Baity v. Com., 0447-91-3

• Decision Date: 15 June 1993
• Docket Number: No. 0447-91-3,0447-91-3
• Citation: 431 S.E.2d 891,16 Va.App. 497
• Parties: Roger Lee BAITY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 891

431 S.E.2d 891

16 Va.App. 497

Roger Lee BAITY v. COMMONWEALTH of Virginia.

Record No. 0447-91-3.

Court of Appeals of Virginia.

June 15, 1993.

From the Circuit Court of Botetourt County; George E. Honts, III, Judge.

Jonathan M. Rogers, Roanoke (Strickland & Rogers, on briefs), for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BAKER, BARROW, BENTON, COLEMAN, KOONTZ, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

UPON HEARING EN BANC ^*

KOONTZ, Judge.

Roger Lee Baity was convicted of distribution of cocaine in a bench trial in the Circuit Court of Botetourt County on January 23, 1991. On appeal, he contends that he was denied his statutory right to a speedy trial as provided by Code § 19.2-243. Specifically, Baity contends that the fifteen day period granted by the trial court to permit him initially to obtain counsel was wrongfully charged against him when the trial judge denied his January 22, 1991 motion to dismiss for failing to commence his trial within the statutorily mandated time. We agree. Accordingly, we reverse the conviction and discharge Baity from further prosecution of this offense.

I. Background

Baity was indicted for the felony of distribution of cocaine on June 5, 1989. He was arrested for this offense on April 19 1990, and released on bail. On April 25, 1990, Baity was arraigned in the trial court and requested that counsel be appointed to represent him. No order appointing counsel was entered. However, on that date, the court entered an order "on motion of [Baity]" continuing the matter until May 10, 1990, "to allow [Baity] to obtain his own counsel." Baity appeared with counsel on May 10, 1990. On that date, the court continued the matter to the 1990 June term and then on June 21, 1990, continued the matter "generally" upon the motion of the prosecutor. Baity did not concur with these continuances. Subsequently, on December 15, 1990, the court entered an order fixing January 23, 1991, for the commencement of Baity's trial. Baity did not concur with this order. On January 22, 1991, Baity filed a motion to dismiss, asserting that he had not been tried within nine months following his arrest as required by Code § 19.2-243. The trial judge concluded that the delay between April 25, 1990, and May 10, 1990, was attributable to Baity and, thus, extended the nine month period by fifteen days. Upon this conclusion, the trial judge denied Baity's motion. Baity was tried and convicted on January 23, 1991. This appeal followed.

II. The Issues

The pertinent provisions of Code § 19.2-243 mandate that an accused who has been indicted on a felony, but not held in custody, shall be "forever discharged from prosecution therefor" if no trial is commenced in the circuit court within nine months from the date of the arrest of the accused. An exception is provided for such period of time as "the failure to try the accused was caused: [b]y continuance granted on the motion of the accused, or by his concurrence in such motion by the attorney for the Commonwealth." Code § 19.2-243(4).

Baity and the Commonwealth agree that the proper application of these statutory provisions is dispositive of Baity's appeal. It is clear that Baity's trial was not commenced within nine months from the date of his arrest. He was arrested on April 19, 1990 and his trial commenced on January 23, 1991. Absent application of the exception in subparagraph (4) of Code § 19.2-243, Baity's trial was statutorily mandated to commence on or before January 19, 1991. The Commonwealth asserts no other exception to the mandate of this Code section other than the initial fifteen day continuance.

In this factual context, the issue presented is whether the continuance or delay, granted to permit Baity initially to obtain counsel, caused the failure to commence his trial within the time period contemplated by Code § 19.2-243. In addition, because the Commonwealth suggests that our decision in Nelms v. Commonwealth, 11 Va.App. 639, 400 S.E.2d 799 (1991), upon which Baity relies as dispositive of his appeal, is in conflict with Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied,485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988), we also address that issue. The ultimate focus of our analysis is on the distinction we draw between that delay which is inherent in the orderly process of fixing a timely trial date and that delay which is not inherent in that process and which extends the Code § 19.2-243 time limitations.

III. Discussion

In Jones v. Commonwealth, 13 Va.App. 566, 414 S.E.2d 193 (1992), we noted that Code § 19.2-243 has been the subject of numerous opinions and analyses by the appellate courts of this Commonwealth and well established principles guide our review of a claim of a denial of this statutory right. To focus our analysis upon the critical fifteen day period involved in the present case, we must begin with only several of these principles.

