Harris v. Com., Record No. 1608-07-2.

• Decision Date: 28 October 2008
• Docket Number: Record No. 1608-07-2.
• Citation: 667 S.E.2d 809,52 Va. App. 735
• Parties: Robert Andrew HARRIS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

667 S.E.2d 809

52 Va. App. 735

Robert Andrew HARRIS v. COMMONWEALTH of Virginia.

Record No. 1608-07-2.

Court of Appeals of Virginia, Richmond.

October 28, 2008.

G. Russell Stone, Jr. (Bowen, Champlin, Carr, Foreman & Rockecharlie, Richmond, on brief), for appellant.

J. Robert Bryden, II, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and CLEMENTS, JJ.

CLEMENTS, Judge.

Robert Andrew Harris was convicted in a bench trial of attempted robbery, in violation of Code § 18.2-58 and Code § 18.2-26, use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1, discharging a firearm in a public place, in violation of Code § 18.2-280, and possession of a firearm by a juvenile, in violation of Code § 18.2-308.7. On appeal, Harris contends the trial court erred in (1) refusing to dismiss the charges against him on the ground he was not provided an adjudicatory or transfer hearing within the requisite 120-day period set forth in Code § 16.1-277.1(B) and (2) admitting into evidence the prior testimony of a purportedly unavailable witness. Finding no error, we affirm the trial court's judgment and Harris's convictions.

I. BACKGROUND

The relevant facts in this case are not in dispute. On March 3, 2006, Harris, who was 15 years old, was arrested in connection with a robbery pursuant to petitions filed in the juvenile and domestic relations district court (J&DR court). On April 14, 2006, the Commonwealth filed a motion for notice of transfer hearing pursuant to Code § 16.1-269.1(A) and the transfer hearing was scheduled for June 5, 2006. On June 5, 2006, the Commonwealth requested a continuance and the J&DR court rescheduled the transfer hearing for June 26, 2006. On June 26, 2006, at the Commonwealth's request, the J&DR court continued the transfer hearing to July 14, 2006, after determining the transfer report for Harris had not been prepared or presented to the J&DR court and the Commonwealth's subpoenaed witnesses were not present.

On June 28, 2006, the Commonwealth filed a motion to move the hearing date to within 120 days from the date the petitions were filed, or find good cause in writing to waive the requirement, in order to comply with Code § 16.1-277.1. The Commonwealth sent the motion to defense counsel by facsimile, and the J&DR court set the hearing for June 30, 2006. On June 29, 2006, defense counsel left a message for the Commonwealth noting that she was out of the area and unable to attend the June 30 hearing. At the June 30 hearing, the J&DR court found good cause to waive the 120-day rule but failed to provide the basis for the extension in writing. Neither Harris nor his counsel attended the hearing.

Subsequently, Harris filed a motion to dismiss claiming the J&DR court's decision to waive the 120-day rule violated his Sixth Amendment rights and the time requirements of Code § 16.1-277.1. By order dated August 25, 2006, the J&DR court found Harris's constitutional right to counsel and the time requirements of Code § 16.1-277.1 were violated at the June 30 hearing and that the J&DR court improperly extended the 120-day provision without a written basis for good cause. Finding the terms of Code § 16.1-277.1 mandatory, the J&DR court dismissed the petitions.

On September 14, 2006, the Commonwealth filed a motion to vacate the J&DR court's August 25 order. The J&DR court vacated the August 25 order and took the matter under advisement. Following arguments of counsel, the J&DR court scheduled a new transfer hearing for November 1, 2006.

At the transfer hearing, defense counsel cross-examined Pedro Fernandez-Diaz (Diaz), the victim of the offenses. The J&DR court found probable cause and transferred the matters to the circuit court for a trial. Harris also signed an "Agreement Setting Case for Trial" specifying by his agreement with the Commonwealth, that trial was set for December 13, 2006, at 9:30 a.m., without a jury. Above Harris's signature, the agreement provided, in relevant part, as follows:

THE COURT ADVISES [HARRIS] OF THE RIGHT TO BE PRESENT FOR AND DURING THE TRIAL ..., THAT FAILURE TO APPEAR MAY BE DEEMED A WAIVER OF THAT RIGHT, AND THAT THE TRIAL MAY BE HELD IN [HARRIS'S] ABSENCE; ... BY INITIAL [HARRIS] ACKNOWLEDGES THAT THE FOREGOING SENTENCE WAS READ TO [HIM] BY THE COURT.

