                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Norfolk, Virginia


BOBBY RAY EDWARDS

v.          Record No. 0104-94-1                OPINION
                                       BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                    OCTOBER 3, 1995


          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Robert W. Curran, Judge
            David B. Olson for appellant.

            Eugene Murphy, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on brief),
            for appellee.



     Bobby Ray Edwards (appellant) appeals from his convictions

by the Circuit Court of the City of Newport News (trial court)

for malicious wounding, use of a firearm, and possession of a

firearm or concealed weapon by a felon.     This appeal is limited

to the question whether the trial court committed reversible

error in allowing appellant to waive counsel and proceed pro se
without properly advising him of the potential consequences of

his actions.    Finding no error, we affirm the judgments of the

trial court.

     Appellant was arrested on October 31, 1992 and charged with

malicious wounding, use of a firearm in the commission of the

felony, and possessing a firearm after having been convicted of a

felony.    On November 3, 1992, he appeared in the General District

Court of Newport News where a preliminary hearing on the charges

was held.    Code § 19.2-160, in pertinent part, provides:
               If the charge against the accused is a
          crime the penalty for which may be
          incarceration, and the accused is not
          represented by counsel, the court shall
          ascertain by oral examination of the accused
          whether or not the accused desires to waive
          his right to counsel.
            In the event the accused desires to waive
          his right to counsel, and the court
          ascertains that such waiver is voluntary and
          intelligently made, then the court shall
          provide the accused with a statement to be
          executed by the accused to document his
          waiver. The statement shall be in a form
          designed and provided by the Supreme Court.
          Any executed statement herein provided for
          shall be filed with and become a part of the
          record of such proceeding.


(Emphasis added.)   The general district court, in compliance

therewith, conducted an oral examination at the preliminary

hearing, after which appellant signed the following waiver form:
          WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER
                         (CRIMINAL CASE)

            I have been advised by a judge of this
          court of the nature of the charges in the
          cases pending against me and the potential
          punishment for the offenses, which includes
          imprisonment in the penitentiary or
          confinement in jail. I understand the nature
          of these charges and the potential punishment
          for them if I am found to be guilty.

            I have been further advised by a judge of
          this court that I have the following rights
          to be represented by a lawyer in these cases:

               a. I have a right to be represented by a
                  lawyer.

               b. If I choose to hire my own lawyer, I
                  will be given a reasonable
                    opportunity to hire, at my expense,
          a       lawyer selected by me. The judge
                    will decide what is a reasonable
                      opportunity to hire a lawyer. If
          I            have not hired a lawyer after


                               - 2 -
          such             reasonable opportunity, the
          judge may          try the case even though I
          do not              have a lawyer to
          represent me.

                c. If I ask the judge for a lawyer to
                    represent me and the judge decides,
                      after reviewing my sworn financial
                       statement that I am indigent, the
                        judge will select and appoint a
                          lawyer to represent me.
          However, if            I am found to be guilty
          of an                   offense, the lawyer's
          fee as set by             the judge within
          statutory limits               will be
          assessed against me as court            costs
          and I will be required to pay             it.
          I understand these rights to be represented
          by a lawyer. I also understand that I may
          waive (give up) my rights to be represented
          by a lawyer.

            Understanding my rights to be represented
          by a lawyer as described above and further
          understanding the nature of the case and the
          potential punishment if I am found to be
          guilty, I waive all of my rights to be
          represented by a lawyer in these cases, with
          the further understanding that the cases will
          be tried without a lawyer either being hired
          by me or being appointed by the judge for me.
           I waive these rights of my own choice,
          voluntarily, of my own free will, without any
          threats, promises, force or coercion.

                                  s/ Bobby R. Edwards


     The district court judge found that appellant knowingly,

voluntarily, and intelligently waived his right to be represented

by counsel, and the judge signed the following statement:
            Upon oral examination, the undersigned
          judge of this Court finds that the Adult,
          having been advised of the rights and matters
          stated above and having understood these
          rights and matters, thereafter has knowingly,
          voluntarily and intelligently waived his
          rights to be represented by a lawyer.



                              - 3 -
                 NOV 3 1992              s/ Joan T. Morris
                    DATE                       JUDGE


After a hearing, probable cause was found and the cases were

presented to a grand jury.    True bills were returned on December

14, 1992.

        Trial on the charges was scheduled for February 17, 1993.

The record discloses that appellant was certain of both the

identification and the nature of all three charges.      The

Commonwealth advised the trial court that appellant had waived

his right to an attorney.     Finding in the court's file only the

waiver executed in the general district court, the trial court

asked appellant if he still wanted to waive his right to counsel.

 When appellant responded affirmatively, the record reflects that

"upon oral examination" the trial court made the same findings as
                                            1
made by the general district court judge.       In response to

further inquiries by the court, appellant advised the court that

he was not ready for trial and informed the court of the names

and addresses of two witnesses.    Appellant further stated that he

was a college graduate and had completed one year toward a

Master's degree at Howard University.

