                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Alston
Argued by teleconference


STEPHEN JERMAINE WIMBUSH
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1978-08-3                                    JUDGE LARRY G. ELDER
                                                                   MAY 11, 2010
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF HENRY COUNTY
                                 David V. Williams, Judge

                 Robert Hurt for appellant.

                 Craig W. Stallard, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       Stephen J. Wimbush (appellant) appeals from his bench trial convictions for robbery, use

of a firearm in the commission of robbery, and possession of a firearm by a convicted felon. 1 On

appeal, he contends the trial court erred in denying his motion to dismiss on statutory speedy trial

grounds. We hold appellant’s convictions for these offenses did not violate Code § 19.2-243,

and we affirm.

                                                  I.

                                          BACKGROUND

       On November 13, 2007, appellant was arrested on warrants charging him with having

committed the instant offenses on November 12, 2007. At a preliminary hearing on those

charges held on December 10, 2007, the district court found probable cause, and appellant was


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Appellant also was convicted for grand larceny, an offense for which he was directly
indicted. The validity of that conviction is not before us in this appeal.
held continuously in custody thereafter. The district court certified the charges to the grand jury,

which returned indictments for the offenses during the January 2008 term.

       The charges were scheduled to be tried on April 14, 2008. On that date the

Commonwealth moved for a continuance, explaining that only a few days earlier, on April 11,

2008, it had received and filed important DNA test results it wished to use at trial, “inside of the

twenty one days that would be the limit for a DNA analysis” under Code § 19.2-270.5. The

Commonwealth proffered that “if the results were found to be accurate by the Court, [they]

would indicate the presence of [appellant’s] DNA in the vehicle the Commonwealth will argue

was stolen and also [on the stocking cap] on [appellant’s] head when the robbery took place,”

which was found in the vehicle. Based on Code § 19.2-270.5, the Commonwealth sought a

continuance so that it would be able to introduce that DNA evidence at trial. The

Commonwealth did not indicate that it needed additional time in order to prepare for trial.

       The trial court asked appellant’s counsel, Michael Brown, for his position on the

continuance motion. Brown indicated he needed additional time to subpoena witnesses and

would also like time to determine whether he “need[ed] to get a [DNA] expert of [his] own.”

The trial court then asked appellant what his position was regarding a continuance, and the

following colloquy ensued:

                       [APPELLANT]: They come, they come to me back in
               January, got the paperwork right here, back in January with the
               DNA, you know what I’m saying they ain’t showed me no
               evidence or nothing about the case. You know, they, he keeps
               telling me about some witnesses, but you know they’ve got to
               come tell you what’s going on. You know he come up with my
               statement that the investigator’s got but he’s still got to come to
               Court and tell you. I got some DNA papers right here where they
               took my DNA back in January. I’ve got all of this right here.

                       COURT: Well . . . they may have taken it in January, but it
               takes a while to get it done. They have to, you know it’s take [sic]
               a Forensic Scientist two or three months to even do that. That’s
               pretty important information, isn’t it?
                                                -2-
        [APPELLANT]: No, they ain’t got no, he didn’t get it, like
I told him I want discovery, he ain’t got, he said I can’t get that.
That’s my right to get my motion to discovery. He said I can’t get
it. Why can’t I get it? Everybody else has got theirs.

        COURT: Are you talking about you haven’t gotten the
results of the DNA test?

        [APPELLANT]: He showed me some little paperwork
Friday, whatever it was he was showing me Friday.

        COURT: Okay, well that’s the results of the DNA test.

       [APPELLANT]: What about my Motion for Discovery?
He ain’t gave me that.

        COURT: What other discovery do you want?

      [APPELLANT]: I want my Motion for Discovery to tell
me about my case.

       COURT: [Appellant’s Counsel Brown], maybe you can
help me on that one.

        [APPELLANT’S COUNSEL Brown]: Judge, . . . the
Commonwealth usually gives us what’s in the file for discovery. I
did share that with [appellant]. I went to the jail immediately after
I had gotten it. We did go over that in detail. I did not make
copies for [appellant], and I think that is what he is requesting, and
I did not hear . . . until today that he wanted an actual copy of it.

       [APPELLANT]: Because you told me I couldn’t get it.
You said they don’t do that no more now.

       COURT: Alright, it sounds like something that can be
taken care of.

        [APPELLANT’S COUNSEL Brown]: Yes.

