Jefferson v. Com.

• Decision Date: 31 December 1996
• Docket Number: No. 2943-95-1,2943-95-1
• Citation: Jefferson v. Com., 479 S.E.2d 80, 23 Va.App. 652 (Va. App. 1996)
• Parties: Pernell JEFFERSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 80

479 S.E.2d 80

23 Va.App. 652

Pernell JEFFERSON v.COMMONWEALTH of Virginia.

Record No. 2943-95-1.

Court of Appeals of Virginia Norfolk.

Dec. 31, 1996.

Randolph D. Stowe, Norfolk (Stowe & Stanton, P.C., on briefs), for appellant.

Michael T. Judge, Assistant Attorney General(James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BAKER, BENTON and OVERTON, JJ.

OVERTON, Judge.

Pernell Jefferson entered a plea of guilty to burglary, reserving the right to appeal on the grounds that his statutory and constitutional speedy trial rights were violated.We hold that none of his rights were violated, and we affirm his conviction.

I

In May 1989, Jefferson, armed with a deadly weapon, broke into the Chesapeake City house of Regina Butkowski and abducted her.At some later point, he shot and killed her.In March 1991, he was tried and convicted in Amelia County on the charge of capital murder.He was sentenced to life imprisonment.

In the January 1992 Criminal Term, Jefferson was indicted in Chesapeake for (1) breaking and entering the dwelling of Butkowski at night, while armed with a deadly weapon and with the intent to commit abduction and (2) abduction.Jefferson moved to dismiss the indictments, on the double jeopardy ground that he had already been convicted of Butkowski's murder.On May 7, 1992, the judge dismissed the abduction indictment but refused to dismiss the burglary charge.Jefferson appealed that ruling and a continuance order was prepared.The form order was amended with additions and deletions and was entered on July 13, 1992 in the following final wording:

ORDER

Upon motion of the defendant, it is hereby ORDERED that this case is continued from July 9, 1992 generally because defendant is appealing the court's ruling on his double jeopardy motion.

Under the caption "I ask for this:" was the signature of the defendant's attorney.Below, under the caption "Seen" was the signature of the Commonwealth's attorney.

The Court of Appeals granted the petition on October 22, 1993, and transferred it to the Supreme Court on June 24, 1994.The Supreme Court ruled that interlocutory appeals of double jeopardy claims are prohibited and dismissed the appeal on May 9, 1995.

A trial was set for the burglary charge on October 30, 1995, then reset for December 7, 1995, because defense counsel was not available on October 30.On October 27, 1995, Jefferson filed a motion to dismiss, alleging that his right to a speedy trial was violated.His motion was denied, and he entered his conditional guilty plea.His conviction and this appeal followed.

II

Jefferson was indicted in January 1992 and held continuously in custody thereafter.He therefore had the statutory right to be tried within five months from the time of the indictment.SeeCode§ 19.2-243.The running of this time limit, however, may be tolled under certain circumstances enumerated in the statute, one of which is a continuance granted on the motion of the accused or his counsel.SeeCode§ 19.2-243(4)."[T]o the extent that the defendant requested or concurred in any delay, that time will be excluded in determining whether the trial took place within the mandated time period."Shearer v. Commonwealth, 9 Va.App. 394, 400, 388 S.E.2d 828, 830(1990).

In the case at bar, Jefferson, by counsel, moved for a continuance.Jefferson argues that the wording in the trial court's order, "because defendant is appealing the court's ruling on his double jeopardy motion," means that the continuance terminated on May 9, 1995, when the Supreme Court dismissed his appeal.Under this approach, the first trial date set on October 30 was beyond the five-month period allowed by statute.

We disagree with Jefferson's interpretation.First, the order clearly states "continued from July 9, 1992 generally."Although the wording of the order intimates that defense counsel and the prosecutor may have had an understanding as to the length of the continuance, that understanding was not memorialized in any firm way in the record and cannot be a basis for our decision.SeeWoodard v. Commonwealth, 214 Va. 495, 499, 201 S.E.2d 785, 788(1974);Shearer, 9 Va.App. at 410, 388 S.E.2d at 836."A court speaks only through its order."Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773(1964).

