Ford v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia

KEVIN EDGAR FORD
OPINION BY
v. Record No. 0106-00-2 JUDGE ROBERT P. FRANK
NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Charles L. Weber, Jr., for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Kevin Edgar Ford (appellant) was convicted of unlawful

wounding, by a jury, in violation of Code § 18.2-51. On appeal,

he contends the trial court erred in finding that his speedy

trial rights under Code § 19.2-243 were not violated. For the
1
following reasons, we affirm the judgment of the trial court.
I. BACKGROUND

On October 18, 1996, appellant was arrested for malicious

wounding by an Albemarle County police officer. Appellant posted

bond and was released from custody. He was free on bond until

December 18, 1996, when he was incarcerated by federal

1
The Court notes that the final sentencing order entered by
the trial court erroneously reflects that the appellant was
found guilty by the jury of malicious wounding. Accordingly,
this case is remanded to the trial court for the sole purpose of
amending the final order to reflect that the appellant was found
guilty of unlawful wounding.
authorities for a supervised release violation. Appellant

remained in continuous federal custody from December 18, 1996

until his November 4, 1997 trial for malicious wounding in

Albemarle County.

On February 24, 1997, appellant's trial counsel notified the

Commonwealth's Attorney for Albemarle County that appellant was

in custody and requested assistance in securing his presence at

trial. Appellant was present at the preliminary hearing on the

malicious wounding charge on February 27, 1997.
On March 18, 1997, trial counsel again requested assistance

from the Commonwealth's Attorney in having appellant transported

to Albemarle County for trial. By letter, dated March 27, 1997,

the Commonwealth's Attorney indicated he would initiate

transportation arrangements once the trial date was set. On

April 7, 1997, at docket call in the Circuit Court of Albemarle

County, the Commonwealth moved to pass the case to the June

docket, without objection by appellant's trial counsel. On June

2, 1997, the case was set for trial on July 17, 1997.

On May 13, 1997, the Commonwealth requested that a detainer

be lodged against appellant for the pending malicious wounding

charge in Albemarle County. By letter dated May 30, 1997, the

Warden of the Federal Correctional Institution at Cumberland,

Maryland, indicated the detainer had been lodged. The letter was

filed in the Circuit Court of Albemarle County on June 6, 1997.

On June 4, 1997, appellant's trial counsel again requested

assistance from the Commonwealth's Attorney in having appellant

transported to Albemarle County for trial. However, on July 16,

1997, the trial court granted the Commonwealth's motion to

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continue the case because appellant had not yet been transported

to Virginia. Defense counsel said:

I would need him to be here, I would
think, at least ten days prior to trial in
order to have time to notify the clerk of
any subpoenas I need to have issued. So I'm
stuck in this position of, no, I can't
object to it because I couldn't try him if
he were here today, in good conscience,
without incurring an ineffective assistance
of counsel, I think, but at the same time I
don't think that this is through any steps
of [appellant's] and I don't think it should
be held against him on any speedy trial
matters.

On October 3, 1997, at a hearing prior to trial, appellant

contended he was entitled to be tried within five months of the

February 27, 1997 preliminary hearing because he had been

continuously incarcerated since that time. The parties, however,

stipulated that "the defendant was in fact held on federal

charges the entire time and not directly on state charges." The

Commonwealth acknowledged the federal "probation violation on

which he was held . . . stem[med] from the arrest on the Virginia

charges."
Following the October 3, 1997 hearing, the trial judge, in

an opinion letter dated October 15, 1997, found that the

nine-month provision of Code § 19.2-243 applied, rather than the

five-month period, because appellant was not being held on the

malicious wounding charge but was being held by federal

authorities on the federal probation violation. The trial judge

noted in his letter opinion:

The letter sent to the Commonwealth
Attorney by the Federal Bureau of Prisons
clearly states that "inmates who are

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 temporarily transferred pursuant to [The
Interstate Agreement on Detainers Act]
remain under the primary jurisdiction of
federal authorities . . . you are required
to return the above named inmate to this
institution after prosecution . . . this
inmate may not be released on bail or bond
while in your custody . . . this inmate is
not to be committed to a state correctional
institution for service of any state
sentence(s) that may be imposed as a result
of your prosecution."

Hence, the trial judge determined that the November 4, 1997 trial

date would be timely.

Alternatively, the trial judge found that the date set for

trial would have been timely under the five-month provision of

the statute. He stated that appellant and his attorney failed to

make a "timely objection" either to the Commonwealth's motion for

a continuance on June 2, 1997 or on July 16, 1997. The trial

judge, thus, found that the period from June 2, 1997 to November

4, 1997 "should not count against the Commonwealth for purposes

of the speedy trial statute."

Appellant was tried on November 4, 1997 and was found guilty

of unlawful wounding by a jury.

