                             COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Kelsey
Argued at Salem, Virginia


THOMAS CLAYTON BALDWIN, SR.

v.     Record Nos. 1658-01-3 and 1668-01-3

COMMONWEALTH OF VIRGINIA                                            OPINION BY
                                                             JUDGE JAMES W. BENTON, JR.
THOMAS CLAYTON BALDWIN, S/K/A                                        JULY 6, 2004
THOMAS CLAYTON BALDWIN, SR.

v.     Record Nos. 2289-01-3 and 2291-01-3

COMMONWEATLH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                               Donald R. Mullins, Judge

               Robert M. Galumbeck (Michael L. Dennis; Kelly C. Necessary;
               Dudley, Galumbeck, Necessary and Dennis, on brief), for appellant.

               Stephen R. McCullough, Assistant Attorney General (Jerry W.
               Kilgore, Attorney General, on brief), for appellee.


       The trial judge convicted Thomas Clayton Baldwin, Sr. of discharging a firearm within an

occupied dwelling house and possession of cocaine with the intent to distribute. Baldwin contends

the trial judge erred by: (1) prohibiting Baldwin from attending the judge’s conference in chambers

with the attorneys to discuss post-sentencing motions and afterwards failing to make a record in

open court, (2) failing to hear Baldwin’s post-sentencing objections and motions in a timely manner

and thereby denying him an opportunity to preserve a record for appeal, and (3) failing to suspend

an additional portion of Baldwin’s sentence. For the reasons that follow, we affirm the convictions.
                                                     I.

           In accordance with two plea agreements, Baldwin pled guilty to indictments charging

malicious discharge of a firearm within an occupied dwelling house and possession of cocaine with

the intent to distribute. As a part of the agreement, the Commonwealth requested an order of nolle

prosequi on other indictments. The trial judge granted the prosecutor’s motion for an order of nolle

prosequi, accepted Baldwin’s guilty pleas, and ordered a pre-sentence report.

           At the sentencing hearing, the probation officer testified that Baldwin admitted he had been

selling cocaine for about a year prior to his arrest in July 2000. Describing Baldwin’s employment

history, the probation officer testified that Baldwin said he owned an automobile salvage business

during the years 1995 through 2000. The probation officer also testified that Baldwin’s social

security records indicated he reported no income after 1990, that Baldwin said he only worked odd

jobs between 1990 and 1995, and that Baldwin failed to provide documentation of his income or tax

filings.

           Based on the testimony of the probation officer and a narcotics investigator, the prosecutor

argued that Baldwin’s sparse employment history indicated a long course of selling narcotics and

that Baldwin “was a pretty healthy drug dealer.” Baldwin’s attorney responded that Baldwin had

sold narcotics for only a year and did not have an extensive criminal record. He also asked the trial

judge to take into consideration that the sentencing guidelines recommended a range of

imprisonment from three years and six months to five years and ten months and that the quantity of

cocaine was on the “lower end of the scale.” Indicating that he doesn’t “follow the guidelines . . .

[n]ot always,” the trial judge announced that he was imposing a four-year sentence on the firearm

charge, suspending two years, and a thirty-year sentence on the possession charge, suspending

fifteen years.




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          On April 30, 2001, the same day the judge orally announced the sentence, Baldwin filed a

written objection to the sentence and a motion for modification of the sentence. The pleading

asserted that the trial judge failed to consider the sentencing guidelines and that no evidence proved

Baldwin “had been dealing drugs for a long time”; it requested the judge to set a sentence “within

the discretionary guidelines or to consider . . . alternative sentencing.” According to a written

statement of facts, Baldwin’s objections and motion were to be heard on May 30, 2001. However,

on May 24, 2001, the trial judge entered the sentencing order on the firearm conviction, which

conformed to his oral ruling. On May 30, 2001, the trial judge directed Baldwin’s attorney and the

prosecutor to meet with him in chambers to discuss the basis for Baldwin’s objection and motion.

Baldwin’s attorney informed the judge of the basis of the written motion and also said he intended

to present a chart and copies of other court orders indicating that Baldwin’s sentence was

disproportionate to sentences given to similar defendants. The trial judge denied Baldwin’s

attorney’s request for a formal hearing at which Baldwin would be present and also denied the

attorney’s request “to place on the record, in open court with [Baldwin] present, the proceedings

which occurred in chambers.” The judge also “directed . . . that [the] matters would be set out in an

Order.”