Secondly, the calculation of time asserted by Jefferson is not sound.The Commonwealth could not possibly conduct a trial on the very day of the appeal's dismissal, but time would be running against it.Furthermore, although in retrospect the appeal was final on May 9, the Commonwealth could not know at that time whether Jefferson would seek a rehearing or petition the Supreme Court of the United States for review.SeeRule 13, Rules of the United States Supreme Court(allowing petitions for writ of certiorari to be filed up to 90 days after the entry of judgment by a state court of last resort).The indefinite continuance granted on the defendant's motion did not require the Commonwealth to stay abreast of, much less predict, the progress of Jefferson's appeal.We therefore hold that the running of the speedy trial statute did not resume automatically on the date that the ruling on the appeal was announced.

When the defendant requests and is granted a continuance for an indefinite period of time, the speedy trial period will not recommence until the defendant announces to the Commonwealth that he stands ready for trial.SeeStinnie v. Commonwealth, 22 Va.App. 726, 730, 473 S.E.2d 83, 85(1996)(en banc);accordPeople v. Baker, 273 Ill.App.3d 327, 210 Ill.Dec. 56, 59, 652 N.E.2d 858, 861(1995);State v. Lopez, 74 Wash.App. 264, 872 P.2d 1131, 1134(1994)."[W]here the accused affirmatively acts and invites the delay in the commencement of trial by such motion, there is no violation of his speedy trial right."Stinnie, 22 Va.App. at 730, 473 S.E.2d at 85.

No action was taken in Jefferson's case until the Commonwealth's attorney and counsel for the defense discussed the case in late September to set a new trial date.In early October, the Commonwealth offered October 30, the first available trial date.Apparently the defendant never announced that he was ready for trial until the Commonwealth tried to set a trial date in late September and early October, and in fact did not even stand ready for trial on the first date set.The Commonwealth, however, was ready to proceed on October 30, well within the remaining time under Code§ 19.2-243.Jefferson's statutory speedy trial rights were not violated.

III

Neither did the Commonwealth infringe upon Jefferson's Sixth Amendment right to a speedy trial."The determination of whether an accused has been denied the constitutional right to a speedy trial requires 'a difficult and sensitive balancing process' in which the court examines on an ad hoc basis the conduct of both the state and the accused which led to a delay in prosecution."Kelley v. Commonwealth, 17 Va.App. 540, 544, 439 S.E.2d 616, 618(1994)(quotingBarker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101(1972)).Following the traditional four-part balancing test, we examine "(1) the length of delay; (2) the reason for the delay; (3)the defendant's assertion of his right [to a speedy trial]; and (4) prejudice to the defendant."Kelley, 17 Va.App. at 544, 439 S.E.2d at 618-19;seeHolliday v. Commonwealth, 3 Va.App. 612, 616, 352 S.E.2d 362, 364(1987).A consideration of all of the factors in light of the relevant circumstances clearly demonstrates that no violation of Jefferson's constitutional rights occurred in this case.

The length of the delay from Jefferson's indictment to his trial was just under four years, almost all of which being attributable to Jefferson's appeal of the trial court's ruling.A four-year delay for the felony of burglary, potentially punishable by life imprisonment, may be excessive.It does not, however, immediately shock us, especially given the facts here and past cases in which this factor played a significant role.See, e.g., Barker, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(over four years for a misdemeanor);Shavin v. Commonwealth, 17 Va.App. 256, 437 S.E.2d 411(1993)(over two years for a misdemeanor)."When the charge is for a misdemeanor or lesser offense, the length of delay that will be tolerated is less than that when the charge is for a more serious crime."Kelley, 17 Va.App. at 545, 439 S.E.2d at 619;seeBarker, 407 U.S. at 531, 92 S.Ct. at 2192.

Secondly, most of the delay resulted from Jefferson's conduct."[A]ny period of delay in bringing the defendant to trial that is attributable to the defendant cannot be counted against the state in determining whether the delay was unreasonable."Kelley, 17 Va.App. at 545, 439 S.E.2d at 619;seeTaylor v. Commonwealth, 12 Va.App. 425, 428, 404 S.E.2d 86, 87-88(1991);Shearer, 9 Va.App. at 399, 388 S.E.2d at 830.Therefore, the relevant period for our determination runs, at the earliest, from May 9 to October 30, 1995, a period of little more than five months.As discussed above, the delay, if any, in setting a trial date over the summer resulted from the defendant's initial continuance to pursue his appeal.The record does not indicate that the Commonwealth was informed that the defendant had...