COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker, and O’Brien Argued at Richmond, Virginia

LATRON DUPREE BROWN OPINION BY v. Record No . 1998-15-2 JUDGE ROBERT J. HUMPHREYS AUGUST 1, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge 1 Samantha E. Freed (Lepold & Fr eed, PLLC, on brief), for appel lant. J. Christian Obenshain, Assista nt Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Lamont Dupree Brown (“Brown”) entered conditi onal pleas of gui lty on multiple charges stemming from his distribution of cocaine, and now appeals the decisions of the Circuit Court for Albemarle County (the “circuit c ourt”) denying his motion to su ppress, on January 30, 2015, and denying his motion for a continuanc e and the appointment of new counsel on June 23, 2015. Brown asserts that the circuitcourt erred (1) in denying his m otion to suppress because the evidence obtained was the fruit of an illegal protective sweep that occurred before a search of his residence and (2) erred in refus ing to appoint a fifth counsel in violation of his Sixth Amendment right to counsel. I. BACKGROUND For ninety days between September and December of 2013, detecti ves were working with a confidential informant (t he “CI”) to observe Brown; duri ng that time, the CI purchased

1 Judge Paul M. Peatross, Jr., pr esided over the suppression hea ring by designation.PUBLISHED- 2 - cocaine from Brown on at least three occasions. Throughout the se observations, Brown was seen coming to and leaving from aparticular apartment both bef ore and after the controlled drug buys. Detectives verified that Br own listed that apartment as his residence for his probation and previous arrests. On December 19, 2013, Brown was arrested on multiple charges r elated to his distribution of cocaine. Det ective Seitz, one of the detective s who had been investigating Brown over the three-month period, had com pleted “three-quarters of asearch warrant” affidavit for the apartment before Brown’s arrest, and finishe d drafting the search warrant and a ffidavit after he “saw what was obtained off [Bro wn]” from the arrest. Shortly t hereafter, Detective Seitz obtained a warrant to search Brown’s apartment. While Brown was arrested at th e intersection of Hydraulic Road and Emmett Street, Detectives Lucas and McKay were watching his apartment. Once D etectives Lucas and McKay heard that Brown had been arres ted, they conducted what they de emed to be a “protective sweep” of the apartment to ens ure no one was inside who could “ destroy evidence . . . or possibly . . . lay[] in wait for [them].” Further, Detective M cKay testified that Brown was a suspect in a recent shooting, and the detectives were concerned for their safety w hile executing a search warrant. The protective sweep was a “very quick search” in which “no people were found.” The detectives neither searched for nor found contraba nd or weapons during the protective sweep, and neither Det ective McKay nor Detective Luc as spoke with Detective Seitz between the sweep and the time th e search warrant was obtained. Afterwards, the detectives stood guard of the apartment, awaiting the search warrant. Thereafter, while searching the apartment pursuant to the sear ch warrant, detectives found a total of thirty-four “knot ted baggies of cocaine,” a kn ife used for cutting cocaine, a gun and cartridges, and multiple documents belonging to Brown.- 3 - Brown was initially indicte d on three drug-related charges on February 3, 2014, and the circuit court appointed Michael Hemenway as counsel. On March 27, 2014, Brown sent a letter to the circuit court requesting t he appointment of new counsel because he felt that Hemenway was not “retrieving the proper paperwork and information [Brown ] need[ed] to fully understand” the case, and thus felt he woul d not be “represented fairly.” Hemenway further told the circuit court that the “attorney/client relationship is basically disso lved.” The circuit court granted Brown’s request and appointed William Tanner as counsel. Less than two months later, on May 15, 2014, Tanner told the c ircuit court that Brown “has demanded that [Tanner] move to withdraw” and that Tanner j oined in that motion because their relationship was “straine d at best.” Tanner represented that Brown had “various and sundry issues” with the way Tanner was representing him. The circuit court agreed to appoint another attorney, but noted that it f ound “nothing wrong with what Mr. Tanner has done to try to help Mr. Brown” and that Tanner was “incapable of going forward because of the lack of cooperation, which I find