                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, O’Brien and Russell
UNPUBLISHED


              Argued at Lexington, Virginia

              TRENT RASHAD JONES

              v.     Record No. 0279-18-3

              COMMONWEALTH OF VIRGINIA
                                                                     MEMORANDUM OPINION* BY
                                                                    JUDGE WESLEY G. RUSSELL, JR.
              TRENT RASHAD JONES                                         JANUARY 29, 2019

              v.     Record No. 0281-18-3

              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                                             William D. Broadhurst, Judge1

                               Hyatt B. Shirkey (Hyatt Browning Shirkey Law Firm, on brief), for
                               appellant.

                               Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Appellant, Trent Rashad Jones, pled nolo contendere to two counts of distribution of

              cocaine, second offense, in violation of Code § 18.2-248.2 On appeal, he contends the trial court


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        As detailed below, there were numerous hearings on numerous charges in different
              cases that are material to the issues giving rise to this appeal. Some of the proceedings were
              conducted by Judge Broadhurst, and some of the proceedings were conducted by Judge Charles
              N. Dorsey. Because the identity of which judge presided over which hearing is immaterial to the
              issues raised by Jones, the opinion does not refer to the judges by name, but rather, refers to
              proceedings before either of them as being conducted by “the trial court.” Judge Broadhurst
              entered the final sentencing orders.
                     2
                        Appellant filed separate notices of appeal in each case, along with separate but identical
              briefs, arguing the same issues in each appeal. By order of this Court dated October 31, 2018,
              the two cases were consolidated for purposes of this appeal.
erred in denying his motion for a continuance to hire counsel of his choice and in requiring him “to

proceed through a plea hearing and sentencing with” his court-appointed lawyer. For the reasons

stated below, we do not address the merits of Jones’ claim regarding a continuance and affirm the

trial court’s judgment rejecting Jones’ request for new counsel.

                                          BACKGROUND

        On appeal, we view the record in the light most favorable to the Commonwealth because it

was the prevailing party below. See Huguely v. Commonwealth, 63 Va. App. 92, 110 (2014). So

viewed, the record establishes that Jones was originally indicted in the trial court on three counts of

possession of cocaine with the intent to distribute. The trial court appointed the Office of the Public

Defender to represent Jones on the charges. Jones later retained Melvin Hill as counsel. Hill was

substituted as counsel of record by orders entered by the trial court on April 15, 2014 and June 18,

2014. On July 24, 2014, the trial court consolidated two of the charges, CR14-287 and -288, and set

them for a jury trial separate from a jury trial on the third, non-consolidated charge, CR13-1638.

        On August 20, 2014, while represented by Hill, Jones entered into a plea agreement by

which he agreed to plead no contest to an amended charge of first offense of selling cocaine in case

CR14-287 and to an amended charge of possession of cocaine with intent to distribute, first offense,

in case CR13-1638. In turn, the Commonwealth agreed to nolle prosequi the third charge of selling

cocaine as a subsequent offense in case CR14-288. The trial court conducted a full plea colloquy

with Jones, and the Commonwealth summarized the evidence. Based on the plea and summary, the

trial court found Jones guilty of both offenses and set the case for sentencing on October 20, 2014.

        In December 2014, after two continuances of the sentencing hearing, Jones filed a motion to

withdraw his no contest pleas. After hearing evidence on December 15, 2014, the trial court

concluded that the “legal basis for the defendant to withdraw his pleas has not been made out.”

Nevertheless, the trial court permitted Jones to withdraw his pleas on the condition that a new jury

                                                 -2-
trial date be set by the close of business on that day. The trial court also held Jones in summary

contempt for his conduct in the courtroom at that hearing. The matter was not reset for trial by the

close of business on December 15, 2014.

        On March 5, 2015, Jones and Hill appeared before the trial court on Jones’ motion to

withdraw his no contest pleas and on Hill’s motion to withdraw as counsel. Jones indicated that he

originally did not want a jury trial, but now he did wish to proceed to trial and withdraw his pleas.

Jones was unhappy with Hill’s representation of him and asked the trial court to allow Hill to

withdraw and to appoint an attorney for him. The trial court found that Jones was indigent and

appointed Dirk Padgett to represent him. The trial court then set the matter for a new sentencing

hearing. Jones again requested to withdraw his pleas so that his case could go to trial, but the trial

court would not allow Jones to withdraw his pleas because Jones had not complied with the trial

court’s previous instructions regarding resetting the case.

        On March 16, 2015, Padgett filed another motion to allow Jones to withdraw his pleas.

