Jiron-Garcia v. Com.

• Citation: 633 S.E.2d 744,48 Va. App. 638
• Decision Date: 22 August 2006
• Docket Number: Record No. 0204-05-2.
• Parties: Juan Angel JIRON-GARCIA, s/k/a Julio Cesar Fuentes-Pacheco, a/k/a Luis Alberto Martinez-Garcia, a/k/a Juan Alfredo Martinez-Garcia, a/k/a Cesar Puerto Ortiz, a/k/a Raul Fuentes v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

633 S.E.2d 744

48 Va. App. 638

Juan Angel JIRON-GARCIA, s/k/a Julio Cesar Fuentes-Pacheco, a/k/a Luis Alberto Martinez-Garcia, a/k/a Juan Alfredo Martinez-Garcia, a/k/a Cesar Puerto Ortiz, a/k/a Raul Fuentes v. COMMONWEALTH of Virginia.

Record No. 0204-05-2.

Court of Appeals of Virginia, Chesapeake.

August 22, 2006.

COPYRIGHT MATERIAL OMITTED

José Antonio Garcia Martelino, Jr. (Main Street Law Office, on brief), Richmond, for appellant.

Denise C. Anderson, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER and BEALES, JJ.

WALTER S. FELTON, JR., Chief Judge.

On appeal from his convictions of possessing cocaine and forging a public document, Juan Angel Jiron-Garcia ("appellant") contends that the trial court erred in denying his motion to dismiss the indictments on the grounds that his statutory and constitutional rights to a speedy trial were violated. For the following reasons, we reverse the judgment of the trial court.

BACKGROUND

Following appellant's July 6, 2004 preliminary hearing, the general district court certified to the grand jury charges of cocaine possession and forging a public document. The general district court ordered that appellant, housed at Riverside Regional Jail, be held without bond. On September 20, 2004, the grand jury indicted appellant on both charges, and a bench trial was scheduled for November 4, 2004.

On October 19, 2004, the United States District Court for the Eastern District of Virginia issued a writ of habeas corpus ad prosequendum directing the supervisor of the Riverside Regional Jail to surrender appellant to the United States Marshal on October 20, 2004 for a 2:30 p.m. court proceeding. The writ further provided that appellant was to be "returned forthwith by the United States Marshal" to Riverside Regional Jail.

Appellant was not present at his scheduled November 4, 2004 trial. At that time, the trial court noted that it received information that appellant "ha[d] been picked up by the Feds." Defense counsel responded that federal authorities had "picked him up temporarily, on a temporary request and they took him over to Northern Neck [Regional Jail]. So, he is at Northern Neck right now." He further told the court that appellant "theoretically . . . still belongs to Riverside. All of his clothing is at Riverside." He then objected to any continuance because appellant was "in your government's custody." The Commonwealth responded that appellant was "in the Federal Government's custody."

Other than the federal ad prosequendum writ itself, the record contains no other evidence reflecting when appellant was released from, or returned to, Riverside Regional Jail, when his custody was acquired or relinquished by Northern Neck Regional Jail, or for what period he was in the physical custody of the United States Marshal pursuant to the writ.

The trial court continued appellant's case to December 9, 2004. It also ordered the Commonwealth to locate appellant and have him returned to court for trial.

On December 8, 2004, the day before his scheduled trial, appellant filed a motion to dismiss the indictments on the grounds that his statutory and constitutional rights to a speedy trial, pursuant to Code § 19.2-243, the Sixth Amendment of the United States Constitution, and Article I, § 8 of the Constitution of Virginia, had been violated. On December 9, 2004, appellant was again not present for trial. The trial court continued appellant's case until January 13, 2005, charging the continuance against appellant because he failed to give the Commonwealth the required seven day pre-trial notice of his motion to dismiss pursuant to Rule 3A:9(c).

At the January 13, 2005 hearing on appellant's motion to dismiss, the Commonwealth conceded that the time period between November 4, 2004 and December 9, 2004 was chargeable against it. However, it argued that the speedy trial statute was tolled for the time period between October 20, 2004 and November 4, 2004 because the Commonwealth was unaware of appellant's whereabouts. The trial court denied appellant's motion to dismiss, finding that appellant was in federal custody during that time period. As a result, the trial court tolled the running of Code § 19.2-243's time provisions from October 20, 2004 to November 4, 2004. The trial court also found that the 36-day period from December 9, 2004 to January 13, 2005 was charged against the appellant because his motion to dismiss failed to comply with Rule 3A:9(c)'s notice requirement.

Following trial on January 13, 2005, the trial court found appellant guilty of the indicted offenses.

