Bailey v. Commonwealth

73 Va.App. 250

858 S.E.2d 423

Romario BAILEY

v.COMMONWEALTH of Virginia

Record No. 0182-20-2

Court of Appeals of Virginia.

JUNE 15, 2021

John I. Jones, IV (John Jones Law, PLC, on brief), for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Russell and Malveaux

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

The circuit court convicted Romario Bailey of assault and battery. On appeal, Bailey argues that the circuit court abused its discretion by denying his "motion for a continuance and ... subsequent motion to reconsider that denial." For the reasons stated below, we affirm the judgment of the circuit court.

BACKGROUND

We state the facts in the light most favorable to the Commonwealth, the prevailing party below. Gerald v. Commonwealth, 295 Va. 469, 472, 813 S.E.2d 722 (2018). So viewed, the evidence establishes that, on August 21, 2019, the Chesterfield General District Court convicted Bailey, representing himself pro se , of assault and battery.

Having been convicted, Bailey sought to perfect an appeal to the circuit court. On August 26, 2019, he filed a notice of appeal. The notice of appeal informed Bailey that his trial in the circuit court would be held on January 3, 2020. The notice, which Bailey signed, also advised Bailey that he was required to

[p]romptly communicate with the Clerk of the Circuit Court ... concerning the subpoenaing of witnesses ..., concerning your right of representation by a lawyer if you do not have a lawyer , and, if you are appealing a conviction, if you wish to request a jury trial. If your case is scheduled for trial, you MUST be present and ready for trial at the "date and time of appearance" shown above.

(Italics added).

On the scheduled trial date of January 3, 2020, Bailey appeared in the circuit court with retained counsel. At that time, counsel requested a continuance because "there are two necessary witnesses I need to be present, and they're not here, and I can't go forward without them." The Commonwealth objected, claiming that, from the notice of appeal he had signed and filed, Bailey was aware that he needed to be prepared for trial on January 3, 2020. The Commonwealth explained that it was prepared to go forward and that both the victim and a police officer who had been subpoenaed as a witness for the Commonwealth were present for the trial. The Commonwealth argued that if Bailey had "an issue with lawyer representation and witnesses, he needed to get it straight before today, and this is the trial date." In response, Bailey's counsel stated that he had been retained by Bailey three days prior and needed more time to subpoena witnesses.¹ Neither counsel nor Bailey asserted that a failure to grant the continuance effectively would deny him his Sixth Amendment right to counsel; in fact, neither the Sixth Amendment nor the right to counsel were mentioned.

Bailey, under oath in response to questions posed to him by the circuit court, testified that he had tried to retain a lawyer in August. He explained that due to a need to address the "total loss" of his car, which he needed to get to and from work, he spent the money that he had planned to use to pay a lawyer. He claimed that the car expense left him unable to pay that lawyer's retainer fee and that by the time he had saved enough money for the attorney, the lawyer he had planned to hire was unavailable to represent Bailey because he already "had a court date," on January 3, 2020. At that time, Bailey retained his then trial counsel.

The circuit court "respectfully denied" the motion to continue the trial to another day. However, the circuit court noted that it had a lengthy docket that day and moved Bailey's case to the end of the docket to allow Bailey and counsel additional time to prepare. When the motion was denied, Bailey's counsel requested the opportunity to proffer for the record the expected testimony of the two witnesses he had referenced in seeking the continuance. The circuit court noted that it would allow counsel to make the proffer at the appropriate time.

When the case was recalled later that day, Bailey entered a plea of not guilty. The circuit court then proceeded to ask a series of questions as to whether Bailey understood his plea. Among other things, the circuit court asked Bailey if he had an opportunity to speak with his lawyer about the charge against him, including any defenses, and whether he was prepared "to go forward today[.]" Bailey responded "Yes, sir[ ]" to both questions and indicated that he had answered all of the circuit court's questions truthfully. The circuit court accepted Bailey's plea of not guilty, and the case proceeded to trial.

