(Posted March 19, 2020) The Sixth Amendment is the backdrop for this morning’s published opinion in Weatherholt v. Commonwealth, an appeal involving two convictions on drug-distribution charges. After being indicted, Weatherholt hired a lawyer. During the pendency of the proceedings, the State Bar suspended the lawyer’s license when she failed to respond to a subpoena in a disciplinary proceeding.

The prosecutor, seeing a jury-trial date just 15 days away, asked for a hearing to determine how to proceed. The court set one for six days before trial, and the defendant appeared, sans counsel. The judge asked him what he would like to do if the lawyer got her license back before trial. He answered that he wanted to go forward with her as his lawyer. He noted that he didn’t have funds to hire another lawyer, and “I just want to get it over with.”

Fair enough, the judge concluded, and ruled that if the lawyer were not reinstated by two days before trial, the case would be continued. She evidently got her license back in time, and everyone appeared on the scheduled trial date. Everyone, that is, except a sufficient venire panel; the case had to be continued anyway.

To speed things along, everyone agreed on a bench trial two weeks later. At the conclusion of the case, the court found the defendant guilty; it eventually sentenced him to a lengthy prison term. A few days later, a new lawyer appeared; he moved the court to set aside the conviction. This lawyer asserted that the hearing six days before trial, where the previous lawyer had been absent, was a violation of the defendant’s right to counsel. The court ruled that that hearing wasn’t a critical stage of the proceeding, so there was no violation.

That prompted this appeal. The CAV granted a writ but affirmed. Today the justices unanimously agree, finding that merely asking the defendant if he wants a new lawyer isn’t a critical stage. It’s analogous to other steps in the prosecutorial process, such as an initial arraignment.

The subtext of today’s short opinion is that this defendant isn’t out of options. His first lawyer is now off the State Bar’s rolls, having surrendered her license for impairment. The defendant argued in the circuit court and on appeal that her performance constituted ineffective assistance, but that’s a matter for habeas relief.