Wallace v. Commonwealth

• Decision Date: 28 July 2015
• Docket Number: Record No. 1476–14–1.
• Citation: 65 Va.App. 80,774 S.E.2d 482
• Parties: Andrew WALLACE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 80

774 S.E.2d 482

Andrew WALLACE

v.COMMONWEALTH of Virginia.

Record No. 1476–14–1.

Court of Appeals of Virginia, Norfolk.

July 28, 2015.

Charles E. Haden, Hampton, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: PETTY, CHAFIN and DECKER, JJ.

Opinion

PETTY, Judge.

Andrew Wallace entered a conditional guilty plea to one count of indecent liberties with a child in violation of Code § 18.2–370.1. Wallace now appeals the denial of his pretrial motion to dismiss for lack of a speedy trial. On appeal, Wallace argues that the trial court erred in denying his motion to dismiss because the Commonwealth failed to bring him to trial within the period required by Code § 19.2–243 and the Sixth Amendment of the United States Constitution. For the following reasons, we affirm the trial court's ruling.

I. BACKGROUND

On August 23, 2012, Wallace was arrested on a warrant charging indecent liberties with a child. A preliminary hearing was held on December 5, 2012. Thereafter, Wallace was continuously held in custody until the date of his guilty plea. Wallace was indicted on January 14, 2013. Trial was set for February 19, 2013.

On February 19, 2013, the trial court granted Wallace's motion to continue the case to docket call on March 11, 2013. On March 7 and April 1, 2013, Wallace wrote letters to the clerk requesting a new attorney. At docket call on March 11, 2013, the trial court set the case for a jury trial on April 22, 2013.

On April 17, 2013, the trial court granted Wallace's attorney's motion to withdraw and appointed a new attorney. On Wallace's motion, the court continued the case to docket call on May 17, 2013.

On June 7, 2013, the trial court granted the Commonwealth's motion to continue the case to August 26, 2013. On June 10, 2013, Wallace wrote to his second attorney asking him to withdraw and to the clerk's office asking for new counsel. He sent another letter to the clerk's office on July 22, 2013. On August 13, 2013, the trial court granted Wallace's motion for new counsel, appointed a third attorney to represent Wallace, and granted Wallace's motion to continue the case until August 26, 2013.

On August 26, 2013, the trial court granted a joint motion to continue the case to the September 9, 2013 docket call because of the appointment of new defense counsel. Again on September 9, 2013, the trial court granted a joint motion to continue the case to the October 14, 2013 docket call. On October 15, 2013, on Wallace's motion, the trial court continued the case and set a trial date of January 14, 2014, because defense counsel needed more time to prepare.

The day before the scheduled trial, the trial court was notified by someone in the Commonwealth's Attorney's office that the assigned prosecutor's child had a medical emergency and the prosecutor was unable to be present for trial. On January 14, 2014, the trial court granted the Commonwealth's motion to continue the case because of the unavailability of the prosecutor handling the case. Another prosecutor told the court that the assigned prosecutor was unavailable because her presence was required at Duke University Hospital where her son was hospitalized. Wallace objected to the continuance.¹ The trial court continued the case to March 12, 2014.

On January 31, 2014, Wallace's third attorney moved to withdraw. On February 3, 2014, Wallace filed a pro se motion to dismiss the charges against him due to a violation of his right to a speedy trial. On February 11, 2014, the trial court granted Wallace's attorney's motion to withdraw, appointed a fourth attorney to represent Wallace, and on Wallace's motion continued the case until the March 10, 2014 docket call.

On March 10, 2014, the court granted a joint motion to continue the case until a jury trial on June 3, 2014.

On March 19 and April 7, 2014, Wallace sent letters to the clerk's office complaining about his fourth attorney and demanding that his case be dismissed for speedy trial violations. On April 18, 2014, the court granted Wallace's fourth attorney's motion to withdraw, appointed a fifth attorney, and on Wallace's motion continued the case to June 3, 2014.

On April 25, 2014, the trial court granted a joint motion for a continuance until docket call on June 9, 2014 because of the unavailability of Wallace's attorney for the June 3 trial.

On May 16, 2014, on Wallace's motion, the court continued the case to trial on August 19, 2014.

On July 28, 2014, Wallace filed a motion to dismiss for statutory and constitutional speedy trial violations. A hearing on the motion was held on August 5, 2014. Wallace only contested two delays in the record—the time between August 13 and August 26, 2013, and the time following the January 14, 2014 continuance due to the prosecutor's family emergency.

