de facto waiver in Virginia

2025Under Rule 5A:8(b)(4)(ii), “[w]hen the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission will not be considered.” We recognize that “[t]o establish a de facto waiver or a constructive discharge [of the right to counsel], Virginia law requires that we view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion his or her conduct tended to unreasonably and unjustifiably delay trial.

2025“To establish a de facto waiver . . . , Virginia law requires that we view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion his or her conduct tended to unreasonably and unjustifiably delay trial.” Blue, 49 Va. App. at 711 -12 (quoting Bailey v. Commonwealth, 38 Va. App. 794, 803 (2002)). “[T]he burden is on the Commonwealth to prove ‘by clear, precise and unequivocal evidence’ that the defendant did actually waive his right to counsel.” Bolden v. Commonwealth, 11 Va. App. 187, 191 (1990) (quoting Lemke v. Commonwealth,

2025“To establish a de facto waiver . . . , Virginia law requires that we view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion his or her conduct tended to unreasonably and unjustifiably delay trial.” Blue, 49 Va. App. at 711 -12 (quoting Bailey v. Commonwealth, 38 Va. App. 794, 803 (2002)). “[T]he burden is on the Commonwealth to prove ‘by clear, precise and unequivocal evidence’ that the defendant did actually waive his right to counsel.” Bolden v. Commonwealth, 11 Va. App. 187, 191 (1990) (quoting Lemke v. Commonwealth,

2006To determine whether a de facto waiver exists, we “view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion [her] conduct tended to unreasonably and unjustifiably delay trial.” Bailey v. Commonwealth, 38 Va. App. 794, 804 , 568 S.E.2d 440, 445 (2002) (citing Bolden v. Commonwealth, 11 Va. App. 187, 191 , 397 S.E.2d 534, 537 (1990)).

2023It reasoned that “Blue’s actions did not constitute a de facto waiver of his right to counsel” in part because “Blue never indicated to the court that he wanted to waive counsel and in fact continued to attempt to get representation”—but “was unable to do so due to the lack of funds.” Id. at 712, 714 .

2020“To establish a de facto waiver or a constructive discharge, Virginia law requires that we view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion his or her conduct tended to unreasonably and unjustifiably delay trial.” Id.

2025“To establish a de facto waiver . . . , Virginia law requires that we view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion his or her conduct tended to unreasonably and unjustifiably delay trial.” Blue, 49 Va. App. at 711 -12 (quoting Bailey v. Commonwealth, 38 Va. App. 794, 803 (2002)). “[T]he burden is on the Commonwealth to prove ‘by clear, precise and unequivocal evidence’ that the defendant did actually waive his right to counsel.” Bolden v. Commonwealth, 11 Va. App. 187, 191 (1990) (quoting Lemke v. Commonwealth,

2025On appeal, this Court, after considering Bolden v. Commonwealth, and McNair v. Commonwealth, reversed the circuit court’s finding of a de facto waiver and held that “the trial court erred in denying Blue’s request for court-appointed counsel.” Blue, 49 Va. App. at 716 .

2025Id. at 709 n.1 (“[T]he Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty.”); Smith v. United States, 599 U.S. 236, 241 (2023) (“Except as prohibited by the Double Jeopardy Clause, it ‘has long been the rule that when a defendant obtains reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events.’” (quoting United States v. Ewell, 383 U.S. 116, 121 (1966))). 8 In McNair, we held “that in order to establish a constructive discharge or a de facto waiver of counsel by conduct, the record should

2025Id. at 709 n.1 (“[T]he Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty.”); Smith v. United States, 599 U.S. 236, 241 (2023) (“Except as prohibited by the Double Jeopardy Clause, it ‘has long been the rule that when a defendant obtains reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events.’” (quoting United States v. Ewell, 383 U.S. 116, 121 (1966))). 8 In McNair, we held “that in order to establish a constructive discharge or a de facto waiver of counsel by conduct, the record should

2025But we find that the record—which includes the continuance orders, the trial court’s notes, and the trial transcript where Kalif-El explained why he wanted new counsel and where the court found that he waived his right to counsel—is sufficient for this Court to properly decide whether Kalif-El de facto waived his right to counsel. -7- unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U.S. 25, 37 (1972).

2025“To establish a de facto waiver . . . , Virginia law requires that we view the defendant’s conduct in its entirety, together with all the other circumstances of the case, that support the conclusion his or her conduct tended to unreasonably and unjustifiably delay trial.” Blue, 49 Va. App. at 711 -12 (quoting Bailey v. Commonwealth, 38 Va. App. 794, 803 (2002)). “[T]he burden is on the Commonwealth to prove ‘by clear, precise and unequivocal evidence’ that the defendant did actually waive his right to counsel.” Bolden v. Commonwealth, 11 Va. App. 187, 191 (1990) (quoting Lemke v. Commonwealth,

2013Finally, in Strong v. Old Dominion Power Co., 35 Va.App. 119, 128 , 543 S.E.2d 598, 602 (2001), 2 “[w]e decline[d] to apply the [de facto *523 award] doctrine to a case lacking misrepresentation or reasonable reliance.” As we have noted in requiring an actual agreement or stipulation regarding compensability, “statutory amendments [subsequent to McGuinn ] have undercut the very reason for the de facto doctrine, [and thus] we have been careful not to extend the judge-made concept beyond its original parameters.” Lysable Transp., 57 VaApp. at 415, 702 S.E.2d at 599 .

