                        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
                               - 3 -
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
                              - 4 -
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
                              - 5 -
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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