COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

MURRAY L. STEINBERG 

 OPINION BY 

v. Record No. 2111-93-2 CHIEF JUDGE NORMAN K. MOON 

 SEPTEMBER 5, 1995 

KATHERINE T. STEINBERG (SHUMAKER) 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Lee A. Harris, Jr., Judge 

 Murray L. Steinberg, pro se. 

 Kathleen B. Martin, Assistant Attorney General 

(James S. Gilmore, III Attorney General, on 

brief), for appellee. 

 Appellant, Murray L. Steinberg, appeals his conviction of 

criminal contempt for failing to comply with the trial court's 

orders regarding child support and visitation. Steinberg argues 

that the court erred by not following the proper procedure for 

criminal contempt proceedings, thereby denying him due process of 

law, and by finding that he waived his right to counsel in the 

contempt proceeding. We affirm Steinberg's conviction because he 

was given adequate notice of the trial court's decision to 

proceed with criminal contempt charges against him and because 

the trial judge properly ascertained that Steinberg knowingly and 

intelligently waived his right to be represented by counsel. 

 The pertinent facts are as follows. On September 3, 1993, 

Katherine Steinberg Shumaker (Shumaker) filed a motion in the 

trial court charging Steinberg with contempt of court after 

Steinberg failed to comply with the terms of the trial court's 
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July 15, 1993 order concerning a visitation schedule with the 

parties' daughter and failed to make child support payments to 

Shumaker. On September 8, 1993, Steinberg filed a responsive 

pleading asking for a jury trial, recognizing that because he 

might be "imprisoned," the proceeding against him was "quasicriminal." Steinberg had before been held in contempt and 

received jail time. The trial court entered a show cause order 

against Steinberg on September 8, 1993. On September 11, 

Steinberg was personally served with the order and notice that 

the hearing would be held on September 21, 1993. The order 

stated that Steinberg should show cause why he should not be 

fined or imprisoned, or both, for his alleged failure to comply 

with the court's order. 

 Prior to the hearing, Steinberg, who was representing 

himself, filed several pleadings with the court requesting a 

change of venue and a jury trial. He challenged the jurisdiction 

of the court, alleged the court was biased against him, and 

stated he was not waiving any rights. These motions were denied. 

 The judge then determined that the matter was "in the nature 

of a criminal contempt" and made the Commonwealth a party. 

Although Shumaker's counsel questioned the court's ruling and the 

necessity of joining the Commonwealth in the case, Steinberg 

raised no objection to the court's ruling to proceed with the 

case as one for criminal contempt. In denying the motion for a 

jury trial, the judge ruled that because the matter would be 

treated as petty contempt and any punishment imposed would not 
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exceed six months Steinberg was not entitled to a jury trial. 

Powell v. Ward, 15 Va. App. 553, 425 S.E.2d 539 (1993). The jury 

trial question was not raised on appeal. 

 The court then discussed with Steinberg whether he wanted to 

be represented by an attorney. Steinberg told the court that he 

could not afford an attorney but did not "relinquish" his right 

to an attorney. When Steinberg asked whether the state would 

provide him with an attorney, the trial judge questioned him 

about his financial situation. Steinberg testified that he 

worked forty hours a week but received no income, except for 

approximately $300 a month from a company in California. 

Steinberg also testified that he had approximately $65,000 in 

equity in his home, $2,500 in equity from another account, and 

retained earnings of approximately $28,000 due from his company.1

 The court determined that Steinberg was not indigent and had 

"many assets" and available funds from which he could retain 

counsel if he chose. After the Commonwealth's attorney further 

questioned Steinberg about his finances, the judge reiterated his 

ruling that Steinberg was not indigent and, therefore, was not 

entitled to court-appointed counsel. 

 The court then asked Steinberg if he was ready to proceed. 