After holding a hearing on April 9, 2015, the trial court took the motion under advisement. On May

1, 2015, the trial court entered an order allowing Padgett to withdraw as counsel and appointed Seth

Weston to represent Jones. The trial court also granted Jones’ motion to withdraw his pleas,

vacated the finding of guilt made on August 20, 2014, and set the case for a jury trial on the

condition that the Commonwealth restore all the charges to their original status, including

reinstating CR14-288, the charge that the Commonwealth moved the trial court to nolle prosequi

upon Jones’ pleas.

        After several continuances due to unavailability of defense counsel, Weston filed a motion

to withdraw as counsel on November 9, 2015. After hearing from both Jones and Weston, the trial

court denied the motion by written order on December 2, 2015.




                                                  -3-
        At the March 2016 grand jury term, Jones was indicted for an additional charge of selling

cocaine, second offense, CR16-422, and the trial court appointed Weston to represent appellant on

that charge as well.

        On March 15, 2016, a jury trial was held in case CR13-1638, the reinstated indictment for

possession of cocaine with intent to distribute as a second offense. Jones was found guilty by the

jury. He requested a presentence report, and the trial court continued the matter until May 24, 2016.

        On May 20, 2016, Weston again filed a motion to withdraw as counsel stating that Jones

“has expressed in writing his dissatisfaction with services rendered and ineffective assistance of

counsel.” The trial court held a hearing and denied the motion, stating at the hearing that it did not

“find anything in the complaints to the extent they are complaints or observations that Mr. Jones just

made that would justify taking Mr. Weston off the case.”

        On July 7, 2016, Weston again moved to withdraw as counsel on the remaining pending

charges in cases CR14-287 and -288. Weston was reluctant to relate the specifics of Jones’

complaint to the trial court, so Weston called Jones to testify. During the hearing, the trial court

explained issues of legal ethics to Jones. Specifically, Jones complained that Weston would not file

his alibi defense as requested. The trial court explained that Weston could not ethically file a notice

of an alibi defense if he did not possess a good faith belief that it was grounded in fact. Based on

the presentation at the hearing, the trial court found that there were no facts to support the suggested

alibi. The trial court then denied Weston’s motion to withdraw.

        On July 8, 2016, Weston filed two simultaneous motions to withdraw as counsel, expressing

in one that Jones requested new counsel be appointed. The other motion alleged that Jones became

“argumentative and irate” while speaking with Weston at the city jail, overturned and threw chairs,

and destroyed paper files. Weston required assistance from jail staff, and averred that Jones’

belligerent actions caused irreparable damage to the attorney-client relationship. The trial court

                                                  -4-
conducted a hearing on the motions on July 11, 2016. After Jones testified, the trial court detailed

the credentials of all of Jones’ previous lawyers, noting that they are all certified by the Virginia

Indigent Defense Commission. The trial court elaborated, “All four of these lawyers enjoy stellar

reputations. And it is a puzzle, it is an absolute conundrum. I’m just flat out flummoxed by the

notion that all of them have had to withdraw for one reason or another.” The trial court then denied

Weston’s motions to withdraw and kept the trial on the docket for the following day.

        Later that day, Weston appeared with Jones on case CR13-1638 for sentencing and

reiterated his motion to withdraw as counsel based upon the incident at the city jail and Jones’ claim

that Weston was ineffective. The trial court noted that nothing about the case suggested that

Weston was ineffective, that Jones has “gone through . . . the best attorneys we’ve got so far” and

asked Jones if he would now like to represent himself. Jones decided to proceed pro se at

sentencing with Weston as standby counsel.

        On July 12, 2016, Jones was scheduled to go to trial on two charges for which Weston

remained his counsel. Prior to trial, Weston informed the trial court that attorney Darren Haley was

present in the courtroom and was willing to be hired by Jones to take over the cases currently

scheduled that day for trial. However, Weston explained that Haley was not prepared to go forward

on that day and would request a continuance of the trial until he actually was retained and prepared

to proceed. After reviewing Code § 19.2-159.1,3 the trial court denied the motion for a continuance

to allow Jones to retain Haley, stating that



        3
            Code § 19.2-159.1(B) provides in relevant part:

                 In the event the defendant undergoes a change of circumstances so
                 that he is no longer indigent, the defendant shall thereupon obtain
                 private counsel and shall forthwith advise the court of the change
                 of circumstances. The court shall grant reasonable continuance to
                 allow counsel to be obtained and to prepare for trial.

                                                  -5-
               Mr. Haley having not actually been paid, although that is
               contemplated, and Mr. Haley most significantly candidly advising
               the [c]ourt as an Officer of the Court that he is not prepared for
               trial today, I think, pursuant to the statute it’s frankly no offense
               intended, but it’s too little, too late. And it’s not – It’s not
               appropriate and I’m not going to permit it in this case for those
               reasons all over the objection of Mr. Weston on behalf of
               Mr. Jones preserving all rights for appeal.

