COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Co leman and Bray Argued at Richmo nd, Virginia

SALAHUNDIN DAVID WEBB OPINION BY v. Record No. 1578-98-2 JUDGE SAM W. COLEMAN III MAY 2, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY L.A. Harris, Jr., Judge Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant. Robert H. Anderson, III, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Salahundin David Webbwas convicted in a bench trial of first degree murder, robbery, possession of a fi rearm by a convicted felon, four counts of abduction with intent to extort money, and six counts of us ing a firearm duri ng the commissionof a felony. He was sentenced to a total term of life plus 133 years in the penitentiary, wi th seventy-five years susp ended. On appeal, Webb argues that the trial court erred by failing to co nduct a pretrial hearing to address analleged conf lict of interest by his court-appointed trial counsel ar ising from the fact that his counsel was not being adequatelycompensated be cause of the statutorily capp ed court-appointed attorney's fee sy stem. He also contends that th e statutory limita tion of Code § 19.2-163 is- 2 - unconstitutional becaus e it imposes an inflex ible and inadequate cap on court-appointed attorneys' fees. Beca use the record fails to demonstrate th at Webb was prejudiced by the fe es allowed his counsel or that coun sel's legal repr esentation fe ll below an objective standa rd of reasonableness due to the fe e allowance, we affirm. BACKGROUND On January 30, 1997 , Webb and a codefend ant robbed employees of a Friendly's restaura nt in Henrico County. During the robbery, the codefendant sh ot and killed the restaura nt manager. The court determined that Webb was indi gent and appoin ted Steven D. Benjamin, an experience d criminal defense at torney, to represent Webb. One week before trial and near ly seven months after indictment, Be njamin moved to di smiss the charges, asserting that (1) the statutor y cap on attorneys' fe es contained in Code § 19.2-163 is un constitutional, (2) the compensa tion allowable under Code § 19.2-163 is inadequate and operat ed to deny Webb his right to conflict-free and effective as sistance of counsel, and (3) the statutor y compensation scheme causes a conflict of interest because it cr eates a financia l disincentive for a lawyer to effectively re present his or her client. At the time Benjamin filed the motion to dismiss, he had already expend ed more than ninety hours working on the case, exceedin g the time for which- 3 - compensation would be allowed under the st atute by more than thirty hours. 1 On January 6, 1998, th e day of tria l, Benjamin objected to th e trial court's failure to cond uct a pretrial hearing on the alleged conflict of in terest. The tr ial court took the motion under advise ment and proceeded wi th trial. The day after trial, the cour t conducted a hearing on the motion to dismiss and subs equently denied the motion, finding the statutorily ca pped court-appoin ted attorney's fe e system did not create a conflict of in terest in this case an d no evidence in the case indicated that Webb received "any thing but effective assistance of counsel." The court ru led that the statutory compensation scheme wa s not uncons titutional.

1 Code § 19.2-163 provided, as of the date of trial in this case, a maximum fee of $735 for the representation of a defendant charged with a felony punishable by confinement for more than twenty years; for representation in connection with any other felony charge, $265; and for any misdemeanor punishable by confinement, $132. Count-appointed counsel also may receive reimbursement for "reasonable expenses incurred" in the defense of an indigent client. The statute provided for "a reasonable fee" for defending capital cases with no cap. For multiple violations of the same offense tried in the same proceeding, a single fee shall be allowed. The fees are based on time and effort expended and were to be compensated at the hourly rates established by the Supreme Court guidelines of $40 for out-of-court work and $60 for in-court work. The General Assembly amended the statute in 1997 to provide for increases in 1998 and 1999.- 4 - ANALYSIS A. Post-trial Ev identiary Hearing Webb argues that the court-appointed compensa tion scheme creates a financ ial disincentive and burdens and impairs an attorney's ability to represent his or her client, th us creating an "actual" conflict of interest. Webb, citing Carter v. Commonwealth , 11 Va. App. 569, 400 S.E.2d 540 (1991), argues that the trial court, which had a duty to inquir e and take "adequate steps" to determ ine the extent of the alleged conflict, erred in failing to conduct the inquiry prior to trial. He argues that when an objectio n is made and a conflict of interest is claimed and shown to exist prior to tr ial, prejudice and ineffective assistance of co unsel are presumed and reversal is automatic. The trial court denied the motion, holdin g that Webb received competent and effe ctive assistan ce of counsel. The court further ruled that the statutory co mpensation scheme is not unconstitutional . The record suppor ts the trial judge's underlying factual de termination and legal conclusi on that no conflict of inte rest existed. We will not disturb the factual finding in the absenc e of plain error. See Code § 8.01-680. "The sixth amendm ent fundamental ri ght to effective assistance of co unsel is so ba sic to a fair trial that an infraction of that right can ne ver be dismissed as harmless