          The following day, May 31, 2001, the trial judge entered the sentencing order on the

narcotics conviction, which conformed to his oral ruling. Baldwin filed additional motions that

same day requesting the trial judge to set aside the sentencing orders, to impose a sentence within

the sentencing guidelines, or to impose an alternative sentence. When Baldwin’s attorney appeared

before the trial judge on June 22, 2001 to present an order memorializing the judge’s May 30, 2001

ruling, the trial judge instead entered an order to stay and suspend the imposition of both sentences

pending a hearing to be held on Baldwin’s previously filed objections and motions. The trial judge




                                                  -3-
also ordered that Baldwin remain in the county jail and not be transferred into the custody of the

Department of Corrections.

        At a hearing on July 12, 2001, the trial judge heard argument on Baldwin’s motions to set

aside the sentences and to modify the sentences. A month after this hearing, the trial judge entered

the final order denying Baldwin’s objections to the sentence and denying his motions for

modification of the sentence. Baldwin appeals the trial judge’s rulings.

                                                   II.

        Baldwin contends that the trial judge erred by considering in his absence the post-sentencing

objection and motion and by failing to make a record in open court. He argues that the judge’s

decision to exclude him from the chambers conference violated his right to be present at the

proceedings as protected by the Sixth Amendment and Code § 19.2-259. The Commonwealth

responds that Baldwin had no constitutional or statutory right to be present.

        It is well accepted as a constitutional principle that an accused has a due process “right to be

present at all stages of the trial where his absence might frustrate the fairness of the proceedings.”

Faretta v. California, 422 U.S. 806, 819 n.15 (1975). In other words, “[s]o far as the Fourteenth

Amendment is concerned, the presence of a defendant [at the hearing] is a condition of due

process to the extent that a fair and just hearing would be thwarted by his absence, and to that

extent only.” Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934).

                The [Supreme] Court has assumed that, even in situations where
                the defendant is not actually confronting witnesses or evidence
                against him, he has a due process right “to be present in his own
                person whenever his presence has a relation, reasonably
                substantial, to the fulness of his opportunity to defend against the
                charge.” Although the Court has emphasized that this privilege of
                presence is not guaranteed “when presence would be useless, or
                the benefit but a shadow,” due process clearly requires that a
                defendant be allowed to be present “to the extent that a fair and
                just hearing would be thwarted by his absence.” Thus, a defendant
                is guaranteed the right to be present at any stage of the criminal

                                                  -4-
               proceeding that is critical to its outcome if his presence would
               contribute to the fairness of the procedure.

Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (citations omitted).

       By statute in Virginia, “[a] person tried for felony shall be personally present during

trial.” Code § 19.2-259. “The statutory phrase ‘during the trial’ has been defined as ‘every stage

of the trial from [the accused’s] arraignment to his sentence, when anything is to be done which

can affect his interest.’” Bilokur v. Commonwealth, 221 Va. 467, 469-70, 270 S.E.2d 747, 749

(1980) (citations omitted).

       We need not decide in this case whether Baldwin had either a constitutional or statutory

right to be present on May 30, 2001, when the trial judge discussed his motions and objections in

chambers with the attorneys, because we conclude that the July 12, 2001 hearing rendered the

issue moot.

       “[T]he general rule [is] that appellate courts do not sit to give opinions on moot questions

or abstract matters, but only to decide actual controversies injuriously affecting the rights of

some party to the litigation.” Hallmark v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967). “[A]

case is moot when the issues presented are no longer ‘live,’” Powell v. McCormack, 395 U.S.

486, 496 (1969), because “an actual controversy must be extant at all stages of review,” to

escape the notion that a case is moot. Preiser v. Newkirk, 422 U.S. 395, 401 (1975). “It is well

settled that where there is no actual controversy, involving real and substantial rights, between

the parties to the record, the case will be dismissed [as moot].” Thomas, Andrews & Co. v.

Norton, 110 Va. 147, 148, 65 S.E. 466, 467 (1909). These principles exist because “‘courts are

not constituted . . . to render advisory opinions, to decide moot questions or to answer inquiries

which are merely speculative.’” Commonwealth v. Harley, 256 Va. 216, 219-20, 504 S.E.2d

852, 854 (1998) (citation omitted). Moreover, even when the parties do not raise the issue of



                                                -5-
mootness, appellate courts should raise the issue sua sponte when the record does not present a

live case or controversy. Friedman’s Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002).