       Jones was then arraigned on two charges of selling cocaine, having previously been

convicted of a similar offense. He pled no contest to both charges. The trial court engaged Jones

in an extensive plea colloquy to ensure Jones, among other things, understood the nature of a no

contest plea, whether Jones had any more complaints about Weston, and whether Jones

understood that he was giving up his right to appeal. Jones responded that he understood all of

the questions. The Commonwealth then summarized the evidence as if the case had gone to trial.

Jones agreed with the factual basis proffered by the Commonwealth. The trial court found

Jones’ pleas were made voluntarily, that he had been “capably represented by competent

counsel,” and that the Commonwealth established a factual basis to sustain the charges against

Jones. The trial court then found Jones guilty of both offenses and consolidated these two cases

with CR13-1638 for sentencing.

       Jones appeals. He asserts that the trial court erred in refusing his request for a

continuance to allow him to retain the services of a private attorney, Haley, to represent him. He

also contends that the trial court erred in requiring him “to proceed through a plea hearing and

sentencing with” his court-appointed lawyer, with whom he claimed a conflict, serving as standby

counsel.




                                                -6-
                                            ANALYSIS

                       I. Jones’ guilty pleas waived his continuance claim4

       Jones argues that, given his Sixth Amendment right to counsel and the provisions of

Code § 19.2-159.1(B), the trial court erred by refusing his request, made on the day of trial, for a

continuance to allow him to retain Haley to represent him and to allow Haley time to prepare for

that representation. We find that Jones’ guilty pleas waived the issue of whether Jones was

entitled to a continuance, and therefore, decline to address the merits of the claim on appeal.

       Our resolution of this issue is controlled by our decision in Cobbins v. Commonwealth,

53 Va. App. 28 (2008). In Cobbins, the defendant, who claimed indigency, initially was

assigned court-appointed counsel to represent him on multiple charges. Id. at 31. Cobbins

developed a conflict with that counsel, so the trial court appointed another attorney to represent

him. Id. at 31-32. A few days prior to trial and after Cobbins’ court-appointed counsel had

represented to the trial court that a plea agreement had been reached, Cobbins informed the trial

court that he was in the process of selling his house and would use the proceeds to retain his own

attorney. Id. at 32. He requested that the trial court continue the matter so that he could “close

the house sale and hire new counsel.” Id. The trial court denied the motion for a continuance.

Id.

       After the trial court denied the request for a continuance, Cobbins consulted with his

court-appointed counsel. Id. At that time, “Cobbins decided to plead guilty to” one of the

charges “and to offer Alford guilty pleas to the remaining charges.” Id.

       On appeal, Cobbins argued that “the trial court erred in . . . not granting his . . . motion

for a continuance for the purpose of securing private counsel.” Id. at 33. We concluded that


       4
         Although Jones entered no contest pleas to the charges, we treat such pleas as guilty
pleas in determining what appellate rights a defendant has waived. See Clauson v.
Commonwealth, 29 Va. App. 282, 294 (1999).
                                               -7-
Cobbins “waived appellate review of [the continuance] issue by pleading guilty[,]” and “[w]e

thus decline[d] to decide whether the trial court abused its discretion in denying Cobbins’s

motion for a continuance.” Id. at 37.

       We see no material distinction between the situation in Cobbins and Jones’ claim

regarding the trial court’s refusal to grant him a continuance in this case. Accordingly, we find

that Jones waived any appellate claim related to the continuance and decline to reach the merits

of that claim.5

                               II. Jones’ demand for a fifth counsel

       In his other assignment of error, Jones asserts the trial court erred in “requiring [him] to

proceed through a plea hearing and sentencing with” Weston as his attorney. For the reasons

that follow, we reach the merits of this argument, but conclude that the trial court did not commit

reversible error in declining to remove Weston from any further involvement in the matter.

       At the outset, we address whether Jones’ pleas waived Jones’ ability to raise this

argument on appeal. We interpret Jones’ assignment of error as arguing that he effectively was

denied his Sixth Amendment right to counsel at the time he entered his pleas, a critical stage of

the proceedings for which counsel is required. See generally Lee v. United States, 137 S. Ct.

1958 (2017). Thus, unlike his challenge to the trial court’s refusal to grant a continuance, this

argument can be read as attacking the adequacy of his pleas. Accordingly, we conclude that the

best and narrowest ground of addressing this issue is to reach the merits. See Abdo v.

