Pernell Jefferson v. Commonwealth , 23 Va. App. 652 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
PERNELL JEFFERSON
OPINION BY
v Record No. 2943-95-1 JUDGE NELSON T. OVERTON
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
Randolph D. Stowe (Stowe & Stanton, P.C., on
briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Pernell Jefferson entered a plea of guilty to burglary,
reserving the right to appeal on the grounds that his statutory
and constitutional speedy trial rights were violated. We hold
that none of his rights were violated, and we affirm his
conviction.
I
In May 1989, Jefferson, armed with a deadly weapon, broke
into the Chesapeake City house of Regina Butkowski and abducted
her. At some later point, he shot and killed her. In March
1991, he was tried and convicted in Amelia County on the charge
of capital murder. He was sentenced to life imprisonment.
In the January 1992 Criminal Term, Jefferson was indicted in
Chesapeake for (1) breaking and entering the dwelling of
Butkowski at night, while armed with a deadly weapon and with the
intent to commit abduction and (2) abduction. Jefferson moved to
dismiss the indictments, on the double jeopardy ground that he
had already been convicted of Butkowski's murder. On May 7,
1992, the judge dismissed the abduction indictment but refused to
dismiss the burglary charge. Jefferson appealed that ruling and
a continuance order was prepared. The form order was amended
with additions and deletions and was entered on July 13, 1992 in
the following final wording:
ORDER
Upon motion of the defendant, it is
hereby ORDERED that this case is continued
from July 9, 1992 generally because defendant
is appealing the court's ruling on his double
jeopardy motion.
Under the caption "I ask for this:" was the signature of the
defendant's attorney. Below, under the caption "Seen" was the
signature of the Commonwealth's attorney.
The Court of Appeals granted the petition on October 22,
1993, and transferred it to the Supreme Court on June 24, 1994.
The Supreme Court ruled that interlocutory appeals of double
jeopardy claims are prohibited and dismissed the appeal on May 9,
1995.
A trial was set for the burglary charge on October 30, 1995,
then reset for December 7, 1995, because defense counsel was not
available on October 30. On October 27, 1995, Jefferson filed a
motion to dismiss, alleging that his right to a speedy trial was
violated. His motion was denied, and he entered his conditional
guilty plea. His conviction and this appeal followed.
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II
Jefferson was indicted in January 1992 and held continuously
in custody thereafter. He therefore had the statutory right to
be tried within five months from the time of the indictment. See
Code § 19.2-243. The running of this time limit, however, may be
tolled under certain circumstances enumerated in the statute, one
of which is a continuance granted on the motion of the accused or
his counsel. See Code § 19.2-243(4). "[T]o the extent that the
defendant requested or concurred in any delay, that time will be
excluded in determining whether the trial took place within the
mandated time period." Shearer v. Commonwealth, 9 Va. App. 394,
400, 388 S.E.2d 828, 830 (1990).
In the case at bar, Jefferson, by counsel, moved for a
continuance. Jefferson argues that the wording in the trial
court's order, "because defendant is appealing the court's ruling
on his double jeopardy motion," means that the continuance
terminated on May 9, 1995, when the Supreme Court dismissed his
appeal. Under this approach, the first trial date set on October
30 was beyond the five-month period allowed by statute.
We disagree with Jefferson's interpretation. First, the
order clearly states "continued from July 9, 1992 generally."
Although the wording of the order intimates that defense counsel
and the prosecutor may have had an understanding as to the length
of the continuance, that understanding was not memorialized in
any firm way in the record and cannot be a basis for our
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decision. See Woodard v. Commonwealth, 214 Va. 495, 499, 201
S.E.2d 785, 788 (1974); Shearer, 9 Va. App. at 410, 388 S.E.2d at
836. "A court speaks only through its order." Cunningham v.
Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964).
