COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and O’Brien
UNPUBLISHED


              Argued at Alexandria, Virginia


              HORACE THOMPSON OWENS, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1793-15-4                                   JUDGE MARY GRACE O’BRIEN
                                                                                NOVEMBER 1, 2016
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                               Susan L. Whitlock, Judge

                               (David S. Randle; Law Office of David S. Randle, on brief), for
                               appellant. Appellant submitting on brief.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Horace Thompson Owens, Jr. (“appellant”) pled guilty to six felony charges and was

              sentenced four months later. Following the sentencing hearing, appellant’s counsel filed a motion

              to withdraw from representation and a motion to withdraw appellant’s guilty pleas. The court

              permitted counsel to withdraw and appointed new counsel, but denied the motion to withdraw the

              guilty pleas. Appellant asserts the following assignment of error1:

                                      The trial court erred when it denied [d]efendant’s [m]otion to
                               [w]ithdraw [his] [p]leas of [g]uilty where [d]efendant avers that he
                               was manipulated by counsel to plead guilty and the [t]rial [c]ourt
                               allowed counsel to withdraw from the case and effectively ruled on
                               the [motion to withdraw the guilty pleas], prior to new counsel being
                               given notice and the opportunity to appear and be heard.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Appellant’s brief also addresses an additional assignment of error that was denied in a per
              curiam order. An appellate court will only consider the “issue[s] . . . for which an appeal was
              granted.” White v. Commonwealth, 267 Va. 96, 103, 591 S.E.2d 662, 666 (2004). Accordingly,
              we will not address appellant’s second assignment of error.
                                         I. BACKGROUND

        On June 1, 2015, appellant pled guilty to the following felony charges: forging a bank

check, in violation of Code § 18.2-172; uttering a forged check, in violation of Code § 18.2-172;

robbery, in violation of Code § 18.2-58; escape from jail, in violation of Code § 18.2-477;

conspiracy to escape, in violation of Code §§ 18.2-22 and -477; and damaging jail property during

escape, in violation of Code § 53.1-203. The plea form did not provide for any agreed-upon

sentence.

        Before accepting the guilty pleas, the court questioned appellant under oath. The court

found that appellant entered the guilty pleas freely and voluntarily. The Commonwealth proffered

facts in support of the charges, and the court determined that the evidence was sufficient to find

appellant guilty. The court accepted appellant’s guilty pleas and entered a conviction order.2 At a

sentencing hearing on October 6, 2015, the court sentenced appellant to a total of fourteen years of

active incarceration.

        On October 26, appellant’s counsel filed a motion to withdraw as counsel because appellant

“claim[ed] he was manipulated to enter into guilty pleas.” Counsel also filed a motion to set aside

the judgments of conviction and allow appellant to withdraw his guilty pleas “to correct manifest

injustice” because appellant “was manipulated to plead guilty.”

        On October 27, the court held a hearing on the motions. Defense counsel told the court that

shortly after sentencing, appellant advised him that he wished to withdraw his guilty pleas. Counsel

stated that because appellant’s reasons for his motion to withdraw his guilty pleas made them




        2
         Following the plea hearing, appellant was convicted in a bench trial of two additional
charges: burglary, in violation of Code § 18.2-90, and attempted robbery, in violation of Code
§§ 18.2-26, -58. However, the assignment of error granted in this appeal only involves the charges
to which appellant pled guilty.
                                                -2-
“adverse at this point” and “basically call[ed] [his] effectiveness into question,” he was also moving

to withdraw from representing appellant. Appellant’s counsel told the court that all he could say

was that his client wanted to withdraw his guilty pleas and appeal the convictions, and as counsel

he had to file the motion within the twenty-one-day period following the final order to uphold his

ethical duty. The court asked appellant if he had anything to add to his attorney’s remarks, and

appellant told the court that he felt “manipulated” to plead guilty and he wasn’t represented to the

“fullest of his [counsel’s] ability” on some of the charges. He asked the court to appoint a different

attorney to represent him.

