the trial court. For the reasons that follow, we affirm the

convictions.1




       ∗
         Judge Benton participated in the hearing and decision of this case prior to the effective
date of his retirement on October 1, 2007.
       ∗*
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           Appellee’s motion to dismiss this appeal is denied.
                                                BACKGROUND

        Because appellant does not challenge the sufficiency of the evidence on appeal, only a

brief recitation of the relevant factual background is necessary.

        Appellant was indicted, along with her husband, on one charge of cruelty and injury to a

child and three charges of contributing to the delinquency of a minor. Appellant and her

husband then retained an attorney to represent them both in a joint trial. The issue of a conflict

of interest was never raised before the trial court, nor did the trial court examine the issue sua

sponte. A jury found appellant guilty on all four charges and recommended a sentence of

fourteen months incarceration and a $3,000 fine. The trial court imposed the jury’s

recommendation without modification.

        After appellant noted her appeal, this Court entered an order relieving trial counsel of his

obligation to continue representing both appellant and her husband. Current counsel, reflected

above, was appointed to represent appellant.

                                              ANALYSIS

        Appellant presented two questions for consideration in this appeal. The first question

asks if “an issue of conflict of interest of an attorney . . . is preserved for purposes of appeal”

under “good cause or to enable this Court to attain the ends of justice as mandated by Rule

5A:18.” She concedes in this question that the issue of a conflict of interest was never raised to

the trial court.

        Appellant argues that a trial court has an obligation to ensure there is no conflict of

interest where one attorney represents co-defendants in a joint criminal trial. As the trial court




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here neglected to inquire into the nature of the representation of appellant and her husband by the

same attorney, she contends, the ends of justice exception applies to her appeal.2

       A trial court does not have an affirmative duty to question co-defendants, sua sponte,

about their representation by the same attorney. The United States Supreme Court explained in

Cuyler v. Sullivan, 446 U.S. 335, 346-47 (1980):

               Holloway [v. Arkansas, 435 U.S. 475 (1978),] requires state trial
               courts to investigate timely objections to multiple representation.
               But nothing in our precedents suggests that the Sixth Amendment
               requires state courts themselves to initiate inquiries into the
               propriety of multiple representation in every case. Defense
               counsel have an ethical obligation to avoid conflicting
               representations and to advise the court promptly when a conflict of
               interest arises during the course of trial. Absent 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.

(Footnotes omitted.) Therefore, the fact that an attorney represented both appellant and her

husband did not necessarily impose a duty on the court to question them regarding their counsel.

       The ends of justice exception to Rule 5A:18 is applied when the record “affirmatively

show[s] that a miscarriage of justice has occurred, not that a miscarriage might have occurred.”

Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). However,

appellant does not ask this Court to consider any portion of the record as establishing that “a

miscarriage of justice has occurred.” Id. Appellant does not point in this record to any particular

manifestation of a specific conflict of interest. See Penn v. Smyth, 188 Va. 367, 372, 49 S.E.2d

600, 602 (1948) (explaining that counsel’s representation of co-defendants did not necessarily




       2
         Appellant does not explain how the good cause exception applies independently of the
ends of justice exception. Therefore, we address only the ends of justice exception as raised on
appeal. See Burrell v. Commonwealth, 50 Va. App. 72, 646 S.E.2d 35 (2007).
                                              -3-
“show that [petitioner] suffered any prejudice as a result of such representation”).3 Given this

record, we do not find that the ends of justice exception should be applied here.

       Appellant’s second question presented reads as follows:

               Did counsel for the defense, representing both defendant parents in
               various charges alleging contributing to the delinquency of minors,
               the children and a niece of the defendants, create a conflict of
               interest by such representation of both defendants in a joint trial
               and deny the defendant, [appellant], of her constitutionally
               protected right to effective assistance of counsel?

Despite asserting the contrary in this question presented, appellant maintains on appeal that she

is not actually raising an ineffective assistance of counsel claim. However, despite appellant’s

denial, the second question presented clearly raises an ineffective assistance of counsel claim,

which we cannot consider on direct appeal. See Hall v. Commonwealth, 30 Va. App. 74, 82, 515

S.E.2d 343, 347 (1999) (“Claims of ineffective assistance of counsel may not be raised on direct

appeal.”).4

       Moreover, appellant does not allege a trial court error in either question presented to this

Court (i.e., neither question presented asks this Court to substantively consider whether the trial

court had an obligation to raise this issue sua sponte and committed error by failing to ensure

that no conflict of interest existed here). That being the case, we cannot consider this substantive

issue as Rule 5A:12(c) provides “[o]nly questions presented in the petition for appeal will be


       3
          In addition, as the Commonwealth pointed out during oral argument, the record does not
include any information regarding discussions between appellant and her counsel about potential
conflicts in counsel’s representation of the spouses.
        Furthermore, as noted supra, appellant does not challenge the sufficiency of the evidence
to support her convictions, but does seek essentially to approbate and reprobate by taking
advantage on appeal of the fact that she and her husband knowingly asked the same attorney to
represent them both at trial.
       4
        In 1990, the General Assembly repealed Code § 19.2-317.1, which had explicitly
provided circumstances for the direct appeal of an ineffective assistance of counsel claim. See
1990 Va. Acts, c. 74.

