COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bray 

Argued at Richmond, 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 COURT 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, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Salahundin David Webb was convicted in a bench trial of first 

degree murder, robbery, possession of a firearm by a convicted 

felon, four counts of abduction with intent to extort money, and 

six counts of using a firearm during the commission of a felony. 

He was sentenced to a total term of life plus 133 years in the 

penitentiary, with seventy-five years suspended. On appeal, Webb 

argues that the trial court erred by failing to conduct a pretrial 

hearing to address an alleged conflict of interest by his 

court-appointed trial counsel arising from the fact that his 

counsel was not being adequately compensated because of the 

statutorily capped court-appointed attorney's fee system. He also 

contends that the statutory limitation of Code § 19.2-163 is 
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unconstitutional because it imposes an inflexible and inadequate 

cap on court-appointed attorneys' fees. Because the record fails 

to demonstrate that Webb was prejudiced by the fees allowed his 

counsel or that counsel's legal representation fell below an 

objective standard of reasonableness due to the fee allowance, we 

affirm. 

BACKGROUND

 On January 30, 1997, Webb and a codefendant robbed employees 

of a Friendly's restaurant in Henrico County. During the robbery, 

the codefendant shot and killed the restaurant manager. The court 

determined that Webb was indigent and appointed Steven D. 

Benjamin, an experienced criminal defense attorney, to represent 

Webb. 

 One week before trial and nearly seven months after 

indictment, Benjamin moved to dismiss the charges, asserting that 

(1) the statutory cap on attorneys' fees contained in Code 

§ 19.2-163 is unconstitutional, (2) the compensation allowable 

under Code § 19.2-163 is inadequate and operated to deny Webb his 

right to conflict-free and effective assistance of counsel, and 

(3) the statutory compensation scheme causes a conflict of 

interest because it creates a financial disincentive for a lawyer 

to effectively represent his or her client. At the time Benjamin 

filed the motion to dismiss, he had already expended more than 

ninety hours working on the case, exceeding the time for which 
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compensation would be allowed under the statute by more than 

thirty hours.1 On January 6, 1998, the day of trial, Benjamin 

objected to the trial court's failure to conduct a pretrial 

hearing on the alleged conflict of interest. The trial court took 

the motion under advisement and proceeded with trial. The day 

after trial, the court conducted a hearing on the motion to 

dismiss and subsequently denied the motion, finding the 

statutorily capped court-appointed attorney's fee system did not 

create a conflict of interest in this case and no evidence in the 

case indicated that Webb received "anything but effective 

assistance of counsel." The court ruled that the statutory 

compensation scheme was not unconstitutional. 

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. 
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ANALYSIS

A. Post-trial Evidentiary Hearing

 Webb argues that the court-appointed compensation scheme 

creates a financial disincentive and burdens and impairs an 

attorney's ability to represent his or her client, thus 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 inquire and take "adequate 

steps" to determine the extent of the alleged conflict, erred in 

failing to conduct the inquiry prior to trial. He argues that 

when an objection is made and a conflict of interest is claimed 

and shown to exist prior to trial, prejudice and ineffective 

assistance of counsel are presumed and reversal is automatic. 

 The trial court denied the motion, holding that Webb received 

competent and effective assistance of counsel. The court further 

ruled that the statutory compensation scheme is not 

unconstitutional. The record supports the trial judge's 

underlying factual determination and legal conclusion that no 

conflict of interest existed. We will not disturb the factual 

finding in the absence of plain error. See Code § 8.01-680. 

 "The 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, 11 Va. App. at 573, 400 S.E.2d at 542; see also
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Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978) (stating that 

where a Sixth Amendment violation taints the entire criminal 

proceeding, the violation can never be considered harmless). In 

order to prove ineffective assistance of counsel, a defendant must 

first demonstrate that his "attorney's conduct fell below an 

objective standard of reasonableness." Strickland v. Washington, 

466 U.S. 668, 688 (1984). Second, the defendant must show that 

"there is a reasonable probability that, but for this deficient 

conduct the result of the trial would have been different." Id.

at 694. Prejudice against a defendant's case is presumed when "an 

actual conflict of interest adversely affected his lawyer's 

performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). 