Secondly, the calculation of time asserted by Jefferson is
not sound. The Commonwealth could not possibly conduct a trial
on the very day of the appeal's dismissal, but time would be
running against it. Furthermore, although in retrospect the
appeal was final on May 9, the Commonwealth could not know at
that time whether Jefferson would seek a rehearing or petition
the Supreme Court of the United States for review. See Rule 13,
Rules of the United States Supreme Court (allowing petitions for
writ of certiorari to be filed up to 90 days after the entry of
judgment by a state court of last resort). The indefinite
continuance granted on the defendant's motion did not require the
Commonwealth to stay abreast of, much less predict, the progress
of Jefferson's appeal. We therefore hold that the running of the
speedy trial statute did not resume automatically on the date
that the ruling on the appeal was announced.
When the defendant requests and is granted a continuance for
an indefinite period of time, the speedy trial period will not
recommence until the defendant announces to the Commonwealth that
he stands ready for trial. See Stinnie v. Commonwealth, 22 Va.
App. 726, 730, 473 S.E.2d 83, 85 (1996) (en banc); accord People
v. Baker, 652 N.E.2d 858, 861 (Ill. App. Ct. 1995); State v.
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Lopez, 872 P.2d 1131, 1134 (Wash. Ct. App. 1994). "[W]here the
accused affirmatively acts and invites the delay in the
commencement of trial by such motion, there is no violation of
his speedy trial right." Stinnie, 22 Va. App. at 730, 473 S.E.2d
at 85.
No action was taken in Jefferson's case until the
Commonwealth's attorney and counsel for the defense discussed the
case in late September to set a new trial date. In early
October, the Commonwealth offered October 30, the first available
trial date. Apparently the defendant never announced that he was
ready for trial until the Commonwealth tried to set a trial date
in late September and early October, and in fact did not even
stand ready for trial on the first date set. The Commonwealth,
however, was ready to proceed on October 30, well within the
remaining time under Code § 19.2-243. Jefferson's statutory
speedy trial rights were not violated.
III
Neither did the Commonwealth infringe upon Jefferson's Sixth
Amendment right to a speedy trial. "The determination of whether
an accused has been denied the constitutional right to a speedy
trial requires 'a difficult and sensitive balancing process' in
which the court examines on an ad hoc basis the conduct of both
the state and the accused which led to a delay in prosecution."
Kelley v. Commonwealth, 17 Va. App. 540, 544, 439 S.E.2d 616, 618
(1994) (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)).
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Following the traditional four-part balancing test, we examine
"(1) the length of delay; (2) the reason for the delay; (3) the
defendant's assertion of his right [to a speedy trial]; and (4)
prejudice to the defendant." Kelley, 17 Va. App. at 544, 439
S.E.2d at 618-19; see Holliday v. Commonwealth, 3 Va. App. 612,
616, 352 S.E.2d 362, 364 (1987). A consideration of all of the
factors in light of the relevant circumstances clearly
demonstrates that no violation of Jefferson's constitutional
rights occurred in this case.
The length of the delay from Jefferson's indictment to his
trial was just under four years, almost all of which being
attributable to Jefferson's appeal of the trial court's ruling.
A four-year delay for the felony of burglary, potentially
punishable by life imprisonment, may be excessive. It does not,
however, immediately shock us, especially given the facts here
and past cases in which this factor played a significant role.
See, e.g., Barker, 407 U.S. 514 (over four years for a
misdemeanor); Shavin v. Commonwealth, 17 Va. App. 256, 437 S.E.2d
411 (1993) (over two years for a misdemeanor). "When the charge
is for a misdemeanor or lesser offense, the length of delay that
will be tolerated is less than that when the charge is for a more
serious crime." Kelley, 17 Va. App. at 545, 439 S.E.2d at 619;
see Barker, 407 U.S. at 531.
Secondly, most of the delay resulted from Jefferson's
conduct. "[A]ny period of delay in bringing the defendant to
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trial that is attributable to the defendant cannot be counted
against the state in determining whether the delay was
unreasonable." Kelley, 17 Va. App. at 545, 439 S.E.2d at 619;
see Taylor v. Commonwealth, 12 Va. App. 425, 428, 404 S.E.2d 86,
87-88 (1991); Shearer, 9 Va. App. at 399, 388 S.E.2d at 830.
