Jeffrey Nelson Riddick v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued via teleconference
JEFFREY NELSON RIDDICK
MEMORANDUM OPINION *
v. Record No. 0493-95-1 BY JUDGE WILLIAM H. HODGES
JULY 23, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Fay F. Spence for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jeffrey Nelson Riddick (appellant) was convicted by a jury
of the robbery of Robert Johnson and the attempted robbery of
another individual. On appeal, appellant contends his statutory
and constitutional speedy trial rights were violated, and that
the trial court erred in failing to dismiss the indictments
against him. We disagree and affirm the convictions.
I. Statutory Speedy Trial Issue
Code § 19.2-243 provides, in pertinent part, that "the
accused, if . . . held continuously in custody thereafter, shall
be forever discharged from prosecution . . . if no trial is
commenced in the circuit court within five months from the date
. . . probable cause was found by the district court . . . ."
"The five month requirement of Code § 19.2-243 translates to 152
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
and a fraction days." Ballance v. Commonwealth, 21 Va. App. 1,
6, 461 S.E.2d 401, 403 (1995).
Appellant's preliminary hearing for attempted robbery
occurred on August 4, 1993, and he was incarcerated continuously
thereafter. In order to comply with appellant's statutory speedy
trial right, his trial must have commenced within five months of
the preliminary hearing, excluding such periods of delay
attributable to appellant. See Code § 19.2-243(1) through
§ 19.2-243(5).
Following the preliminary hearing, appellant's first court
appearance on these charges occurred on September 30, 1993. As
the parties agree, the fifty-seven days between the preliminary
hearing and September 30, 1993 should be included within the five
month statutory period. See Nelms v. Commonwealth, 11 Va. App.
639, 642, 400 S.E.2d 799, 801 (1991). The parties further agree
that the days between September 30 to December 21, 1993 should be
excluded from the statutory period because appellant joined in
the motion to continue the case during that time. See Code
§ 19.2-243(4).
Thereafter, trial was delayed from December 21, 1993 to
March 1, 1994 (seventy days) and March 1, 1994 to May 12, 1994
(seventy-two days). Assuming for the sake of argument that the
seventy day delay was attributable to the Commonwealth, the March
1, 1994 continuance order clearly demonstrates that appellant
moved for a continuance and agreed to the May 12, 1994 trial
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date. "'[W]here a defendant does not object to the accuracy of
an order within 21 days after its entry, an appellate court may
"presume that the order, as the final pronouncement on the
subject, . . . accurately reflects what transpired."'" Thomas v.
Commonwealth, 16 Va. App. 851, 861, 434 S.E.2d 319, 325 (1993)
(citations omitted), aff'd en banc, 18 Va. App. 454, 444 S.E.2d
275 (1994). Thus, the seventy-two day period should not be
included in the speedy trial computation.
On May 12, 1994, appellant appeared with counsel, was
arraigned for the Johnson robbery and two other robberies, and
tendered guilty pleas. A written plea agreement stated that in
exchange for appellant's guilty pleas, the Commonwealth agreed to
move to nolle prosequi the charge of attempted robbery. The
court withheld acceptance of the plea agreement and ordered a
presentence report.
On July 14, 1994, the trial court rejected the plea
agreement, finding the proposed sentences too lenient for the
crimes committed. Appellant withdrew his guilty pleas, and
another judge was assigned to the case. Following a series of
continuances, a jury began hearing evidence on March 2, 1995 on
the Johnson robbery and the attempted robbery.
Appellant contends that his trial did not commence on May
12, 1994 when he entered his guilty pleas and the plea agreement
was tendered to the trial court. However, we specifically
rejected this argument in Riddick v. Commonwealth, 22 Va. App.
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136, 468 S.E.2d 135 (1996), a case involving another robbery to
which appellant entered a guilty plea on May 12, 1994. We
observed that "'"[t]he trial of a criminal case begins with the
arraignment . . ., and ends with the sentence pronounced upon him
by the court,"'" and concluded that the proceedings against
appellant commenced, for speedy trial purposes, on May 12, 1994.
Id. at 143, 468 S.E.2d at 138 (citations omitted).
Although appellant was not arraigned on the attempted
robbery charge on May 12, 1994, he then agreed to the disposition
of the attempted robbery charge contingent upon the court's
acceptance of the plea agreement. Because that charge was to be
nolle prossed as part of the agreement, arraignment upon the
offense was not necessary. Accordingly, the proceedings on May
12, 1994 commenced appellant's trial for robbery and attempted
robbery within the intendment of Code § 19.2-243.
Including the seventy day period mentioned above, on May 12,
1994 only 127 days of delay arguably attributable to the
Commonwealth had passed since the preliminary hearing. Thus,
appellant's trial did not begin later than the period prescribed
by Code § 19.2-243. The subsequent procedural events constituted
"an extension of that same proceeding, based upon the same
indictment and process and following a regular, continuous order
. . . ." Morgan v. Commonwealth, 19 Va. App. 637, 639, 453
S.E.2d 914, 915 (1995). See Rule 3A:8(c). While these
proceedings doubtless necessitated delay, "Code § 19.2-243
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requires the timely commencement of trial[,] . . . not . . . that
trial be concluded within the specified time." Morgan, 19 Va.
App. at 640, 453 S.E.2d at 915. Thus, appellant's speedy trial
right guaranteed by Code § 19.2-243 was not violated.
II. Constitutional Speedy Trial Issue
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court
of the United States, "recognizing the difficulty in evaluating
speedy trial claims, adopted a balancing test" which "identified
four factors to be assessed by courts in determining whether a
particular defendant has been deprived of his speedy trial right:
(1) the length of delay; (2) the reason for the delay; (3) the
defendant's assertion of his right; and (4) prejudice to the
defendant." Holliday v. Commonwealth, 3 Va. App. 612, 616, 352
S.E.2d 362, 364 (1987). There is, however, no "precise formula
for determining when a constitutional right to a speedy trial has
been abridged." Moten v. Commonwealth, 7 Va. App. 438, 445, 374
S.E.2d 704, 708 (1988).
A significant portion of the delay between appellant's
arrest and the seating of a jury to hear evidence was occasioned
by his own continuance requests. Appellant requested or
concurred in pretrial delays of at least 154 days, from September
30 to December 21, 1993 and from March 1 to May 12, 1994. In
fact, appellant did not object to the delay until October of
1994, after his "trial" for purposes of Code § 19.2-243 had
already commenced. Other than the mere passage of time,
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appellant has demonstrated no prejudice from the delay. Under
these circumstances, appellant's constitutional right to a speedy
trial was not violated.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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