Thomas Franklin Hohman v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
THOMAS FRANKLIN HOHMAN
MEMORANDUM OPINION * BY
v. Record No. 0815-95-4 JUDGE CHARLES H. DUFF
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Richard A. DeLoria for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Thomas Franklin Hohman (appellant) appealed five misdemeanor
convictions from general district court to circuit court. He
failed to appear for the trial in circuit court. He was
convicted in his absence and after being apprehended and brought
before the court, was later sentenced to serve time in jail. On
appeal, appellant contends that the trial judge violated Code
§ 19.2-237 by trying him in his absence, convicting him, and
enforcing jail sentences. Because we find that appellant
knowingly and voluntarily waived his right to be present at the
trial, we hold that the trial judge did not err in proceeding in
his absence. Accordingly, we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
Appellant's notice of appeal to the circuit court indicated
that his trial date would be set on November 1, 1993. This
notice, which appellant signed, also said, "YOU MUST BE PRESENT
ON THIS DATE. IF YOU ARE ON BOND AND DO NOT APPEAR ON THIS DATE,
YOUR BOND MAY BE REVOKED." On November 1, 1993, appellant was
not present in court. However, his counsel appeared on his
behalf, waived trial by jury, and agreed to a December 21, 1993
trial date. The trial judge entered an order on November 4, 1993
setting the trial date for December 21, 1993. The order
indicated that a copy was mailed to appellant.
Appellant was released on bond on November 15, 1993. The
"Conditions of Release and Recognizance," which he signed,
contained the following language: "The Accused further promises
to appear to answer for the offenses for which he may be charged
at all times and places and before any court or judge to which
this case may be rescheduled, continued, transferred, certified
or appealed." The bond agreement also warned: "Failure to
appear may result in your being tried and convicted in your
absence." Moreover, the bond agreement specified that the next
hearing was on December 21, 1993.
On December 21, 1993, appellant failed to appear for
trial. 1 Appellant's attorney appeared at the trial and acted on
1
The written statement of facts indicates that "[a]lthough
the defendant was present in the courthouse with his attorney on
the morning of December 21, 1993, he did not appear when his case
was heard."
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his behalf throughout the proceeding. The trial judge entered
"not guilty" pleas on appellant's behalf, found appellant guilty
of all charges, and set a sentencing date of March 7, 1994. He
also issued a capias for appellant's arrest.
Appellant failed to appear at the March 7, 1994 sentencing
hearing. The trial judge continued the sentencing hearing
several times until appellant was located. Appellant appeared
for sentencing on April 5, 1995, at which time the trial judge
sentenced appellant to consecutive jail terms for several of the
misdemeanor offenses.
II.
A defendant's right to be present at his trial arises from
the Sixth Amendment and Virginia statutory authority. 2 Head v.
Commonwealth, 3 Va. App. 163, 168, 348 S.E.2d 423, 426 (1986).
"The [S]ixth [A]mendment right of confrontation is a 'fundamental
2
For misdemeanor offenses, the applicable statute is Code
§ 19.2-237, which provides:
On any indictment or presentment for a misdemeanor
process shall be issued immediately. If the accused
appear and plead to the charge, the trial shall proceed
without delay, unless good cause for continuance be
shown. If, in any misdemeanor case the accused fails
to appear and plead, when required 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.
Whether the statute was applicable to misdemeanor charges
tried on warrants, as was appellant, was not an issue before us.
Assuming, without deciding, that the statute applies to "any
misdemeanor case," we hold, (post), that appellant waived his
rights thereunder.
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right.'" Id. While there is a presumption against the waiver of
a defendant's fundamental right to be present at trial, "[a]
defendant's voluntary absence from trial may be properly
construed under the [S]ixth [A]mendment as a waiver of his right
of confrontation." Id. at 168, 348 S.E.2d at 426-27.
Appellant does not allege that he was unaware of the
December 21, 1993 trial date, and the facts conclusively
establish that he received notice of the trial date. First, his
attorney appeared at the November 1, 1993 hearing and agreed to
the December 21, 1993 trial date. "The attorney-client
relationship presumes that attorney and client, as servant and
master, will communicate about all the important stages of the
client's upcoming trial. Notice to [the accused]'s attorney of
record of the trial date is evidence that the notice was given to
[the accused]." Hunter v. Commonwealth, 15 Va. App. 717, 722,
427 S.E.2d 197, 201 (1993).
Second, appellant's signed bond agreement contained the date
of the trial. The November 4, 1993 court order, which also
reflects the December 21, 1993 trial date, indicates that a copy
of this order was mailed to appellant on November 4, 1993.