II. ANALYSIS

Appellant contends that because he was in custody

continuously following the preliminary hearing, the five-month

limit for prosecution under Code § 19.2-243 applies, not the

nine-month period as determined by the trial judge. It is

uncontroverted that appellant remained continuously in custody

from the preliminary hearing on February 27, 1997 until the trial

on November 4, 1997. If the nine-month limitation applies,

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appellant was tried within nine months of the preliminary

hearing. If the five-month limitation applies, we then must

determine whether the periods of delay caused by the continuances

should be charged to the Commonwealth. 2

Code § 19.2-243 states, in part:

Where a general district court has
found that there is probable cause to
believe that the accused has committed a
felony, the accused, if he is held
continuously in custody thereafter, shall be
forever discharged from prosecution for such
offense if no trial is commenced in the
circuit court within five months from the
date such probable cause was found by the
district court; and if the accused is not
held in custody but has been recognized for
his appearance in the circuit court to
answer for such offense, he shall be forever
discharged from prosecution therefor if no
trial is commenced in the circuit court
within nine months from the date such
probable cause was found.

If there was no preliminary hearing in
the district court, or if such preliminary
hearing was waived by the accused, the
commencement of the running of the five and
nine months periods, respectively, set forth
in this section, shall be from the date an
indictment or presentment is found against
the accused.

If an indictment or presentment is
found against the accused but he has not
been arrested for the offense charged
therein, the five and nine months periods,
respectively, shall commence to run from the
date of his arrest thereon.

Where a case is before a circuit court

2
This appeal is based solely on whether Code § 19.2-243 was
violated, not on appellant's constitutional right to a speedy
trial under the Sixth Amendment.

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 on appeal from a conviction of a misdemeanor
or traffic infraction in a district court,
the accused shall be forever discharged from
prosecution for such offense if the trial de
novo in the circuit court is not commenced
(i) within five months from the date of the
conviction if the accused has been held
continuously in custody or (ii) within nine
months of the date of the conviction if the
accused has been recognized for his
appearance in the circuit court.

Appellant contends the statute's plain meaning is that the

five-month limitation applies when a defendant has been held

continuously in custody, no matter what authority or sovereign

holds the defendant in custody and no matter which sovereign's

charges held the defendant.
Under basic rules of statutory construction, we examine the

statute in its entirety, rather than by isolating words or

phrases. Ragan v. Woodcroft Village Apartments, 255 Va. 322,

325, 497 S.E.2d 740, 742 (1998) (citations omitted). Therefore,

we examine all of the provisions of Code § 19.2-243 to determine

the legislative intent. The statute contains four events from

which the speedy trial time period is calculated, each depending

on the nature of the proceeding. See Code § 19.2-243. First, if

there is a preliminary hearing, the time period is calculated

from the date of the preliminary hearing. See id. If the

accused "is held continuously in custody thereafter" he cannot be

prosecuted if the trial is not commenced with five months. Id.

However, "if the accused is not held in custody but has been

recognized for his appearance in the circuit court to answer for

such offense," the time period is nine months. Id. (emphasis

added). Second, if the accused is arrested but has no

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preliminary hearing or if the accused waives preliminary hearing,

the time period is calculated from the date of indictment. See

id. Third, when an indictment is found against the accused and

he is arrested thereafter, the time period is calculated from the

date of arrest thereon. See id. Finally, when an accused

appeals a misdemeanor or traffic infraction from general district

court, the time period is calculated from the date of conviction

in general district court. See id.

In the second, third and fourth categories, the period of

time is calculated from an event where the court exercises a

degree of control, authority and rights over the accused, whether

it be by indictment, arrest or conviction. Therefore, it follows

that the phrase "continuously in custody" contained in the first

paragraph of Code § 19.2-243 can only refer to "custody" when the

court has control, authority and rights over the accused. This

interpretation is further supported by other language in the same

paragraph. The nine-month period applies "if the accused is not

held in custody but has been recognized for his appearance in the

circuit court to answer for such offense." Id. (emphasis added).

The language, "such offense," indicates the accused is released

on the subject offense. Therefore, the incarceration also must

be for the subject offense.

Appellant cites Funk v. Commonwealth, 16 Va. App. 694, 432
S.E.2d 193 (1993), to support his position. Funk escaped from

the Fauquier County jail on December 12, 1988 and was arrested in

Pennsylvania for unrelated charges committed in Pennsylvania.

