Willie James Byrd, Petitioner-appellant, v. Joe S. Hopper, Warden, Georgia State Prison, Respondent-appellee, 537 F.2d 1303 (5th Cir. 1973)

Appellant, Willie James Byrd, is a Georgia state prisoner serving a sixteen-year sentence imposed by the Superior Court of Fulton County on May 30, 1973, following conviction for three counts of armed robbery. Of the numerous alleged errors he propounds as grounds for the District Court's dismissal of his petition for habeas corpus, only one warrants discussion here: his claim that he was denied due process because he was not present at the time of his sentencing.

At the time of his original trial, Byrd was admitted to bail; he was present when his case was called and pled not guilty; and he was represented throughout his trial and sentencing by retained counsel. Following voir dire and jury selection, the court adjourned for lunch, at which time Byrd voluntarily absented himself from the remainder of the proceedings. Appellant's counsel subsequently informed the trial judge that Byrd had contacted him by telephone without revealing his whereabouts, and that it would be futile to delay trial in an attempt to secure Byrd's presence. The trial proceeded, and the jury found Byrd guilty as charged. The case was then submitted to the jury for sentencing, following the procedure specified in Ga.Code Ann. § 27-2534, which was applicable at the time.¹  When lengthy deliberation failed to yield jury agreement as to Byrd's punishment, the judge withdrew the sentencing responsibility from the jury, as he was authorized to do by section 27-2534,²  and imposed a sentence of sixteen years in the state penitentiary.

Faced with these facts in an appeal from a subsequent state habeas proceeding, the Georgia Supreme Court held that there was no error in the imposition of sentence in absentia where the accused had voluntarily absented himself from the proceedings, citing the "considerable authority to the effect that the voluntary absence of the accused waives his right to be present" during sentencing. Byrd v. Ricketts, 1975, 233 Ga. 779, 213 S.E.2d 610, 611, cert. denied, 422 U.S. 1011, 95 S. Ct. 2636, 45 L. Ed. 2d 675, citing People v. Rife, 18 Ill.App.3d 602, 310 N.E.2d 179 (1974); State v. Kelly, 213 Kan. 237, 515 P.2d 1030 (1973); People v. White, 18 Cal. App. 3d 44, 95 Cal. Rptr. 576 (1971); People v. Colon, 66 Misc.2d 956, 322 N.Y.S.2d 907 (1971). See also In re Jimenez, 269 Cal. App. 2d 621, 75 Cal. Rptr. 152 (1969); People v. Brown, 102 Cal. App. 2d 60, 226 P.2d 609 (1951); Williams v. State, Fla.App., 1975, 310 So. 2d 53; Zambrano v. State, 478 S.W.2d 500 (Tex.Crim.App.1972); Reed v. State, 172 Tex.Cr.R. 122, 353 S.W.2d 850 (1962).

Under the circumstances, there was full compliance with Georgia law, and we agree with the District Court that imposition of sentence in absentia was not improper.³  Although the sentence was ultimately imposed by the judge, Georgia sentencing procedure permitted this to be done only after the jury which tried the case had deliberated concerning the sentence and had been unable to agree to the punishment to be imposed "within a reasonable time." When the petitioner voluntarily left the trial, he knew or should have known that his trial would continue, and that the jury which assessed his guilt would also necessarily consider his sentence. He was also aware that despite his own absence, he continued to be represented by retained counsel at every stage of the proceedings. We are thus convinced that he was not denied due process of law by being sentenced in absentia.

AFFIRMED.