The trial court denied Wallace's motion to dismiss. The court determined that the August delay was attributable to Wallace. The court also determined that the January 14, 2014 continuance tolled the speedy trial period because that delay was for a reason similar to those enumerated in Code § 19.2–243.

The court held that Wallace was not denied his constitutional right to a speedy trial because his repeated requests for new attorneys were made “intentionally to drag the case out” and the delay was Wallace's own fault. Wallace entered a conditional guilty plea on August 7, 2014. Wallace now appeals.

II. ANALYSIS

A. Standard of Review

“ ‘[T]he burden of demonstrating that a delay in commencing trial is excused under Code § 19.2–243 lies upon the Commonwealth.’ ” Brown v. Commonwealth, 57 Va.App. 381, 389, 702 S.E.2d 582, 586 (2010) (quoting Robinson v. Commonwealth, 28 Va.App. 148, 153, 502 S.E.2d 704, 706 (1998) ). “Proper assessment and determination of the merits of a statutory speedy trial claim ‘involve a review of the whole record and a consideration of the trial court orders in the context of the record that comes before’ the court.” Id. at 389–90, 702 S.E.2d at 586 (quoting Baity v. Commonwealth, 16 Va.App. 497, 503, 431 S.E.2d 891, 895 (1993) (en banc)). “In its review, this Court will give deference to the trial court's findings of fact, but review the trial court's ‘statutory interpretations and legal conclusions de novo. ’ ” Id. at 390, 702 S.E.2d at 586 (quoting Sink v. Commonwealth, 28 Va.App. 655, 658, 507 S.E.2d 670, 671 (1998) ). “ ‘On appeal, constitutional arguments present questions of law that this Court reviews de novo.’ ” Turner v. Commonwealth, 63 Va.App. 401, 407, 758 S.E.2d 81, 84 (2014) (quoting Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011) ).

B. Statutory Speedy Trial Claim

Wallace's statutory right to a speedy trial is governed by Code § 19.2–243, which provides in part:

Where a general district court has found that there is probable cause to believe that an adult has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court....

“The five-month requirement translates ‘to 152 and a fraction days.’ ” Howard v. Commonwealth, 55 Va.App. 417, 423, 686 S.E.2d 537, 540 (2009) (quoting Ballance v. Commonwealth, 21 Va.App. 1, 6, 461 S.E.2d 401, 403 (1995) ). The “five-month period begins to run on the day after the preliminary hearing at which cause was found.” Robinson, 28 Va.App. at 152, 502 S.E.2d at 706. Any delays attributable to the defendant are subtracted from the total number of days elapsed between the finding of probable cause to the commencement of trial. See id. “If the time calculated exceeds 152 and a fraction days, the defendant ‘shall be forever discharged from prosecution for such offenses.’ ” Id. (quoting Code § 19.2–243 ).

Furthermore, if the accused is not tried within the period of time specified in the statute, the burden is on the Commonwealth to explain and excuse the delay. Heath v. Commonwealth, 32 Va.App. 176, 181, 526 S.E.2d 798, 800 (2000) (en banc), aff'd, 261 Va. 389, 541 S.E.2d 906 (2001) ; Brown, 57 Va.App. at 389–90, 702 S.E.2d at 586. The Supreme Court has said that “it is the prosecution which has the responsibility of vindicating society's interests in swift and certain justice.” Fowlkes v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664 (1978). Thus, to avoid the statutory remedy of discharge from prosecution, “[t]he Commonwealth must prove that the delay was based on ‘one of the reasons enumerated in [Code § 19.2–243 ] or on [the accused's] waiver, actual or implied, of his right to be tried within the designated period.’ ” Powell v. Commonwealth, 29 Va.App. 745, 748, 514 S.E.2d 785, 787 (1999) (second and third alterations in original) (quoting Baker v. Commonwealth, 25 Va.App. 19, 22, 486 S.E.2d 111, 113, aff'd on reh'g en banc, 26 Va.App. 175, 493 S.E.2d 687 (1997) ).

Code § 19.2–243 enumerates seven excusable reasons for the Commonwealth's “failure to try” the accused within the statutory period. In relevant part, the speedy trial period is tolled when delay is caused:

2. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or accident; [or]

* * * * * *

4. By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth ... [.]

Here, the speedy trial period began on December 6, 2012, the day after Wallace's preliminary hearing. Seventy-six days may be counted against the Commonwealth for the period between December 6, 2012 and February 19, 2013, when Wallace moved to continue the case. Additionally, the sixty-seven days between the Commonwealth's motion for a continuance on June...