In addition, the form provided that the J&DR court "certified that all times [Harris] was present in person along with counsel" and also contained the J&DR judge's signature. On November 13, 2006, a grand jury of the circuit court indicted Harris on charges in connection with the robbery.

On December 13, 2006, defense counsel appeared but Harris was not present. The trial court proceeded to take the testimony of Diaz. Diaz testified that he was in the United States illegally and that he planned to return to Mexico on December 22, 2006. He intended to return to the United States in May 2007 but he did not have a return ticket. He stated that his wife and two children lived in Mexico. Diaz also testified as to the events surrounding the offenses. Defense counsel cross-examined him. Following the December 13 hearing, the trial court entered an order dated December 18, 2006, issuing a capias for Harris's arrest and continuing the matters generally pending Harris's apprehension.¹

After Harris was apprehended, the trial court conducted a status hearing on January 9, 2007. At the status hearing, the trial court scheduled a motions hearing for February 14, 2007 and set trial for March 22, 2007.

On February 14, 2007, Harris moved to dismiss the charges because neither he nor his counsel had been present at the June 30, 2006 hearing where the J&DR court extended the 120-day requirement. The trial court held that although the June 30 hearing "wasn't appropriate," the J&DR court subsequently employed the correct remedy by conducting a new transfer hearing on November 1, 2006. The trial court also found Harris suffered no prejudice. In addition, Harris moved to exclude Diaz's testimony taken at the December 13, 2006 hearing in violation of his right to confront the witness. The trial court deferred decision on the motion to exclude.

On March 21, 2007, the trial court held an additional hearing on Harris's motion to exclude. The Commonwealth noted that on January 10, 2007, the Commonwealth issued a subpoena to Diaz at his last known address that was returned "not found." A notation on the subpoena indicated Diaz no longer resided at the address. The Commonwealth proffered that Officer Doyal would have testified that he speaks Spanish and that he visited Diaz's last known address several times but did not locate him. The Commonwealth further proffered that Officer Dew also would have testified that he attempted to contact Diaz but was unsuccessful. Investigator Valentine testified that he contacted the International Criminal Police Organization regarding Diaz but received no response. On February 21, 2006, he went to Diaz's last known address and spoke to a man who informed him that Diaz planned to return to Virginia. He also visited Diaz's relatives who attempted to contact Diaz by telephone without success. The trial court found that "the Commonwealth ha[d] taken whatever steps they reasonably [could] at [that] point to try to find [Diaz]."

The trial court further concluded that Harris was "given notice[] that his failure to appear would result in trial in his absence, and he was given notice of the [originally scheduled December 13, 2006] trial date." The trial court found that, by voluntarily choosing not to appear at the December 13, 2006 proceeding, Harris had "voluntarily waived his presence and voluntarily waived his right to be [there]." Accordingly, the trial court admitted Diaz's transcribed testimony from the December 13, 2006 hearing into evidence.

Harris was subsequently convicted as charged, and this appeal followed.

II. MOTION TO DISMISS

Harris contends the trial court erred in refusing to grant his motion to dismiss. To support that contention, he claims he was denied a substantive right when he was not granted an adjudicatory or transfer hearing within 120 days of the filing of the petitions charging him with the instant offenses, as required by Code § 16.1-277.1(B). Relying on Jamborsky v. Baskins, 247 Va. 506, 442 S.E.2d 636 (1994), he asserts that the right is substantive because Code § 16.1-277.1 contains prohibitory or limiting language. He further claims the J&DR court failed to note the basis of good cause for extending the 120 days in writing and that the remedy for the statutory violations is dismissal of the charges.

Code § 16.1-277.1(B) provides as follows:

If a child is not held in secure detention or is released from same after having been confined, an adjudicatory or transfer hearing on the matters charged in the petition or petitions issued against him shall be conducted within 120 days from the date the petition or petitions are filed.

(Emphasis added). Code § 16.1-277.1(D) provides that the 120-day limitation "may be extended by the court for a reasonable period of time based upon good cause shown, provided that the basis for such extension is recorded in writing and filed among the papers of the proceedings." Here, however, no such finding of good cause was properly made. The question before us, then, is whether the J&DR court's failure to timely conduct an adjudicatory or transfer hearing on the matters charged in the petitions requires the dismissal of those matters. We conclude it does not.

In Jamborsky, the Supreme Court of Virginia decided whether compliance with the 21-day limitation contained in Code § 16.1-269(E) was a jurisdictional requirement for the transfer of a juvenile to the circuit court for trial as an adult. In making that determination, the Court noted as follows:

When asked to determine whether various provisions relating to juvenile transfer proceedings are...