to be, at this point , unreasonable by Mr. Brown.” Thus, the circuit court appointed Stephanie Commander as new c ounsel, but noted its concern by as king Brown, “[I]f I appoint a third attorney, am I going to be he re on a fourth?” Brown resp onded, “No.” Brown was indicted on August 4, 2014 on six more charges relat ed to his drug offenses during the three-month observati on period in 2013. Brown’s jury trial was set for December 16, 2014. However, on December 2, 2014, C ommander filed a motion t o continue the case because Brown was “in conflicts with c ounsel over the handling of the c ase and has at times expressed desire for new counsel or to repre sent himself,” that “counsel agrees that there has been a conflict between the Defendant and counsel[,] but not irreconci lable” and that a continuance would be necessary to resolve the conflict. Commander also fil ed a motion to suppress.- 4 - The circuit court gr anted the motion to continue, and set tria l for June 23 and 24, 2015. The court held a hearing on t he motion to suppress on December 16, 2014, at which Detectives Seitz, McKay, and Lucas each tes tified. Detective Seitz, who a pplied for the search warrant, testified that he would have “obt ained a search warrant regardl ess of” whether the protective sweep had been conducted by the other detectives and that whate ver observations may have been made during the protective swee p did not affect his decision to obtain a search warrant. Detective Seitz also testified t hat he did not communicate with either Detective McKay or Detective Lucas between Brown’s arrest and when the search warr ant was effectuated. Detectives McKay and Lucas tes tified to the same effect. Both the search warrant and the supporting affidavit were entere d as evidence at the hearing. The affidavit for the search w arrant, written by Detective Sei tz, alleged that law enforcement officers observed multiple controlled drug buys ove r a ninety-day period, in which Brown sold cocaine to a CI, and w as often seen coming to and le aving from the apartment before or after those buys. It also conf irmed that Brown lived at the apartment and that, “[b]ased on affiant’s training and experien ce, persons involved in the sale of illegal drugs often keep quantities of drugs in their r esidence . . . prior to the sale” of the drugs, and further that such people keep “ledgers, records, a nd documents related to drug sa les in the residence.” At the hearing on the motion to s uppress, Commander conceded t hat the detectives did not obtain any evidence as a res ult of the protective sweep. T he circuit court also noted on the record that there was no evid ence that the detectives who condu cted the protective sweep provided any information to Detecti ve Seitz that was “used as abasis for the search warrant.” The circuit court th en declined to make a ruling on “whether th e protective sweep was proper,” but held that even if it was impr oper, the search warrant was n ot tainted by any evidence- 5 - obtained during the protective sw eep. Thus, the circuit court found that the sear ch warrant was valid and overruled the motion to suppress. Approximately five months later , at another pretrial hearing o n May 27, 2015, Commander represented to the c ircuit court that Brown had filed multiple pro se motions, despite Commander’s counsel on the matter, that Brown was not s atisfied with her communication with him, and that he wished to be appointed co-c ounsel. She told the court that “Mr. Brown feels that I am hol ding something back and that the Commonwealth is holding something back, and he’s saying tha t he doesn’t trust that I ha ve sent him everything, which result[ed] in the [ pro se ] discovery motion that he filed.” She represented that she ha d been trying to address Brown’s concer ns, but that she was unsure whe ther she had satisfied him. Although Commander didn’t feel a s though she needed co-counsel, the circuit court found that, given the severity of the charges , “co-counsel could be of assi stance to [Commander].” Thus, the Court appointed Jessica Phillips as co-counsel. On June 16, 2015, one week before the j ury trial was to begin, the circuit court heard Brown’s pro se motion requesting the court t o remove both Commander and Phill ips as counsel. At the hearing, Brown told the c ourt that Commander had a “conf lict of interest” and that Phillips had given him “false i nformation.” The circuit court told Brown that if it dismissed Commander and Phillips, it would not appoint Brown with additio nal counsel. Brown then incorrectly represented to the c