Baldwin v. Com.

• Citation: 43 Va.App. 415,598 S.E.2d 754
• Decision Date: 06 July 2004
• Docket Number: Record No. 1668-01-3,Record No. 2289-01-3,Record No. 1658-01-3,Record No. 2291-01-3.
• Parties: Thomas Clayton BALDWIN, Sr. v. COMMONWEALTH of Virginia. Thomas Clayton Baldwin, s/k/a Thomas Clayton Baldwin, Sr. v. Commonwealth of Virginia.
• Court: Court of Appeals of Virginia

598 S.E.2d 754

43 Va.App. 415

Thomas Clayton BALDWIN, Sr. v. COMMONWEALTH of Virginia.

Thomas Clayton Baldwin, s/k/a Thomas Clayton Baldwin, Sr. v. Commonwealth of Virginia.

Record Nos. 1658-01-3, 1668-01-3, 2289-01-3, 2291-01-3.

Court of Appeals of Virginia, Salem.

July 6, 2004.

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

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

Present: BENTON, ELDER and KELSEY, JJ.

BENTON, Judge.

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.

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 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, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (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, 54 S.Ct. 330, 333, 78 L.Ed. 674 (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 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, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (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, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (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, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (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 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...