COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Humphreys and Alston
Argued at Salem, Virginia
JACOB DOUGLAS PEYTON, IV
MEMORANDUM OPINION * BY
v. Record No. 0683-08-3 CHIEF JUDGE WALTER S. FELTON, JR.
MAY 12, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Michael S. Irvine, Judge
James V. Doss, III, for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.
Following a bench trial, Jacob Douglas Peyton, IV (“appellant”) was convicted of
statutory burglary in violation of Code § 18.2-91, and grand larceny in violation of Code
§ 18.2-95. On appeal, he contends the trial court erred in denying his motion to dismiss the
indictments, arguing that the Commonwealth failed to commence his trial within the time
required by the Interstate Agreement on Detainers (“IAD”), Code §§ 53.1-210 to 53.1-215.
Finding no error, we affirm the judgment of the trial court.
I. BACKGROUND
At the hearing on appellant’s motion to dismiss the Rockbridge County indictments for
failure to try him within the time requirements of the IAD, the evidence established that felony
arrest warrants were issued on August 1, 2006 charging appellant with burglary of a Rockbridge
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
County supermarket on July 20, 2006, and grand larceny from that business. 1 Prior to being
served with those warrants, appellant left Virginia. In September 2006, appellant was arrested in
Belmont County, Ohio, on two charges of assaulting a peace officer. Thereafter, while awaiting
trial on the Ohio charges, appellant learned of the outstanding felony arrest warrants against him
in Rockbridge County and Augusta County through a telephone call from Kevin Welcher.
Welcher informed appellant that they were both being charged with several offenses committed
in those localities. Appellant testified that, during the last week of September 2006, he received
copies of felony arrest warrants from Virginia, which had been faxed to the Ohio correctional
facility in which he was incarcerated. The record does not reflect which felony arrest warrants,
other than those from Rockbridge County, he received by fax.
On December 6, 2006, appellant pled guilty to the Ohio charges, pursuant to a plea
agreement, in the Court of Common Pleas for Belmont County, Ohio. On the same date, the Ohio
court sentenced appellant to incarceration in the Ohio correctional system for one year on each of
the convictions, with the sentences to run concurrently, and directed that the sentences “shall run
concurrent with any sentence imposed upon [appellant] by the State of Virginia for a parole
violation and [appellant] may be returned to the State of Virginia to serve this sentence.” 2
(Emphasis added). Appellant testified that, while still incarcerated in Ohio, he sent a certified letter
directly to Raymond C. Robertson, Commonwealth’s Attorney for the City of Staunton, “requesting
a speedy trial.” Appellant presented a receipt for certified mail delivered to Robertson on January
18, 2007. However, the record on appeal does not contain a copy of the letter which appellant
1
Appellant testified that arrest warrants were also obtained in Augusta County and the
City of Staunton charging him with burglaries committed in those localities during the same time
period.
2
The record on appeal shows that appellant was on mandatory parole at the time of the
offenses at issue in this appeal.
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testified he sent to Robertson. On February 12, 2007, appellant signed an “Agreement to Return”
to the City of Staunton, where four felony arrest warrants for burglary and four for grand larceny
were pending. 3
On September 21, 2007, appellant was transferred from Ohio to Virginia and was confined
at Middle River Regional Jail in Verona, a regional jail serving the jurisdictions involved here. That
same day, the Rockbridge County felony arrest warrants charging burglary and grand larceny were
served on appellant. On November 5, 2007, following a preliminary hearing on the arrest warrants,
appellant was indicted by a Rockbridge County grand jury for the July 20, 2006 burglary and grand
larceny of the supermarket in Rockbridge County. Appellant filed a motion to dismiss the
Rockbridge County indictments, asserting that he had not been tried within 180 days as required by
the IAD, Code § 53.1-210. On December 3, 2007, the trial court denied appellant’s motion to
dismiss and convicted him of burglary and grand larceny.
II. ANALYSIS
Appellant contends the trial court erred in denying his motion to dismiss the Rockbridge
County burglary and grand larceny indictments, asserting that pursuant to the IAD he was required
to have been tried within 180 days of January 18, 2007, the day the Commonwealth’s Attorney for
the City of Staunton received his certified letter requesting a speedy trial. For the following reasons,
we affirm the judgment of the trial court denying appellant’s motion to dismiss.
Both Virginia and Ohio have adopted the Interstate Agreement on Detainers. See
Code §§ 53.1-210 to 53.1-215. “The purpose of this congressionally sanctioned interstate
compact is to encourage expeditious disposition of outstanding criminal charges, where one
jurisdiction has lodged a detainer with prison authorities of another jurisdiction where the subject
3
Appellant also signed a nearly identical “Agreement to Return” to the City of Staunton on
September 10, 2007.
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of the outstanding charges is incarcerated.” Valentine v. Commonwealth, 18 Va. App. 334,
337-38, 443 S.E.2d 445, 447 (1994). “When making a request for final disposition of pending
charges under the provisions of the [IAD], a defendant must strictly comply with the procedure
established by the Code. However, once properly invoked, ‘[t]his [A]greement shall be liberally
construed so as to effectuate its purposes.’” Drew v. Commonwealth, 39 Va. App. 224, 227, 571
S.E.2d 928, 930 (2002) (quoting Code § 53.1-210, Art. IX) (emphasis added) (second and third
alterations in original) (citation omitted).
