William P Robinson, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
WILLIAM P. ROBINSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 2901-01-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 1, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
D. Arthur Kelsey, Judge
William P. Robinson, Jr. (George A. Anderson,
Jr.; Robinson, Neely & Anderson, on brief),
for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted William P. Robinson, Jr. of
contempt of court, Code § 18.2-456, and sentenced him to ten
days in jail, with five days suspended, and fined him $250. The
defendant contends the trial court erred in sentencing him in
absentia and in denying him allocution. He also maintains his
plea of nolo contendere was actually a plea of not guilty and
the evidence was insufficient to convict. We affirm the
conviction but conclude the trial court erred in sentencing the
defendant. We vacate the sentence and remand for re-sentencing.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On October 5, 2001, the trial court accepted the
defendant's plea of nolo contendere, and pronounced the
defendant guilty of contempt of court. It held punishment in
abeyance, continued the case for two weeks, and solicited
written memoranda on punishment, which both parties submitted.
On October 19, 2001, the trial judge issued from chambers a
written opinion and order that imposed a jail sentence and fine.
On October 23, 2001, the defendant filed a motion to vacate
judgment "by reason of the defendant not having been given an
opportunity to present evidence in mitigation and to argue the
appropriate disposition." The Commonwealth responded by
concurring in the motion to vacate the judgment and allow the
defendant to be present at sentencing. The Commonwealth
stressed that Code § 19.2-298 allowed the right of allocution
before pronouncement of sentence. The trial court denied the
motion by written opinion.
Code § 19.2-237 1 states a defendant shall not be sentenced
to jail in absentia. The General Assembly has "recognized that
there are important policy considerations which suggest that the
system of justice would be better served by delaying the
1
Code § 19.2-237 provides that if a misdemeanor defendant
"fails to appear and plead . . . the court may either award a
capias or proceed to trial in the same manner as if the accused
had appeared, plead not guilty and waived trial by jury,
provided, that the court shall not in any such case enforce a
jail sentence. (Emphasis added).
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imposition of sentence," than by sentencing a defendant in his
absence. Head v. Commonwealth, 3 Va. App. 163, 172, 348 S.E.2d
423, 429 (1986), overruled on other grounds by Cruz v.
Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997) (en banc)).
Code § 19.2-237 specifically addresses presentments and
indictments for misdemeanors, but it also applies to
misdemeanors tried on a warrant or summons. Ruffin v.
Commonwealth, 35 Va. App. 79, 85, 542 S.E.2d 808, 810 (2001).
It applies to felonies as well as misdemeanors. Head, 3
Va. App. at 173, 348 S.E.2d at 429-30.
"'The presence of the defendant indicates that society has
sufficient confidence in the justness of its judgment to
announce it in public to the convicted man himself. Presence
thus enhances the legitimacy and acceptability of both sentence
and conviction.'" Id. at 173, 348 S.E.2d at 429 (quoting Note,
Procedural Due Process at Judicial Sentencing for Felony, 81
Harv. L. Rev. 821, 831 (1968)). It is "'advantageous to [the
defendant] that the decision maker be required to face him.'"
Id. at 172, 348 S.E.2d at 429 (citation omitted). The
prohibition against sentencing in absentia permits the defendant
to present and challenge evidence and makes him publicly
accountable for his conduct. Id.The cases interpreting the statutory requirement that the
defendant be present when sentenced to jail arise from plenary
proceedings. However, the principles encompassed in those
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enactments are equally compelling when a court proceeds
summarily to exercise its contempt powers. The trial court
erred in imposing a jail sentence in absentia.
The ancient right of allocution has also existed in
statutory form since 1975. "Before pronouncing the sentence,
the court shall inquire of the accused if he desires to make a
statement and if he desires to advance any reason why judgment
should not be pronounced against him." Code § 19.2-298. It
exists in both jury and bench trials. Bassett v. Commonwealth,
222 Va. 844, 858-59, 284 S.E.2d 844, 853-54 (1981). The right
may be knowingly waived, but it may not be unilaterally denied.
United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994) (error
to deny right of allocution before sentence pronounced). See
Ashe v. North Carolina, 586 F.2d 334, 336 (4th Cir. 1978) (state
court's denial of allocution was denial of due process under the
Fourteenth Amendment). The trial court erred in denying the
defendant allocution. While the error undermines the sentence,
it does not impair the conviction. United States v. Walker, 346
F.2d 428, 430 (4th Cir. 1965).
At the October 5, 2001 show cause hearing, the defendant
was present with counsel. He tendered a plea of nolo contendere
and stated, "I plead no contest to failing to advise this Court
of my desire for a continuance of this case and for failing to
appear and failing to comply with the local rules." The
defendant, an experienced criminal defense attorney, stated he
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understood his plea of nolo contendere, made it freely and
voluntarily, and understood its nature and consequences. After
the trial court accepted the plea of nolo contendere and
convicted the defendant of contempt, the defendant never
objected to the ruling. He conceded that he had entered a plea
of nolo contendere in his letter of October 19, 2001. The
defendant entered a plea of nolo contendere, and it was
tantamount to a plea of guilty for all purposes of this case.
Commonwealth v. Jackson, 255 Va. 552, 555, 499 S.E.2d 276, 278
(1998); Clauson v. Commonwealth, 29 Va. App. 282, 290, 511
S.E.2d 449, 453 (1999).
The defendant challenges the sufficiency of the evidence.
"Where the court's authority to punish for contempt is exercised
by a judgment rendered, its finding is presumed correct and will
not be reversed unless plainly wrong or without evidence to
support it." Brown v. Commonwealth, 26 Va. App. 758, 762, 497
S.E.2d 147, 149 (1998). We view the evidence in the light most
favorable to the Commonwealth.
The defendant represented a criminal defendant for whom he
had already received five continuances. The defendant agreed to
a trial on September 21, 2001 at 2:00 p.m. in circuit court in
Suffolk. Eight days before the trial, the defendant requested a
continuance of a federal sentencing hearing in Richmond and
agreed to a new date of September 21, 2001 at 11:00 a.m. The
defendant sent a facsimile request for a continuance to the
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circuit court clerk's office in Suffolk but made no effort to
see if the trial court granted another continuance. The trial
court did not grant a continuance, and the defendant did not
appear for the trial, though his client did.
Contempt "includes any act . . . 'calculated to embarrass,
hinder, or obstruct the court' in the discharge of its
responsibilities." Baugh v. Commonwealth, 14 Va. App. 368, 372,
417 S.E.2d 891, 894 (1992) (quoting Carter v. Commonwealth, 2
Va. App. 392, 396, 345 S.E.2d 5, 7-8 (1986)). When counsel
schedules multiple cases in different jurisdictions for the same
time and fails to appear at an agreed upon trial date, the
evidence is sufficient to constitute contempt. Brown, 26
Va. App. at 762, 497 S.E.2d at 149. The defendant's conduct was
egregious. He knowingly created a conflict between the federal
district court in Richmond and the circuit court in Suffolk. He
then used the conflict as an excuse not to appear. The
defendant acted in contempt of court.
We affirm the conviction for contempt of court, but we
conclude the trial court erred by sentencing in absentia and
without permitting allocution. Accordingly, we vacate the
sentence and remand for re-sentencing.
Affirmed in part,
reversed in part,
and remanded.
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