"Hence, if the defendant shows that his counsel actively 

represented actual conflicting interests that adversely affected 

his counsel's performance, prejudice is presumed." Carter, 11 Va. 

App. at 573, 400 S.E.2d at 543. "Unless the trial court knows or 

reasonably should know that a particular conflict exists, the 

court need not initiate an inquiry." Cuyler, 446 U.S. at 347. 

 In Carter, defense counsel moved to withdraw after 

allegations of misconduct were levied against counsel by the 

Commonwealth's attorney and were acknowledged by the trial court. 

The Commonwealth's attorney alleged that defense counsel harassed 

the victim's mother and pressured her into signing a release of 

the victim's psychological records. The mother revoked the 
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release. The trial court conducted a hearing, which focused on 

the Commonwealth's allegation of misconduct rather than the 

revocation of the release. The trial court did not rule on 

defense counsel's alleged impropriety; rather, the court informed 

the Commonwealth's attorney that he could initiate whatever 

disciplinary action he deemed appropriate. After the hearing, 

defense counsel moved to withdraw, contending that a conflict of 

interest had arisen which forced counsel to protect their own 

interests rather than the defendant's interest. Defense counsel 

asserted that the Commonwealth's attorney's threat of initiating 

disciplinary proceedings would hamper their ability to properly 

defend their client during the impending trial. The trial court 

denied the motion to withdraw without making further inquiry. The 

defendant was subsequently convicted on all charges. 

 We held in Carter that when defense counsel moved to 

withdraw, arguing that their representation of the defendant was 

compromised because of their own interests, the trial judge knew 

or should have known that a possible conflict of interest existed. 

We held that when a trial court fails to initiate an inquiry when 

the court knows or reasonably should know that a particular 

conflict exists, the law presumes the conflict resulted in 

ineffective assistance of counsel. See Carter, 11 Va. App. at 

573-74, 400 S.E.2d at 543. We vacated the convictions and 

remanded the case to the trial court for the purpose of conducting 
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a hearing to determine whether a conflict of interest actually 

existed that denied the defendant his right to effective 

assistance of counsel. 

 Here, no factual basis supports Webb's argument that his 

attorney had a conflict of interest or that a purported conflict 

was reasonably apparent to the trial judge, requiring a pretrial 

inquiry. Benjamin asserts that the alleged conflict of interest 

was initially raised by Webb during an interview with a forensic 

psychologist who had been designated to evaluate Webb's competency 

to stand trial. The psychologist stated, as an example of Webb's 

inability to rationally communicate and cooperate with his 

attorney, that Webb believed Benjamin could not render adequate 

representation because Benjamin was court-appointed and because 

the statutory compensation scheme does not provide an economic 

incentive for court-appointed attorneys representing indigent 

defendants to provide the same level and quality of representation 

as they would for non-indigent clients. Based on Webb's statement 

to the psychologist, the trial court was not obligated 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 compensation for court-appointed attorneys and that the 

disparity between Virginia and the other states is overwhelming. 
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Benjamin also introduced evidence that recent developments in 

criminal law, including bifurcated proceedings in felony cases and 

technological advancements in evidence gathering and legal 

research, have increased the burdens, obligations, and overhead 

costs of court-appointed attorneys in adequately preparing cases. 

Although Benjamin made a bare claim that this situation creates a 

potential conflict of interest because an attorney must choose 

between not being adequately compensated or not adequately 

representing his client, Benjamin neither alleged nor presented 

evidence that he labored under an actual conflict of interest. 

Understandably, he did not allege that he was unable or unwilling 

to zealously represent Webb because of financial constraints or 

considerations. 

