                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Clements
Argued at Chesapeake, Virginia


MARK ANTONIO WALLACE
                                                                MEMORANDUM OPINION* BY
v.        Record No. 2177-04-1                                JUDGE JEAN HARRISON CLEMENTS
                                                                      OCTOBER 18, 2005
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                    C. Peter Tench, Judge

                    Charles E. Haden for appellant.

                    Michael T. Judge, Assistant Attorney General (Judith Williams
                    Jagdmann, Attorney General; Amy L. Marshall, Assistant Attorney
                    General, on brief), for appellee.


          Mark Antonio Wallace was indicted and convicted in a jury trial of abduction, in violation

of Code § 18.2-47; burglary, in violation of Code § 18.2-89; and malicious wounding, in violation

of Code § 18.2-51. On appeal, Wallace contends the trial court erred in denying his motion to

dismiss the indictments under the speedy trial provisions of Code § 19.2-243. We disagree and

affirm.

          As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.




          *
              Pursuant to Code § 17.1413, this opinion is not designated for publication.
                                         I. BACKGROUND

        The relevant procedural history of this case is not in dispute. On June 28, 2003, Wallace

was arrested on charges of abduction, burglary, and malicious wounding. At the preliminary

hearing on July 29, 2003, the juvenile and domestic relations district court found probable cause to

believe that Wallace committed all three charged offenses. The court certified the charges to the

grand jury. Wallace was represented at the hearing by appointed counsel Leon R. Sarfan. The

grand jury indicted Wallace on the three charges on August 11, 2003, and trial was set for

September 12, 2003.

        On August 25, 2003, Wallace moved the trial court “for leave to substitute counsel.” By

order entered the same day, the trial court granted the motion, substituted David B. Olson as

Wallace’s counsel, and continued the case, “on motion of the defendant,” until the September 8,

2003 “docket call” for scheduling of “a date certain for trial by jury.”

        As reflected in Wallace’s subsequently filed motion to dismiss for lack of a speedy trial, the

trial was then apparently set at the September 8, 2003 “docket call” for November 11, 2003. The

record does not include a transcript or written order memorializing this proceeding.

        By order entered November 3, 2003, the trial court then continued the case, “[o]n motion of

the defendant, by counsel,” until the December 8, 2003 “docket call.” No transcript of this

proceeding is in the record; however, Wallace’s motion to dismiss for lack of a speedy trial

indicates that Wallace’s counsel, Olson, “asked for a continuance . . . in order to review medical

records.” Although Wallace’s motion to dismiss for lack of a speedy trial further indicates that

the request for a continuance was granted “over [Wallace’s] objection” and that Wallace “had

written to his attorney that he absolutely did not want a continuance,” nothing else regarding

Wallace’s objection exists in the record.




                                                  -2-
        As further reflected in Wallace’s motion to dismiss for lack of a speedy trial, the trial was

apparently set at the December 8, 2003 “docket call” for February 23, 2004. The record does not

contain a transcript or written order memorializing this proceeding.

        On January 8, 2004, attorney James B. Thomas, who was retained by Wallace, moved the

trial court to permit Olson to withdraw and to substitute him as Wallace’s counsel. The court

granted the motion on January 9, 2004. Apparently, this substitution did not require a

continuation of the trial date.

        On February 23, 2004, the Commonwealth moved for a continuance, which the trial court

granted “over [Wallace’s] objection.” Trial was set for April 26, 2004.

        On April 15, 2004, Wallace, who had been continuously incarcerated since the

preliminary hearing, filed a motion to dismiss the indictments pursuant to the speedy trial

provisions of Code § 19.2-243. Wallace argued in the motion as follows:

                The Defendant charges that the time frame between July 29, 2003
                and November 3, 2003 should not count toward him since he did
                not ask for a substitution of counsel, nor did he concur in such a
                request. Furthermore, on November 3, 2003, a continuance was
                granted on the motion of his attorney over his objection. The
                Defendant had written to his attorney that he absolutely did not
                want a continuance.

