GREGORY A. RICHARDSON
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF NOTTOWAY COUNTY Paul W. Cella, Judge
J. Burroughs (The Law Office of Joan J. Burroughs, PLC, on
brief), for appellant.
A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, Russell and Malveaux Argued at
BENNETT MALVEAUX JUDGE
Richardson ("appellant") refused to participate in
the colloquy during his arraignment for felony indecent
exposure in the Circuit Court of Nottoway County. The trial
court interpreted his silence as both a waiver of his right
to be tried by a jury and an acquiescence to being tried by
the court. Appellant argues here that the trial court's
actions violated his rights under the Constitution of
Virginia. We agree.
resides at the Virginia Center for Behavioral Rehabilitation
("VCBR"), to which he was committed for treatment
as a sexually violent predator. In March 2015, appellant
exposed his genitals to one of VCBR's employees.
Appellant, who had been convicted twice of exposing himself
to another person within a ten-year period, was indicted for
felony indecent exposure in violation of Code §§
18.2-387 and -67.5:1.
trial, appellant took issue with the performance of his
court-appointed counsel. He alleged that despite numerous
letters sent to his attorney, the two had not met to discuss
the "logistics" of the case until a couple of days
before trial. He said he had "no way of knowing how to
make the correct decision and how to pursue this matter"
because he felt he had not been properly assisted by counsel.
Appellant's trial counsel expressed his belief that he
could capably defend his client; however, he conceded that he
had failed to subpoena videotape from VCBR showing the
circumstances surrounding the indecent exposure. The trial
court denied both appellant's request for new counsel and
his attorney's request for a continuance to subpoena the
the court denied these motions, appellant became
noncompliant. Appellant refused to stand for his arraignment,
prompting the court to find him in contempt. After bailiffs
lifted appellant up, he refused to respond when asked for his
plea. The court interpreted his silence as a plea of not
appellant continued to refuse to participate in the colloquy,
the trial court announced that it would interpret his silence
as assent to a number of statements. The last of these
statements was the court's assumption that appellant
intended to waive his right to trial by jury:
THE COURT: All right. Then what we are going to do is this.
I'm going to read through the questions and assume that
unless you speak up you agree with me.
I'm going to assume that you are Gregory A. Richardson,
date of birth January 19th, 1968, and that you are the person
charged in the indictment; that you fully understand the
charge; that you've discussed it with your lawyer; that
you've had enough time to go over any defenses you may
have; and that you have all of the witnesses, if any, here
today that you need for trial; that you are entirely
satisfied with the services of your attorney; that you are
pleading not guilty freely and voluntarily; that you are not
under the influence of any drugs or alcohol; that you are
ready for trial today; that you have discussed the
advisability of trial by judge or trial by jury, and that
you've chosen to waive your right to trial by jury.
appellant nor his counsel responded to the trial court's
trial court, sitting without a jury, heard the case and found
appellant guilty. The trial court entered two, identical
conviction orders, which recited that neither appellant nor
his trial counsel had "demand[ed] trial by jury."
Appellant filed a pro se motion to vacate and set
aside the trial court's finding of guilt. Among other
issues, the motion asserted that the trial court improperly
conducted a bench trial in violation of Article I, Section 8
of the Constitution of Virginia.
timely noticed his appeal to this Court. His sole issue on
appeal is "The Court failed to properly ascertain a plea
of not guilty and want for a ...