error." Carter , 11 Va. App. at 573, 400 S.E.2d at 542; see also- 5 - Holloway v. Arkansas , 435 U.S. 475, 489-90 (1978) (stating that where a Sixth Am endment violatio n taints the en tire criminal proceeding, the violation can never be considered ha rmless). In order to prove ineffect ive assistance of counsel, a defendant must first demonstrat e that his "attorney's conduct fell below an objective standa rd of reason ableness." Strickland v. Washington , 466 U.S. 668, 688 (198 4). Second, th e defendant must show that "there is a reas onable probability that, but for this deficient conduct the result of the trial would have beendifferent." Id. at 694. Prejudic e against a defend ant's case is pr esumed when "an actual conflict of interest adversely af fected his lawyer's performance." Cuyler v. Sullivan , 446 U.S. 335, 350 (1980). "Hence, if the defe ndant shows th at his counse l actively represented ac tual conflicting interests that ad versely affected his counsel's performance, prejudic e is presumed." Carter , 11 Va. App. at 573, 400 S.E.2dat 543. "U nless the trial court knows or reasonably should knowthat a particular conflict exists, the court need not initia te an inquiry." Cuyler , 446 U.S. at 347.

In Carter , defense counse l moved to withdraw after allegations of miscon duct were levied ag ainst counse l by the Commonwealth's attorney and were acknowledged by the tria l court. The Commonweal th's attorney alle ged that defense counsel harassed the victim's mother an d pressured her into signing a release of the victim's psycholo gical records. The mother revoked the- 6 - release. The tr ial court conducte d a hearing, wh ich focused on the Commonweal th's allegation of misc onduct rather than the revocation of th e release. Th e trial court di d not rule on defense counse l's alleged improp riety; rather, th e court informed the Commonweal th's attorney that he could initiate whatever disciplinary action he deemed appropriate. After the hearing, defense counsel mo ved to withdraw, contending that a conflict of interest had arisen which forced counsel to protect their own interests rath er than the defe ndant's inte rest. Defense counsel asserted that th e Commonwealth 's attorney's thre at of initiating disciplinary proceeding s would hamper their ability to properly defend their client du ring the impending tria l. The tr ial court denied the motion to wi thdraw without making further inqu iry. The defendant was subs equently convicte d on all charges. We held in Carter that when defens e counsel moved to withdraw, argu ing that their re presentation of the defendant was compromised be cause of their ow n interests, the trial judge knew or should have known th at a possible conflict of interest existed. We held that when a tr ial court fails to initiate aninquiry when the court knows or reasonably should kn ow that a particular conflict exists, the law presumes the conf lict resulted in ineffective as sistance of counsel. See Carter , 11 Va. App. at 573-74, 400 S.E. 2d at 543. We vaca ted the conv ictions and remanded the case to the trial court for the purpose of conducting- 7 - a hearing to determine whether a confli ct of interest actually existed that deniedthe defendant his right to effective assistance of counsel. Here, no factual ba sis supports Webb's argument that his attorney had a conflict of interest or that a purporte d conflict was reasonably apparent to the trial judge, requirin g a pretrial inquiry. Benjam in asserts that the alleged conflict of interest was initially rais ed by Webb during an in terview with a forensic psychologist who had beendesignated to evaluate Webb 's competency to stand trial. The psychologi st stated, as an example of Webb's inability to rational ly communicate and cooperate with his attorney, that We bb believed Benjamin co uld not render adequate representation because Benjamin was court-appoin ted and because the statutory comp ensation scheme does no t provide an economic incentive for co urt-appointed attorneys represen ting indigent defendants to pr ovide the same level and qu ality of representation as they would for non-indigent clients. Ba sed on Webb's statement to the psychologi st, the trial cour t was not obliga ted to conduct a pretrial inquiry on whether Benjamin had a conflict of interest by continuing to represent Webb. Additionally, Benjamin proved that Virginia is ranked fifty-first amongst the states and the District of Columbia for allowable comp ensation for court-appointe d attorneys an d that the disparity betw een Virginia and the other states is ov erwhelming.- 8 - Benjamin also in troduced evidence that recent developments in criminal law, in cluding bifurc ated proceedings infelony cases and technological ad vancements in evidence gather ing and legal research, have increase d the burdens, obliga tions, and overhead costs of court-appointe d attorneys in adequate ly preparin g cases. Although Benjamin made a bare claim that th is situatio n creates a potential conf lict of interest because an attorney must choose between not bein g adequately compensate d or not adequately representing his clie nt, Benjamin neither alleged nor presented evidence that he labo red under an actual co nflict of interest. Understandably, he did not allege that he was unable or unwilling to zealously repr esent Webb because of fi nancial cons traints or considerat ions. Moreover, his claim that the court-ap pointed comp ensation scheme created a financial disincenti ve to provid e competent, quality represen tation in this ca se is belied by the record. By Benjamin's own account, he expended countles s hours for which he was fully aware he would not receiv e compensation an d, even after he filed the moti on to dismiss as serting the conf lict, Benjamin continued to vigorously represent and defend Webb at trial. We note, as did the tria l court, that Benjam in never moved to withdraw from representation. Although we acknowledge the apparent dilemma create d by an attorn ey's ethical ob ligation to zealously repr esent his or her client an d the economic constraints- 9 - on the time he or she can devote to a case, we will not overturn a criminal conviction me rely because the dilemm a exists where no actual conflict is show n to exist and no inef fective assi stance of counsel is proven. 2 Given counsel' s level of representati on of his client, it could not reason ably have been apparent to the trial co urt that an actual conflict of inte rest existed. The ev idence does not prove that Benjamin had an actual conflict of in terest that adversely affected his representa tion of Webb. Webb had a hearin g, as we provided in Carter , to consider whether a conflict of interest existed and wh ether he was prejudiced. See Carter , 11 Va. App. at 574, 400 S.E.2d at 543 (vacating an d remanding fo r hearing to determine if counsel la bored under a co nflict of interest). The trial court conduc ted the hearing, albeit at the end of trial, and concluded counse l failed to establish that an actu al conflict of interest existed or that Webb was prejud iced. We find the evidence supports th e trial court's determination that defense counsel had no actual conflict of in terest that rendered his representation of Webb ineffective.