        The court first granted counsel’s motion to withdraw and appointed a new attorney. Before

the new attorney was notified, the court denied the motion to withdraw the guilty pleas, noting that

the court carefully questioned appellant before it accepted the pleas. The court told appellant that

his new attorney could “re-file [the motion to withdraw the guilty pleas] within the statutory period”

and the attorney would also assist appellant with his appeal. The order memorializing the court’s

rulings was entered on October 27, 2015, and was delivered to all parties on November 3, 2015.

                                            II. ANALYSIS

        Appellant contends that the trial court erred in denying his motion to withdraw his guilty

pleas. He also argues that the court erred by ruling on his motion to withdraw his pleas before new

counsel was advised of his appointment and given the opportunity to argue the motion. Because we

find that the court erred by ruling on the motion to withdraw the pleas while appellant was

unrepresented, we do not address whether the court erred in denying that motion.

        The issue of whether the trial court violated appellant’s right to counsel during the hearing

on the motion to withdraw the guilty pleas is a constitutional issue that is reviewed de novo. See

Huguely v. Commonwealth, 63 Va. App. 92, 105 n.9, 754 S.E.2d 557, 563 n.9 (2014) (“Although

the right to counsel ‘is not explicitly set out in the Constitution of Virginia,’ the Supreme Court of

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Virginia has ‘held that it is nonetheless a fundamental right guaranteed to an accused by the Bill of

Rights of the Constitution of Virginia.’” (quoting Thomas v. Commonwealth, 260 Va. 553, 558 n.2,

539 S.E.2d 79, 82 n.2 (2000))).

          The Sixth Amendment to the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his

defen[s]e.” While “[t]he Constitution guarantees a fair trial through the Due Process Clauses . . . it

defines the basic elements of a fair trial largely through the several provisions of the Sixth

Amendment, including the Counsel Clause.” Strickland v. Washington, 466 U.S. 668, 684-85

(1984).

                 [T]he assistance of counsel is among those “constitutional rights so
                 basic to a fair trial that their infraction can never be treated as
                 harmless error.” Accordingly, when a defendant is deprived of the
                 presence and assistance of his attorney, either throughout the
                 prosecution or during a critical stage . . . reversal is automatic.

Holloway v. Arkansas, 435 U.S. 475, 489 (1978) (quoting Chapman v. California, 386 U.S. 18, 23

(1967)). This Court has held that “[t]he sixth amendment fundamental right to effective assistance

of counsel is so basic to a fair trial that an infraction of that right can never be dismissed as harmless

error.” Carter v. Commonwealth, 11 Va. App. 569, 573, 400 S.E.2d 540, 542 (1991).

          This constitutional right to counsel is also reflected in Code § 19.2-157, which provides that:

                 [W]henever a person charged with a criminal offense the penalty for
                 which may be . . . confinement in the state correctional facility or
                 jail . . . appears before any court without being represented by
                 counsel, the court shall inform him of his right to counsel. The
                 accused shall be allowed a reasonable opportunity to employ counsel
                 or, if appropriate, the statement of indigence provided for in
                 § 19.2-159 may be executed.

“The defendant’s constitutional right to counsel attaches not only at the trial itself, but also at any

critical stage where the ‘substantial rights’ of the accused may be affected.” Browning v.

Commonwealth, 19 Va. App. 295, 298, 452 S.E.2d 360, 362 (1994). Thus,

                                                   -4-
                for example, counsel may be required at a police lineup, United
                States v. Wade, 388 U.S. 218 (1967), a preliminary hearing,
                Coleman v. Alabama, 399 U.S. 1 (1970), a pleading stage, Rice v.
                Olson, 324 U.S. 786 (1945), sentencing, Townsend v. Burke, 334
U.S. 736 (1948), or appeal, Douglas v. California, 372 U.S. 353
                (1963).

Id.

