Daymon Ruffin, s/k/a Damion Ruffin v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
DAYMON RUFFIN, S/K/A
DAMION RUFFIN
OPINION BY
v. 	Record No. 0063-00-2 	JUDGE ROBERT J. HUMPHREYS
MARCH 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Mufeed W. Said, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The appellant, Daymon Ruffin, was convicted in his absence of
driving on a suspended driver's license with prior convictions and
sentenced to twelve months in jail. 	On appeal, he contends that
the trial court erred in enforcing the jail sentence in his
absence.
I. 	Background
On July 24, 1999, Officers John McClellan and William
Bondenhamer, of the Petersburg Police Department, issued a summons
to Ruffin for driving on a suspended license with prior
convictions. 	Ruffin was convicted in general district court and
appealed the decision to the circuit court. 	Ruffin executed a

recognizance appeal bond which provided that if he failed to
appear for trial, he could be tried and convicted in his absence,
and would waive his right to a jury trial.
Ruffin's case was set for a jury trial in circuit court on
December 30, 1999. 	Ruffin was present in court the day the trial
date was set and had knowledge of the trial date. 	However, Ruffin
did not appear for trial. 	Consequently, the trial court released
the jury, issued a capias and tried Ruffin in his absence upon a
plea of not guilty. 	The trial court convicted Ruffin and
proceeded to sentence him. 	The following exchange occurred
between the court and Ruffin's counsel:
[COUNSEL FOR APPELLANT]: 	Judge, I wasn't
aware that the court could impose an active
jail sentence without the defendant being
here. 	Are we on sentencing now?
* 	* 	* 	* 	* 	* 	*
THE COURT: 	It's a misdemeanor. 	He can be
tried in his absence. 	And I don't think
there's any prohibition if he willfully
absents himself, which it appears he's done,
his bond indicates that he can be tried in
his absence so there's no prohibition
against sentencing him in his absence on a
misdemeanor.
[COUNSEL FOR APPELLANT]: 	Certainly, Judge,
I wasn't aware of that. 	I would just note
my exception to that.
The trial court then sentenced Ruffin to jail for a period of
twelve months.
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II. 	Analysis
Ruffin argues that the trial court incorrectly sentenced him
in his absence and bases his argument on Code § 19.2-237, which
provides the following:
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.
(Emphasis added.)
Conversely, the Commonwealth argues that Code § 19.2-258
applies to Ruffin's case and permits sentencing a convicted
misdemeanant in his absence. 	That section provides:
In all cases of a misdemeanor upon a plea of
guilty, tendered in person by the accused or
his counsel, the court shall hear and
determine the case without the intervention
of a jury. 	If the accused plead not guilty,
in person or by his counsel, the court, in
its discretion, with the concurrence of the
accused and the attorney for the
Commonwealth, may hear and determine the
case without the intervention of a jury. 	In
each instance the court shall have and
exercise all the powers and duties vested in
juries by any statute relating to crimes and
punishments.
When a person charged with a misdemeanor has
been admitted to bail or released upon his
own recognizance for his appearance before a
court of record having jurisdiction of the
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case, for a hearing thereon and fails to
appear in accordance with the condition of
his bail or recognizance, he shall be deemed
to have waived trial by a jury and the case
may be heard in his absence as upon a plea
of not guilty.
Code § 19.2-258.
The Commonwealth argues that because Code § 19.2-258
addresses situations where defendants on recognizance bonds fail
to appear, and states that a "court shall have and exercise all
the powers and duties vested in juries by any statute relating
to crime and punishments," it applies to Ruffin and provides the
trial court with the authority to "punish" or enforce a jail
sentence upon him in his absence, despite the language in Code
§ 19.2-237 barring the enforcement of a jail sentence on
defendants tried in their absence on indictments or presentments
for misdemeanors. 	We disagree. 1
Statutes cannot be read in a vacuum. 	It is a well-settled
rule of statutory construction that "[i]f apparently conflicting
statutes can be harmonized and effect given to both of them,
they will be so construed." 	Lake Monticello Owners' Assoc. v.
1 As a preliminary matter, the Commonwealth argues Rule
5A:18 bars Ruffin from arguing on appeal that the trial court
erred in imposing the sentence because Ruffin's counsel failed
to state the grounds for his objection. 	However, we conclude
from the transcript that he specifically objected to the
sentencing in Ruffin's absence and the trial judge considered
and ruled on the objection. 	Therefore, Rule 5A:18 does not bar
our review of the merits of this appeal. 	See Elkins v.