        The trial court conducted a hearing on Wallace’s motion on April 26, 2004. At that

hearing, Wallace’s counsel stated:

                        I think I’m the third attorney in this. First there was Mr.
                Sarfan, and then he, I think, was relieved by Mr. Olson, and then
                Mr. Olson set a date certain for trial and then asked for a
                continuance based on one – some other evidence. My client did
                not concur in that motion for a continuance. As a matter of fact, he
                sent a letter to Mr. Olson telling him specifically he did not want
                the continuance.
                        And based on that, we don’t feel that the continuance that
                Mr. Olson got on his behalf should be held against him, and for
                that purpose, and for that reason, we would ask the Court to
                dismiss the charges against him because of lack of speedy trial.

                                                 -3-
In response, the prosecutor stated: “The Commonwealth didn’t receive a copy of the letter. The

Court didn’t receive a copy of the letter.” No letter or other evidence was presented at the

hearing. The trial court denied the motion, and a jury trial commenced.

        On April 27, 2004, Wallace was found guilty on all three charges. This appeal followed.

                                            II. ANALYSIS

        Wallace contends his right to a speedy trial under Code § 19.2-243 was violated because

neither of the two delays at issue in this case is attributable to him.1 Specifically, he argues on

appeal, as he did below, solely that (1) the period of delay resulting from the substitution of attorney

Olson for attorney Sarfan on August 25, 2003, is not attributable to him because he did not request

or concur in that substitution, and (2) the period of delay resulting from the granting of his counsel’s

motion for a continuance on November 3, 2003, is not attributable to him because he did not concur

in that continuance.2 We disagree.

        The time limitation for the commencement of felony trials is governed by Code § 19.2-243,

which provides in pertinent part as follows:

                        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 . . . .




        1
        The parties agree that the February 23, 2004 continuance of the trial date to April 26,
2004, was not attributable to Wallace.
        2
          As framed by Wallace in his appellate issues and arguments, the delay resulting from the
substitution of attorney Olson for attorney Sarfan on August 25, 2003, encompasses that period of
time from September 12, 2003, the originally scheduled trial date, to November 11, 2003, the date
to which the trial was apparently continued, a period of 60 days, and the delay resulting from the
continuance granted November 3, 2003, encompasses that period of time from November 11, 2003,
to February 23, 2004, the date to which the trial was then apparently continued, a period of 104
days.
                                                  -4-
        “The five[-]month requirement of Code § 19.2-243 translates to 152 and a fraction days.”

Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995). When a defendant

has not been brought to trial within that time period, “the Commonwealth has the burden to

satisfactorily explain the delay or the prosecution will be dismissed. Any delay in the trial,

however, [that] is attributable to the defendant will not be counted in determining whether the

Commonwealth complied with the statutory speedy trial mandate.” Shearer v. Commonwealth, 9

Va. App. 394, 399, 388 S.E.2d 828, 830 (1990). Thus, in determining whether the five-month

requirement has been met, “[a]ny delays that are chargeable to the defendant are subtracted from

the total number of days that elapse from the day after the finding of probable cause to the

commencement of trial.” Robinson v. Commonwealth, 28 Va. App. 148, 152, 502 S.E.2d 704,

706 (1998).

        “Code § 19.2-243 enumerates [various] reasons for a delay [that] will be attributable to

the defendant.” Shearer, 9 Va. App. at 399, 388 S.E.2d at 830. Code § 19.2-243(4), for

example, states in relevant part that the statute’s five-month speedy trial requirement is tolled if

the delay is caused by a “continuance granted on the motion of the accused or his counsel.”

        Here, 272 days elapsed between the time the juvenile and domestic relations district court

found probable cause to believe that Wallace committed the three charged felonies and the

commencement of Wallace’s trial on those charges. Thus, in order for the Commonwealth to meet

the five-month requirement of Code § 19.2-243, at least 119 days of delay must be attributable to

Wallace. Because neither of the delays at issue, by itself, is at least 119 days in length, both delays

must be attributable to Wallace to satisfy the statute’s mandate.

        To determine whether the two delays at issue are attributable to Wallace, “we look to the

court’s orders explaining the delays in proceeding to trial. We may also look to the rest of the

record to assess the responsibility for delay that caused ‘the failure to try the accused’ within the

                                                  -5-
time frame mandated by statute.” Heath v. Commonwealth, 32 Va. App. 176, 181-82, 526 S.E.2d

798, 800-01 (2000) (en banc) (citation omitted) (quoting Stinnie v. Commonwealth, 22 Va. App.