       COURT: Alright, I am going to grant the Motion for
Continuance. How much time do we need to evaluate that new
information?

        [APPELLANT’S COUNSEL Brown]: I need forty five
days.




                                 -3-
After some discussion about available dates and the speedy trial statute, the trial court set the

matter for trial on June 12 without objection from appellant or his counsel.

       On that same date, April 14, 2008, the trial court entered a continuance order, which

indicated that “the Commonwealth, by Counsel, and the Defendant, BY / WITH Counsel,”

“jointly moved” that the case be continued to June 12, 2008. The order was endorsed by both

attorneys beneath the phrase, “We ask for this.” The order also included a line for appellant’s

signature, which bore the notation, “[Appellant] was present on 4-14-08.”

       On May 6, 2008, appellant and his attorney appeared before the court, and at appellant’s

request, attorney Brown moved to withdraw as counsel. The trial court granted the motion.

       On May 21, 2008, through new counsel, Robert Hurt, appellant filed a motion to dismiss.

He alleged the speedy trial limit of Code § 19.2-243 expired on May 10, 2008, five months after

his preliminary hearing on December 10, 2007, because he was held continuously in custody. In

arguing the speedy trial motion on June 12, 2008, appellant’s new attorney contended that

appellant had “adamantly objected to any continuance” at the April 14, 2008 hearing. Appellant

testified he made clear to Brown on both April 11 and the morning of April 14 that he was

“ready to go to trial.” Appellant admitted the transcript of the April 14, 2008 hearing accurately

reflected what he said on the record and that “[he] didn’t say nothing about no continuance.”

       Appellant’s attorney Hurt argued that even though appellant’s previous counsel

“Mr. Brown said, ‘I’d like forty five days more,’” appellant “is the man who’s on trial,” and that

when “[appellant] stood up in his inarticulate way and made clear what his objection was; he

wanted to be tried now; that he had a right to stand on that.” He cited Code § 19.2-243(4) which

provides that “the failure of the accused or his counsel” to object to the continuance resulted in

the tolling of the speedy trial statute, and he argued that although appellant’s previous counsel




                                                -4-
may have requested more time, appellant asserted his right to go to trial on that date, April 14,

2008.

        The trial court stated as follows:

               [O]n [Code §] 19.2-243, I will be the first to admit it’s a close case.
               Certainly the defendant was here present. He was upset that he
               hadn’t got discovery; he was upset that DNA evidence was late; he
               was certainly not particularly pleased with the services of his
               lawyer. At no point – and I’ll be the first to admit, the tenor of
               why he was upset, was that he wasn’t going to be tried that day or
               within the five months, but his counsel did acquiesce in the
               continuance and asked for more time to subpoena witnesses and
               review the DNA evidence. At this point I’m going to take your
               motion under advisement . . . .

        After hearing argument on an unrelated motion and swearing the witnesses for trial, the

trial court called a five-minute recess and asked to see counsel in chambers. When “[o]pen court

resume[d],” the trial court ruled as follows:

               [B]ased on the cases of Richardson v. Comm., 2007 Va. App.
               Lexus [sic] 170[,] and Shearer v. Comm., [9 Va. App. 394, 388
               S.E.2d 828 (1990)], both of which basically say, . . . “While the
               appellant did not explicitly request a continuance and he
               complained he was not waiving his speedy trial rights, the delay
               was attributable to the appellant, as his attorney was not prepared
               for trial. As previously stated, defense counsel may request or
               concur in a continuance without the consent or presence of a
               defendant, and the defendant will be bound by counsel’s request or
               assent to the delay,” citing the Shearer case. “To hold otherwise,
               particularly under the circumstances presented, would undermine
               the orderly administration of justice, which requires tactical
               matters such as continuances, be left with counsel.” And that also
               cites . . . Stockton v. Comm., 227 Va. 124 [(1984)] . . . . As to the
               question about whether or not an order was entered granting the
               continuance, I’ll leave that for another day . . . . 2

        Following appellant’s conviction and sentencing, he noted this appeal.


        2
           The record on appeal contains no information regarding any discussion “about whether
or not an order was entered granting the continuance.” Such a conversation may have occurred
in the in-chambers discussion, mentioned supra in the text, which occurred immediately prior to
the trial court’s ruling on the motion, but this exchange was not transcribed.

                                                -5-
                                                II.

                                             ANALYSIS

       Virginia’s speedy trial statute provides in relevant part as follows:

                      Where a district court has found that there is probable cause
              to believe that an adult 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 . . . .