It is well settled that Baity had no duty to demand that a trial date be set within the prescribed period of nine months from the date of his arrest in order to preserve his statutory right to a speedy trial. See Walker v. Commonwealth, 225 Va. 5, 9, 301 S.E.2d 28, 30 (1983). In fact, Baity had the right to "stand mute without waiving his rights so long as his actions [did] not constitute a concurrency in or necessitate a delay of the trial." Moten v. Commonwealth, 7 Va.App. 438, 441, 374 S.E.2d 704 706 (1988). Following the initial fifteen day continuance, no action by Baity constituted a concurrence in or necessitated a delay in the commencement of the trial. Moreover, the Commonwealth asserts no other delay attributable to Baity or applicable exception to the statutory mandate for the commencement of Baity's trial on or before January 19, 1991. Thus, it is clear from the record that the only delay arguably attributable to Baity was the fifteen day period granted by the trial judge to permit Baity initially to obtain counsel. It is equally clear from the record that no trial date was set and no attempt was made to set one from Baity's first appearance before the court on April 25, 1990 until December 15, 1990 when, well within the statutory time limitation, the trial judge fixed January 23, 1991, for the commencement of Baity's trial. Baity did not concur with the selection of the trial date. For the reasons that follow, we conclude that the trial judge's action on December 15, 1990 was the cause for the failure to commence Baity's trial within the time period contemplated by Code § 19.2-243.

Although Baity's trial was commenced only four days beyond the time limitation specified in Code § 19.2-243, his claim of a denial of a speedy trial is no mere technicality. "The defendant's right to a speedy trial is one accorded him under the sixth amendment of the United States Constitution and under article I, section 8 of the Virginia Constitution. This right has been supplemented by Code §§ 19.2-241 and 19.2-243, held to be a legislative interpretation of what constitutes a speedy trial." Stephens v. Commonwealth, 225 Va. 224, 229-30, 301 S.E.2d 22, 25 (1983) (footnote omitted).

Code § 19.2-241 requires that "[t]he judge of each circuit court shall fix a day of his [or her] court when the trial of criminal cases will commence" and that the accused "shall be tried within the time limits fixed in [Code] § 19.2-243." This Code section is, in part, a legislative acknowledgement of the obvious imperative that the trial judge, rather than the prosecutor or the accused, controls the trial docket. Code § 19.2-243 contemplates an orderly procedure for setting criminal trial dates to ensure that the accused is afforded a statutory speedy trial without penalizing the Commonwealth for delays not fairly attributable to it. "[S]ome delay is unavoidable and some is essential to due process." Stephens, 225 Va. at 231, 301 S.E.2d at 26. In this context, Code § 19.2-243 is, in part, a further legislative acknowledgement of the common experience of delay in the management of the trial docket and the process of fixing trial dates by trial judges. Thus, the time limitations for the commencement of criminal trials specified in Code § 19.2-243 contemplate that circumstances beyond the control of the trial judge and the parties, such as the sickness of a witness, or those caused, requested or concurred in by the accused, may warrant a delay in the trial to ensure a fair trial to both the accused and the Commonwealth. Accordingly, such delays in the commencement of trial will toll the running of the time limitations specified in this Code section. However, that delay which is inherent in the process of fixing a timely trial date and which is accommodated by the statutory time limitations is not a delay that extends these time limitations. For this reason, the proper analysis of a claim of a denial of a Code § 19.2-243 speedy trial involves more than a mere determination that a particular delay is attributable to and benefits the accused.

When the accused is not tried within the applicable time specified in Code § 19.2-243, this Code section invokes an assessment of the responsibility for delay that caused "the failure to try the accused " within the specified time. This assessment, however, does not lend itself to the application of a mathematical or accounting approach of debits and credits of periods of time assigned either to the accused or the Commonwealth, ascertained only from the text of trial court orders in the record. Although such orders facilitate the assessment of responsibility for delay and the determination of the merits of a Code § 19.2-243 claim, such orders do not and should not limit the scope of appellate review. The appellate inquiry is not made merely to determine in a vacuum delay attributable to one party or the other and then to debit or credit the appropriate party for that...