Steinberg stated that he was prepared. At the close of the 

evidence, the court held Steinberg in contempt and sentenced him 

 

 1 Steinberg is the sole shareholder and officer of his 

corporation. During oral argument before this Court, Steinberg 

conceded that he also owned an automobile through his corporation. 
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to sixty days in jail. Steinberg objected to the imposition of 

the jail sentence because he had not been represented by counsel. 

 The judge told him that he had waived his right to counsel after 

the court had determined that he was not indigent and was not 

entitled to court-appointed counsel. 

I. Criminal Contempt Procedures 

 Unlike a proceeding for civil contempt, which "is remedial 

and for the benefit of the injured party," Small v. Commonwealth, 

12 Va. App. 314, 317, 398 S.E.2d 98, 100 (1990), the focus of a 

proceeding for a criminal contempt is to enforce the dignity of 

the court itself. 

 The power to punish for contempt is inherent in, and as 

ancient as, courts themselves. It is essential to the 

proper administration of the law, to enable courts to 

enforce their orders, judgments and decrees. 

Carter v. Commonwealth, 2 Va. App. 392, 395, 345 S.E.2d 5, 7 

(1986). 

 Steinberg alleges, however, that the trial court did not 

follow proper procedures because he was not given notice, nor was 

he indicted or arraigned. We hold that under the circumstances 

of this case, where Steinberg was served with a show cause order 

specifically setting forth the details of his alleged offense and 

where the record plainly establishes that he had knowledge prior 

to the hearing that the case was being tried as a criminal 

contempt, the notice requirements for due process purposes were 

satisfied and Steinberg did not have to be indicted or arraigned. 

 In United States v. United Mine Workers, 330 U.S. 258 
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(1947), the United States Supreme Court was asked to reverse a 

finding of both criminal and civil contempt where the contempt 

proceeding carried the name and number of the underlying equity 

suit. The Court indicated that although the criminal and civil 

contempt matters were tried together, prejudice was avoided so 

long as "the defendants were . . . accorded all the rights and 

privileges owing to defendants in criminal contempt cases." Id.

at 298. 

 The record in this case refutes Steinberg's claim concerning 

notice and establishes that he was accorded all the rights and 

privileges owed to him. In response to Shumaker's motion 

charging him with contempt, Steinberg filed a responsive pleading 

requesting a jury trial because of the "quasi-criminal" nature of 

the case. Steinberg was served personally with the show cause 

order and notice of the hearing. The purpose of such an order is 

to provide a party with notice. Board of Supervisors v. Bazile, 

195 Va. 739, 746, 80 S.E.2d 566, 571 (1954). Steinberg was aware 

of the charges and potential scope of punishment, as demonstrated 

by his filings with the court of various documents relating to 

the jurisdiction and imprisonment. His actions clearly establish 

that he had adequate notice of the nature of the charges against 

him. See Boggs v. Commonwealth, 229 Va. 501, 519, 331 S.E.2d 

407, 420 (1985), cert. denied, 475 U.S. 1031 (1986) (defendant 

implicitly acknowledged fair notice of capital murder charge when 

he moved to quash indictment at pretrial hearing challenging 

facial constitutionality of capital statutes). 
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 Moreover, the trial court informed Steinberg that the case 

would be tried as criminal contempt as soon as the court made 

that determination, which was before opening statements were made 

or evidence was presented. Specifically, the court stated: 

 I think the show cause is one, in my mind, that sounds 

in the nature of a criminal contempt show cause, and 

that is the way that I'm going to handle the matter. 

And by doing that, I am going to join the Commonwealth 

as a party to this matter in this show cause hearing 

today, and by doing that, Mr. Kizer, would you handle 

the matter on behalf of the Commonwealth? 

In Powell v. Ward, 15 Va. App. 553, 425 S.E.2d 539 (1993), we 

reversed a contempt conviction because the trial court did not 

adequately articulate the nature of the proceedings at the 

commencement of the hearing. We noted that "the parties were 

surprised to learn at the close of evidence that the trial court 

had converted the civil contempt hearing into a criminal trial. 