                         *       *       *       *       *       *      *

                      The provisions of this section shall not apply to such period
              of time as the failure to try the accused was caused:

                         *       *       *       *       *       *      *

                      4. By continuance granted on the motion of the accused or
              his counsel, or by concurrence of the accused or his counsel in
              such a motion by the attorney for the Commonwealth, or by the
              failure of the accused or his counsel to make a timely objection to
              such a motion by the attorney for the Commonwealth . . . .

Code § 19.2-243.

       The five-month requirement translates “to 152 and a fraction days.” E.g. Ballance v.

Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995). If the accused is not tried within

the period of time specified in the statute, the burden is on the Commonwealth to explain and

excuse the delay. Heath v. Commonwealth, 32 Va. App. 176, 181, 526 S.E.2d 798, 800 (2000)

(en banc), aff’d, 261 Va. 389, 541 S.E.2d 906 (2001).

       Where a party seeks to offer DNA evidence at trial, Code § 19.2-270.5 provides as

follows:

                      At least twenty-one days prior to commencement of the
              proceeding in which the results of a DNA analysis will be offered
              as evidence, the party intending to offer the evidence shall notify
              the opposing party, in writing, of the intent to offer the analysis
              and shall provide or make available copies of the profiles and the
              report or statement to be introduced. In the event that such notice
                                               -6-
                is not given, and the person proffers such evidence, then the court
                may in its discretion either allow the opposing party a continuance
                or, under appropriate circumstances, bar the person from
                presenting such evidence. The period of any such continuance
                shall not be counted for speedy trial purposes under § 19.2-243.

       Here, if the speedy trial statute was not tolled from April 14 to June 12, 2008, the

five-month period from appellant’s preliminary hearing on December 10, 2007, expired before

appellant was tried, on May 10, 2008. If this period was tolled, appellant’s June 12, 2008 trial

occurred 126 days after the finding of probable cause, well within the statutory limit.

       In determining whether the running of the speedy trial statute was tolled, “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

time frame mandated by statute.” Heath, 32 Va. App. at 181-82, 526 S.E.2d at 800-01 (quoting

Stinnie v. Commonwealth, 22 Va. App. 726, 729, 473 S.E.2d 83, 84 (1996) (en banc)) (citation

omitted). “Although [the court’s] orders facilitate the assessment of responsibility for delay and

the determination of the merits of a Code § 19.2-243 claim, such orders do not and should not

limit the scope of appellate review.” Baity v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d

891, 894-95 (1993), quoted with approval in Heath, 32 Va. App. at 182, 526 S.E.2d at 801.

       Here, a review of the record shows that, despite the apparent confusion of the trial court

and appellant’s second trial attorney, 3 who continues to represent appellant in this appeal, the

court entered an order on April 14, 2008, contemporaneously with its bench ruling granting the

continuance on that date. That order states that “the Commonwealth, by counsel, and the

Defendant, BY / WITH Counsel,” “jointly moved” that the case be continued to June 12, 2008.

(Emphasis added). Both attorneys signed beneath the phrase, “We ask for this.” On a line for

appellant’s signature, the order bears the notation, “[Appellant] was present on 4-14-08.”


       3
           See supra note 2 and accompanying text.
                                              -7-
       Nothing in the transcript of the proceedings from that date contradicts that order or

indicates appellant objected to his attorney’s request for a continuance. See McBride v.

Commonwealth, 24 Va. App. 30, 35-36, 480 S.E.2d 126, 128-29 (1997) (holding that although

“[a] court speaks through its orders[, which] are presumed to accurately reflect what has

transpired,” “we are not restricted to the precise, technical wording of a court’s order when other

evidence in the record clearly establishes that the court had a different intent”), cited with

approval in Wilson v. Commonwealth, 40 Va. App. 250, 253, 578 S.E.2d 831, 832 (2003); see

also Guba v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767 (1989) (harmonizing an

order and related transcript). After appellant’s counsel said he “would like time” to review the

DNA evidence and to rectify a clerical error that resulted in counsel’s failure to secure the

attendance of two witnesses for trial, the trial court asked appellant for “[his] position.”

