COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Beales
Argued at Chesapeake, Virginia
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
OPINION BY
v. Record No. 0204-05-2 CHIEF JUDGE WALTER S. FELTON, JR.
AUGUST 22, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
José Antonio Garcia Martelino, Jr. (Main Street Law Office, on
brief), for appellant.
Denise C. Anderson, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
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
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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.” Balance 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
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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
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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
1
“A detainer is an administrative device, serving only to advise a sister state that the
inmate is wanted to face criminal charges. A detainer does nothing to commence prosecution,
nor does it bring the inmate into ‘custody’ of the requesting jurisdiction.” Ford, 33 Va. App. at
691-92, 536 S.E.2d at 471 (citations omitted). Writs of habeas corpus ad prosequendum are not
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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 lost when appellant was surrendered
to federal authorities pursuant to the federal ad prosequendum writ.
Appellant argues that the Commonwealth retained legal custody of him after execution of
the federal ad proseqeundum writ. He contends that he was merely “on loan” to federal authorities
and, therefore, was available for trial once his court appearance pursuant to the federal ad
prosequendum writ was completed. We agree.
A writ of habeas corpus ad prosequendum “is a court order requesting” an incarcerated
accused’s “appearance to answer charges in the summoning jurisdiction.” Stewart v. Bailey, 7 F.3d
384, 389 (4th Cir. 1993). Unlike detainers, “writs of habeas corpus ad prosequendum are
immediately executed.” Id.; United States v. Mauro, 436 U.S. 340, 360 (1978). “The [federal ad
prosequendum] writ swiftly runs its course, and is no longer operative after the date upon which the
[incarcerated accused] is summoned to appear.” Id. at 390. Principles of comity require that when
the federal ad prosequendum writ is satisfied, the receiving federal jurisdiction return the
incarcerated accused to the sending sovereign. United States v. Evans, 159 F.3d 908, 912 (4th Cir.
1998).
considered detainers within the meaning of the Interstate Agreement on Detainers. United States v.
Mauro, 436 U.S. 340, 349, 361 (1978).
2
Both Riverside Regional Jail and Northern Neck Regional Jail are state facilities. See
Code §§ 53.1-105 – -115.2.
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Clearly, when an accused is surrendered to federal authorities pursuant to a federal ad
prosequendum writ, that person is unavailable for trial while held by that authority. However,
because a federal ad prosequendum writ is of limited duration, an accused “is not even ‘in custody’
when he appears in another jurisdiction pursuant to that writ; he is merely ‘on loan’ to that
jurisdiction’s authorities.” Stewart, 7 F.3d at 389 (citing Thomas v. Whalen, 962 F.2d 358, 361 n.3
(4th Cir. 1992)). Thus, the sending sovereign’s custody and control over the incarcerated accused is
never interrupted. See Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002) (noting that a
“prisoner detained pursuant to a writ ad prosequendum is considered to remain in the primary
custody of the first jurisdiction unless and until the first sovereign relinquishes jurisdiction over the
person. The receiving sovereign . . . is therefore, considered simply to be ‘borrowing’ the
prisoner . . . .” (citing Jake v. Herschberger, 173 F.3d 1059, 1061 n.1 (7th Cir. 1999)) (emphasis
added)).
The record before us shows that the federal authorities “borrowed” appellant pursuant to the
federal ad prosequendum writ. The federal authorities’ “[f]ailure to [return appellant to Riverside
Regional Jail] does not alter . . . [his] ‘borrowed’ status.” Crawford v. Jackson, 589 F.2d 693, 695
(D.C. Cir. 1978), cert. denied, 441 U.S. 934 (1979). Because the Commonwealth merely “loaned”
appellant to the federal authorities for his October 20, 2004 appearance in the United States District
Court in Richmond, we conclude appellant remained within the continuous legal custody of the
Commonwealth for purposes of Code § 19.2-243. Accordingly, the five-month provision of Code
§ 19.2-243 applies rather than the nine-month provision asserted by the Commonwealth.