See Funk, 16 Va. App. at 695, 432 S.E.2d at 193. While Funk was

in prison in Pennsylvania, the Fauquier County Sheriff's Office

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filed a detainer for extradition against him. See id. After

being released from prison in Pennsylvania, he returned to

Virginia, where he was arrested on unrelated charges in Hanover

County. See id. On January 4, 1991, he was detained on the

Fauquier County escape charge based on a teletype from Fauquier

County. See id. On April 9, 1991, he was arrested on the

Fauquier County escape charge. See id. Funk remained in custody

from January 4, 1991 until his August 28, 1991 trial in Fauquier

County on the escape charge. See id. We ruled that the

five-month period began on January 4, 1991, the date on which

Funk was detained on the Fauquier County escape charge. See id.

at 695, 432 S.E.2d at 193-94. We wrote, "[t]he teletype

constituted authority for the Hanover County Sheriff's

Department to arrest [Funk]." 3 Id. at 695, 432 S.E.2d at 194.

Therefore, we concluded that "at any time during that period,

Fauquier County could have obtained the defendant and brought him

to trial." Id. at 695-96, 432 S.E.2d at 194. We conclude from

Funk that the five-month period begins when a defendant is held

3
Code § 19.2-81 states, in part:

Such officers may arrest, without a
warrant, persons duly charged with a crime
in another jurisdiction upon receipt of a
photocopy of a warrant, telegram, computer
printout, facsimile printout, a radio,
telephone or teletype message, in which
photocopy of a warrant, telegram, computer
printout, facsimile printout, radio,
telephone or teletype message shall be given
the name or a reasonably accurate
description of such person wanted and the
crime alleged.

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on the charges involving the speedy trial issue or related

charges. See also Clark v. Commonwealth, 4 Va. App. 3, 353

S.E.2d 790 (1987). We further conclude from Funk that Funk's

imprisonment in a Virginia jail was a significant factor in the

decision because Fauquier County had control over obtaining the

defendant for trial. See Code § 19.2-81.

In Williamson v. Commonwealth, 13 Va. App. 655, 659, 414

S.E.2d 609, 611 (1992), we held that the five-month speedy trial

period did not begin until the defendant was delivered to the

custody of the Virginia Beach police by North Carolina

authorities. Although Williamson addresses when "arrest" occurs

under the third paragraph of Code § 19.2-243, it is nevertheless

instructive. On September 5, 1998, Williamson was indicted in

Virginia Beach Circuit Court for receiving stolen property. See

Williamson, 13 Va. App. at 656, 414 S.E.2d at 610. Williamson

was never arrested on the Virginia Beach indictment, but he

ultimately was arrested and held in custody in Washington, North

Carolina, on unrelated charges. See id. Williamson was

convicted of the North Carolina charges on December 6, 1989, and

was committed to the North Carolina Department of Corrections.

See id. at 657, 414 S.E.2d at 610. A detainer based on the

Virginia Beach indictment was lodged with the North Carolina

authorities on July 10, 1990. See id. On August 17, 1990,

Williamson executed a formal request to return to Virginia Beach

for a speedy trial pursuant to Code §§ 53.1-210 et seq., 4 the

Interstate Agreement on Detainers. See id.

4
We do not address the Interstate Agreement speedy trial

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 On September 19, 1990, Williamson was delivered to Virginia

Beach and was arrested by the execution of a capias. See id. He

was tried and found guilty of the offense. On appeal, he

contended the five-month period should have started on October

15, 1989, when the North Carolina authorities acknowledged

Virginia's request to hold him pending extradition. See id. at

658, 414 S.E.2d at 610-11. We held:

Detention in North Carolina on accusation of
being a fugitive is not the same as "arrest
thereon" with respect to the Virginia
indictment. Appellant's detention in North
Carolina gave Virginia no rights with
respect to him. It did not assert against
him the specific charge set forth in the
indictment. The legality of the appellant's
detention in North Carolina was never
contested. During his entire sojourn in
North Carolina, prior to the delivery of his
temporary custody to Virginia Beach
authorities, he was held under North
Carolina criminal process, first on charges
to be tried, and then as a convicted felon
under sentence.

Id. at 658-59, 414 S.E.2d at 611.

A detainer is an administrative device, serving only to

advise a sister state that the inmate is wanted to face criminal

charges. See Rease v. Commonwealth, 227 Va. 289, 294 n.*, 316

S.E.2d 148, 151 n.* (1984). A detainer does nothing to commence

prosecution, see Ridgeway v. United States, 558 F.2d 357, 360

(6th Cir. 1977), nor does it bring the inmate into the "custody"

of the requesting jurisdiction. See United States v. Carmen, 479

provision since it is not the subject of this appeal.

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F.Supp. 1, 1-2 (E.D.Tenn. 1979) (citation omitted), aff'd, Carman

v. United States, 601 F.2d 587 (6th Cir. 1979).

Appellant maintains that Funk and Williamson are

inconsistent, and because Funk was decided after Williamson, it

should take precedence over Williamson. We disagree with

appellant and do not view the holdings in these two decisions as

inconsistent. Indeed, they are consistent.