2 A lawyer also has an ethical obligation to participate in serving the disadvantaged; thus, representing the disadvantaged for a "nominal" fee cannot, on its face, be deemed to create an actual conflict of interest. See Virginia Code of Professional Responsibility EC2-27 (1999).- 10 - B. Constituti onality of Co de § 19.2-163 Webb argues that Co de § 19.2-163 creates an actual conflict of interest because the fee caps are un reasonably low and inflexible. Webbreasons that because the compensation scheme of Code § 19.2-163 is so low and inflex ible, the statut e negates the Supreme Court' s mandate in Gideon v. Wainwright , 372 U.S. 335 (1963), and the Sixth Amendment guarantee that an indigent defendant shall be entitled to ef fective assi stance of counsel, thus rendering the stat ute unconstituti onal. Additi onally, Webb argues that Code § 19.2-163 is un constitutional because it violates his due process rights. "'In assessing the constitutional ity of a statute[,] . . . [t]he burden is on the challenger to prove the alleged constitutional defect.'" Woolfolk v. Commonwealth , 18 Va. App. 840, 848, 447 S.E.2d 530, 534 (1 994) (quoting Perkins v. Commonwealth , 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)). "Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable." Bosang v. Iron Belt Bldg. & Loan Ass'n , 96 Va. 119, 123, 30 S.E. 440, 441 (1898). "When the constitutionality of an act is challe nged, a heavy bu rden of proof is thrust upon th e party making the challenge. Al l laws are pres umed to be constitutional and this presumption is one of the strongest know n to the law." Harrison v. Day , 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959).- 11 - Moses v. Commonwealth , 27 Va. App. 293, 298-99, 498 S.E.2d 451, 454 (1998). Due process is satisfied if an enactment has a "'reasonable relation to a proper purpose and [is] neither ar bitrary nor discrimina tory.'" Etheridge v. Medi cal Ctr. Hosps. , 237 Va. 87, 97, 376 S.E.2d 525, 530 (1989) (quoting Duke v. County of Pulaski , 219 Va. 428, 437-38, 247 S. E.2d 824, 82 9 (1978)). Therefore, under the ge neral rule, a st atute is not violative of due process if it withstands the "rat ional basis" test. See Etheridge , 237 Va. at 97, 376 S.E.2d at 530. Whenlegislation affects a "'fund amental right,' the constitution ality of the enactment will be judged according to th e 'strict scru tiny' test, i.e., the law mu st be necessar y to promote a compelling or overriding governme ntal interest." Id. at 97-98, 376 S.E.2d at 530 (citations omitted). Code § 19.2-163 affe cts a fundamenta l right. "The right to have the assistance of counsel is a 'fundame ntal' right, although such right is not ex plicitly set out in the Constitu tion of Virginia." Commonwealth v. Edwards , 235 Va. 499, 50 5, 370 S.E.2d 296, 298-99 (1988); see also Browning v. Commonwealth , 19 Va. App. 295, 298, 452 S.E.2d 360, 362 (1 994) (finding that the Sixth Amendment right to counsel is a fundamental right guarante ed to an accused by the Bill of Rights of the Virginia Constitution). Therefore, the fee caps in Code § 19.2-163 must be su bjected to- 12 - strict scrutiny and ca n be justified only if the legislation is narrowly tailored to serve a compelli ng governmental interest. See generally Austin v. Mi chigan Chamber of Commerce , 494 U.S. 652, 657 (1990). The Due Process clause requires that an indigent defendant receive an "adequate opportunity to present [his] claims fairly within the adversary system." Ross v. Moffitt , 417 U.S. 600, 612 (1974). The General Assembly has provided for a system where counsel is appointed to represent indigent defendants in the absence of waiver of counsel. 3 The statute provides a scheme and guidelines for compensating court-appointed counsel based upon an hourly rate to be set by the Supreme Court for time and effort expended with a cap for the types of cases. The issue is whether the legislation proscribing statutory caps on court-appointed attorneys' fees is narrowly tailored to serve a compelling state interest. On March 3, 1994, the General Assembly adopted House Joint Resolution No. 147, authorizing a study and report examining the costs and effectiveness of the policies, practices, and priorities of Virginia's criminal justice system. See H.R. Res. 147, Va. Gen. Assem. (1995). Although the statutory fee caps