Commonwealth, 30 Va. App. 460, 465, 517 S.E.2d 728, 731 (1999);
Wright v. Commonwealth, 4 Va. App. 303, 305, 357 S.E.2d 547, 549
(1987).
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Lake, 250 Va. 565, 570, 463 S.E.2d 652, 655 (1995). 	We do not
read the statutes to be in conflict. 	The two statutes can be
easily "harmonized."
The issue of whether Code § 19.2-258 provides trial courts
with the authority to enforce a jail sentence upon defendants
who have been released on recognizance bonds, or admitted to
bail, but have failed to appear for trial, is easily disposed of
by a close reading of Code § 19.2-258. 	The statute does not
address a court's power to enforce a jail sentence in a
defendant's absence, whereas Code § 19.2-237 does. 	Instead,
Code § 19.2-258 merely provides trial courts with the "powers"
"vested in juries by any statute relating to . . . punishments"
when a defendant fails to appear under the appropriate
circumstances. 	(Emphasis added.)
Virginia law has historically
maintained a clear distinction between the
roles played by judge and jury in criminal
sentencing. 	Under the statutory scheme, the
jury determines the guilt or innocence of
the accused. 	If the jury finds that he is
guilty, it then "ascertains" or "fixes" the
maximum punishment . . . . 	After
conviction, . . . the court may suspend
imposition of sentence or suspend the
sentence in whole or part.
[Thus,] the punishment as fixed by the jury
is not final or absolute, since its finding
on the proper punishment is subject to
suspension by the trial judge . . . . This
procedure makes the jury's finding little
more than an advisory opinion or first-step
decision.
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Batts v. Commonwealth, 30 Va. App. 1, 15-16, 515 S.E.2d 307,
314-15 (1999) (citations omitted). 	Accordingly, the statute
relied upon by the Commonwealth does not address the trial
court's authority to enforce a jail sentence. 	In comparison,
Code § 19.2-237 specifically bars a trial court from enforcing a
jail sentence upon a defendant tried in his or her absence on a
misdemeanor.
In addition, we have recognized the legislature's intent to
protect "important policy considerations which suggest that the
system of justice would be better served by delaying the
imposition of sentence" in cases where the defendant has been
tried in his absence.2 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). 	The legislature provided for these concerns by enacting
Code § 19.2-237, which applies only to indictments and
presentments for misdemeanors. 	We have previously held that
these protections apply to felony cases, as well as
misdemeanors. 	Head, 3 Va. App. at 173, 348 S.E.2d at 429-30.
2 Although not an issue on appeal, we note that Code
§ 19.2-237 uses the word "enforce" rather than "impose." 	The
common meaning of the term "enforce" is "to put in force; to
cause to take effect." 	Webster's Third New International
Dictionary 751 (1993). 	The common meaning of "impose" is "to
cause to be burdened." 	Id. at 1136. 	We find no distinction of
substance between a court imposing a jail sentence and enforcing
a jail sentence. 	See Hohman v. Commonwealth, 96 Vap Unp
0815954(a) (1996), aff'd, 255 Va. 3, 493 S.E.2d 886 (1997).
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We see no reason why they should not also apply to misdemeanors
tried on a warrant or summons.
Were we to adopt the position urged on us by the
Commonwealth, we would have the anomalous situation where, under
the plain language of Code § 19.2-237 and our holding in Head, a
court could not enforce a jail sentence on a defendant who failed
to appear and enter a plea on an indictment for a felony or
misdemeanor, but would be permitted to do so in a trial de novo
appeal of a misdemeanor on a warrant or summons where the
defendant likewise failed to appear.
We, therefore, hold that if a defendant charged with a
misdemeanor fails to appear for trial, the trial court may elect
to (1) issue a capias for failure to appear and continue further
proceedings or (2) proceed to trial in the defendant's absence and
if convicted, sentence the defendant, but in that event and
pursuant to Code § 19.2-237, such sentence may not include an
unsuspended jail sentence. 	Accordingly, we reverse the trial
court's decision in this regard and remand for proceedings
consistent with this decision.
Reversed and remanded.
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