COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Petty and Senior Judge Willis Argued at Chesapeake, Virginia KENNETH SINGLETON, S/K/A KENNETH L. SINGLETON OPINION BY v. Record No. 2381-07-1 JUDGE D. ARTHUR KELSEY OCTOBER 7, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles D. Griffith, Jr., Judge Thomas B. Shuttleworth (Charles B. Lustig; Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C., on brief), for appellant. Joanne V. Frye, Assistant A ttorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

The trial court held attorney Kenneth L. Si ngleton in contempt of court for failing to appear for a scheduled trial of hi s client and for directing his clie nt not to appear as well. On appeal, Singleton argues the evidence was insufficien t as a matter of law to find him in contempt. He also contends the trial court erroneously employed summary, rather than plenary, contempt procedures. Finding Singleton’s first ar gument unpersuasive and his second argument procedurally defaulted, we affirm.

I. On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accu sed in conflict with th at of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).-2- In the trial court, Singleton was retained to represent Darrell Simpson on a charge of driving under the influence. The court initially scheduled Si mpson’s trial date for August 30, 2007. Singleton’s office contacted the prosecutor assigned to the case seeking his consent to a continuance. Singleton and the pr osecutor agreed to jointly request a continuance of the trial date. Singleton then told his client “he did not need to a ppear in court on August 30, 2007.” Neither Singleton nor the prosecu tor contacted the trial court regarding the continuance. On August 30, the trial court called Simpson’s case from the docket. The prosecutor was present, but Singleton and his client were not. The prosecutor presen ted a proposed continuance order signed by the prosecutor and Singleton. Th e court refused the proposed order. Simpson’s case returned to the court’s doc ket for a bond hearing on September 12. On that date, the trial court questio ned Singleton about the earlier tria l date. “What authority do you have to excuse someone from court without a judge entering an orde r?” the court asked. Singleton answered, “None, Your H onor.” “And yet, you did?” the court continued. “Yes, Your Honor.” The court then found Singl eton in contempt of court. In his defense, Singleton argue d: “I know I have no aut hority as a judge to excuse anyone from court, but as an officer of the cour t, I did believe, in good fa ith, that after speaking with the Commonwealth Attorne y, we had agreed on a date.” The court sought to clarify Singleton’s point: “You do understa nd that nothing you talk about between counsel is an order until a judge says it’s an order, right?” Singl eton responded that he had signed the continuance order but “didn’t know it was not entered.” He then added: “Your Honor, I tell probably hundreds of people every year that they don’t need to come to court.” The court concluded the discussion with the admonition th at, unless he obtains authority from the trial court to do so, Singleton should never excuse a client from appearing on a scheduled trial date.-3- At no point during this disc ussion or in any later moti on did Singleton contest the summary nature of the contempt finding. Nor did he object to the lack of prior notice, request an opportunity to retain counsel, or dema nd a jury trial on the contempt charge.

II. A. S UFFICIENCY OF THE E VIDENCE — C ONTEMPTUOUS I NTENT On appeal, Singleton argues he c ould not be held in contempt as a matter of law because he lacked any contemptuous intent . Singleton concedes he did not appear for a scheduled trial and advised his client not to appear as well. He nonetheless lacked contemptuous intent, Singleton argues, because he assumed the cour t would enter the cont inuance order on the morning of trial, thus freeing him up to atte nd to other matters without having to make a perfunctory appearance. We find this argument unpersuasive. Virginia courts have long recognized that th e “power to punish for contempt is inherent in, and as ancient as, courts themselves.” Carter v. Commonwealth , 2 Va. App. 392, 395, 345 S.E.2d 5, 7 (1986) (citations omitted). This intrinsic judicial power, in contrast to the procedures regulating it, is “governed not by rule or statute bu t by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Nusbaum v. Berlin , 273 Va. 385, 399, 641 S.E.2d 494, 501 (2007) (citation omitted). The underlying rationale rests not only on the need to enforce judicial orders but also on the more basic need to “preserve the confidence and respec t of the people without which the rights of the people cannot be maintained and enforced.” Carter , 2 Va. App. at 395, 345 S.E.2d at 7 (citations omitted). Virginia law defines contempt “as an act in di srespect of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.” Robinson v. Commonwealth , 41 Va. App. 137, 142, 583 S.E.2d 60, 63 (2003) (quoting Carter , 2-4- Va. App. at 396, 345 S.E.2d at 7 (citation omitted)). When it sets a trial date, a court implicitly orders counsel of record to appear on the date and at the time scheduled. If the attorney appears late and delays the court’s proceedings without a legitimate excuse, the trial court has the discretion to employ its i nherent contempt powers to punish the tardiness. See Brown v. Commonwealth , 26 Va. App. 758, 762, 497 S.E.2d 147, 149 (1998) (upholding contempt against an attorney who arrived at trial forty minutes la ter because he had scheduled “multiple matters in different jurisdictions at the same time”). It necessarily follows that “a lawyer’s willful absence from his clie nt’s trial, without a legitimate reason, is contemptuous.” United States v. Marx , 553 F.2d 874, 876 (4th Cir. 1977);