Article III(a)-(b) of the IAD provides in pertinent part:
Whenever a person has entered upon a term of imprisonment in a
penal or correctional institution of a party state, and whenever
during the continuance of the term of imprisonment there is
pending in any other party state any untried indictment,
information or complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to trial within 180
days after he shall have caused to be delivered to the prosecuting
officer and the appropriate court of the prosecuting officers’
jurisdiction written notice of the place of his imprisonment and his
request for a final disposition to be made of the indictment,
information or complaint . . . .
Code § 53.1-210, Art. III(a) (emphasis added).
A request for final disposition “shall be given or sent by the
prisoner to [such] . . . official having custody of him, who shall
promptly forward it . . . to the appropriate prosecuting official and
court,” “accompanied by a certificate of the . . . official . . . ,
stating the term of commitment under which the prisoner is being
held, the time already served, the time remaining to be served on
the sentence, the amount of good time earned, the time of parole
eligibility . . . and any decisions of the state parole agency relating
to the prisoner.”
Miller v. Commonwealth, 29 Va. App. 625, 630, 513 S.E.2d 896, 899 (1999) (quoting Code
§ 53.1-210, Art. III(a)-(b)) (emphasis added) (alterations in original).
The record on appeal reveals that no “indictment, information or complaint,” as defined
in Article III of the IAD, was pending against appellant in Rockbridge County or any other
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locality in Virginia, during his incarceration in Ohio. Code § 53.1-210, Art. III(a). While felony
arrest warrants were issued for appellant on August 1, 2006 in Rockbridge County, he was not
indicted on those charges until November 5, 2007, after he returned to Virginia. We have
previously held that “the [IAD] was intended to apply only to instruments such as indictments,
informations or complaints upon which the detainee could be tried immediately upon his return.
This definition does not include a felony warrant of arrest . . . .” Locklear v. Commonwealth, 7
Va. App. 659, 663, 376 S.E.2d 793, 795 (1989) (emphasis added).
Appellant admitted to the trial court that no notice of demand for trial under the IAD was
sent to the Commonwealth’s Attorney for Rockbridge County, and the record on appeal contains
no notice filed with any Rockbridge County court invoking the provisions of the IAD. See Code
§ 53.1-210, Art. III(a) (“[prisoner] shall have caused to be delivered to the prosecuting officer
and the appropriate court of the prosecuting officers’ jurisdiction written notice of . . . his request
for a final disposition . . . of the indictment”); Yiaadey v. Commonwealth, 29 Va. App. 534, 543,
513 S.E.2d 446, 450-51 (1999) (“Of the justifications for requiring strict compliance with Article
III procedures, the Commonwealth’s need for notice of a prisoner’s request for final disposition
of a pending indictment, is of singular importance under our decisions.”). Moreover, at the
hearing on the motion to dismiss, appellant produced only a copy of a certified mail return
receipt showing mail delivery to the Commonwealth’s Attorney for the City of Staunton.
Appellant testified that the receipt was for a letter he sent to the Commonwealth’s Attorney for
the City of Staunton, demanding a speedy trial. The record on appeal does not contain the letter
or the “warden’s certificate” required under Article III(a)-(b) of Code § 53.1-210. See Eckard v.
Commonwealth, 20 Va. App. 619, 627, 460 S.E.2d 242, 246 (1995) (“a prisoner’s Article III
request must come through the prison authorities in the sending state and must be accompanied
by the warden’s certificate”).
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“We have many times pointed out that on appeal the judgment of
the lower court is presumed to be correct and the burden is on the
appellant to present to us a sufficient record from which we can
determine whether the lower court has erred in the respect
complained of. If the appellant fails to do this, the judgment will
be affirmed.” . . . We may act only upon facts contained in the
record.
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (quoting Justis v.
Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)).
As we have previously held, in order to invoke the benefits of the IAD, “the prisoner must
make a written request for final disposition of an indictment upon which a detainer is based and
deliver that request to the warden of the institution where the prisoner is incarcerated,” and “‘the
warden must forward [the request], together with a certificate providing certain information about
the prisoner’s terms of confinement, to the appropriate prosecuting official and court of the
receiving State.’” Yiaadey, 29 Va. App. at 542, 513 S.E.2d at 450 (quoting Delgado v.
Commonwealth, 16 Va. App. 50, 56, 428 S.E.2d 27, 30 (1993)) (emphasis added) (alteration in
original). See also, id. at 544, 513 S.E.2d at 451 (“failure to strictly comply with the requirements
of Article III is fatal to [appellant’s] claim”).
From the record on appeal, we conclude that appellant failed to show he complied with
the requirements of the IAD and that the trial court did not err in denying appellant’s motion to
dismiss the Rockbridge County indictments charging him with burglary and grand larceny of the
Rockbridge County supermarket on July 20, 2006. As the evidence presented at trial was
sufficient to prove beyond a reasonable doubt that appellant was guilty on those indictments, we
affirm the judgment of the trial court.
Affirmed.
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