COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Bumgardner and Clements 

Argued at Chesapeake, Virginia 

KENNY MURPHY 

 MEMORANDUM OPINION* BY 

v. Record No. 0552-01-1 JUDGE RUDOLPH BUMGARDNER, III 

 APRIL 9, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY 

D. Arthur Kelsey, Judge 

 Robert O'Neill, Public Defender (Office of 

the Public Defender, on brief), for 

appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Randolph A. Beales, Attorney General; 

Richard B. Smith, Senior Assistant Attorney 

General, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Kenny Murphy appeals the revocation of a suspended sentence 

and the order to serve two years in prison. He contends the 

sentence is void because the court imposed it when he was not 

present in violation of Code § 19.2-259. Finding no error, we 

affirm. 

 The defendant was convicted in 1999 of distribution of 

cocaine and received a sentence of five years with three years 

and ten months suspended. Two years later, he was convicted of 

possession of cocaine. At a revocation hearing January 11, 
2001, in the defendant's presence, the trial court revoked two 

years of his 1999 suspended sentence. The court also vacated 

the balance of one year and ten months of that sentence. 

 The Commonwealth moved for reconsideration arguing the 

trial court lacked authority to vacate any part of the original 

sentence. On January 23, 2001, the trial court held another 

hearing in the defendant's presence. It vacated its order of 

January 11, 2001 and took under advisement the motion to 

reconsider vacation of the one-year and ten-month suspension. 

The trial judge stated, "I'll have a final order that you may 

appeal in about a week." Neither the defendant nor his counsel 

objected to the procedure. 

 By letter opinion dated February 5, 2001, the trial court 

granted the Commonwealth's motion to reconsider. The judge 

ordered the clerk to prepare an order reciting that the 

defendant had violated probation and that the court revoked his 

three-year and ten-month suspended sentence, ordered the 

defendant to serve two years, and re-suspended one year and ten 

months. The clerk prepared the order, and the trial court 

entered it February 9, 2001. 

 By letter dated February 7, 2001, defense counsel requested 

the new sentence "be announced in open court in the presents 

[sic] of the defendant." The trial court held a hearing 

February 15, 2001, and the defendant and counsel were present. 

The defendant asked the trial court to explain the fact that the 

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sentence was more stringent and to announce it in open court. 

The trial court explained its decision and the sentence, and 

asked the defendant if he understood. The defendant stated, "I 

understand." After offering allocution, the trial court 

reaffirmed its decision contained in the February 9, 2001 order. 

 The defendant made no objection when the trial court 

announced it would take under advisement the issue of vacating 

the suspended sentence and notify counsel of its decision. The 

defendant never objected to the February 5, 2001 ruling. In 

response to the defendant's request, the court held a hearing 

and explained the decision to the defendant in open court. The 

trial court granted the defendant that which he requested and 

that to which he was entitled. 

A defendant has the right to be present at all stages of a 

criminal trial when his interests can be affected, Jones v. 

Commonwealth, 227 Va. 425, 428, 317 S.E.2d 482, 484 (1984) 

(defendant can waive right to be present at view of crime 

scene), which would include these revocation proceedings. 

Brittingham v. Commonwealth, 10 Va. App. 530, 533-34, 394 S.E.2d 

336, 338-39 (1990) (defendant had right to be present at in

camera review of witness during motion to quash show cause order 

for probation violation). 

The procedure followed in this case is similar to that 

approved in Newberry v. Commonwealth, 191 Va. 445, 459, 61 

S.E.2d 318, 325 (1950). In Newberry, the trial judge took a 

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motion to set a verdict aside under advisement. The judge ruled 

by letter opinion and informed counsel of his decision. Later 

in court and in the defendant's presence, the judge informed 

counsel that he had denied the defendant's motion, pronounced 

sentence, and entered final judgment. 

 The procedure Newberry approved comports with the procedure 

mandated in Staples v. Commonwealth, 140 Va. 583, 587, 125 S.E. 

319, 321 (1924). The Court held the trial court erred when it 

heard argument on the defendant's motion in arrest of judgment, 

overruled it, and entered judgment in his absence. The Court 

remanded the case "with direction to cause the accused to be 

brought personally before [the trial court], and . . . to enter 

judgment against the accused on the verdict." Id. 

In this case, the trial court proceeded in accordance with 

Newberry. The trial court took the issue of its power to vacate 

a previously suspended sentence under advisement. After ruling 

by letter opinion, it held a further hearing, announced its 

decision, and pronounced final judgment in the defendant's 

presence. The trial court did not sentence the defendant in his 

absence. Accordingly, the judgment is affirmed. 

 Affirmed.

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