see also United States v. Linney , 134 F.3d 274, 277 (4th Cir. 1998) ( holding lawyer in contempt for failure to attend trial). As one court persuasively explained: When an attorney fails to app ear in court with his client, particularly in a criminal matte r, the wheels of justice must temporarily grind to a halt. The client cannot be penalized, nor can the court proceed in the absence of counsel. Having allocated time for this case, the court is seldom able to substitute other matters. Thus, the entire administra tion of justice falters. State v. Jenkins , 950 P.2d 1338, 1345 (Kan. 1997) (citation omitted) (affirming contempt of court finding). 1 In this case, Singleton’s explanation falls short of establishing a “legitimate reason,”
Marx , 553 F.2d at 876, for his failure to attend his clie nt’s trial and for his decision to tell his client not to appear on that da te. Singleton had no informati on suggesting that the court had

1 See also United States v. Chapel , 480 F. Supp. 591, 594 (D.P.R. 1979) (holding “a lawyer’s willful absence from his client’s tr ial without a legitimate reason is contemptuous”); State v. Epperson , 950 P.2d 1244, 1248 (Idaho 1997) (affirming finding of direct contempt by attorney who “failed to appear”); In re Contempt Hearing of Nasser , 644 N.E.2d 93, 95 (Ind. 1994) (noting that “most jurisdictions hold that an attorney stands in contempt when the attorney fails to appear at a judicial proceeding that he or she is legally required to attend”); In re Hampton , 919 So. 2d 949, 955 (Miss. 2006) (finding attorney ’s “intention to absent herself from the hearing” amounted to direct criminal contempt).-5- entered the continuance order prior to trial. Nor did he have a ny indication the court would do so on the morning of trial. He simply presumed it would. See In re Contempt Hearing of Nasser , 644 N.E.2d 93, 96 (Ind. 1994) (affirming contempt conviction for attorney who “filed a continuance a few days before trial” and then simply “assumed he would be excused”). His presumption was illegitimately secured, moreover, by the fact that neither he nor his client would be present — leaving the court with no c hoice but to continue the trial date. See In re Hunt , 367 A.2d 155, 157 (D.C. 1976) (affirming tardy lawyer’s contempt conviction when he “deliberately and willfully substituted his own judgment for a direct order of the court”). Though it is often said that “the question of continuances rest s in the sound discretion of the trial court,” Bryant v. Commonwealth , 248 Va. 179, 182, 445 S.E.2d 667, 669 (1994), Singleton’s conduct deprived the co urt of the opportunity to exerci se that judicial discretion. Such conduct was “in disrespect of the court,” Robinson , 41 Va. App. at 142, 583 S.E.2d at 63, because of its presumptuousness. It obstr ucted “the administration of justice,” id. , by disrupting the orderly scheduling of the trial and by precludi ng the trial court from exercising its discretion. It had a tendency to “bring the court into disrepute,” id. , by implying to the public that the lawyers — not the court — grant or deny continuances in criminal cases. In a long array of decisions, we have emphasi zed: “It is the respons ibility of the trial court, not the prosecutor or the accused, to cont rol the court’s docket and schedule criminal cases for trial.” Baker v. Commonwealth , 25 Va. App. 19, 24, 486 S.E.2d 111, 113 (1997); see Powell v. Commonwealth , 29 Va. App. 745, 750, 514 S.E.2d 785, 788 (1999); Baity v. Commonwealth , 16 Va. App. 497, 502, 431 S.E.2d 891, 894 (1993); Williams v. Commonwealth , 2 Va. App. 566, 569, 347 S.E.2d 146, 148 (1986). By not showing up for trial and advising his client to do the same, Singleton undermined the trial court’s auth ority in a manner warranting the sanction of contempt of court.-6- B. S UMMARY (D IRECT ) vs. P LENARY (I NDIRECT ) C ONTEMPT Singleton also argues on appeal that, even if guilty of contempt, he was not afforded the procedural protections require d by due process. Contending the contempt finding cannot be characterized as summary, Singleton claims he should have been given the procedural protections associated with plenary contempt. Th ese rights include advance notice of the charge, the right to counsel, and the righ t to a jury trial. Though our ca se law has touched on the subject in analogous circumstances, Brown , 26 Va. App. at 762, 497 S.E .2d at 149 (upholding summary contempt where the attorney arrived forty minutes late for trial), and othe r jurisdictions appear divided on the subject, 2 we will not engage the issue in this case. Rule 5A:18 precludes appellants from raising for the first time on appeal “grounds asserted as a ‘basis for reversal ’ of the trial court’s judgment.” Blackman v. Commonwealth , 45 Va. App. 633, 642, 613 S.E.2d 460, 465 (2005). A proper ob jection in the trial court serves as a “precondition to appellate review.” Thomas v. Commonwealth , 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005). “Not just any objection will do. It must be both specific and timely — so that the trial judge would know the particular point being made in time to do something about it.” Id. (emphasis in original). An “appellate court, in fairness to th e trial judge, should not . . . put a different twist on a question that is at odds with the question presented to the trial court.” Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999). Am ong the “salutary purposes of our

