COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
ANTHONY CORDELL PRICE
OPINION BY
v. Record No. 1345-96-3 JUDGE JERE M. H. WILLIS, JR.
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Phyllis Marie Mosby, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Anthony Cordell Price was convicted on three charges of
distributing cocaine. On appeal, he contends that the trial
court erred in denying his motion to dismiss the indictments on
the ground that he was denied a speedy trial. 1 For the reasons
that follow, we affirm the judgment of the trial court.
I.
On June 19, 1991, Price was indicted on three charges of
distributing cocaine. Because he was a fugitive, the cases were
removed from the trial docket. They were reinstated on September
26, 1995.
1
Price also contends that the Commonwealth failed to abide by
Code § 53.1-212, which provides for cooperation in the enforcement
of the Interstate Agreement on Detainers. Because this issue was
not raised before the trial court, we will not consider it for the
first time on appeal. Rule 5A:18.
On May 23, 1995, pursuant to the Interstate Agreement on
Detainers (IAD), the Commonwealth lodged a detainer against
Price, who was incarcerated in Nevada. On June 26, 1995, the
Commonwealth received notification and forms from Price
requesting speedy disposition of the pending charges, pursuant to
Code § 53.1-210, Article III.
On July 14, 1995, the Commonwealth notified Nevada
authorities that it wished to assume temporary custody of Price
on October 2, 1995. Price was subsequently transported from
Nevada to Virginia. On October 4, 1995, he was arraigned and the
public defender was appointed to represent him.
On October 26, 1995, the trial court conducted an informal
pre-docket call meeting to set cases involving the public
defender's office for trial at the November term. Lawrence Gott,
Danville Public Defender, stated that he did not want to try
Price's case until the following term. Under a local Danville
rule, an attorney is entitled to a continuance to the next term
of court if he or she has not had the case for thirty days. The
Commonwealth's attorney reminded Mr. Gott that Price's case had
to be tried within 180 days under the IAD.
On October 31, 1995, the trial court conducted a formal
docket call. When Price's case was called, Mr. Gott requested
that it be passed to the January term of court. The trial court
continued the case to the January term by order entered October
31, 1995, which Mr. Gott endorsed as seen.
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On January 18, 1996, Price moved to dismiss the indictments
on the ground that the Commonwealth had failed to provide him a
speedy trial. The trial court denied the motion.
II.
Price contends that he was denied his right to a speedy
trial in violation of the IAD and the Virginia and federal
constitutions. Specifically, he argues that the October 31
continuance did not toll the 180 day speedy trial period required
by the IAD because it failed to conform to the IAD requirements
for a continuance.
Codified at Code §§ 53.1-210 to -215, the IAD is a
congressionally sanctioned compact providing for the speedy
disposition of criminal charges pending against a person who is
incarcerated in another jurisdiction. To that end, Article
III(a) provides in pertinent part that:
[A prisoner] 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
officer's 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).
The detainer based upon Price's indictments was lodged in
Nevada on May 23, 1995. Price's June 26, 1995 request for speedy
disposition of the indictments commenced the running of the 180
day period set forth in Article III(a). Thus, Price should have
been brought to trial by December 26, 1995.
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Generally, the grant or denial of a continuance lies within
the sound discretion of the trial court and will not be reversed
on appeal absent an abuse of discretion and demonstrated
prejudice to the complainant. Lowery v. Commonwealth, 9 Va. App.
304, 307, 387 S.E.2d 508, 509 (1990). However, the granting of a
continuance must comply with Code § 53.1-210, Article III(a) in
order to toll the speedy trial provision of the IAD.
Article III(a) requires for a continuance that: (1) the
trial court must have competent jurisdiction, (2) the continuance
must be granted in open court, (3) the defendant or his attorney
must be present, (4) the movant must show good cause, and (5) the
2
length of the continuance must be reasonable or necessary. Code
§ 53.1-210, Art. III(a). See Delgado v. Commonwealth, 16 Va.
App. 50, 59, 428 S.E.2d 27, 32 (1993).
The trial court had jurisdiction over the case. It granted
the continuance in open court, in the presence of Price's
attorney, and on his motion. The order granting the continuance
was endorsed by Price's attorney and stated that it was based
upon good cause shown. The record supports this assertion. The
continuance was brief. Under these circumstances, we find that
the continuance was necessary to provide Price adequate time to
prepare for trial. Price makes no argument contesting the trial
2
Code § 53.1-210, Article III(a) states that: "for good cause
shown in open court, the prisoner or his counsel being present,
the court having jurisdiction of the matter may grant any
necessary or reasonable continuance."
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court's adherence to the procedures for granting a continuance,
and we find no error in the trial court's granting of the
continuance. Thus, the 180 day period was tolled until the
commencement of trial on January 23, 1996. See Delgado, 16 Va.
App. at 59, 428 S.E.2d at 32. Cf. Code § 19.2-243(4).
III.
Price also contends that he was denied his right to a speedy
trial guaranteed by Article I, Section 8 of the Virginia
Constitution and the Sixth Amendment to the United States
Constitution. In Barker v. Wingo, 407 U.S. 514 (1972), the
Supreme Court set forth factors to be utilized in determining
whether a defendant has been denied his right to a speedy trial,
including: (1) the length of the delay, (2) the reason for the
delay, (3) the defendant's assertion of his right, and (4)
whether prejudice to the defendant resulted. See Holliday v.
Commonwealth, 3 Va. App. 612, 352 S.E.2d 362 (1987). In
examining the first factor:
[I]f the delay in bringing a defendant to
trial is not sufficient to raise at least an
inference of injustice, further exploration
is unnecessary . . . . [Thus, a] defendant
must be able to at least raise the
presumption that, in his particular case and
in his particular circumstances, the delay
involved was so detrimental as to have
endangered his right to a fair trial.
Beachem v. Commonwealth, 10 Va. App. 124, 131, 390 S.E.2d 517,
519 (1990). The trial was conducted less than one month after
the expiration of the 180 day period. The delay resulted from
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defense counsel's request for a continuance. Nothing in the
record suggests that the delay prejudiced Price's right to a fair
trial. Thus, even assuming that the delay was of sufficient
magnitude to require further analysis, the factors identified in
Barker preponderate clearly in favor of the Commonwealth and do
not establish a constitutional violation. We find no denial of
Price's constitutional guarantee to a speedy trial. 3
We affirm the judgment of the trial court.
Affirmed.
3
Price contends that the Commonwealth's decision to accept
custody of Price in October, 1995, amounted to a de facto delay of
three months attributable to the prosecution. This argument was
not presented to the trial court and we will not address it for
the first time on appeal. Rule 5A:18.
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