II. AVAILABILITY FOR TRIAL: OCTOBER 20, 2004 – NOVEMBER 4, 2004
Appellant contends the trial court erroneously concluded that he was voluntarily not
available for trial during the 16-day period between October 20, 2004 and November 4, 2004 as a
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result of the federal ad prosequendum writ. The Commonwealth asserts the trial court did not err in
tolling that 16-day period because appellant was in federal custody and unavailable for trial.
As we concluded above, the Commonwealth retained legal custody of appellant during the
period he was “loaned” to federal authorities pursuant to the federal ad prosequendum writ. See
Crawford, 589 F.2d at 695 (holding that “[w]hen an accused is transferred pursuant to a writ of
habeas corpus ad prosequendum he is considered to be ‘on loan’ to the federal authorities so that the
sending state’s jurisdiction over the accused continues uninterruptedly”). Clearly, however,
appellant was unavailable for trial during the brief period of time the federal ad prosequendum writ
was in effect, as well as any other time directly attributable to its execution. See Stewart, 7 F.3d at
390.
No provision of Code § 19.2-243 explicitly provides that the non-availability of an accused
due to a federal ad prosequendum writ tolls the running of that statute. However, provisions of
Code § 19.2-243 implicitly reflect that the statutory clock may be tolled due to the non-availability
of the accused or material witnesses not attributable to either the accused or the Commonwealth.
See Baity, 16 Va. App. at 502, 431 S.E.2d at 894. Similar to the enumerated statutory tolling
provisions, the transfer of an incarcerated accused, held without bond by state authorities, to the
physical custody of federal authorities pursuant to a federal ad prosequendum writ renders the
accused unavailable for trial, due to “circumstances beyond the control of the trial judge and
parties,” id., during such time period as he is subject to the writ.
We find, therefore, that Code § 19.2-243 implicitly provides that the non-availability of an
incarcerated accused, temporarily loaned to the physical custody of federal authorities pursuant to
an ad prosequendum writ tolls the running of its time provisions during the time period the federal
writ is operative. Once the terms of the federal ad prosequendum writ have been fulfilled, the
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incarcerated accused’s unavailability by reason of the federal writ ends, and the statutory clock
resumes running.
From the record before us, we conclude that appellant was unavailable for trial on October
20, 2004. Hence, the trial court did not err in tolling the running of Code § 19.2-243’s time clock on
that date. However, the record contains no documentation or other evidence to support the
avowals of the trial court and the Commonwealth, contested by defense counsel,3 that appellant
remained in the custody “of the feds,” and, therefore, unavailable for trial between October 21,
2004 and November 4, 2004, the scheduled trial date.
The only document in the record related to appellant’s alleged federal custody is a copy
of the federal ad prosequendum writ, the terms of which require appellant’s presence in federal
court on October 20, 2004, and further provide that, at the conclusion of that hearing, appellant
be returned “forthwith” to the Commonwealth. No documentation, such as jail logs from
Riverside and Northern Neck Regional Jails reflecting when federal authorities removed appellant
from the Commonwealth’s physical custody, or when and where he was returned to the
Commonwealth’s physical custody, is included in the record presented to us for review. Also
lacking in the record are copies of federal court records confirming the date, or establishing any
additional dates, appellant was required to appear in federal court pursuant to the October 20, 2004
federal ad prosequendum writ. Furthermore, the Commonwealth provided no evidence of its
attempts to locate appellant, or of its efforts to transport him to the trial court for his scheduled
November 4, 2004 trial date.
“An appellate court must dispose of the case upon the record and cannot base its decision
upon . . . statements of counsel in open court.” Smith v. Commonwealth, 16 Va. App. 630, 635,
3
Compare Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977)
(holding that a “unilateral avowal of counsel, if unchallenged, . . . constitutes a proper proffer”).
