                    COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia


JESSE HUTCHINGS
                                           MEMORANDUM OPINION * BY
v.   Record No. 2935-98-2                   JUDGE MARVIN F. COLE
                                               FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HENRICO COUNTY
                         James E. Kulp, Judge

          John W. Parsons (Law Office of Wood & Wood,
          P.C., on brief), for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Jesse Hutchings (appellant) contends the trial court erred in

finding that he waived his right to be present at trial and in

proceeding to trial without him.   We disagree, and affirm the

convictions.

     On December 28, 1997, police arrested appellant for

third-offense concealment of goods.    On April 29, 1998, appellant,

appellant's attorney and the prosecutor signed a document entitled

"AGREEMENT SETTING CASE(S) FOR TRIAL" in which a June 9, 1998

trial date was scheduled "[i]n the event the Grand Jury returns

the bill of indictment A True Bill."    Above the signatures is the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
following statement:    "The Defendant is WARNED that failure to

appear for trial may result in your being tried and convicted in

your absence."

     The grand jury indicted appellant on May 18, 1998 for

concealment and for possessing cocaine.    On June 9, 1998, the

day scheduled for trial, appellant's court-appointed attorney

indicated that appellant was not present.    Defense counsel told

the trial court that he had not heard from appellant and did not

know where he was.     Appellant's attorney also informed the trial

court that appellant "had a case out here a couple of weeks ago.

And I know from his lawyer in that case that he failed to appear

in that also."   Noting the presence of the executed agreement in

the file and the uncertainty of appellant's whereabouts and

whether "we can get him anytime soon to be able to try this

case," the trial court found that appellant "waived his right to

be present" and decided "to try him in his absence."     At the

conclusion of the evidence, the trial court found appellant

guilty as charged.     However, the trial court added that "[i]f

[appellant] is picked up fairly soon and he's got some

reasonable explanation of why he was not present today, the

Court will set these judgments aside and he will be granted a

new trial."

     On September 14, 1998, appellant appeared before the trial

court without his attorney.    The trial court scheduled

sentencing for November 19, 1998.    At the November 19, 1998

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sentencing hearing, in response to the trial court's invitation

to proffer a reason for appellant's absence at trial, defense

counsel declined to provide any explanation regarding why

appellant failed to appear at the June 9, 1998 trial.    The trial

court then imposed sentence on the earlier obtained finding of

guilt.

                         LEGAL STANDARD

     "An accused's right to be present at trial arises from both

the Sixth Amendment and Code § 19.2-259. . . .   Under the modern

rule, however, an accused may forfeit both the constitutional

right and the statutory right to be present at trial."    Cruz v.

Commonwealth, 24 Va. App. 454, 460, 482 S.E.2d 880, 883 (1997)

(en banc) (citations omitted).

          [B]efore proceeding in absentia, the court
          must first determine that the absence of the
          accused denotes a waiver of the right to be
          present at trial. Additionally, in the case
          of an accused who fails to appear at the
          start of trial, the court must also
          determine whether a continuance would be
          "prejudicial to the Commonwealth's case."

Id. at 461, 482 S.E.2d at 883 (citations omitted).   "[T]he

decision to proceed to trial in the absence of the defendant

calls for the exercise of sound discretion by the trial judge."

Id. at 467, 482 S.E.2d at 886.

                        VOLUNTARY WAIVER

     "[A] knowing and voluntary waiver of the right to be

present by a defendant who is voluntarily absent from the entire


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trial cannot be shown unless the defendant (1) has been given

notice of his trial date; and (2) has been warned that his

failure to appear could result in a trial in his absence."        Id.

at 463, 482 S.E.2d at 884.

     Here, appellant and his attorney signed a document entitled

"AGREEMENT SETTING CASE(S) FOR TRIAL."   The document included

the scheduled trial date of June 9, 1998, and warned appellant

"that failure to appear for trial may result in your being tried

and convicted in your absence."   The executed document proved

that appellant "had notice both of the trial date and the

possibility he would be tried in his absence if he failed to

appear."    Id. at 464, 482 S.E.2d at 885.   Therefore, there was

sufficient evidence that appellant voluntarily absented himself

from trial and waived his right to be present.

               CONTINUANCE PREJUDICIAL TO COMMONWEALTH

     The record fails to show that appellant's attorney ever

requested a continuance.   Assuming without deciding that a trial

court must consider whether a continuance would be prejudicial

to the Commonwealth even where a continuance is not sought, we

find sufficient prejudice existed to support the trial court's

decision.

     A "crucial factor to be considered" in determining whether

a continuance would prejudice the government "is the likelihood

that the accused would appear and the trial could take place at

a later date."    Id. at 465, 482 S.E.2d at 886.   Thus, absent

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"any assurance" that an accused "would be available in the

future," a trial court does not abuse its discretion "in

proceeding with the trial in the defendant's absence."      Id. at

466, 482 S.E.2d at 886.

     At the time of appellant's June 9, 1998 trial, appellant's

attorney had no idea where appellant was, much less whether he

would or could appear at a future date.   In fact, defense

counsel acknowledged that appellant had earlier absented himself

from another proceeding.   The record contains sufficient

evidence of prejudice by defense counsel's acknowledgement that

appellant's whereabouts were unknown and the lack of any

assurance that appellant could be located and would be present

at a future date.

     Accordingly, the trial court did not abuse its discretion

in proceeding to trial in appellant's absence.

                                                   Affirmed.




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