 Moreover, his claim that the court-appointed compensation 

scheme created a financial disincentive to provide competent, 

quality representation in this case is belied by the record. By 

Benjamin's own account, he expended countless hours for which he 

was fully aware he would not receive compensation and, even after 

he filed the motion to dismiss asserting the conflict, Benjamin 

continued to vigorously represent and defend Webb at trial. We 

note, as did the trial court, that Benjamin never moved to 

withdraw from representation. Although we acknowledge the 

apparent dilemma created by an attorney's ethical obligation to 

zealously represent his or her client and the economic constraints 
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on the time he or she can devote to a case, we will not overturn a 

criminal conviction merely because the dilemma exists where no 

actual conflict is shown to exist and no ineffective assistance of 

counsel is proven.2 

 Given counsel's level of representation of his client, it 

could not reasonably have been apparent to the trial court that an 

actual conflict of interest existed. The evidence does not prove 

that Benjamin had an actual conflict of interest that adversely 

affected his representation of Webb. Webb had a hearing, as we 

provided in Carter, to consider whether a conflict of interest 

existed and whether he was prejudiced. See Carter, 11 Va. App. at 

574, 400 S.E.2d at 543 (vacating and remanding for hearing to 

determine if counsel labored under a conflict of interest). The 

trial court conducted the hearing, albeit at the end of trial, and 

concluded counsel failed to establish that an actual conflict of 

interest existed or that Webb was prejudiced. We find the 

evidence supports the trial court's determination that defense 

counsel had no actual conflict of interest 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). 
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B. Constitutionality of Code § 19.2-163

 Webb argues that Code § 19.2-163 creates an actual conflict 

of interest because the fee caps are unreasonably low and 

inflexible. Webb reasons that because the compensation scheme of 

Code § 19.2-163 is so low and inflexible, the statute 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 effective assistance of counsel, 

thus rendering the statute unconstitutional. Additionally, Webb 

argues that Code § 19.2-163 is unconstitutional because it 

violates his due process rights. 

 "'In assessing the constitutionality 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 (1994) (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 challenged, a heavy burden of proof 

is thrust upon the party making the 

challenge. All laws are presumed to be 

constitutional and this presumption is one of 

the strongest known to the law." Harrison v. 

Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 

(1959). 
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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 arbitrary nor 

discriminatory.'" Etheridge v. Medical 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, 829 (1978)). 

Therefore, under the general rule, a statute is not violative of 

due process if it withstands the "rational basis" test. See

Etheridge, 237 Va. at 97, 376 S.E.2d at 530. When legislation 

affects a "'fundamental right,' the constitutionality of the 

enactment will be judged according to the 'strict scrutiny' test, 

i.e., the law must be necessary to promote a compelling or 

overriding governmental interest." Id. at 97-98, 376 S.E.2d at 

530 (citations omitted). 

 Code § 19.2-163 affects a fundamental right. "The right to 

have the assistance of counsel is a 'fundamental' right, although 

such right is not explicitly set out in the Constitution of 

Virginia." Commonwealth v. Edwards, 235 Va. 499, 505, 370 S.E.2d 

296, 298-99 (1988); see also Browning v. Commonwealth, 19 Va. App. 

295, 298, 452 S.E.2d 360, 362 (1994) (finding that the Sixth 

Amendment right to counsel is a fundamental right guaranteed to an 

accused by the Bill of Rights of the Virginia Constitution). 

Therefore, the fee caps in Code § 19.2-163 must be subjected to 
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strict scrutiny and can be justified only if the legislation is 

narrowly tailored to serve a compelling governmental interest. 

See generally Austin v. Michigan 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. 
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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). 
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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. 
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 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 constitutionality of a law only as it applies to him 

or her." Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 

S.E.2d 239, 241-42 (1988). "That the statute may apply 

unconstitutionally to another is irrelevant; one 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 
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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.