ANALYSIS

Appellant first contends the trial court erred in failing to dismiss his indictments because the Commonwealth violated the five-month speedy trial provision of Code § 19.2-243.

"Under Code § 19.2-243, `an incarcerated accused held continuously in custody shall be brought to trial within five months after a general district court finds probable cause to believe that the [accused] has committed a crime.'" Norton v. Commonwealth, 19 Va.App. 97, 99, 448 S.E.2d 892, 893 (1994) (quoting Shearer v. Commonwealth, 9 Va.App. 394, 399, 388 S.E.2d 828, 830 (1990)). "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). This "period begins to run on the day after the preliminary hearing at which probable cause is found." Robinson v. Commonwealth, 28 Va.App. 148, 152, 502 S.E.2d 704, 706 (1998) (citing Randolph v. Commonwealth, 22 Va.App. 334, 335, 470 S.E.2d 132, 133 (1996)).

The time requirements of Code § 19.2-243 may be tolled for reasons stated in that statute when the accused is unavailable for trial due to "circumstances beyond the control of the trial judge and parties." Baity v. Commonwealth, 16 Va.App. 497, 502, 431 S.E.2d 891, 894 (1993). However, "`the exceptions stated in the statute are not meant to be all-inclusive, and other exceptions of a similar nature are to be implied.'" McCray v. Commonwealth, 44 Va.App. 334, 342, 605 S.E.2d 291, 295 (2004) (quoting Hudson v. Commonwealth, 267 Va. 36, 41, 591 S.E.2d 679, 682 (2004)).

"`When an accused asserts that he has been denied a speedy trial, 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) (quoting Adkins v. Commonwealth, 13 Va. App. 519, 521, 414 S.E.2d 188, 189 (1992)), aff'd, 261 Va. 389, 541 S.E.2d 906 (2001). See also Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984). "The Commonwealth must prove that the delay [in commencing trial] was based on one of the reasons enumerated [or implied] in [Code § 19.2-243] or on [the accused's] waiver . . . 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) (citations omitted). "If the Commonwealth fails to meet these burdens, the statute requires discharge of the prosecution." Heath, 32 Va.App. at 181, 526 S.E.2d at 800.

In assessing the merits of appellant's statutory speedy trial claim, we "review . . . the whole record and . . . consider[] . . . the trial court['s] orders in the context of the record that comes before us." Baity, 16 Va.App. at 503, 431 S.E.2d at 895.

The record reflects that the statutory clock to try appellant began to run July 7, 2004, the day after the general district court found probable cause that he had committed the offenses for which he was held in custody without bond. See Robinson, 28 Va.App. at 152, 502 S.E.2d at 706. Thus, absent excusable delay resulting in the tolling of the statute, the Commonwealth was required to commence trial on or before December 6, 2004. Appellant's trial commenced January 13, 2005, 38 days after that date.

I. CONTINUOUS LEGAL CUSTODY

The Commonwealth argues on appeal that appellant was not available to be tried within the requisite statutory period because he was not "held continuously in custody" within the meaning of Code § 19.2-243 from October 20, 2004 to December 9, 2004. Citing Williamson v. Commonwealth, 13 Va. App. 655, 414 S.E.2d 609 (1992), and Ford v. Commonwealth, 33 Va.App. 682, 536 S.E.2d 467 (2000), the Commonwealth asserts it lacked continuous legal custody of appellant, otherwise held without bond on state charges, when he was taken into the physical custody of federal authorities pursuant to the federal ad prosequendum writ, and not returned to Riverside Regional Jail. Accordingly, the Commonwealth contends the time limitations of Code § 19.2-243 required it to commence appellant's trial within nine months of his preliminary hearing instead of within five months. We disagree.

The Commonwealth's reliance on Williamson is misplaced. In Williamson, we held that, for purposes of Code § 19.2-243, lodging a detainer with North Carolina authorities, without any other court order, did not give the Commonwealth the right to try the accused incarcerated on unrelated charges in that state. Williamson, 13 Va. App. at 658, 414 S.E.2d at 611. Here, the United States District Court for the Eastern District of Virginia issued a writ of habeas corpus ad prosequendum, not a detainer, to secure appellant's presence for a court proceeding in Richmond.¹

In Ford, we held that an accused, who had been incarcerated by federal authorities while he was free on bond pending trial on state charges, was not held within the continuous custody of the Commonwealth. Ford, 33 Va.App. at 694, 536 S.E.2d at 473. Here, the Commonwealth held appellant in a state facility² without bond pending trial on state indictments. Appellant was surrendered to federal authorities pursuant to the federal ad prosequendum writ, not by reason of a subsequent arrest while he was free on bail. We conclude that Ford is not instructive in determining whether the Commonwealth's legal custody of the accused was...