       During the conference in chambers, Baldwin’s attorney explained the basis of Baldwin’s

objection and motion, which sought a re-sentencing “within the discretionary sentencing

guidelines or . . . consider[ation] . . . for alternative sentencing.” Baldwin’s attorney also

informed the trial judge he intended to present exhibits to demonstrate Baldwin’s “sentence

[was] . . . so disproportionate to any . . . sentence previously imposed under similar

circumstances” that Baldwin was denied the opportunity to make an informed decision about his

plea. It is important to note that during the chambers conference neither party adduced any

evidence by way of testimony or exhibits. Based on Baldwin’s attorney’s representations, the

trial judge denied the motion. Significantly, however, a month after this conference, the trial

judge entered an order suspending imposition of the sentences on both the firearm and the

narcotics convictions.

       In pertinent part, Code § 19.2-303 provides as follows:

                 If a person has been sentenced for a felony to the Department of
               Corrections but has not actually been transferred to a receiving unit
               of the Department, the court which heard the case, if it appears
               compatible with the public interest and there are circumstances in
               mitigation of the offense, may, at any time before the person is
               transferred to the Department, suspend or otherwise modify the
               unserved portion of such a sentence. The court may place the
               person on probation for such time as the court shall determine.

       We have previously held that “Code § 19.2-303 is one of [the] exceptions [to Rule 1:1].”

Ziats v. Commonwealth, 42 Va. App. 133, 138, 590 S.E.2d 117, 120 (2003). This is so because,

               [b]y its express terms, Code § 19.2-303 permits the trial court, in
               cases where the defendant “has been sentenced for a felony to the
               Department of Corrections but has not actually been transferred to
               . . . the Department,” to retain jurisdiction beyond the
               twenty-one-day limit of Rule 1:1 to “suspend or otherwise modify
               the unserved portion of such a sentence.”


                                                 -6-
Patterson v. Commonwealth, 39 Va. App. 610, 617, 575 S.E.2d 583, 586 (2003).1 When the

judge entered the order suspending imposition of the sentences, Baldwin was still in the local

jail.

        At the July 12, 2001 hearing, the colloquy between the trial judge and Baldwin’s attorney

established that the hearing was convened to consider Baldwin’s motions and objections. When

the trial judge asked, “Are we here on a motion to reconsider sentencing?,” Baldwin’s attorney

responded, “Yes, sir, and we had filed some objections to the earlier sentencing as well.” During

the hearing, Baldwin’s attorney argued that Baldwin did not have a long history of criminal

violations and that most of Baldwin’s violations were traffic related. Asserting that the trial judge

had speculated that Baldwin was dealing drugs “for quite some time,” Baldwin’s attorney argued

that the record contained no evidence of years of drug dealing. Baldwin’s attorney also introduced

as an exhibit documents concerning the trial judge’s past sentencing decisions in drug cases and

violent crimes cases, and he argued that the trial judge’s deviation from the sentencing guidelines in

Baldwin’s case was uncharacteristic and deprived Baldwin of an adequate opportunity to decide

whether to plead guilty. Baldwin’s attorney further argued that the long sentence was effectively a

life sentence because of Baldwin’s age.

        Denying Baldwin’s motions, the trial judge commented on his decision to impose the

sentences, which levied an active term of seventeen years in prison.

               [T]his man from what I see in the pre-sentence report was a fifty-five
               year old who was in the business of distributing drugs in Tazewell
               County; an activity that is well publicized; and the harm of which is
               well publicized; and this man continued this activity in the face of all
               this adverse information. If this sentence is an effective life sentence

        1
          Baldwin cited no authority for the proposition he urges on appeal that the trial judge
could not vacate and set aside the unserved portion of his sentence or otherwise modify the
unserved portion of the sentence. The Commonwealth conceded at oral argument that the
language of Code § 19.2-303, which permits the trial judge to “otherwise modify the unserved
portion of such a sentence,” authorized the trial judge under the conditions specified in the
statute to vacate, suspend, or otherwise modify the unserved portion of the sentence.
                                                -7-
               then so be it. The sentence I imposed really didn’t have a lot of
               consideration for rehabilitation because I felt that rehabilitation of
               this particular defendant would be very tenuous and the efforts
               wasted. I’m going to deny the motion.