Appellant gave a lengthy response, the point of which was less than clear. He noted “they come

to me back in January . . . with the DNA, . . . [but] they ain’t showed me no evidence or nothing

about the case. You know, . . . [my attorney] keeps telling about some witnesses, but you know

they’ve got to come tell you what’s going on.” When the trial court responded that “it takes a

while to get [DNA testing] done,” appellant responded, “No, . . . I told him I want discovery, . . .

he said he can’t get that. That’s my right to get my motion [for] discovery. . . . I want my

Motion for Discovery to tell me about my case.”

       The trial court, not entirely certain of appellant’s point, said to appellant’s counsel,

“[M]aybe you can help me on that one.” Appellant’s counsel responded he had shown appellant

the materials he obtained under the Commonwealth’s open file discovery policy but that it

sounded to him as if appellant was requesting, for the first time, “an actual copy” of what

counsel had obtained from the Commonwealth. Appellant responded, “Because you told me I

couldn’t get it. You said they don’t do that no more now.”

                                                 -8-
       The trial court observed, “it sounds like something that can be taken care of,” and the

court indicated it was “going to grant the Motion for Continuance.” When the trial court

inquired, “How much time do we need to evaluate that new information?” appellant’s counsel

said he needed “forty five days.” The record contains no indication that appellant, who had

spoken freely only moments before to express displeasure at not having received copies of

discovery materials, voiced any objection to the court’s granting a continuance of forty-five

days, as requested by his attorney, or until June 12, 2008, the new date the court set for trial.

       Appellant subsequently obtained new counsel, who moved to dismiss on statutory speedy

trial grounds and claimed appellant had lodged a contemporaneous objection to not being tried

on April 14, 2008. However, at the hearing on that motion, appellant admitted the transcript of

the April 14, 2008 proceeding accurately reflected “what [he] said” and that “[he] didn’t say

nothing [sic] about no continuance.” The trial court, before ruling on the motion, observed that

“[appellant] was upset” and that part of “the tenor of why he was upset[] was that he wasn’t

going to be tried within the five months,” but it did not find he objected to the continuance

within the meaning of the statute. 4 See Yarborough v. Commonwealth, 217 Va. 971, 978, 234

S.E.2d 286, 291 (1977) (“We will not fix upon isolated statements of the trial judge taken out of

the full context in which they were made, and use them as a predicate for holding the law has

been misapplied.”); see also Bassett v. Commonwealth, 13 Va. App. 580, 583-84, 414 S.E.2d

419, 421 (1992) (applying Yarborough to hold that “the trial court’s remark is not, in and of

itself, ‘the full context’ simply because it represents the only point at which the court [expressly]


       4
          For these same reasons, we hold that even if the trial court did find appellant objected,
that finding was plainly wrong. See, e.g., Schwartz v. Commonwealth, 45 Va. App. 407, 424-25,
611 S.E.2d 631, 640 (2005) (setting out standard of review). The transcript shows, at most, that
appellant was unhappy about the delay in obtaining the DNA results and in not having received
hard copies of other discovery materials; it does not show he objected to the continuance, even
inartfully.

                                                 -9-
addressed the [factual] issue [in dispute]”). The court ruled, instead, that his counsel

“acquiesce[d] in the continuance [requested by the Commonwealth] and asked for more time to

subpoena witnesses and review the DNA evidence.” As set out above, appellant registered no

objection to his attorney’s acquiescence and did not oppose his attorney’s representation that he

needed more time to prepare for trial.

       Code § 19.2-243 expressly states that its provisions are tolled by a continuance “granted

on the motion of the accused or his counsel,” “by concurrence of the accused or his counsel in

such a motion by the attorney for the Commonwealth,” or “by the failure of the accused or his

counsel to make a timely objection to such a motion by the attorney for the Commonwealth.”

The trial court’s entry of the April 14, 2008 order stating that the Commonwealth and the

defendant, “BY / WITH Counsel,” “jointly moved” that the case be continued, which was

endorsed by appellant’s counsel—combined with the transcript of appellant’s statements from

that date and his admission in the subsequent hearing that he “didn’t say nothing about no

continuance”—supported the trial court’s ruling that, pursuant to Code § 19.2-243, the

continuance could not be charged against the Commonwealth. Thus, we conclude the trial court

properly denied appellant’s motion to dismiss on statutory speedy trial grounds without

considering the impact of Code § 19.2-270.5’s provisions concerning the late production of DNA

evidence on the speedy trial calculations.

                                                 III.

       For these reasons, we hold appellant’s trial and conviction did not violate the speedy trial

statute, and we affirm the challenged convictions.

                                                                                           Affirmed.




                                               - 10 -
