Jeffrey Nelson Riddick v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 23, 1996
• Docket: 0493951
• Status: Unpublished

Opinion

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

-2- 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.

-3- 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

-4- 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,

-5- 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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