Cheyenne Mclemore was the first witness called by the Commonwealth. She testified that on June 2, 2019, Bailey, whom she characterized as an "associate," and another man came to her apartment in Chesterfield County. Mclemore, who suffered from vision problems, said she did not know Bailey, but was able to identify Bailey in court by his voice.² Mclemore testified that Bailey had alcohol with him and directed her to come outside into the hallway. When she did, Bailey told her that he "wanted" her and that they were not "cool no more[.]" Bailey then punched her in the face twice with a closed fist, knocking off her glasses. Mclemore screamed, and Bailey grabbed her, but he let her go before police arrived. Mclemore denied ever having a romantic relationship with Bailey and specifically denied having had a sexual encounter with him earlier that day.

Officer Gabrielle Purcellville of the Chesterfield County Police Department responded to Mclemore's residence for a report of an alleged assault. Based on observations of "swelling" on Mclemore's cheek, along with other information received from Mclemore, Purcellville was able to obtain a warrant against Bailey for assault and battery.

The Commonwealth rested its case in chief, and Bailey did not move to strike the evidence. Bailey then testified that he had known Mclemore for nearly two months and they texted each other "every day or every other day and she sent me a photo of herself." Eventually the relationship became intimate, including a sexual encounter on the day Mclemore claimed Bailey hit her. Bailey indicated that he was with her around 5:00 p.m. that afternoon and that she asked him to return at 9:00 p.m. the same evening. He returned, but to Tureke Diggs’ apartment located across the hall from Mclemore's. Mclemore was at Diggs’ apartment, but, according to Bailey, no argument took place. Bailey left the apartment and shortly thereafter received calls from both Diggs and police informing him that Mclemore claimed he struck her. Bailey returned to the apartment, but the police already had left. Bailey denied striking Mclemore.

The circuit court found Bailey guilty of misdemeanor assault and battery, then allowed counsel to proffer his understanding of the substance of the testimony that would have been given by the absent witnesses. Acknowledging that he had not spoken to either witness, counsel proffered that the first witness, Diggs, would have testified that he was present at the apartment and saw Bailey exit the apartment approximately ten minutes before Mclemore left the apartment. The second individual, Mr. Shaw, would have testified that he also was at the apartment, and as he looked out the window, he watched Bailey leave the apartment, get into his car, and drive off. During this time, Mclemore was still inside the apartment. No additional details were proffered.

On January 8, 2020, the circuit court entered a conviction and sentencing order. The order memorialized the circuit court's finding of guilt, sentenced Bailey to twelve months in jail with nine of those months suspended for a period of three years, and ordered, among other things, that Bailey pay a $500 fine.

After entry of the order, Bailey retained new counsel, who filed a motion to reconsider on January 22, 2020. For the first time, Bailey asserted that his right to counsel under the Sixth Amendment was "hindered" by the circuit court's denial of his request for a continuance. "Through circumstances largely beyond his control, Mr. Bailey never received the assistance of counsel until very shortly before the day of his case's first calling in this [c]ourt." The circuit court scheduled a hearing on the motion for January 29, 2020. No order suspending, modifying, or vacating the circuit court's January 8, 2020 order was entered.

At the January 29, 2020 hearing, Bailey's counsel argued that Bailey's right to counsel generally and his right to counsel of his choice were violated by the denial of his motion to continue. From the bench, the circuit court informed the parties that the motion to reconsider was "respectfully denied." In explaining its rationale, the circuit court noted that, although it "zealously looks after the constitutional rights of a free citizen[,]" there is a correlative "responsibility of a free citizen to protect his own liberty" by taking the necessary steps to fully enjoy those rights. The circuit court explained that

Bailey appealed [the case] on his own. He knew the date. He had four months, and then he waits until two days before the trial to hire counsel, that's not a denial of his constitutional rights.

Counsel argues that he wants the ability to present a defense. He had that chance to present a defense. He had four months to prepare. He had four months to hire a lawyer. If he couldn't afford one, he could have come in here and asked me to appoint him one. I mean, he had numerous options in order to have his day in court and to defend his liberty.

He chose not to.

The circuit court did not enter an order memorializing its oral ruling on the motion to reconsider that day. Rather, it entered an order on January 30, 2020, that purported to deny the motion to reconsider.

Bailey now appeals the judgment of the circuit court. He asserts...