        The following exchange between the trial court and appellant

then occurred:
          THE COURT:     Have you thought about the
          advisability of a trial by jury?

    1
     The trial court signed the waiver in identical form as the
district court judge.




                                 - 4 -
           THE DEFENDANT: In this particular case it's a
           question of law and I think I prefer the
           court.


      The trial court granted a continuance to enable appellant to

have subpoenas issued for the witnesses.   The Commonwealth

suggested a new trial date of May 13.   Appellant called to the

trial court's attention that he had been incarcerated since

October 31 and hoped trial could be held earlier.     The trial

court acceded to appellant's desire and set the matter for April

1.   Appellant requested that the cases be heard by the same judge

who was presiding at that time.   The trial court agreed to this

request.
      On April 1, the trial court again inquired as to appellant's

education and was again told by appellant that he was a college

graduate with one year's credit toward a Master's degree.

Appellant further denied having any inability to understand the

proceedings and affirmed his understanding of the charges.    He

had previously complained that he had too little time allowed in

the jail's law library and was assured by the trial court that

the court would do what it could to increase that time.    On April

1, appellant advised the court that he had had adequate time to

prepare his defense.

      At trial, one defense witness did not appear.    Appellant

told the trial court that the witness was not needed but that a

third witness, a police officer who appellant had not subpoenaed,

was needed for his defense.   The trial court arranged to have the




                               - 5 -
officer present to testify.    Before the trial began, appellant

moved to have the witnesses excluded.    His motion was granted.

        At the conclusion of the Commonwealth's case, appellant

presented two witnesses to testify in his defense but did not

testify himself.    The trial court's orders, which documented that

appellant had been found guilty on each charge, declared that:
          [T]he Court having made inquiry and being of
          the opinion that the defendant fully
          understood the nature and effect of his plea
          and of the penalties that may be imposed upon
          his conviction, and after having been first
          advised by the Court of his right to trial by
          jury, the defendant knowingly and voluntarily
          waived trial by jury and with the concurrence
          of the attorney for the Commonwealth . . .
          the Court proceeded to hear and determine the
          case.

        The trial court ordered a presentence report, which revealed

that appellant had a substantial number of felony and misdemeanor

convictions. 2

        Prior to the sentencing hearing, an attorney was appointed

to represent appellant.    A motion for a new trial was filed,

alleging that the trial court failed to warn appellant that (1)

he would be responsible for the adequacy of his defense, and (2)

he would suffer the consequences of any inadequacy if he rejected

professional assistance.    After hearing argument thereon and

reviewing the record and transcript, the trial court found as

follows:
             And it is this Court's position, in viewing
    2
     E.g., burglary, assault with a dangerous weapon, abduction,
and robbery.




                                 - 6 -
            everything as a whole, that this particular
            Defendant, because of his education, because
            he had signed a waiver in the General
            District Court which sets out certain
            statements and which was referred to by this
            Court on the February 17th hearing, and in
            addition, the opening statement from this
            particular Defendant indicated that he was
            very knowledgeable and was not ready to
            accept counsel and that he wished to proceed
            pro se. So I believe that this particular
            Defendant, under the facts and circumstances
            of this case, intelligently waived his right
            to counsel, and I deny the motion.


     At oral argument, appellant conceded that if the matters

contained in the executed waiver forms were contained in the

transcript of the trial proceedings the convictions should be

affirmed.   However, citing Faretta v. California, 422 U.S. 806

(1975), and Kinard v. Commonwealth, 16 Va. App. 524, 431 S.E.2d

84 (1993), appellant contends that without those specific

warnings he could not make a knowledgeable and intelligent waiver

of his right to be represented by an attorney.   Thus, we must

decide in this case whether, standing alone, the absence of those

specific warnings requires reversal of the judgments of the trial

court.

     The issue in the case before us and before the courts in the

cases relied upon by appellant in his quest for reversal arises

out of an accused's right to counsel guaranteed by the Sixth

Amendment of the Constitution of the United States, which

provides that the accused shall enjoy the right to have

assistance of counsel.   If the accused has not competently and

intelligently waived that constitutional right, the Sixth


                                - 7 -
Amendment stands as a jurisdictional bar to a valid conviction

and sentence depriving him of his life or liberty.    Johnson v.

Zerbst, 304 U.S. 458, 468 (1938).    When the issue is presented,

the burden is on the Commonwealth to show by the record that an

accused who proceeds pro se has competently, intelligently, and

understandingly waived his right to counsel.    Bolden v.

