Present: Judges Elder, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


v. Record No. 2125-94-1 OPINION BY

Frederick B. Lowe, Judge

Andrew G. Wiggin, Assistant Public Defender,
for appellant.

Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Richard B. Smith, Assistant Attorney General,
on brief), for appellee.

Alvin Hurley Daye (defendant) was convicted in a bifurcated
trial of attempted capital murder in violation of Code ? 18.2-31(6)
and sentenced in accordance with the jury’s verdict to forty-five
years in the penitentiary. Defendant complains on appeal that the
trial court erroneously overruled his motion to withdraw his
arraignment plea of not guilty and enter a guilty plea, following
the jury’s guilty verdict but prior to commencement of the
sentencing phase of the proceedings. We disagree and affirm the
The relevant procedural history is uncontroverted. Pursuant
to Code ? 19.2-295.1, a bifurcated trial commenced upon defendant’s
not guilty plea to the indictment and related request for a jury
trial. At the conclusion of the guilt phase of the proceeding, the
jury was correctly instructed that its initial determination
embraced only guilt or innocence and that, upon a finding of
guilty, the jury “shall not fix the punishment until [that] verdict

– 2 –

has been returned and further evidence is heard . . .” (emphasis
added). The jury then retired to consider this threshold issue,
returning shortly with a guilty verdict.
Before beginning the sentencing phase of the trial, the court
pronounced, in open court, its finding of “guilty . . . as charged
in the indictment” and “formally enter[ed]” the “jury’s verdict.”
The order which memorializes this ruling recites that “[t]he court
affirmed the jury’s verdict, finding the defendant guilty . . . .”
Thereafter, but before commencement of the sentencing phase,
defendant moved “for leave to withdraw the plea of not guilty and
enter a plea of guilty” to the “full indictment of attempted
capital murder,” asserting both constitutional and statutory
“entitle[ments]” to the “independent judgment of the court upon the
. . . punishment to be inflicted, uninfluenced by the judgment or
advice of the jury . . . .”1 Noting that defendant’s guilt had
been previously adjudicated by the jury, the trial court overruled
the motion.
The proceedings then reconvened to undertake the sentencing
phase of the trial and, after instruction on those considerations
appropriate to that issue and deliberation, the jury “reached a
verdict” which fixed defendant’s punishment. On defendant’s
motion, the court delayed imposition of the sentence pending the
preparation and consideration of a presentence report and, at a

1Defendant also moved the court to “set aside the jury’s
verdict of guilty,” arguing that it was without sufficient support
in the evidence, an issue not before us on appeal.

– 3 –
later hearing, sentenced defendant “[i]n accordance with the jury’s
Code ? 19.2-295.1 mandates a bifurcated proceeding in all
felony jury trials. The statute divides the trial into two
distinct phases. The jury first resolves the issue of guilt or
innocence and, “upon a finding that the defendant is guilty . . .,
a separate proceeding limited to the ascertainment of punishment
shall be held as soon as practicable before the same jury.” Code
? 19.2-295.1 (emphasis added). The procedure assures the jury
access to “information specific only to sentencing, apart from
considerations of guilt or innocence,” thereby promoting a
punishment appropriate to the circumstances without corrupting the
initial determination of guilt or innocence with prejudice.
Gilliam v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___
(1996); see also Farmer v. Commonwealth, 10 Va. App. 175, 179, 390
S.E.2d 775, 776-77 (1990), aff’d en banc, 12 Va. App. 337, 404
S.E.2d 371 (1991).
It is well established that a jury’s verdict convicting a
defendant, approved by the trial court, decides all material
conflicts related to a defendant’s guilt in favor of the
Commonwealth, Mitchell v. Commonwealth, 178 Va. 407, 410, 17 S.E.2d
370, 370-71 (1941) (citation omitted), and “is conclusive upon that
phase of the case.” Roanoke Ry. & Elec. Co. v. Sterrett, 111 Va.
293, 295, 68 S.E. 998, 999 (1910); see also Wood v. Commonwealth,

– 4 –
8 Va. App. 560, 563, 382 S.E.2d 306, 308 (1989) (citation omitted).
Thus, a jury verdict of guilty emanating from the guilt phase of a
bifurcated trial, approved by the trial court, resolves that issue,
leaving sentence as the sole question remaining to be decided by an
additional verdict incidental to a “separate proceeding.” See Code
? 19.2-295.1.
Here, the jury first returned a verdict finding defendant
guilty of the subject offense. After the trial court accepted this
verdict, both on the record and by order, and overruled defendant’s
motion to set it aside, the determination of defendant’s guilt
became conclusive, rendering his subsequent tender of a guilty plea
irrelevant and moot. The trial then advanced to the “separate
proceeding” to ascertain sentence, the only unresolved issue before
the court, unaffected by defendant’s intervening plea.
Defendant’s reliance upon Graham v. Commonwealth, 11 Va. App.
133, 397 S.E.2d 270 (1990), in support of a different result is
misplaced. There, we considered the efficacy of a defendant’s
mid-trial guilty plea to the “whole indictment” in the context of a
unitary trial and concluded that “[t]he fact that the trial has
begun has no effect on a defendant’s constitutional right to plead
guilty . . . . We can find no limitations either under the
Virginia Constitution, statute or Rules of Court which provide a
time by which a defendant must enter his plea of guilty.” Id. at
141, 397 S.E.2d at 274-75; see Va. Const. Art. I, ? 8; Code
?? 19.2-254, -257; Rule 3A:8. “A guilty plea ‘is itself a
conviction. Like a verdict of a jury it is conclusive. More is

– 5 –
not required; the court has nothing to do but give judgment and
sentence.'” Graham, 11 Va. App. at 141, 397 S.E.2d at 275 (quoting
Kercheval v. United States, 274 U.S. 220, 223 (1927)); see also
Miracle v. Peyton, 211 Va. 123, 126, 176 S.E.2d 339, 341 (1970);
Dixon v. Commonwealth, 161 Va. 1098, 1102, 172 S.E. 277, 278
(1934). We, therefore, held that “a guilty plea may be tendered at
any point prior to a verdict being returned by the jury” with
punishment then to be fixed by the court. Graham, 11 Va. App. at
142, 397 S.E.2d at 275 (emphasis added).
In contrast to the unitary trial in Graham, with its single
verdict deciding both guilt and sentence in one proceeding, the
bifurcated trial is comprised of two separate phases, each
concerned with different issues and resolved by distinct verdicts.
See generally Gilliam, ___ Va. App. at ___, ___ S.E.2d at ___.
Consistent with Graham and related authorities, a defendant may
plead guilty at any time prior to the return of the jury’s verdict
concluding the guilt phase of a bifurcated trial. However,
following publication of a guilty verdict and its acceptance by the
trial court, a plea of guilty is untimely and may not upset the
procedural course of a bifurcated trial.
Accordingly, we find that the trial court correctly declined
to accept defendant’s guilty plea and affirm the conviction.