2013Finally, in Strong v. Old Dominion Power Co., 35 Va.App. 119, 128 , 543 S.E.2d 598, 602 (2001), 2 “[w]e decline[d] to apply the [de facto *523 award] doctrine to a case lacking misrepresentation or reasonable reliance.” As we have noted in requiring an actual agreement or stipulation regarding compensability, “statutory amendments [subsequent to McGuinn ] have undercut the very reason for the de facto doctrine, [and thus] we have been careful not to extend the judge-made concept beyond its original parameters.” Lysable Transp., 57 VaApp. at 415, 702 S.E.2d at 599 .

2010The de facto award doctrine applies only when “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury ____” Gowan, 32 Va.App. at 463 , 528 S.E.2d at 722 (emphasis added).

2010The de facto award doctrine applies only when “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury ____” Gowan, 32 Va.App. at 463 , 528 S.E.2d at 722 (emphasis added).

2006“Presuming waiver from a silent record is impermissible.” Carnley v. Cochran, 369 U.S. 506, 516 (1962).

2004It only compounds the error for the commission to say, albeit with our encouragement, that violations of this interpretative gloss renders the employer’s application “void ab initio.” Mullins, 73 O.W.C. at 57, 1994 WL 1039789 , at *1 (citing Specialty Auto Body v. Cook, 14 Va.App. 327, 332 , 416 S.E.2d 233, 236 (1992)).

2004It only compounds the error for the commission to say, albeit with our encouragement, that violations of this interpretative gloss renders the employer’s application “void ab initio.” Mullins, 73 O.W.C. at 57, 1994 WL 1039789 , at *1 (citing Specialty Auto Body v. Cook, 14 Va.App. 327, 332 , 416 S.E.2d 233, 236 (1992)).

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) ("[Defendant's] failure to have counsel [present] was the result of dilatory conduct on his part. . . ."); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request "proceeds from a `transparent ploy for delay . " (intern

2002See United States v. Gallop, 838 F.2d 105, 109 (4th Cir.1988); see also People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989). 2 As constitutional jurisprudence requires courts to indulge every reasonable presumption against waiver of counsel, Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977), we do not find this record sufficient to support the theory that appellant’s conduct constituted a constructive discharge of counsel or a de facto waiver of representation by counsel.

2002Additionally, the trial court's finding should include a specific recitation of how the defendant's conduct shows an unequivocal intent to relinquish or abandon his right to counsel, either as a constructive discharge of counsel or a de facto waiver of counsel, See United States v. Gallop, 838 F.2d 105, 109 (4th Cir.1988); see also People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989). [2] *32 As constitutional jurisprudence requires courts to indulge every reasonable presumption against waiver of counsel, Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977), we do not fi

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See United States v. Gallop, 838 F.2d 105, 109 (4th Cir.1988); see also People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989). 2 As constitutional jurisprudence requires courts to indulge every reasonable presumption against waiver of counsel, Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977), we do not find this record sufficient to support the theory that appellant’s conduct constituted a constructive discharge of counsel or a de facto waiver of representation by counsel.

2002Additionally, the trial court's finding should include a specific recitation of how the defendant's conduct shows an unequivocal intent to relinquish or abandon his right to counsel, either as a constructive discharge of counsel or a de facto waiver of counsel, See United States v. Gallop, 838 F.2d 105, 109 (4th Cir.1988); see also People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989). [2] *32 As constitutional jurisprudence requires courts to indulge every reasonable presumption against waiver of counsel, Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977), we do not fi

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) ("[Defendant's] failure to have counsel [present] was the result of dilatory conduct on his part. . . ."); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request "proceeds from a `transparent ploy for delay . " (intern

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See United States v. Gallop, 838 F.2d 105, 109 (4th Cir.1988); see also People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989). 2 As constitutional jurisprudence requires courts to indulge every reasonable presumption against waiver of counsel, Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977), we do not find this record sufficient to support the theory that appellant’s conduct constituted a constructive discharge of counsel or a de facto waiver of representation by counsel.

2002See United States v. Gallop, 838 F.2d 105, 109 (4th Cir.1988); see also People v. Arguello, 772 P.2d 87, 92-93 (Colo.1989). 2 As constitutional jurisprudence requires courts to indulge every reasonable presumption against waiver of counsel, Brewer v. Williams, 430 U.S. 387, 404 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977), we do not find this record sufficient to support the theory that appellant’s conduct constituted a constructive discharge of counsel or a de facto waiver of representation by counsel.

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal

2002See Bolden v. Commonwealth, 11 Va.App. 187, 191 , 397 S.E.2d 534, 537 (1990) (“[Defendant’s] failure to have counsel [present] was the result of dilatory conduct on his part ....”); accord Paris v. Commonwealth, 9 Va.App. 454, 461 , 389 S.E.2d 718, 722 (1990); see also United States v. Attar, 38 F.3d 727, 735 (4th Cir.1994) (holding that dilatory or unreasonable conduct may be viewed as a constructive discharge of counsel); Sampley, 786 F.2d at 615 (holding that court may deny request for continuance to obtain counsel where the request “proceeds from a ‘transparent ploy for delay ... (internal