Commonwealth, 64 Va. App. 468, 473 n.1 (2015) (recognizing that, in some cases, “resolution

of the merits constitutes the best and narrowest ground” for decision).



       5
          Because Jones’ appellate claim regarding the continuance is not an appeal asserting that
“the statute of conviction violates the Constitution[,]” the United States Supreme Court’s
decision in Class v. United States, 138 S. Ct. 798, 801-02 (2018), is not implicated by Jones’
appeal.
                                                -8-
        We review a trial court’s decision regarding the withdrawal of counsel for an abuse of

discretion. See Feigley v. Commonwealth, 16 Va. App. 717, 721 (1993); Paris v.

Commonwealth, 9 Va. App. 454, 459 (1990). “The abuse-of-discretion standard, if nothing else,

means that the trial judge’s ruling will not be reversed simply because an appellate court

disagrees. Only when reasonable jurists could not differ can we say an abuse of discretion has

occurred.” Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006) (internal quotation marks and

citations omitted).

        The record here amply supports the conclusion that the trial court’s decisions regarding

Weston’s involvement as Jones’ counsel fall within an appropriate exercise of discretion.

Although the right to counsel is “fundamental,” Gideon v. Wainwright, 372 U.S. 335, 342-43

(1963), the right to counsel of one’s choosing is not absolute. See Wheat v. United States, 486

U.S. 153, 159 (1988). The “right is . . . limited by a countervailing state interest . . . in

proceeding with prosecutions on an orderly and expeditious basis.” Feigley, 16 Va. App. at 721

(internal quotation marks and citations omitted).

        Here, the record demonstrates that the trial court more than sufficiently sought to

accommodate Jones’ desires regarding counsel. The trial court initially appointed the Office of

the Public Defender to represent Jones, allowed Jones to substitute Hill for the Office of the

Public Defender, appointed Padgett for Hill when that relationship soured, and then appointed

Weston when Padgett advised the trial court that he needed to withdraw. The trial court

observed that each of the attorneys that represented Jones in these matters “enjoy stellar

reputations[,]” yet Jones developed issues with each of them. These issues seemed to come to the

fore when a significant milestone in the proceedings, such as trial or sentencing, was reached.

Viewing the record in its totality, the trial court reasonably could conclude that Jones’ “problems”

with counsel were a delaying tactic designed to gain some unknown advantage. Certainly, the trial

                                                  -9-
court reasonably could conclude from Jones’ repeated behavior that, no matter who was

representing him, problems would continue. Accordingly, the trial court did not abuse its discretion

in refusing to allow Weston to withdraw from the case or in requiring Jones to proceed without a

fifth attorney being involved.

       In support of his argument, Jones asserts that the trial court was required to allow Weston

to withdraw because Jones alleged that a conflict of interest existed between himself and

Weston. Although Jones makes multiple vague allegations in this regard, he alleges one with

specificity: he “threatened to file a ‘Habeas Corpus’ on” Weston. According to Jones, this put

“Weston in a position to have a personal interest in the case and shift[ed his] focus from [Jones]

to self-protection” regarding the threatened claim of ineffective assistance of counsel.6

       A client’s threat to assert that his trial counsel was ineffective does not, without more,

give rise to a conflict of interest between the client and trial counsel. As the Supreme Court

observed in Moore v. Hinkle, 259 Va. 479, 490 (2000), “an attorney’s desire to protect himself

against a later charge of ineffective assistance of counsel, standing alone, does not constitute a

per se conflict of interest.” The Supreme Court continued, noting that a disqualifying conflict

was unlikely when counsel “was fully cognizant of the possibility that he might be subject to a

charge of ineffective assistance of counsel . . . [and] was wholly forthcoming to both [the client]

and the trial court in expressing his belief that he was not able adequately to represent” the client

due to the conflict. Id.

       Here, the trial court was well aware of the issues between Jones and Weston. In multiple

hearings, the trial court gave both Jones and Weston the opportunity to set forth the nature of



       6
         To the extent that Jones attempts to use this argument to raise a claim of ineffective
assistance, we note that “[c]laims of ineffective assistance are not cognizable on direct appeal[.]”
Vay v. Commonwealth, 67 Va. App. 236, 260 (2017). Accordingly, we do not address such a
claim.
                                                - 10 -
their disagreements and why they believed the attorney-client relationship was damaged to the

point of requiring dissolution. Based on this record and considering the disturbing pattern of

Jones developing the same or similar issues with each of his attorneys in these matters, we

cannot say that the trial court abused its discretion in concluding that no disqualifying conflict

existed or in requiring Jones to proceed. Accordingly, we affirm the judgment of the trial court.

                                          CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                                           Affirmed.




                                               - 11 -