We conclude that the appellants were substantially prejudiced by 

the lack of notice that they were being tried for criminal 

contempt." Id. at 560, 425 S.E.2d at 554 (emphasis added). 

Here, Steinberg did not request a continuance, and he has not 

shown that his defense was compromised by any lack of notice. 

Thus, because Steinberg received adequate notice and had an 

adequate opportunity to prepare his defense, and because he 

personally appeared and fully presented his defense, his due 

process challenge to the contempt conviction must fail. 

II. Waiver of Right to Counsel 

 The Commonwealth has the burden of proving a waiver of the 

right to counsel by clear, precise, and unequivocal evidence. 
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"Whether a waiver is voluntary and competent depends upon the 

particular circumstances of each case, including the defendant's 

background, experience, and conduct." Church v. Commonwealth, 

230 Va. 208, 215, 335 S.E.2d 823, 828 (1985). In testing the 

sufficiency of the defendant's waiver of his right to counsel, 

our primary inquiry "is not whether any particular ritual has 

been followed in advising the defendant of his rights and 

accepting his waiver, but simply whether the procedures followed 

were adequate to establish `an intentional relinquishment of the 

right to counsel, known and understood by the accused.'" Kinard 

v. Commonwealth, 16 Va. App. 524, 527, 431 S.E.2d 84, 86 (1993) 

(citations omitted). The Supreme Court "has never held that the 

absence of such a cautionary instruction, standing alone, defeats 

a waiver." Superintendent v. Barnes, 221 Va. 780, 784, 273 

S.E.2d 558, 561 (1981). 

 Because a defendant's assertion of his right to counsel 

may conflict with the government's right to an orderly 

and expeditious prosecution, trial courts are often 

faced with the dilemma of choosing between these 

competing interests. Under certain circumstances, the 

trial court is entitled to conclude that the defendant 

has actually waived his right to counsel and thus can 

require that the defendant stand trial without the 

assistance of counsel. 

Bolden v. Commonwealth, 11 Va. App. 187, 190-91, 397 S.E.2d 534, 

536 (1990), cert. denied, 520 U.S. 943 (1991). 

 Here, the trial court, after careful inquiry, correctly 

concluded that Steinberg had waived his right to counsel. The 

court noted that while Steinberg had before been represented by 

counsel, he also represented himself on "many occasions." In 
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light of Steinberg's past court appearances and his memoranda 

filed with the court, the court told Steinberg that while 

Steinberg was "certainly familiar with the proceedings and the 

law," he was nevertheless entitled to have an attorney if he so 

chose. When Steinberg replied that he was unable to afford an 

attorney and asked if the state was willing to provide one, the 

court proceeded to determine whether Steinberg was indigent. 

After a thorough examination by the court and the Commonwealth's 

attorney, the court found that Steinberg had "many assets" and 

available funds from which he could hire an attorney, and, thus, 

was not entitled to a court-appointed counsel. Steinberg did not 

contest the court's ruling and did not request a continuance so 

that he might retain an attorney. 

 This is not an instance where a waiver is presumed from a 

silent record. Cf. Sargent v. Commonwealth, 5 Va. App. 143, 149, 

360 S.E.2d 895, 899 (1987). Here, the record shows that 

Steinberg affirmatively elected to go forward without the 

assistance of counsel. Although Steinberg stated that he was not 

waiving his right to counsel, he acquiesced in the court's 

decision to go forward with the contempt proceeding after having 

been advised of his right to counsel. By his acquiescence, 

Steinberg waived the right to counsel. "He cannot approbate and 

reprobate -- invite error and then take advantage of his own 

wrong." Sullivan v. Commonwealth, 157 Va. 867, 878, 161 S.E. 

297, 300 (1931). Lastly, Steinberg's legal experience and his 

demonstrated skill in these proceedings belie any claim now that 
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he did not understand the dangers of self-representation. See 

O'Dell v. Commonwealth, 234 Va. 672, 689, 364 S.E.2d 491, 501, 

cert. denied, 488 U.S. 871 (1988). 

 Affirmed.