                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Clements and McClanahan
Argued at Richmond, Virginia


RONNIE ADOLPHUS NOEL
                                                                 MEMORANDUM OPINION* BY
v.        Record No. 3248-02-2                                 JUDGE JEAN HARRISON CLEMENTS
                                                                         JUNE 8, 2004
COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                     George F. Tidey, Judge

                    Matthew P. Geary (William S. Francis, Jr., on brief), for appellant.

                    Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
                    Attorney General, on brief), for appellee.


          Ronnie Adolphus Noel was convicted in a bench trial of four counts of credit card theft, in

violation of Code § 18.2-192, two counts of credit card fraud, in violation of Code § 18.2-195, and

two counts of grand larceny, in violation of Code § 18.2-95. On appeal, Noel contends the trial

court erred in ruling that he knowingly, intelligently, and voluntarily waived his right to a jury.

Finding appellate review procedurally barred, we affirm the convictions.

          As the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.




          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                I. PROCEDURAL BACKGROUND

        The relevant facts in this appeal are not in dispute. Noel was arrested on March 19, 2002,

and charged with three counts of credit card theft, one count of credit card fraud, and two counts of

grand larceny. On March 20, 2002, the General District Court of Henrico County appointed an

attorney to represent Noel on these charges. Following a preliminary hearing on May 29, 2002, the

Commonwealth, Noel, and Noel’s attorney executed a written “Agreement Setting Case(s) for

Trial” in the Circuit Court of Henrico County (trial court) on August 15, 2002, at 9:30 a.m., without

a jury. On July 8, 2002, the grand jury indicted Noel on these charges, and an additional charge

each of credit card theft and credit card fraud. On that day, the Commonwealth and Noel appeared

before the trial court on the two new charges. Noel’s attorney, appointed that day, was not present.

The trial court continued the new charges to August 15, 2002, at 9:30 a.m. for trial without a jury, to

be tried together with Noel’s other charges. The trial court entered an order on July 10, 2002,

memorializing these actions.

        On August 15, 2002, the Commonwealth, Noel, and Noel’s attorney appeared before the

trial court for trial. The clerk inquired whether the defense was ready for trial. Noel’s attorney

responded:

                        If Your Honor please, I’m ready to try the case. I don’t
                believe my client is ready to go forward. Judge, to the extent that I
                may or may not know of what he expects to do, I’m not prepared in
                that regard.

The trial judge stated, “Well, I guess we’ll find out in a minute.” Noel was arraigned and pled not

guilty on all charges.

        Following arraignment, the trial judge instructed the clerk to ask if Noel was “to be tried by

the court or by a jury.” The following colloquy then occurred:

                THE CLERK: Sir, on your pleas of not guilty to all the indictments
                just read to you, do you wish to be tried by this court or by a jury?

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               THE DEFENDANT: I don’t know yet.

               THE CLERK: Thank you.

               THE COURT: I’m sorry, what was your answer?

               THE DEFENDANT: I said I don’t know.

               THE COURT: How long will it take you to get to know?

       A discussion then ensued between the trial judge and Noel in which Noel expressed

dissatisfaction with his attorney and questioned whether he was being adequately represented. The

trial judge told Noel that the attorney appointed to represent him was an experienced trial attorney

who “handles a lot of serious cases and . . . does a very competent job.” Noel stated that he did not

“want to waste the court’s time or these people’s time” if he was guilty and that, if he had had an

attorney with whom he could communicate, “[t]his could have been taken care of.” The exchange

continued as follows:

               THE COURT: All right, call your first witness, sir. We’ll try the
               case without a jury.

               THE DEFENDANT: All right.

               THE COURT: Based on those statements.

               [DEFENDANT’S ATTORNEY]: Pardon, Your Honor?

               THE COURT: Based on his statements, we’ll try the case without a
               jury.

               [DEFENDANT’S ATTORNEY]: All right, Judge. If Your Honor
               please, I would have a motion for exclusion.

       The case then proceeded to trial, and Noel was convicted on all counts.




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                                            II. ANALYSIS

        On appeal, Noel contends the trial court erred in ruling that he knowingly, intelligently, and

voluntarily waived his right to a jury trial, a finding not entered of record.1 During oral argument,

Noel’s counsel conceded that Noel never affirmatively asked for a jury trial and never objected to

the trial court’s determination to try the case without a jury based on Noel’s statements or to trying

the case without a finding on the record that he knowingly, intelligently, and voluntarily waived his

right to a jury trial. The Commonwealth contends that Noel’s claim is procedurally barred by Rule

5A:18 because he did not raise it in the trial court. We agree with the Commonwealth.

        Rule 3A:13(b) provides, in relevant part, that an accused who pleads not guilty in a circuit

court may consent to a trial without a jury. When such consent is given, the trial court must

determine that the consent was given voluntarily and intelligently and enter its finding of record

before trial. However, “[i]f a defendant wishes to challenge the voluntary and intelligent nature of

his jury trial waiver, he must state a timely objection on that basis in the circuit court.” Williams v.

Commonwealth, 262 Va. 661, 669, 552 S.E.2d 760, 763 (2001).

        Here, Noel was arrested and initially charged with three counts of credit card theft, one

count of credit card fraud, and two counts of grand larceny. Following a preliminary hearing, Noel

and his attorney signed an agreement setting the cases for trial in the circuit court, without a jury, on

August 15, 2002. On July 8, 2002, Noel was present in the circuit court when the new charges of

credit card theft and credit card fraud were set for trial without a jury on the same date as his

original charges. The Commonwealth and Noel’s attorney appeared on August 15, 2002, ready for

trial without a jury. Prior to trial, Noel entered pleas of not guilty on all charges and was advised of


        1
          Noel further argues in his appellate brief that he never stated he was, in fact, waiving his
right to a jury trial. Thus, he contends he did not expressly consent to a trial without a jury.
Because the issue whether Noel voluntarily and intelligently waived his right to a jury trial is the
only “Question Presented” and the only one for which an appeal was granted, we do not address
this argument.
                                                 -4-
his right to a jury trial. When asked whether he wished to be tried by the court or by a jury, Noel

responded, “I don’t know yet.” A lengthy dialogue occurred between the trial judge and Noel

during which Noel’s focus was on his dissatisfaction with his attorney. At no time did Noel state

that he wanted to be tried by a jury. At the conclusion of the dialogue, the trial judge determined,

“based on [Noel’s] statements,” to try the cases without a jury. In response to this determination by

the trial court, both Noel and his attorney stated, “All right.”

        Noel concedes that he did not apprise the trial court of his argument, made for the first time

on appeal, that his agreement to be tried by the court was not a knowing, intelligent, and voluntary

waiver of his right to a jury trial. Thus, having failed to state a timely objection in the circuit court,

Noel has not preserved this issue for appeal. Id.; see also Rule 5A:18; Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1988) (holding that we will not address an issue raised for

the first time on appeal). Moreover, the record does not reflect any reason to invoke the good cause

or ends of justice exceptions to Rule 5A:18.

        Accordingly, we affirm Noel’s convictions.

                                                                                                Affirmed.




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