Commonwealth v. Smith

• Court: Virginia Court of Appeals
• Writing for the Court: D. ARTHUR KELSEY
• Decision Date: 20 November 2012
• Docket Number: Record No. 0985-12-3
• Citation: Commonwealth v. Smith, Record No. 0985-12-3 (Va. App. Nov 20, 2012)
• Parties: COMMONWEALTH OF VIRGINIA v. ELBERT SMITH, JR.

COMMONWEALTH OF VIRGINIA

v.ELBERT SMITH, JR.

Record No. 0985-12-3

COURT OF APPEALS OF VIRGINIA

NOVEMBER 20, 2012

UNPUBLISHED

Present: Judges Kelsey, Petty and Senior Judge Haley

Argued by teleconference

MEMORANDUM OPINION^*

BY JUDGE D. ARTHUR KELSEY

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY

Patrick R. Johnson, Judge

Eugene Murphy, Senior Assistant Attorney General

(Kenneth T. Cuccinelli, II, Attorney General, on briefs), for

appellant.

Elbert Smith, Jr., pro se.

The trial court entered a pretrial order dismissing with prejudice two indictments charging Elbert Smith, Jr., an incarcerated inmate, with malicious wounding and assault of a fellow prisoner. See Code §§ 18.2-51, 18.2-55. Considering two earlier indictments, which had alleged the same criminal conduct and were dismissed by a nolle prosequi order, the trial court held the later indictments against Smith violated the Speedy Trial Act, Code § 19.2-243. On appeal, the Commonwealth contends the trial court erred as a matter of law. We agree, reverse the dismissal order, and remand the case for trial.

I.

A grand jury indicted Smith on aggravated malicious wounding and assault charges in July 2011. See Cir. Ct. Case Nos. CR11000526, CR11000527. Smith elected to appear pro se with standby counsel. During the proceeding, Smith's standby counsel entered into a consent order continuing the case for approximately three months. See App. at 31-32. In December2011, before jeopardy attached,¹ the trial court found good cause to grant the Commonwealth's motion to nolle prosequi the charges. Because of ongoing discovery disputes, the court stated, neither side was prepared to try the case on the scheduled trial date.

In February 2012, a second grand jury re-indicted Smith on similar charges arising out of the same conduct. See Cir. Ct. Case Nos. CR12000086, CR12000087. Smith moved to dismiss the new indictments under the speedy trial statute, arguing the trial court had erred in finding good cause to grant the earlier nolle prosequi motion. Smith claimed the five-month speedy trial deadline had already expired by the time the nolle prosequi order was entered. Under this reasoning, Smith "asserted that his speedy trial rights were being violated" in the second proceeding "because of the Commonwealth's failure to bring him to trial within five months" in the first proceeding. Trial Court's Finding of Fact ¶ 22 (App. at 34).

The trial court accepted Smith's invitation to revisit its earlier decision to grant the nolle prosequi motion. The court acknowledged that, during the first proceeding, it "did find merit" in the Commonwealth's tolling argument and made a "preliminary ruling" that the statute was tolled during the three-month continuance. App. at 29. Based upon transcripts that "were not available" during the earlier proceeding, however, the court changed its mind and held Smith's standby counsel was not authorized to sign the consent order. Id. at 29-30.

Retracting its earlier "preliminary ruling," id. at 29, concerning the three-month tolling period, the trial court reasoned that the speedy trial deadline would have expired shortly after the court's ruling from the bench granting the nolle prosequi, but before the entry of the written order memorializing the bench ruling. The untolled five-month period, under the trial court'sreconsidered view, had expired prior to the entry of the written order granting the nolle prosequi. Upon this premise, the trial court dismissed with prejudice the second set of indictments.²

The trial court acknowledged that Smith never moved to dismiss the first set of indictments at any point in the earlier proceeding. This did not matter, the court concluded, because Smith's "failure to assert his speedy trial rights" in the earlier case "did not act as a waiver" of those rights. Id. at 35.

II.

Under settled principles, a nolle prosequi terminates a criminal prosecution and leaves the situation "the same as if the Commonwealth had chosen to make no charge" at all. Wright v. Commonwealth, 52 Va. App. 690, 700-01, 667 S.E.2d 787, 792 (2008) (en banc) (citation and internal quotation marks omitted). A later indictment constitutes a "new" charge, wholly "distinct from the original charge." Id. Such a case involves "two separate prosecutions arising from the same criminal conduct," id., with the first being considered an "entirely different proceeding" from the second, Duggins v. Commonwealth, 59 Va. App. 785, 793, 722 S.E.2d 663, 667 (2012). Put another way, once a nolle prosequi has been entered, "the slate is wiped clean," as if the charges "had never existed." Kenyon v. Commonwealth, 37 Va. App. 668, 675, 561 S.E.2d 17, 20-21 (2002) (emphasis in original and citations omitted).