Nothing in the record suggests that appellant failed to receive a
copy of this order. Moreover, an accused is charged with
knowledge of his trial dates noted in the court's orders. Id. at
722, 427 S.E.2d at 200-01.
Third, in a letter to the trial judge, dated October 11,
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1994 and filed with the record, appellant stated that he was
present at the courthouse on December 21, 1993, "but departed
about one [1] hour later after being advised [he] would not be
able to plea to a reduced charge . . . ."
For these reasons, the trial judge reasonably concluded that
appellant had notice of the trial date. Other than appellant's
letter stating that he left the courthouse on the date of the
trial after he was advised that he would not be able to plead to
a reduced charge, the record contains no explanation of why
appellant was not present at the trial. Therefore, based on this
record, we find that appellant knowingly and voluntarily failed
to appear for his trial. See Cruz v. Commonwealth, 23 Va. App.
113, 122-23, 474 S.E.2d 835, 840 (1996).
In Quintana v. Commonwealth, 224 Va. 127, 145, 295 S.E.2d
643, 651 (1982), cert. denied, 460 U.S. 1029 (1983), the Virginia
Supreme Court held that an accused may by his conduct forfeit his
constitutional rights of confrontation and due process and his
statutory right to be present during his trial. We hold that
appellant, by his conduct of knowingly and voluntarily failing to
appear for his trial, forfeited both his constitutional rights of
confrontation and due process and his statutory rights under Code
§ 19.2-237.
Code § 19.2-237 explicitly authorizes the trial court to
proceed to trial, if, in a misdemeanor case, the accused fails to
appear and plead. Under the circumstances of this case, the
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trial judge did not abuse his discretion in proceeding with the
misdemeanor trial in appellant's absence. 3 "To hold otherwise
would permit a defendant free on bond and having notice of the
trial date to obstruct the course of justice without a compelling
reason. This we refuse to do." Head, 3 Va. App. at 170, 348
S.E.2d at 428.
To allow appellant to appear at his sentencing hearing
fifteen months after conviction and argue that he could not be
sentenced to jail for the crimes because he had knowingly and
voluntarily absented himself from the earlier trial defies
reasonable jurisprudence. We reject appellant's argument that
the court enforced a jail sentence in his absence in violation of
Code § 19.2-237. The record is clear that after appellant's
conviction in absentia, sentencing was continued until he was
located and brought before the court. Thus, he was present when
sentence was imposed. The Code section employs the word
"enforce" rather than "impose." However, "enforce" is defined as
"to put into execution; to cause to take effect." Black's Law
Dictionary 528 (6th ed. 1990). Similar definitions are found in
Webster's Third New International Dictionary. We find no
distinction of substance between a court imposing a jail sentence
or the statutory language prohibiting a court from enforcing a
3
In the exercise of discretion, the trial judge should
consider all of the various factors presented by the evidence and
the circumstances surrounding a defendant's absence. See United
States v. Peterson, 524 F.2d 167, 185 (4th Cir. 1975), cert.
denied, 423 U.S. 1088 (1976).
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jail sentence.
In Head, we analyzed the important policy considerations
which the General Assembly considered in prohibiting the
enforcement of a misdemeanor jail sentence. These considerations
suggested that "the system of justice would be better served by
delaying the imposition of sentence," as was done in this case.
Head, 3 Va. App. at 172, 348 S.E.2d at 429. A defendant's
presence in open court satisfies the policy imperatives discussed
in Head.
Relying on Head, the 1989 Report of the Attorney General
191-92, opined that a sentence "of incarceration . . . may not be
imposed upon a defendant in the defendant's absence. This
conclusion is reinforced by the fact that the defendant must, of
course, be apprehended before any jail sentence may be executed."
Id. at 192. The opinion concluded that "the court may not
proceed to sentence the defendant to a term of incarceration
without the defendant's presence in court." Id. Although
Attorney General's opinions are not binding, they are persuasive
and may be used as an aid in construing legislative intent.
Diggs v. Commonwealth, 6 Va. App. 300, 304-05, 369 S.E.2d 199,
201 (1988).
Accordingly, we hold that the requirements of Code
§ 19.2-237 are met where an accused has voluntarily waived his
right to be present at trial but was present at the hearing where
sentence was imposed. The convictions appealed from are
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affirmed.
Affirmed.
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