Therefore, the relevant period for our determination runs, at the
earliest, from May 9 to October 30, 1995, a period of little more
than five months. As discussed above, the delay, if any, in
setting a trial date over the summer resulted from the
defendant's initial continuance to pursue his appeal. The record
does not indicate that the Commonwealth was informed that the
defendant had ended his appeal in the state courts nor that the
defendant was forgoing any appeal in the federal court system.
Even if we attributed the delay solely to the Commonwealth's lack
of diligence in following the defendant's case, this reason for
the delay weighs less than a deliberate or malicious motive on
the part of the prosecutor. See Kelley, 17 Va. App. at 545, 439
S.E.2d at 619; see also Barker, 407 U.S. at 531. Furthermore,
the record indicates that the Commonwealth did in fact make an
effort to contact the defendant's attorney approximately three
months after becoming aware of the Supreme Court order of May 9.
Ultimately, the delay, if any, in setting this case for trial
after May 9, 1995, does not weigh against the government.
The next factor, the assertion of the right to a speedy
trial, also weighs against Jefferson. The fact that the
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defendant asserted or failed to assert his right to a speedy
trial is a consideration in determining whether his
constitutional right to a speedy trial was violated. The record
in the instant case is devoid of any assertion by Jefferson that
he requested a trial during the period after his appeal was
dismissed.
Finally, Jefferson experienced no prejudice by the delay in
question. Three interests in particular are protected by the
Sixth Amendment speedy trial right: "(1) preventing oppressive
pretrial incarceration; (2) minimizing the accused's anxiety; and
(3) limiting the possibility that the defense will be impaired."
Kelley, 17 Va. App. at 546, 439 S.E.2d at 620 (citing Barker,
407 U.S. at 532). Jefferson was incarcerated the entire period
on a previous sentence. No claim was made that his anxiety was
increased by this delay. He pleaded guilty to the charge, and
made no claim that his defense was impaired in any way.
Based upon consideration of the four factors specified in
Barker, we cannot say that Jefferson's constitutional right to a
speedy trial was violated.
For the reasons stated, the conviction is affirmed.
Affirmed.
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Benton, J., dissenting.
Prior to the entry of the July 13, 1992 continuance order,
three and one-half months of the five month statutory speedy
trial limitation had expired. See Code § 19.2-243. The
continuance that Pernell Jefferson received pursuant to the July
13, 1992 order ended on June 1, 1995, the date the Supreme
Court's mandate dismissing the appeal was received in the trial
court. The July 1992 order did no more than execute the
statutory provision that "the time during the pendency of any
appeal in any appellate court shall not be included as applying
to the provisions of this section." Code § 19.2-243. That
provision tolls the time while the pretrial appeal is pending.
See Johnson v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___,
___ (1996) (Lacy, J., and Keenan, J., concurring).
When the mandate was received in the trial court, the appeal
ended. After the mandate had been returned to the trial court,
the appeal could not be said to have "delayed the court in
setting the case for trial." Robbs v. Commonwealth, ___ Va. ___,
___, ___ S.E.2d ___, ___ (1996). Moreover, "delay [that] is
inherent in the orderly process of fixing a trial date . . . is
necessarily included within or factored into the time limitations
of . . . Code section [19.2-243]." Baity v. Commonwealth, 16 Va.
App. 497, 507, 431 S.E.2d 891, 897 (1993) (en banc). Because
Jefferson merely waited for a trial date to be set after the
resolution of his appeal, and did not actively cause the
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additional delay, the delay was factored into the five month
period afforded the Commonwealth.
Thus, I would hold that the delay in the trial that occurred
after June 1, 1995 was charged to the Commonwealth. Because the
trial was not set to occur within the remaining one and one-half
months, I would hold that the conviction must be vacated and that
Jefferson is "forever discharged from prosecution." Code
§ 19.2-243.
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