2 Compare In re Rosen , 315 A.2d 151, 152-53 (D.C. 1974) ( per curiam ) (holding “summary” contempt is proper “where an attorney fails to appear in court”), and Chula v. Superior Court of Orange County , 368 P.2d 107, 110 (Cal. 1962) (holding the “failure of an attorney, without valid excuse, to be present in court” constitutes “a dire ct contempt which the court is empowered to punish summarily”), with In re Davis , 602 N.E.2d 270, 276 (Ohio Ct. App. 1991) (noting that “Ohio has generally treated an attorney’s absence from court as an indirect contempt”), and Jenkins , 950 P.2d at 1347 (the “unexplained absence of an attorney is a hybrid” and the “characterization of the contempt as direct or indirect shou ld be deferred until after the attorney has an opportuni ty to explain his absence”).-7- contemporaneous objection rule” is to give the trial judge “a fair opportunity to rule intelligently on objections while there is still an opportunity to correct errors in the trial court” and to “protect the trial court from litigants asserting error on ap peal that had not been raised at trial.” Vasquez v. Mabini , 269 Va. 155, 163, 606 S.E.2d 809, 813 (2005) (citation omitted). At no point in the trial court did Singleton make the argument he now makes on appeal. 3 Singleton’s summary contempt argument, therefor e, cannot be addressed on appeal because he never raised the issue in the trial court. See Nusbaum , 273 Va. at 402-06, 641 S.E.2d at 503-05 (holding procedural bar of Rule 5:25, the Supreme Court’s anal ogue to Rule 5A:18, precludes argument on appeal that trial court erroneously employed summary, direct contempt procedures instead of plenary, indirect procedures). 4

III. The trial court did not err in finding Singleton in contempt of court for not appearing for trial and for advising his clie nt to do the same. We t hus affirm his conviction.

Affirmed.

3 We do not mean to imply any neglect on Singl eton’s part. He may have had a perfectly good reason for not raising this argument in the tria l court. One such reason is that the statutory “constraints” of Code §§ 18.2-456 and 18.2-457 do not apply to plenary, indirect contempt proceedings. Robinson , 41 Va. App. at 146, 583 S.E.2d at 64. 4 Singleton’s appellate brief doe s not argue that any exception to Rule 5A:18 applies, and we will not sua sponte invoke one on his behalf. See Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ), aff’d by unpublished order , No. 040019 (Va. Oct. 15, 2004). At oral argument, Singleton asserted that he s hould be excused from making an objection to the trial court’ s ruling because he had no oppor tunity to do so. As in Nusbaum , however, “this is not a situation where the ci rcuit court prevented [him] from voicing his objections” in open court. Nusbaum , 273 Va. at 406, 641 S.E.2d at 505 (addressing Code § 8.01-384(A) argument). Nor did the trial court preclude Singleton from asserting a “motion to reconsider” contesting the summary na ture of the contempt proceeding. See id. That he failed to do either was not due to any lack of opportunity.