ourt that the two previous atto rneys “withdrew on their own. I didn’t dismiss them.” The Commo nwealth aided the court in a mo re accurate representation of the previous appointments of c ounsel, and the court determined that it would not appoint further counsel. When asked how he wishe d to proceed, Brown told the c ourt, “If I don’t have a choice, then just Ms. Phillips represent [sic].” However, Phillips inf ormed the court that, in addition to Brown’s accusations that she ga ve him false information, she wa s only previously appointed as- 6 - co-counsel and had not fully revie wed the case; thus, she would not be prepared to represent Brown by herself at the trial, w hich was approximately one week away. The Commonwealth noted to the court that it perceived Brown’s motions as attempt s to delay the process. The circuit court denied Brown’s request to keep Phillips as hi s counsel, and thus relieved both Phillips and Command er as Brown’s attorneys. The court found that Phillips could not remain as counsel because Brow n represented that she lied t o him and that Commander could not remain as counsel due to Brown ’s continuing requests to rem ove her as counsel. The court further found that there was a to tal of four court-appointed at torneys with which Brown had a conflict, and thus it would not be successful to appoint a fift h attorney. When Brown told the court, “I’m not waiving my Sixth Amendment [right] and I cannot represent myself,” the court responded that by having “four di fferent counsel removed consec utively after the [c]ourt has appointed them, that essentiallythe defendant is waiving his r ight to counsel because the [c]ourt simply cannot continue to appoint counsel when it’s obviously i neffective and their actions are not to the liking of Mr. Brown.” The court went on: “Mr. Brow n, the [c]ourt has found by your actions that you have, in essen ce, waived your right to counsel , finding that no counsel has been able to work with you and certain ly looking at the allegations that you have made against the attorneys, that the [c]ourt doe s not find that a counsel would be effective.” When Brown continued to insist that he c ould not represent himself, the co urt appointed Commander as standby counsel. The trial remained set to begin on June 23, 2015. On the day of trial, Brown conti nued to tell the court that he could not continue without an attorney. The court responde d, saying, “I find this case to be similar to McNair v. Commonwealth, 37 Va. App. 687 [(2002),] ” and that “the right to counsel is not a right subject to endless abuse by the defendant .” Further, the circuit court stated: [W]hile the defendant does have a right to counsel, it is not s ubject to being an endless request. The [c]ourt finds where there hav e- 7 - been four attorneys that this defendant has been afforded an absolute right to a fair oppor tunity to be represented by couns el, and the fact that he has not b een able to get along with counse l, that he’s accused them of lying, the [c]ourt does not find that it would be effective just to appoi nt yet one more attorney and gr ant one more continuance. The circuit court fu rther found that Brown’ s “difficulties with the various attorneys amount[ed] to a pattern of conduct.” Brow n conferred with stand-by counse l and entered conditional guilty pleas on multiple charges pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), 2 and Code § 19.2-254, which the court found were entered “freely and volu ntarily, knowingly and intelligently.” The plea agreement waived Brown’s right to app eal the decisions of the circuit court, except the court’s “ruling on December 16, 2014 regardin g the legality of the search of [Brown’s] residence.” Brown later made a motion to w ithdraw his guilty pleas, which the circuit court denied on September 23, 2015. 3 Brown now appeals the court’s decisions denying his motion to suppress and denying his request for appoi ntment of a fifth counsel. II. ANALYSIS A. Validity of the Search Warrant Brown contends the circuit cour t erred in denying his motion to suppress the evidence discovered during the second searc h of his apartment, which was supported by a warrant. Brown may appeal this decision because his plea agreement specified that he could appeal the circuit court’s decision on this part icular issue. See Code § 19.2-254

.

2 Typically, if incorrectly, ter med Alford pleas, such guilty pl eas permit “[a]n individual accused of crime [to] voluntarily, knowingly, and understanding ly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Alford, 400 U.S. at 37.

