Bryan Lee Lindsey v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Senior Judge Willis
Argued at Chesapeake, Virginia
BRYAN LEE LINDSEY
MEMORANDUM OPINION* BY
v. Record No. 0767-05-1 JUDGE JERE M. H. WILLIS, JR.
OCTOBER 3, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Kathleen A. Ortiz, Public Defender, for appellant.
Alice T. Armstrong, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
On appeal from his bench trial conviction of malicious wounding, two charges of robbery,
and two charges of using a firearm in the commission of a felony, Bryan Lee Lindsey contends the
trial court lacked jurisdiction to try him because it failed to ascertain upon the record that the
Commonwealth’s attorney and the court concurred in his waiver of a jury trial. We affirm the
judgment of the trial court.
BACKGROUND
At Lindsey’s arraignment, he entered pleas of not guilty. In response to the trial court’s
questions, Lindsey said that he and his attorney had discussed whether a jury or non-jury trial was
more advisable, that he had chosen to have a non-jury trial, and that he understood he had a
constitutional right to a jury trial. Pursuant to Lindsey’s waiver, the trial court proceeded to try him
without a jury. The transcript reflects neither the trial court’s nor the Commonwealth’s attorney’s
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
concurrence in the jury trial waiver. Lindsey raised no objection to that omission. He raised no
objection to the trial court’s proceeding to try his case without the intervention of a jury.
The trial order reflecting Lindsey’s convictions stated:
[T]he defendant was arraigned, and after being advised by his
counsel, pleaded not guilty to the indictments, which pleas were
tendered by the defendant in person, and the Court having made
inquiry and being of the opinion that the accused fully understood
the nature and effects of his pleas, and the accused having been
advised by his attorney and by the Court of his right to trial by
jury, the accused knowingly and voluntarily waived trial by jury
and with the concurrence of the Attorney for the Commonwealth
and of the Court, here entered of record, proceeded to hear and
determine the case without the intervention of a jury as provided
by law.
(Emphasis added.) Lindsey raised before the trial court no objection to that order.
ANALYSIS
In a criminal prosecution, a defendant may waive his right to be tried by a jury. Article 1,
Section 8, of the Virginia Constitution provides: “If the accused plead not guilty, he may, with
his consent and the concurrence of the Commonwealth’s Attorney and of the court entered of
record, be tried by a smaller number of jurors, or waive a jury.”
Code § 19.2-257 provides: “[I]f the accused plead not guilty, with his consent after being
advised by counsel and the concurrence of the attorney for the Commonwealth and of the court
entered of record, the court shall hear and determine the case without the intervention of a jury.”
See also Rule 3A:13(b). The trial order is required by statute to be recorded in the order book, to
set forth “the proceedings, orders and judgments of the [trial court],” and is the official record of
the trial. Wright v. Commonwealth, 4 Va. App. 303, 308 n.4, 357 S.E.2d 547, 550 n.4 (1987)
(quoting Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964)). Thus, a trial
order, duly recorded, reciting the accused’s waiver of trial by jury and the concurrence of the
attorney for the Commonwealth and of the court satisfies the requirement of Code § 19.2-257
-2-
and Rule 3A:13(b) that the waiver and concurrences be “entered of record.” Commonwealth v.
Williams, 262 Va. 661, 668-69, 553 S.E.2d 760, 763 (2001).
“Compliance with the mandatory provisions of Section 8 of the Constitution is essential
to the jurisdiction of the court to try an accused without a jury.” Cunningham, 205 Va. at 208,
135 S.E.2d at 773. “In those cases where the jurisdiction of the court depends upon compliance
with certain mandatory provisions of law, the court’s order, spread upon its order book, must
show such compliance or jurisdiction is not obtained.” Id.
“It is well established in this Commonwealth that a circuit court speaks only through its
written orders.” Roe v. Commonwealth, 271 Va. 453, 457, 628 S.E.2d 526, 528 (2006). “A
recital of proceedings in a judicial order is an ‘absolute verity and it is not subject to collateral
attack.’” Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986) (quoting
Kibert v. Commonwealth, 216 Va. 660, 662, 222 S.E.2d 790, 791 (1976)). Thus, because
Lindsey raised no timely objection to the trial order, we may “presume that the order, as the final
pronouncement on the subject, rather than a transcript that may be flawed by omissions,
accurately reflects what transpired.” Stamper v. Commonwealth, 220 Va. 260, 280-81, 257
S.E.2d 808, 822 (1979).
The trial order recites that both the Commonwealth’s attorney and the trial court
concurred in the jury trial waiver and the bench trial. This recitation satisfies the requirements of
Article 1, Section 8 of the Virginia Constitution and of Code § 19.2-257 regarding waiver of a
jury trial. See Kern, 2 Va. App. at 88, 341 S.E.2d at 400.
Lindsey made no objection in the trial court that the trial order did not accurately reflect
the proceedings at his trial. Thus, his assertion that the order was inaccurate was waived and will
not be considered on appeal. See Rule 5A:18. See also Smallwood v. Commonwealth, 14
Va. App. 527, 529-30, 418 S.E.2d 567, 568 (1992).
-3-
CONCLUSION
The judgment of the trial court is affirmed.
Affirmed.
-4-