                                                -4-
noticed by the Court of Appeals.” While appellant urges us to apply the ends of justice

exception and reach the substantive issue of conflict of interest here, we are unable to apply that

exception because “unlike Rule 5A:18, Rule 5A:12 contains no ‘good cause’ or ‘ends of justice’

exception.” Selph v. Commonwealth, 48 Va. App. 426, 434, 632 S.E.2d 24, 28 (2006).

                                               CONCLUSION

       For the reasons stated above, we are unable to address appellant’s principal argument on

its merits because the questions presented to this Court do not put that argument before us. The

judgment of the trial court is affirmed.

                                                                                          Affirmed.




                                                -5-
Benton, J., concurring, in part, and dissenting, in part.

        I agree with the majority opinion that the nub of appellant’s appeal, as revealed in her

questions presented, is whether she was denied “her constitutionally protected right to effective

assistance of counsel.” This claim may not be raised on a direct appeal, however, in Virginia. See

Browning v. Commonwealth, 19 Va. App. 295, 297 n.2, 452 S.E.2d 360, 363 n.2 (1994) (noting

that in 1990, the General Assembly repealed Code § 19.2-317.1 which allowed direct appeals for

certain claims of ineffective assistance of counsel). Thus, I would not engage in the exercise of

determining whether a miscarriage of justice might have occurred or did occur.

        Indeed, in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), a habeas corpus appeal alleging a

denial of effective assistance of counsel, the Supreme Court of the United States held that, “to

establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must

demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” I

believe this standard essentially tracks the test this Court would apply when appellant seeks to

invoke the exceptions to Rule 5A:18 after failing to object at trial. See Redman v. Commonwealth,

25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (holding that, “to avail oneself of the exception,

a defendant must affirmatively show that a miscarriage of justice has occurred, not that a

miscarriage might have occurred”).

        This appeal exemplifies the wisdom of the rule the Supreme Court of Virginia announced in

Walker v. Mitchell, Warden, 224 Va. 568, 570-571, 299 S.E.2d 698, 699-700 (1983): “[I]n the

interests of both the Commonwealth and the accused, the ends of justice dictate the adoption of a

rule restricting to habeas corpus proceedings the litigation of claims of ineffective assistance of

counsel.” In the habeas corpus context, Cuyler recognizes that there are instances in which a trial

judge will be required to initiate an inquiry into whether a multiple representation entails a conflict

of interest. See 446 U.S. at 346-47 (noting that “special circumstances” may exist that will not

                                                   -6-
permit the judge to merely rely upon the absence of an objection) and 446 U.S. at 347 (noting that if

the trial judge “knows or reasonably should know that a particular conflict exists,” the judge will

need to initiate an inquiry into the propriety of the multiple representation). The Supreme Court,

therefore, reviewed the record in Cuyler to determine whether “the circumstances of [that] case

indicate[d] that the trial court had a duty to inquire whether there was a conflict of interest.” 446

U.S. at 347.

        In a habeas corpus proceeding, the court will have the opportunity to consider the

circumstances of appellant’s trial and the effect of the Comment to Rule 1.7 (Conflict of Interest:

General Rule ―) of the Virginia Rules of Professional Conduct, which provides in numbered

paragraph [9] that, “[i]n a criminal case, inquiry by the Court is generally required when a lawyer

represents multiple defendants.” In that setting, the court can consider the particular circumstances

of appellant’s trial, where, unlike Cuyler, the appellant and her husband were tried together, the trial

judge was aware of the multiple representation from the outset, the witnesses testified as to various

levels of knowledge and cooperation of appellant and her husband, and both testified in the same

proceeding about their conduct. The court also will have the opportunity to examine the attorney’s

tactics and decision making, see 446 U.S. at 347-48, and to consider whether “an actual substantial

conflict emerged early in the trial” that warranted a sua sponte inquiry by the trial judge. Foxworth

v. Wainwright, 516 F.2d 1072, 1077 (5th Cir. 1975). These fact specific inquiries will inform the

decision whether appellant was denied her right to effective assistance of counsel and should be

considered in a habeas corpus review.

        For these reasons, I would dismiss the appeal. See Walker, 224 Va. at 571, 299 S.E.2d at

699-700 (dismissing the direct appeal of a claim of ineffective assistance of counsel as

improvidently granted).




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