3 Although Brown moved to withdraw hi s guilty pleas in the circu it court, Brown does not assign error to the circuit court’s denial of that motion a nd we therefore need not review that issue on appeal.- 8 - When reviewing a circuit court’ s denial of a motion to suppress , “[t]he burden is on the defendant to show that the trial court committed reversible err or. We are bound by the trial court’s factual findings unless those findings are plainly wron g or unsupported by the evidence. We will review the trial cour t’s application of the law de novo .” McGhee v. Commonwealth, 280 Va. 620, 623, 701 S.E.2d 58, 59 (2010) (quoting Whitehead v . Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d 299, 301 (2009)). Further, “we conside r the evidence and all reasonable inferences flowing from that evi dence in the light most favorab le to the Commonwealth, the prevailing party at trial.” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (quoting Jackson v. Commonwealth, 267 Va. 666, 672 5 94 S.E.2d 595, 598 (2004)). Brown does not argue the lack of pr obable cause for the issuanc e of the search warrant, rather he argues that the circu it court should have granted his motion to suppress because (1) the protective sweep was illegal because it was not supported by re asonable suspicion that the detectives were in danger, and ( 2) the subsequent search pursua nt to the searc h warrant was tainted by the illegal protective sweep because the protective sweep was mentioned in the affidavit for the search warra nt. The Commonwealth responds th at the issue of whether the protective sweep was legal was not addressed by the circuit cou rt because, even if the protective sweep was illegal, the affidavi t for search warrant did not con tain any information obtained from the protective sweep. Brown asserts that the protectiv e sweep was illegal. However, if a lower court does not rule on an issue, then “there is no ruling for [an appellate co urt] to review on appeal.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998). Here, the circuit court did not address the issue of whether the protective sweep was legal because it determined that it made no difference since the excl usionary rule would not apply in any event. Thus, since the circuit court did not rule on the propriety of the protective s weep, that issue is not before this- 9 - Court on appeal, and we only consider the same issue the circui t court addressed – whether the exclusionary rule would apply t o taint the issuance of the sear ch warrant even if the protective sweep was improper. Brown also argues that because the evidence was obtained pursuant to a warrant that was tainted by evidence gain ed from the allegedly illegal protectiv e sweep, the circuit court erred in denying his motion to suppress. However, as the circuit court not ed, regardless of whether the protective sweep was justified, the underlying affidav it supporting th e search warrant did not contain any information that was obtained during the pr otective sweep, and thus the war rant could not have been tainted by any illegally-gained inform ation. The only reference to the protective sweep that can be found in the affidavit is the state ment, “The residence is curr ently secured by law enforcement officers.” Brown argues on appeal that this sentence in the af fidavit taints the entirety of the basis for the search warrant. A side from that statement, the a ffidavit contains only information that was obtained from the th ree-month long observation of Brow n’s drug activity, or from Brown’s arrest. The affidavit co ntained statements to the effe ct that Brown was observed selling cocaine “on at least three occasions” and that he was seen “com ing from the area” and “walk[ing] back towards” the apar tment for which the search war rant was issued both before and after the drug transactions. T he affidavit included a confirma tion that Brown act ually lived at the apartment. It also stated th at, “based on affiant’s training a nd experience, persons involved in the sale of illegal drugs ofte n keep quantities of drugs in the ir residence.” Finally, the affidavit contained the statement from Detective Seitz that the apartment would “likely contain further evidence of the crime of distri bution of cocaine.” The totality of these facts are sufficient to support probable cause for the i ssuance of the search warrant i ndependent of any information that may or may not have been obt ained during the protective sw eep.