726, 729, 473 S.E.2d 83, 84 (1996) (en banc)), aff’d, 261 Va. 389, 541 S.E.2d 906 (2001); see also

Baity v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d 891, 894-95 (1993) (noting that “the

proper assessment and determination of the merits of a Code § 19.2-243 claim involve a review of

the whole record,” not just the court’s orders).

        Upon reviewing the entirety of the record and applying the principles set forth above, we

conclude that both delays are attributable to Wallace. We first note that Wallace’s claim that the

delay resulting from the substitution of counsel on August 25, 2003, is not attributable to him

because he did not request or concur in that substitution is unsupported by the record. To the

contrary, the record clearly shows that he was the moving party in the substitution proceeding.

The motion to substitute counsel specifically states, “This day came the Defendant, by counsel,

and moved the Court for leave to substitute counsel . . . .” The trial court’s August 25, 2003

order granting the substitution expressly indicates that, consequent to the substitution of counsel,

the matter was continued, “on motion of the defendant,” until the September 8, 2003 “docket call”

for scheduling of “a date certain for trial by jury.” “A court speaks through its written orders.”

Robinson, 28 Va. App. at 155, 502 S.E.2d at 708.

        Moreover, Wallace’s claim that the delay resulting from the substitution of counsel on

August 25, 2003, is not attributable to him because he did not ask for or concur in that substitution,

flies in the face of the provision of Code § 19.2-243(4) that states that Code § 19.2-243’s

five-month requirement does not apply to a period of time caused by a continuance “granted on the

motion of the accused or his counsel.” (Emphasis added.) The record makes clear that attorney

Sarfan was acting as Wallace’s counsel at the time of the August 25, 2003 substitution motion, and

Wallace makes no claim to the contrary. Thus, even were we to accept Wallace’s unsupported

                                                   -6-
assertion that he did not concur with his attorney’s actions with regard to the substitution of counsel,

the delay resulting from the substitution of Wallace’s counsel is still attributable to Wallace for

speedy trial purposes. See also Shearer, 9 Va. App. at 402, 388 S.E.2d at 832 (“Defense counsel

may . . . request or concur in a continuance without the consent or presence of a defendant and a

defendant will be bound by counsel’s [request or] assent to the delay.”).

        For the same reasons, we reject Wallace’s claim that the period of delay resulting from the

granting of the motion for a continuance on November 3, 2003, is not attributable to him because he

did not concur in that continuance. The order entered November 3, 2003, expressly indicates that

the case was continued “[o]n motion of the defendant.” Wallace asserts he objected in writing to

the continuance moved for by attorney Olson on November 3, 2003; however, there is nothing in

the record beyond Wallace’s similar claim in his motion to dismiss that supports this assertion.

“While the Commonwealth must prove that a given delay was excusable under the statute, the

appellant has the responsibility of providing us with an adequate record.” Robinson, 28

Va. App. at 155, 502 S.E.2d at 708.

        Additionally, we are aware of no authority, and Wallace points to none, that supports the

proposition that a continuance moved for by defense counsel on behalf of his or her client will

not be attributable to the defendant under the provisions of Code § 19.2-243(4) simply because

the defendant opposed the continuance in a writing to his attorney. Indeed, as we previously

indicated, a “[d]efense counsel may . . . request or concur in a continuance without the consent or

presence of a defendant and a defendant will be bound by counsel’s [request or] assent to the

delay.” Shearer, 9 Va. App. at 402, 388 S.E.2d at 832; see also Code § 19.2-243(4). To hold

otherwise, particularly under the circumstances of this case, would undermine the “orderly

administration of justice,” which “requires that tactical matters, such as continuances, be left

with counsel.” Stockton v. Commonwealth, 227 Va. 124, 141, 314 S.E.2d 371, 382 (1984).

                                                  -7-
Hence, even were we to accept Wallace’s unsupported claim that he did not concur in his

counsel’s request for a continuance, the delay resulting from the granting of that continuance is

attributable to Wallace for speedy trial purposes.

       Excluding these two delays attributable to Wallace in resolving Wallace’s speedy trial

claim under Code § 19.2-243, we conclude that Wallace’s trial commenced within the

five-month period required by that statute. Accordingly, the trial court did not err in finding that

Wallace’s statutory right to a speedy trial was not violated.

                                        III. CONCLUSION

       For these reasons, we affirm the judgment of the trial court and Wallace’s conviction.

                                                                                           Affirmed.




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