Commonwealth, 11 Va. App. 187, 191, 397 S.E.2d 534, 536 (1990),

cert. denied, 502 U.S. 943 (1991).
     Signing a waiver form does not alone guarantee affirmance of

a conviction, and failure to give the specific warnings suggested

by appellant does not alone assure reversal of the conviction.

All of the circumstances as shown by the record must be

considered and an ultimate determination made whether the accused

knowingly, competently, and intelligently waived his right to be

represented by an attorney.

     In Superintendent v. Barnes, 221 Va. 780, 273 S.E.2d 558

(1981), the Supreme Court of Virginia said:
          While the Supreme Court has said in dictum
          that an accused who has chosen to represent
          himself "should be made aware of the dangers
          and disadvantages of self-representation,"
          Faretta v. California, 422 U.S. 806, 835
          (1975), it has never held that the absence of
          such cautionary instruction, standing alone,
          defeats a waiver.


Id. at 784, 273 S.E.2d at 561.    Whether there has been an

intelligent waiver of right of counsel depends upon the

particular facts and circumstances on each case, including the

background, experience, and conduct of the accused.    Id.



                                 - 8 -
     In Faretta, the sole issue decided was that the trial court

erred when it denied Faretta the right to represent himself and

proceed to trial pro se.   Obviously, the specific warning

statement from Faretta relied upon by appellant was dictum.

Kinard quoted the dictum from Faretta but specifically

acknowledged that "[t]o test the sufficiency of Kinard's waiver

of counsel and election to proceed pro se, we must review the

particular facts and circumstances surrounding this case."
Kinard, 16 Va. App. at 527, 431 S.E.2d at 86.     Citing United

States v. Doe, 743 F.2d 1033, 1038 (4th Cir. 1984), the Kinard

opinion declares:
          [T]he primary inquiry . . . is not whether
          any particular ritual has been followed in
          advising the defendant of his rights and
          accepting his waiver, but simply whether the
          procedures followed were adequate to
          establish "an intentional relinquishment of
          the right to counsel, known and understood by
          the accused. . . ."


Kinard, 16 Va. App. at 527, 431 S.E.2d at 86.

     Kinard is not based upon the dictum from Faretta.      Rather,

it is based upon the finding that Kinard's waiver was not

intelligently made because the record failed to show that he had

been advised of the nature of the charges against him and of the

punishment that could be imposed.      Kinard, 16 Va. App. at 527,

431 S.E.2d at 86.

     Kinard is consistent with the prevailing constitutional

standard expressed in North Carolina v. Butler, 441 U.S. 369,
374-75 (1979).   There, the Supreme Court upheld an "implicit



                               - 9 -
waiver" upon considering the whole record.   Citing Butler, the

Virginia Supreme Court in Barnes agreed that "[w]hile it is

preferable practice for trial courts to warn an accused of the

risks of self-representation, we believe that a cautionary

instruction is only one of the 'facts and circumstances' relevant

to a determination of the validity of a waiver of counsel."

Barnes, 221 Va. at 784, 273 S.E.2d at 561.

     The waiver form signed by appellant met the requirements of

Code § 19.1-160.   Appellant is a college graduate with one year's

credit toward a Master's degree.    His criminal record discloses

numerous experiences with the judicial system and the criminal

process.   His attention was called to the advisability of

considering a jury trial, and he specifically indicated a

preference for a bench trial.    He had access to a law library.

He apparently used it because when asked on April 1 whether he

was prepared for trial he answered in the affirmative.   By

executing the waiver forms, appellant acknowledged (1) that he

had been advised of the nature of the charges and of the

potential punishment for the offenses, and (2) that he understood

he had the right to be represented by a lawyer, that he would be

given the time to employ one and if he could not afford one the

court would appoint one to represent him.    He acknowledged

further that he understood the nature of the charges, that the

potential punishment if he were found guilty exposed him to

penitentiary incarceration, and that he was waiving his rights of



                                - 10 -
his own choice, voluntarily, of his own free will, without

threats, promises, force, or coercion.

     The courts' orders and certifications to the waivers

disclose findings that appellant knowingly and intelligently

waived his right to be represented by an attorney.   Two judicial

officers, the general district court and the circuit court

judges, declared that they had made an "oral examination," that

appellant had been informed of his rights, that he understood the

contents of the waiver, and that he had "knowingly, voluntarily

and intelligently" waived his rights.    In addition, post-trial,

an attorney was appointed to represent appellant in this appeal.

Prior to perfecting the appeal, the newly appointed counsel

moved the trial court to set aside the verdicts on the basis of

the dictum contained in Faretta and quoted in Kinard.     The trial

court reviewed the record and made a further specific finding

that the waiver complied with the constitutional requirements.

     Nothing in this record contradicts the factual statements

contained in the waivers.   In fact, at oral argument, counsel for

appellant conceded that if the contents of the waivers had been

contained in the transcript of the trial procedure, appellant

would have no basis for reversal of his convictions.

