Norman Wesley Wright v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Senior Judge Annunziata
Argued at Richmond, Virginia
NORMAN WESLEY WRIGHT
MEMORANDUM OPINION * BY
v. Record No. 0012-08-2 JUDGE ROBERT J. HUMPHREYS
JANUARY 20, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
Randy B. Rowlett (Gordon, Dodson, Gordon & Rowlett, on brief),
for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Norman Wesley Wright (“Wright”) appeals his conviction for felony embezzlement, in
violation of Code §§ 18.2-111 and 18.2-95. On appeal, Wright contends that the trial court erred
in trying him in his absence, in violation of the Sixth Amendment and Code § 19.2-259. For the
following reasons, we agree and reverse the conviction.
In Virginia, “‘[a] defendant’s right to be present at trial arises from two sources, the
[S]ixth [A]mendment and Code § 19.2-259.’” Hunter v. Commonwealth, 13 Va. App. 187, 190,
409 S.E.2d 483, 485 (1991) (internal footnotes omitted) (quoting Head v. Commonwealth, 3
Va. App. 163, 168, 348 S.E.2d 423, 426 (1986)). However, “[i]t is a well-recognized principle
of appellate review that constitutional questions should not be decided if the record permits final
disposition of a cause on non-constitutional grounds.” Keller v. Denny, 232 Va. 512, 516, 352
S.E.2d 327, 329 (1987). Because we hold that the trial court violated Code § 19.2-259 when it
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
proceeded to try Wright in his absence, we do not address the issue of whether it also violated his
Sixth Amendment right to be present at trial.
Code § 19.2-259 provides that “[a] person tried for felony shall be personally present
during the trial.” However, “[i]f the defendant is found to have voluntarily waived his right to be
present, and it is further found that the burden of a continuance would be prejudicial to the
Commonwealth’s case, then the trial may, in the sound discretion of the court, properly proceed
in the defendant’s absence.” Head, 3 Va. App. at 170, 348 S.E.2d at 428 (emphasis added).
Therefore, we must first determine whether Wright was absent voluntarily before deciding
“(1) whether [Wright] waived his right to be present at trial; and (2) if so, whether a continuance
would have been prejudicial to the Commonwealth’s case.” Hunter, 13 Va. App. at 191, 409
S.E.2d at 485.
In Hunter, we stated that “[t]he court should seek reliable evidence that the appellant is
voluntarily absent and cannot assume that an appellant’s absence is voluntary.” Id. at 192 n.3,
409 S.E.2d at 486 n.3. Nothing in the record of this case constituted “reliable evidence” that
Wright’s absence was voluntary. Id. Wright appeared for his preliminary hearing on January 9,
2007. At the preliminary hearing, Wright was released on a bond until the date of the next
docket call. However, as is apparently customary in the Circuit Court of Chesterfield County,
Wright’s attorney (“counsel”) pre-set Wright’s trial prior to the date of the docket call. Counsel
then sent Wright a letter explaining that his trial was now set for April 3, 2007 and that he no
longer needed to appear at docket call. The letter was sent by first class mail to Wright’s last
known address and was not returned. Though he expected Wright to be present at trial, counsel
received no response to his letter and had no communication with Wright prior to trial.
The Commonwealth contends that this Court should apply “the presumption that a letter
properly mailed is presumed to be received” and hold that Wright had notice of his trial date.
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However, the Commonwealth’s argument is not relevant unless Wright’s absence was also
voluntary. Even if we accepted the Commonwealth’s position, the most it can establish is that
Wright presumptively received counsel’s letter and, therefore, had notice of his trial date. Like
the trial court, the Commonwealth assumes Wright’s absence was voluntary based solely upon
his failure to appear. However, we have held that a trial court “cannot assume that [a
defendant’s] absence is voluntary” simply because he is not present at trial, unless it has “reliable
evidence” to that effect. Hunter, 13 Va. App. at 192 n.3, 409 S.E.2d at 486 n.3.
Because the record is without any evidence to establish that Wright was voluntarily
absent from trial, we hold that the trial court erred when it proceeded in his absence. Therefore,
we reverse the decision of the trial court and remand for a new trial if the Commonwealth be so
advised.
Reversed and remanded.
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