2.3 Waiver of Right to Counsel; Right to Proceed Pro Se

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

2.3 WAIVER OF RIGHT TO COUNSEL; RIGHT TO PROCEED PRO SE

2.301 In General. ⁴⁶ An indigent defendant may waive his or her right to court-appointed counsel with respect to the trial or any other stage of the prosecution, but a heavy burden rests on the Commonwealth to demonstrate that the waiver was knowing, intelligent, and voluntary. ⁴⁷ The Commonwealth must prove the essential elements of a valid waiver by clear, precise, and unequivocal evidence. ⁴⁸

2.302 Procedure. The Virginia Code provides that when a person charged with a criminal offense, the penalty for which may be death or confinement in the penitentiary or jail, appears before any court without being represented by counsel, the court must inform the accused of his or her right to counsel. ⁴⁹ The accused must be allowed a reasonable opportunity to employ counsel or, if appropriate, execute the statement of indigence. ⁵⁰ The constitutional requirement for waiving counsel is met when the trial court informs the accused of the nature of the charge, of the right to be counseled regarding his or her plea, and of the range of allowable punishments upon entry of a guilty plea. The court is not required to advise the defendant that, by waiving counsel, he or she will lose the opportunity to obtain an independent opinion

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on whether to plead guilty or that waiving counsel entails the risk that a viable defense will be overlooked. ⁵¹

In any case where the accused appears not represented by counsel, and assuming that counsel must be appointed, ⁵² the court must ascertain by oral examination whether the accused desires to waive counsel. In determining whether a defendant has waived the right to counsel, the law requires more than the court's mere assumption that the defendant was aware of his or her right to counsel. The court should entertain every reasonable presumption against waiver. ⁵³

If the accused indicates a desire to waive counsel and the court determines that the waiver is voluntary and intelligent, the court must provide the accused with a written form of waiver. ⁵⁴ If the accused refuses or fails to execute the form of waiver or the statement of indigence, the court must advise the accused that the refusal constitutes a waiver of the right to court-appointed counsel and offer the accused an opportunity to rescind the refusal. The court may then proceed to try the case. ⁵⁵ Failure to follow this procedure will make it difficult, if not impossible, for the Commonwealth to prove a knowing and intelligent waiver of the right to counsel. ⁵⁶

2.303 Implied Waiver. Once it has been determined that the accused is financially able to employ counsel, the failure to employ counsel within a reasonable time may be treated as a waiver of this right. ⁵⁷ Although the trial court has the power to grant continuances to persons who have failed or been unable to retain counsel, the Virginia Supreme Court has held that the court is justified in taking stern measures to eliminate the frustrations of unnecessary or intentional delays. ⁵⁸ A defendant's failure to cooperate

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with counsel can also amount to a waiver of the right to counsel if the record at trial is sufficient to document these issues. ⁵⁹

2.304 Right to Proceed Pro Se. The subject of waiver of the right to counsel is inextricably bound to the concomitant constitutional right to proceed pro se. The United States Supreme Court has held that a person charged with a criminal offense enjoys a Sixth Amendment right to self-representation and that to thrust counsel upon the accused, against his or her considered wish, violates the logic of the amendment. ⁶⁰ In order to represent himself or herself, the accused must first make a knowing and intelligent waiver of the right to counsel. The court should advise the accused of the dangers and disadvantages of self-representation...