COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
CHRISTOPHER TORIAN
MEMORANDUM OPINION *
v. Record No. 2412-94-2 BY JUDGE JOSEPH E. BAKER
JULY 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Charles A. Butler, Jr. (Vaughan & Slayton; on
briefs), for appellant.
Richard H. Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Christopher Torian (appellant) appeals from a judgment of
the Circuit Court of Halifax County (trial court) that approved
his jury convictions of second degree murder in violation of Code
§ 18.2-32 and use of a firearm in the commission of a felony in
violation of Code § 18.2-53.1. Finding no error, we affirm.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). Viewed accordingly, the
record discloses that between November 28-29, 1993, appellant was
arrested for murder and the use of a firearm in the commission of
a felony.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On November 30, 1993, Buddy A. Ward (Ward), of the public
defender's office, was appointed to represent appellant.
Appellant's preliminary hearing was held on February 15,
1994. Probable cause was found, and the case was certified to a
grand jury. In March 1994, indictments were returned against
appellant and the case was scheduled for a jury trial on June 30,
1994.
On June 19, 1994, Ward requested leave to withdraw from
representation of appellant due to a conflict of interest. The
trial court granted Ward's motion on June 23, 1994 and appointed
David F. Guthrie, Jr. (Guthrie) to represent appellant.
On or about June 27, 1994, the trial court continued
appellant's case until the September term, with the trial date to
be rescheduled on August 22, 1994. No motion or order concerning
the continuance was included in the record.
On August 22, 1994, appellant and the Commonwealth agreed to
a trial date of October 14, 1994.
On August 24, 1994, Guthrie moved to withdraw from
representation of appellant for health reasons. The trial court
granted the motion and appointed Charles A. Butler, Jr. (Butler)
and Brandon Hudson (Hudson) to represent appellant.
On October 11, 1994, the trial court ordered Hudson to
withdraw from representation of appellant due to a conflict of
interest. Butler continued representation, and appellant filed a
motion to dismiss for lack of a speedy trial as defined by Code
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§ 19.2-243.
The trial court heard the motion to dismiss on October 13,
1994. Over appellant's objection, appellant's former counsel,
Guthrie, was permitted to testify at the hearing. Guthrie
testified that appellant's original trial, scheduled for June 30,
1994, was continued until the September term because he met with
the trial court, ex parte, and moved for a continuance on the
ground that he was not adequately prepared. Guthrie opined that
it was in appellant's best interest to have the case continued
and that trying the case on June 30 would have prejudiced
appellant. The trial court denied appellant's motion.
Thereafter, on October 14, 1994, appellant was tried and
convicted.
In May 1995, appellant's petition for appeal to this Court
was granted with respect to the speedy trial issue.
In July 1995, the Commonwealth filed a motion with this
Court praying for leave to allow the trial court to correct an
error in the record by entry of a nunc pro tunc order.
On September 19, 1995, this Court granted leave and remanded
the matter to the trial court to determine whether a nunc pro
tunc order, pursuant to Code § 8.01-428, was "appropriate under
the law" and, if so, to enter such an order. Additionally, this
Court ordered appellant and the Commonwealth to address the issue
of whether the entry of a nunc pro tunc order was proper and
whether this Court could consider such an order when considering
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the speedy trial issue.
On September 25, 1995, the trial court, after a hearing on
the issue, entered a nunc pro tunc order. The order recited, in
part, as follows:
[that] the defendant requested a continuance
on June 27, 1994 of his trial scheduled for
June 30, 1994, and the court ordered a
continuance pursuant to the defendant's
request to a date to be set at the August 22,
1994 docket call for the September term.
On appeal, appellant challenges (1) the validity of the nunc
pro tunc order entered by the trial court, (2) this Court's
ability to consider the nunc pro tunc order, and (3) the trial
court's determination that his statutory right to a speedy trial
was not denied.
Nunc Pro Tunc Order
A "court has the inherent power, based upon any competent
evidence, to amend the record at any time . . . so as to cause
its acts and proceedings to be set forth correctly." Netzer v.
Reynolds, 231 Va. 444, 449, 345 S.E.2d 291, 294 (1986). See also
Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245 (1956). In
Council, the Court noted that "the purpose of a nunc pro tunc
entry is to correct mistakes of the clerk or other court
officials, or to settle defects or omissions in the record so as
to make the record show what actually took place." Council, 198
Va. at 293, 94 S.E.2d at 248. Clearly, under Council and Netzer,
the trial court has the power to amend the record. It is clear
that the trial court's entry of the nunc pro tunc order served
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only to "cause its acts and proceedings to be set forth
correctly" in the record. See also Code § 8.01-428(B), which
grants a court the authority to correct errors in the record that
arise from oversight or "inadvertent omission." It is clear
that, as the trial court found, the failure to memorialize the
continuance in the record was an inadvertent omission.
Appellant's assertion that proof aliunde cannot be the basis
for an order nunc pro tunc when a constitutional or substantive
right is at issue is without merit. Catlett v. Commonwealth, 198
Va. 505, 95 S.E.2d 177 (1956), on which appellant relies, stands
only for the proposition that proof aliunde cannot be used to
cure the Commonwealth's failure to comply with Article 1, Section
8 of the Virginia Constitution, which requires that a defendant's
waiver of trial by jury and the concurrence of the Commonwealth
and the court thereto be "entered of record."
Having determined that the trial court's entry of the nunc
pro tunc order was appropriate, we turn to the issue of whether
we may consider such order when resolving appellant's speedy
trial claim. Relevant to that determination, Code § 8.01-428(B)
provides, in pertinent part, that "during the pendency of an
appeal, . . . mistakes may be corrected before the appeal is
docketed in the appellate court, and thereafter while the appeal
is pending such mistakes may be corrected with leave of the
appellate court."
Because appellant's appeal was pending and had already been
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docketed, the Commonwealth sought, and this Court granted, leave
to have the trial court enter a nunc pro tunc order if it
determined that doing so would be appropriate. In seeking leave
from this Court, the Commonwealth fully complied with the
procedural requirement of Code § 8.01-428(B). Therefore, finding
that all procedural aspects of Code § 8.01-428(B) were complied
with and having determined that the entry of the nunc pro tunc
order was appropriate under the law, we find nothing which
prohibits us from considering such order in determining whether
appellant's statutory right to a speedy trial was violated.
Speedy Trial
In Stinnie v. Commonwealth ___ Va. App. ___, ___ S.E.2d ___
(1996), in an en banc hearing, this Court considered the same
issue and similar facts to those appellant presents here. In
Stinnie, the Court rejected appellant's speedy trial argument,
and we are bound by that decision. For the reasons stated in
Stinnie, we affirm the trial court's conclusion that, pursuant to
the provisions of Code § 19.2-243, appellant was timely tried.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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