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432 S.E.2d 2, 6 (1993) (citing Riddick v. Commonwealth, 135 Va. 724, 726, 115 S.E. 523, 524
(1923)). Appellant may, in fact, have been unavailable for trial as a result of the execution of the
federal ad prosequendum writ for a period greater than one day, here October 20, 2004. However,
the record in this case lacks any proof beyond the avowals of counsel and the trial court that “the
feds have him.” Because we “may act only upon facts contained in the record,” id., and not upon
the unsupported statements of counsel and the trial court, we find the “record is insufficient to
sustain the Commonwealth’s burden,” Godfrey, 227 Va. at 465, 317 S.E.2d at 784, of proving
appellant’s non-availability for trial during the time period between October 21, 2004, the day
following appellant’s required presence in federal court pursuant to the federal ad prosequendum
writ, and November 4, 2004, the initial trial date.
While we have determined from this record that the trial court did not err in finding
appellant was not available for trial on October 20, 2004 and holding that the statute was tolled on
that day, we conclude the trial court did err in finding that the period from October 21, 2004 to
November 4, 2004 was tolled pursuant to Code § 19.2-243. Accordingly, we hold that Code
§ 19.2-243 required the Commonwealth to commence appellant’s trial on or before December 7,
2004.
III. AVAILABILITY FOR TRIAL: NOVEMBER 4, 2004 – DECEMBER 9, 2004
The record demonstrates that, at trial, the Commonwealth conceded the 35-day time period
between November 4, 2004 and December 9, 2004 was not tolled under Code § 19.2-243. On
appeal, however, the Commonwealth argues its concession at trial was incorrect as a matter of law
because appellant continued to be unavailable for trial since he was in federal custody at Northern
Neck Regional Jail. While we are not bound by the Commonwealth’s concessions of law, see Epps
v. Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc) (citing Tuggle v.
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Commonwealth, 230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985)), we conclude from this
record that the Commonwealth’s concession at trial was not error.
On November 4, 2004, the trial court specifically directed the Commonwealth to locate
appellant and to secure his appearance for his December 9, 2004 trial date. The record also
demonstrates, however, that the prosecutor “neglected to check on [appellant’s whereabouts].” At
the January 13, 2005 hearing on appellant’s motion to dismiss, the Commonwealth conceded that
“there is no question that between November 4th and the new trial date on December 8th [sic] [the
Commonwealth] did not check as to whether or not the defendant was returned to Riverside or
remained at the Northern Neck Regional Jail.” Thus, the prosecutor stated, “the time period
between the November 4th and December 8th [sic] date should clearly go against the
Commonwealth because . . . at that point [the Commonwealth] could have done the writ of habeas
corpus.” We agree.
“It is the duty of officers charged with the responsibility of enforcing the criminal laws of
the Commonwealth to prepare for and obtain a trial of an accused within [the statutorily mandated
time period].” Flanary v. Commonwealth, 184 Va. 204, 210-11, 53 S.E.2d 135, 138 (1945). The
Commonwealth’s unexplained non-compliance with the trial court’s order to locate appellant and to
secure his presence for trial constitutes a failure by the Commonwealth to secure a speedy trial for
appellant pursuant to Code § 19.2-243.
Moreover, nothing in the record indicates that appellant was unavailable for trial between
November 4, 2004 and December 9, 2004. The trial court retained the power to retrieve appellant
from any penal institution in the Commonwealth. See Knott v. Commonwealth, 215 Va. 531, 533,
211 S.E.2d 86, 87 (1975).
We conclude that the Commonwealth failed to prove appellant’s non-availability for trial
during the November 4, 2004 to December 9, 2004 time period.
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CONCLUSION
Because the Commonwealth failed to commence trial on or before December 7, 2004 as
required by Code § 19.2-243, the trial court erred in denying appellant’s motion to dismiss the
indictments for failure to try him within the statutorily mandated time period. Accordingly, we
reverse the judgment of the trial court and dismiss the indictments.
Having concluded the Commonwealth failed to commence appellant’s trial pursuant to
Code § 19.2-243’s time limitation, it is not necessary for us to address appellant’s contention that
the trial court erroneously tolled the December 9, 2004 through January 13, 2005 time period.
Likewise, we need not address whether appellant’s constitutional right to a speedy trial was
violated.
Reversed and dismissed.
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