If a future grand jury re-indicts a defendant, the speedy trial clock begins anew. "When an original indictment is supplanted by a second indictment, the terms contemplated by [Code § 19.2-243] are to be counted from the time of the second indictment." Harris v. Commonwealth, 258 Va. 576, 585, 520 S.E.2d 825, 830 (1999) (alteration in original) (quoting Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)); see also Miller v. Commonwealth, 217 Va. 929, 934, 234 S.E.2d 269, 273 (1977) (holding that, "when the original indictment is supplanted by a second indictment, the time contemplated by the statute is to be counted from the time of the second indictment").³

The trial court accepted Smith's assertion that this run-anew principle does not apply when a court, in a subsequent prosecution, determines that an earlier prosecution, discontinued upon a finding of good cause for a nolle prosequi, should have been terminated under the speedy trial statute — even though the defendant never moved to dismiss the earlier proceeding as violative of his speedy trial rights. We reject this view for several reasons.

First, the run-anew principle has long been an axiom of Virginia law. It has been repeated many times without the first hint of qualification: Because the first prosecution is an "entirely different proceeding" from the second, Duggins, 59 Va. App. at 793, 722 S.E.2d at 667, the deadlines of the speedy trial statute "are to be counted from the time of the second indictment," Brooks, 210 Va. at 322, 171 S.E.2d at 246 (citing Mealy v. Commonwealth, 193 Va. 216, 218, 219, 68 S.E.2d 507, 509 (1952); Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661, 672, 675, 682 (1851)). Absent a challenge of constitutional dimensions, no Virginia appellatecourt has ever held that the run-anew principle is subject to any exceptions.⁴ We, too, are unwilling to recognize any.⁵

Second, the prosecution of Smith under the first set of indictments ended in a nolle prosequi based upon a finding of good cause. The trial court found good cause, in part, because of its preliminary ruling that the consent continuance order tolled the speedy trial clock. After the nolle prosequi order became final, however, the trial court had no power to reconsider its tolling decision or to conclude the earlier case should have been dismissed under the speedy trial statute, rather than discontinued pursuant to the Commonwealth's nolle prosequi motion. Such collateral attacks on nolle prosequi discontinuances are unknown to Virginia law. As we recently explained:

What we have never said — and, as far as we know, no court has ever said — is that a reprosecution following a nolle prosequi should be barred merely because the trial judge in the later proceeding disagrees with the trial judge's finding of good cause in the earlier proceeding. Several reasons explain why. To begin with, the earlier nolle prosequi decision was made in an entirely different proceeding. It cannot be revisited after the initialproceeding becomes final and incapable of reconsideration under Rule 1:1. All the more, it cannot be collaterally attacked in a subsequent proceeding.

Duggins, 59 Va. App. at 792-93, 722 S.E.2d at 667; see also Moore v. Commonwealth, 59 Va. App. 795, 722 S.E.2d 668 (2012).

Finally, we disagree with the trial court's holding that Smith's collateral attack of the earlier nolle prosequi order on speedy trial grounds was unaffected by the fact that he never moved to dismiss his first indictments after the alleged expiration of the statutory deadline. The speedy trial statute is not "self-operative" and an alleged violation of the statute does not "void" a judgment. Brooks, 210 Va. at 321-22, 171 S.E.2d at 246. "Failure to invoke the provisions of the statute until after final judgment is a waiver of the protection afforded thereunder." Id. at 321, 171 S.E.2d at 246. Because Smith never moved to dismiss his earlier indictments on speedy trial grounds before the nolle prosequi dismissal order became final, he could not collaterally attack the issue in the later proceeding. Id. (applying this principle to a habeas corpus action).⁶

III.

By reconsidering its decision in the first proceeding and not running the speedy trial deadline anew in the second proceeding, the trial court erroneously concluded Code § 19.2-243 barred Smith's prosecution under the second set of indictments. We reverse the court's dismissal order and remand the case for trial.

Reversed and remanded.

Petty, J., concurring.

While I agree that this case should be reversed and remanded for trial, I cannot agree with the analysis by the majority. Therefore, I write separately.

As applicable to this case, Code § 19.2-243 requires that any person charged with a felony, "if he is held continuously in custody . . . , shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months" from the date of his arrest. (Emphasis added). "The five month requirement of Code § 19.2-243 translates to 152 and a fraction days." Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995).⁷

Here, Smith was indicted for aggravated malicious wounding and assault by a prisoner on July 11, 2011 and was arraigned on...