     Upon review of the facts and circumstances shown, for the

reasons stated, we hold that the record supports the trial

court's finding that appellant competently, voluntarily, and

intelligently waived his right to counsel, and that the



                              - 11 -
requirements of the Sixth Amendment have been met.

     Accordingly, the judgments of the trial court are affirmed.

                                             Affirmed.




                             - 12 -
Benton, J., dissenting.

     In applying the admonition in Faretta v. California, 422

U.S. 806 (1975), that the record must establish that an accused

who represents himself has "'knowingly and intelligently'

forego[ne] those relinquished benefits" that are traditionally

associated with the right to counsel, id. at 835, this Court

stated:
          A defendant "should be made aware of the
          dangers and disadvantages of self-
          representation, so that the record will
          establish that 'he knows what he is doing and
          his choice is made with eyes open.'" . . .
          "[T]he primary inquiry . . . is not whether
          any particular ritual has been followed in
          advising the defendant of his rights and
          accepting his waiver, but simply whether the
          procedures followed were adequate to
          establish 'an intentional relinquishment of
          the right to counsel, known and understood by
          the accused. . . .'"

Kinard v. Commonwealth, 16 Va. App. 524, 527, 431 S.E.2d 84, 86

(1993) (citations omitted).

     In pertinent part, the transcript reflects that the

following occurred in the circuit court:
          (The Court Reporter was duly sworn.)

          (The Defendant was present in the courtroom.)

          [PROSECUTOR]:   Bobby Edwards.

          [JUDGE]:   He waived his right to an attorney.

          [PROSECUTOR]: That's what I understand,
          Judge. The Commonwealth is ready, Judge.

          [JUDGE]: All right, in this particular case
          Mr. Edwards, in the General District Court
          you waived your right to an attorney. Do you
          still wish to waive your right to an attorney


                              - 13 -
in these cases, sir?
[THE DEFENDANT]: Your Honor, because of the
political and sociological ramifications of
ride by shootings. And the falsification of
information by the witnesses. And the
withholding of information by the
prosecutor's office to paint the scenario
that I'm some person from out of town, some
infamous or notorious person named Tank from
out of town that is some kind of enforcer or
some kind of a hit man or something, when, in
fact, I have twelve children in Newport News
and sixteen grandchildren.

    I'm not someone coming here to be on some
misadventure. And because of the turns and
twist in the judicial system wherein a man is
more or less guilty until he is proven
innocent and the doubt goes towards the
prosecutor, I have no alternative but to
proceed as a pro se litigant. However, I
make a motion to quash the information
because in the -- there was no corpus delicti
evidence of probable cause --
[JUDGE]: The first thing I want to do is get
the paperwork straight, because all I have in
front of me is a waiver from the General
District Court. And I want to get straight
that you want to represent yourself. So he
needs to sign -- what do we have, we have
three charges?

       *    *     *     *      *   *   *

[JUDGE]: Let me get -- Mr. Davenport if you
will prepare three waivers and have the
sheriff take them over to this gentleman and
let him sign them and Mr. Duncan you can look
through your file while we're doing that.

    All right, Mr. Edwards, you had some
motions.

THE DEFENDANT:   Yes, sir.

       *    *     *     *      *   *   *

[JUDGE]: I'm going to deny those motions
because I don't believe this Court has
anything to do with the probable cause



                      - 14 -
          hearing.

          THE DEFENDANT:   I can reserve those rights on
          those motions?

          [JUDGE]: Yes, sir, you can note your
          exception to my ruling on those issues, yes,
          sir. All right, now, with that in mind I'm
          going to ask that the Clerk read to you the
          indictments for you to plead to the
          indictments.


     This Court's observations in Kinard are applicable to the

record in this case.
          The record . . . does not show that the
          waiver was made intelligently. . . . [The
          record] was insufficient to ensure that [the
          defendant] understood that he was undertaking
          a complex and sophisticated role, the
          performance of which normally requires a high
          level of professional training and
          competence. It failed to warn him that if he
          rejected professional assistance, he would be
          responsible for the adequacy of his defense
          and would suffer the consequences of any
          inadequacy. At the time the waiver was
          accepted, [the defendant] had not been
          arraigned. The record does not show that he
          had been advised of the nature of the charges
          against him or of the punishment that could
          be imposed. Therefore, the record does not
          support . . . [a] finding that [the
          defendant's] waiver of counsel was
          intelligently made.

16 Va. App. at 527, 431 S.E.2d at 86.   Because the record in this

case does not reflect that the defendant was made aware of the

"dangers and disadvantages of self-representation," Faretta, 422
U.S. at 835, I would hold that the record does not establish that

the defendant made a knowing and intelligent waiver of his right

to counsel.   Accordingly, I would reverse the convictions and

remand for a new trial.



                              - 15 -