3 The General Assembly has also provided for a system of public defenders in certain localities. See Code §§ 19.2-163.1 to -163.4.- 13 - for court-appointed attorneys' fees were not specifically mentioned in the resolution and the results of the study were not published, 4 the resolution mentioned the overall increase in the criminal court caseload and that spending for the judiciary, prosecution, and court-appointed criminal defense lawyers also continued to grow. The resolution noted that continued or increased funding of current criminal justice policies, practices, and priorities would come only at the expense of other pressing public needs in education and economic and human resource development. We cannot say the General Assembly was wrong in how it established its budgetary priorities. Accepting for purposes of this opinion Webb's contention that the statutory caps on attorneys' fees must be subjected to strict scrutiny and that they can be upheld only if they are justified by a compelling state interest, we cannot say on this record that the state has deprived indigent defendants of their constitutional right to effective assistance of counsel by the method that it has budgeted and appropriated funds for this

4 In 1985, the General Assembly adopted House Joint Resolution No. 324 authorizing a study and report on the defense of indigent defendants in the Commonwealth. The published results of that study recommended that a 100% increase in the maximum fee schedule was necessary to bring the fees up to the national average. The report recommended that a minimum 15% increase be instituted. The report stated that the increase in the maximum fee schedule was essential in order to meet the constitutional obligation of providing counsel to indigent defendants. See H.R. Res. 324, Va. Gen. Assem. (1985).- 14 - purpose. Code § 19.2-163 has structured a fee schedule for payment of fees that recognizes and incorporates the different needs and circumstances of representing indigent defendants for different types of offenses in the various courts. The statute provides for different hourly rates for different types of cases, including a higher hourly rate for more serious cases, and funds for "reasonable expenses incurred." Although in some instances determining whether legislation is narrowly tailored to serve a compelling governmental interest may require that the least restrictive approach be utilized, here we must look to whether the statute addresses the needs and financial demands inherent in defending against a criminal prosecution. In doing so, we find that Code § 19.2-163 is narrowly tailored to serve a compelling governmental interest; and, therefore, it is not unconstitutional. Additionally, Webb has failed to show that the statute is unconstitutional as applied to him. He failed to show that the statutory cap on court-appointed attorneys' fees as applied to his attorney deprived him of his constitutional right to effective counsel and due process. As the trial court found, Benjamin rendered competent and effective assistance of counsel, and, in fact, worked many hours in excess of the number of hours that would be compensated within the statutory authorized maximum.- 15 - Finally, Webb claims the statutory compensation scheme renders any indigent defendant's Sixth Amendment right to effective counsel a nullity because it forces the court-appointed attorney to choose between two masters, the indigent defendant and the financial cost of doing business. However, to the extent Webb asserts that all court-appointed attorneys labor under this conflict of interest, he is precluded from raising this argument. "[G]enerally, a litigant may challenge the cons titutionality of a law only as it applies to him or her." Coleman v. City of Richmond , 5 Va. App. 45 9, 463, 364 S.E.2d 239, 241-42 (1988). "That the stat ute may apply unconstitution ally to another is irrelevant; on e cannot raise third party rights." Id. at 463, 364 S.E.2d at 242. But see Lewis v. Iowa Dist. Court for Des Moines County , 555 N.W.2d 216, 217-19 (Iowa 1996) (finding that court-appointed attorneys had standing to challenge the constitutionality of a statutory fee schedule in which the attorneys alleged violations of indigent defendants' rights because defendant's right to effective assistance of counsel and attorney's right to fair compensation are "inextricably intertwined"). To the extent Webb claims that the statutory caps for court-appointed counsel fees for indigent defendants are woefully inadequate, redress must come from the General Assembly. On this record, we do not find that the fee- 16 - schedule is so inadequate as to violate the Sixth or Fourteenth Amendments. Accordingly, we find that Code § 19.2-163 is not unconstitutional, and we affirm Webb's convictions. Affirmed.