        This Court has specifically held that a plea withdrawal hearing is considered a “critical

stage” of the proceedings in a criminal trial, and therefore, the defendant is entitled to be represented

by counsel. See Browning v. Commonwealth, 19 Va. App. 295, 298-99, 452 S.E.2d 360, 362-63

(1994). In Browning, after pleading guilty, the defendant filed motions to withdraw his pleas and

have new counsel appointed. Id. at 297, 452 S.E.2d at 361. The court heard the defendant’s reasons

why he wanted his attorney removed, had the attorney testify under oath, and then appointed new

counsel to act as co-counsel at sentencing. Id. The court then denied the defendant’s request to

withdraw his guilty pleas. Id.

        On appeal, this Court reversed and remanded, holding that the defendant “was effectively

without counsel at the hearing and was forced to present his motion without the assistance of

counsel.” Id. at 298, 452 S.E.2d at 362 (quoting United States v. Ellison, 798 F.2d 1102, 1108 (7th

Cir. 1986)). We specifically held that the plea withdrawal hearing was a “critical stage” of the

proceeding. Id. Therefore, the defendant was entitled to be represented by counsel at that hearing.

“[W]hen appellant’s counsel . . . [testified] as to matters against his client’s interests, appellant was

deprived of his right to counsel and was effectively forced to present his motion to substitute new

counsel on his own.” Id. at 298-99, 452 S.E.2d at 362.

        Likewise, in this case, appellant was required to present his motion without the assistance of

counsel. Appellant’s attorney who represented him at the initial plea hearing did not purport to

argue the motion to withdraw the pleas, and merely advised the court of the reason for the motion in

the context of the attorney’s request to withdraw from representation. Initially, the court granted
                                                   -5-
counsel’s request to withdraw. After permitting defense counsel to withdraw, the court asked

appellant for argument on his motion to withdraw his guilty pleas. Appellant, who was without

counsel at that time, made some limited argument on his own behalf in support of his motion. The

court denied the motion to withdraw the pleas. Although the court did appoint a new attorney, that

lawyer did not participate in the hearing on October 27. In fact, the attorney did not learn of his

appointment until November 3, after the trial court’s jurisdiction had elapsed.3 Accordingly,

appellant was “forced to present his motion without the assistance of counsel.” Id. at 298, 452

S.E.2d at 362. Despite the trial court’s intentions to allow new counsel to re-file the motion, the

sentencing order was final and new counsel was unable to re-file the motion while the court still had

jurisdiction.

        The trial court’s written order also reflects that the court heard and decided the motion to

withdraw the guilty pleas while appellant was unrepresented. The court’s order states:

                After hearing the arguments of counsel and without objection, the
                [c]ourt, for reasons stated on the record, granted the attorney for
                the defendant’s motion to withdraw as counsel and appointed [new
                counsel] to represent the defendant in these matters. [Current
                defense counsel] is released from any further representation of the
                defendant in these matters. Thereafter, the [c]ourt, after hearing
                arguments from the Deputy Attorney for the Commonwealth and
                the defendant, and for reasons stated on the record, denied the
                defendant’s motion to set aside judgments of conviction and allow
                the defendant to withdraw his guilty pleas.

(Emphasis added). “[A] court speaks only through its written orders.” Moreau v. Fuller, 276 Va.
127, 137, 661 S.E.2d 841, 847 (2008). In this case, both the written order and verbal ruling

indicate that the court permitted defense counsel to withdraw without offering argument on the


        3
         The sentencing order was signed on October 12, 2015. Pursuant to Rule 1:1, the order
became final on November 2, 2015. The order denying appellant’s motion to withdraw his guilty
pleas and appointing new counsel did not contain a suspending clause that would have allowed
appellant’s new counsel to timely re-file the motion to withdraw appellant’s guilty pleas. Therefore,
appellant’s new counsel did not have the opportunity to re-file the motion to withdraw the guilty
pleas before the sentencing order became final.
                                                 -6-
motion to withdraw the guilty pleas. The court then heard and decided the motion while

appellant was unrepresented.

       Because appellant was denied his constitutional right to be represented by counsel at the

hearing on his motion to withdraw his guilty pleas, a critical stage of the proceeding, we remand to

the trial court for a re-hearing on appellant’s motion to withdraw his pleas.

                                                                                Reversed and remanded.




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