In both decisions, we determined when the local jurisdiction

obtained custody and rights over the defendant. In Williamson,

the local jurisdiction obtained custody and rights over the

defendant when he was turned over to the Virginia Beach

authorities and arrested. In Funk, the local jurisdiction
obtained custody and rights over the defendant when Fauquier

County teletyped Hanover County, requesting that Hanover County

detain the defendant on the Fauquier County charges. We also

determined what jurisdiction held the defendant. In Funk, it was

another political subdivision of the Commonwealth of Virginia.

In Williamson, it was the State of North Carolina, a separate

sovereign. We also examined the charge upon which the defendant

was held. In Funk, after Hanover County received the teletype
from Fauquier County the defendant was being held on the Hanover

and Fauquier charges. In Williamson, the defendant was being

held solely on North Carolina charges in North Carolina.

Appellant contends, although he was held by federal

authorities on federal charges, the federal charges arose from

the subject wounding charge. Appellant, therefore, reasons that

the trial court should have considered the fact that the federal

probation violation was based on the instant offense.

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Essentially, appellant argues the underlying facts of the subject

charge and the federal charge for which he was detained are so

inextricably interwoven that we should consider him detained by

the federal authorities on the state charge. Appellant relies on

Clark v. Commonwealth, 4 Va. App. 3, 353 S.E.2d 790 (1987), to

support his position. We disagree.

Clark supports a finding in this case that a speedy trial

violation did not occur. Clark was charged with attempted

robbery, among other offenses. See Clark, 4 Va. App. at 4, 353

S.E.2d at 791. The indictments were dismissed because of a

violation of Code § 19.2-243. See id. The following month, the

Commonwealth indicted Clark for conspiracy to commit the

substantive offenses that were dismissed earlier. See id. We

ruled that speedy trial rights are not limited to the offense

charged but also require the discharge of any offense based on

the same conduct. See id. at 6, 353 S.E.2d at 792. We

concluded:

Code § 19.2-243 is intended to assure
the defendant's right to a speedy trial and
society's interest in "swift and certain
justice." To allow the prosecution to
circumvent this by "delaying trial on one
charge and subsequently proceeding on another
closely related charge" foils both society's
and a defendant's interest in speedy justice.
This practice would shift the legislative
determination of a speedy trial from the
General Assembly to the prosecuting attorney.
The General Assembly's intent should not be
so easily frustrated.

The conspiracy charges and the
underlying substantive offenses were based on
the same act or transaction and thus could be
joined for trial. See Rules 3A:10(b) and
3A:6(b). The evidence used to prove the
conspiracy charges was the same that would
have been required to prove the underlying

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 substantive offenses, and the conspiracy
charges could have been included in the same
indictment and tried contemporaneously with
the underlying substantive offenses.
Therefore, we conclude that the discharge
from prosecution for the substantive offenses
also bars the Commonwealth from prosecuting
the defendant for conspiracy charges based on
the same offenses, and the trial court erred
in denying the defendant's motion to dismiss
these charges for failure to provide him a
speedy trial under Code § 19.2-243.

Id. at 6-7, 353 S.E.2d at 792.

Our analysis of the related offenses was premised on the

fact that the related offenses could be joined for trial and

tried by the same jurisdiction. See id. Appellant's argument

under Clark fails because the federal probation violation and the

state's substantive offense could not be joined for trial or even

tried by the same sovereign.

In this case, as in Williamson, Albemarle County obtained

custody and the right to control appellant when the federal

authorities delivered appellant to the Albemarle authorities.

Even then, Albemarle had very limited rights to appellant. The

Federal Bureau of Prisons wrote, "This inmate may not be released
on bail or bond while in your custody. Additionally, this inmate

is not to be committed to a state correctional institution for

service of any state sentence(s) that may be imposed as a result

of your prosecution." Appellant was temporarily transferred to

Virginia authorities for the trial and then returned to the

federal authorities after the trial. Therefore, appellant still

remained under the primary jurisdiction of the federal

authorities.

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 As to the remaining two prongs, federal authorities held

appellant in federal facilities upon federal charges. For the

reasons stated above, the fact that the federal probation

violation was based on the subject charge is of no consequence.

We, therefore, conclude appellant was not held continuously

in custody within the meaning of the speedy trial statute until

he was delivered to Albemarle authorities on July 31, 1997; 5

thus, he was brought to trial in timely manner. Finding that the

trial took place within the time period set by the statute, we

need not address whether the delays occasioned by the

continuances were chargeable to the Commonwealth.
For these reasons, we affirm the judgment of the trial

court.

Affirmed.

5
The record does not indicate whether appellant remained in
Albemarle until the November 4, 1997 trial or whether he was
returned to the federal authorities, but that fact is not
relevant to this analysis.

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