       Simply put, the record is abundantly clear that the July 12, 2001 hearing encompassed all of

the issues contained in Baldwin’s motions, which challenged the trial judge’s verbal rendition of the

sentences and the written orders imposing the sentences. Moreover, Baldwin was present at this

hearing and given the opportunity to present evidence and to otherwise pursue his objection

regarding the sentencing decision. As a result of the hearing on July 12, 2001, Baldwin has

suffered no harm, no loss of rights, and no impediment flowing from the judge’s chambers

conference with the attorneys. Indeed, this evidentiary hearing effectively cured any

impediments and violations that Baldwin contends he suffered as a result of the chambers

conference. Accordingly, we hold that Baldwin’s challenge to the chambers conference raises

issues of “abstract matters” that do not involve an “actual controvers[y] affecting [Baldwin’s]

rights,” Jones, 207 Va. at 971, 154 S.E.2d at 7, and that, therefore, this issue is moot.2 Cf. Curtis

v. Taylor, 625 F.2d 645, 647-49 (5th Cir.), modified and reh’g denied, 648 F.2d 946 (1980)

(holding that a challenge to the adequacy of a statutorily required notice is mooted by the later

issuance of a satisfactory notice).

                                                  III.

       Baldwin also contends that the trial judge violated his due process rights by failing to

hear his objection and motion in a timely manner and by failing to preserve a record for appeal.


       2
          Because we hold that the issue of Baldwin’s presence at the chambers conference is
moot, we need not decide whether the trial judge erred in refusing to hold the proceeding in open
court and in Baldwin’s presence. See generally Sanders v. United States, 373 U.S. 1, 20-21
(1962) (holding that in considering a motion to modify a sentence, the sentencing judge has the
discretion to determine whether a full evidentiary hearing is required and whether the
defendant’s presence is required); State v. Jennings, 729 P.2d 454, 456 (Kan. 1986) (“hold[ing]
that a defendant has no right to a hearing on a motion to modify a sentence or to be present at
consideration of that motion”).
                                                -8-
He argues that he was deprived of an appeal because the “July 12, 2001, hearing before the

circuit court . . . was held after the sentencing orders became final and after [his] right to appeal

the sentencing orders had elapsed.”

       Baldwin filed his objection and motion contesting the judge’s oral pronouncement of

sentences on April 30, 2001. The record reflects that the judge entered the sentencing order for

the firearm conviction on May 24, 2001 and entered the sentencing order for the narcotics

conviction on May 31, 2001. Baldwin timely filed notices of appeal from both conviction

orders. He did not file within twenty-one days a motion to suspend, modify, or vacate the

sentencing orders. See Berean Law Group, P.C. v. Cox, 259 Va. 622, 627, 528 S.E.2d 108, 111

(2000) (holding that “it was incumbent upon the [aggrieved party] to submit timely a written

order to the circuit court suspending, modifying, or vacating” a final order in order for the trial

judge to consider a matter filed within twenty-one days after the final order). Although Baldwin

did file additional objections on May 31, 2001, none of his objections to the sentencing order and

his motions for modification of his sentence sought to establish he was not guilty or to obtain the

complete elimination of his sentences. Rather, he sought to have the trial judge “sentence [him]

within the discretionary sentencing guidelines or to consider . . . alternative sentencing.”

       As we noted in Part II above, Baldwin had not been transferred to the Department on

these felony convictions. Thus, when the trial judge entered the order staying and suspending

imposition of the sentences, the trial judge had the authority under Code § 19.2-303 to grant all

the relief Baldwin sought in his various objections and motions if the trial judge had found that

the evidence warranted such relief. The record, therefore, establishes that Baldwin received a

hearing in which he had the opportunity to present evidence in support of his post-sentencing

motion and he had an adequate opportunity to preserve these issues for appeal. Accordingly, his

claim that he was denied due process in the proceedings below lacks merit.

                                                 -9-
                                               IV.

       Baldwin further contends that the trial judge abused his discretion by failing to suspend a

portion of Baldwin’s sentence at the July 12, 2001 hearing. We hold that the record fails to show

an abuse of discretion.

       Code § 19.2-303 provides the trial judge with the discretion to “suspend or otherwise

modify the unserved portion of [the] sentence.” The trial judge convicted Baldwin upon his

guilty pleas of shooting a firearm into an occupied home and of possessing cocaine with the

intent to distribute. The evidence established that Baldwin had $9,400 worth of cocaine in

several small baggies in his possession and that Baldwin confessed to dealing drugs for about a

year. In reviewing whether the trial judge abused his exercise of discretion in sentencing a

defendant, we do not substitute our judgment for that of the trial judge. Lane v. Commonwealth,

223 Va. 713, 719, 292 S.E.2d 358, 362 (1982). Our review of the record discloses that the trial

judge’s decision is adequately supported by the record. Accordingly, we hold that the judge did

not abuse his discretion in refusing to suspend additional portions of Baldwin’s prison sentence.

       We, therefore, affirm the trial judge’s ruling and the convictions.

                                                                                        Affirmed.




                                              - 10 -