- 10 - Further, each of the detectives t estified that Detective Seitz, who wrote the affidavit for the search warrant, had no comm unication with Detectives Lucas and McKay, who conducted the protective sweep, between the time the sweep was conducted and when the search warrant was obtained. No evidence was found during the protective swee p, and thus it would have been impossible for illegal evidence to have been included in the af fidavit for search warrant. Moreover, while the statement in the affidavit that “[t]he re sidence is currently secured by law enforcement officers” informed the magistrate considerin g the issuance of the warrant of that detail, it is a fact that is irrelevant to the magistrate’ s determination of whether probable cause existed to issue the sear ch warrant. Thus, we hold that the protective sweep did not taint the issuance of the search warrant and that the circuit court d id not err when it denied Brown’s motion to suppress. B. Appointment of Counsel In the circuit court, Brown entered a conditional plea agreemen t which reserved him the right to appeal the court’s de nial of his motion to suppress. However, the plea agreement did not reserve his right to appeal t he court’s decision declining to a ppoint a fifth counsel. Counsel for Brown argues that Brown’s multiple statements in ci rcuit court that he was not waiving his right to counsel , along with the fact that he e ntered into his plea agreement without the assistance of counsel , should be sufficient to requ ire this Court to consider his argument. However, we have held t hat “[g]enerally, a party may waive by contract any right conferred by law or contract. If the party being charged with relinquishment of a right had knowledge of the right and intende d to waive it, the waiver wil l be enforced.” Griffin v. Commonwealth, 65 Va. App. 714, 718, 780 S.E.2d 909, 911 (2016) (quoting Burke v. Burke, 52 Va. App. 183, 188, 662 S.E.2d 622, 624 (2008)). Further, once accepted by a circuit court, plea agreements are treated as bi nding contracts. Id. Here, the ci rcuit court made a factual finding- 11 - that “the defendant has freely and voluntarily, knowingly and i ntelligently pled guilty . . . he understands the plea agreement a nd what he is charged with and the consequences of his plea agreement.” Brown does not challenge on appeal that his guilty pleas and en try into the plea agreement were knowing, voluntary, and intelligent decisions. It is well settled that when a criminal defendant has entered a plea of guilty to the offense with which he is charged, he has waived and may not thereafter rais e independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the g uilty plea. Terry v. Commonwealth, 30 Va. App. 192, 196-97, 516 S.E.2d 233, 235 (1999) ( en banc ). See also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (collecting cases), and Perry v. Commo nwealth, 33 Va. App. 410, 412, 533 S.E.2d 651, 653 (2000) (“a voluntary a nd intelligent [Alfor d] guilty plea by an accused is a waiver of all defenses other thanthose jurisdictional”). The only exception for this rule is provided in Code § 19.2-254, which sta tes in pertinent part: With the approval of the cour t and the consent of the Commonwealth, a defendant may e nter a conditional plea of guilty in a misdemeanor or felony case in circuit court, reserving the right, on appeal from the judgmen t, to a review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be a llowed to withdraw his plea. (Emphasis added). Pursuant to Code § 19.2-254, Brown w as required to specify in h is plea agreement exactly which of the circuit co urt’s decisions he wished to hav e reviewed on appeal. Thus, to appeal his alleged Sixth Amend ment violation, Brown must have s pecifically reserved that claim in his plea agreement and sought t he permission of the Commonwe alth and the circuit court to do so, just as he did with his clai m on the denial of his motion t o suppress. See Terry, 30 Va. App. at 196, 516 S.E.2d at 235 (“Terry cou ld have entered a conditio nal plea, reserving his claim of alleged violation of his Sixth Ame ndment right, but he entered an unconditional plea instead.”).- 12 - However, Brown did not seek permi ssion to appeal or otherwise s pecify his Sixth Amendment claim in his plea agreement, a nd thus any potential appellate i ssue was waived when he signed the guilty plea form stating, “I understand that by pleading gu ilty I waive all objections to the admissibility of evidence and t o the legality of my arrest and any search and seizure of my property, except as to this Court’s ruling on December 16, 2014 regarding the l egality of the search of my residence.” The pl ea agreement further provided, “I understand that by pleading guilty I waive any right of appeal from the decision of the [ci rcuit] [c]ourt[,] except as noted above.” Thus, because Brown failed to reserve the right to app eal the issue, we have no statutory authority to review hi s assignment of error regarding whether t he circuit court e rred in declining to appoint him a fifth attorney. III. CONCLUSION For the foregoing reasons, we affirm the decision of the circui t court to deny Brown’s motion to suppress, and decline t o review whether the circuit c ourt erred in denying Brown’s motion for the appointment of a f ifth attorney because Brown wa ived his right to appeal that issue when he entered his conditional plea agreement. Affirmed.