                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


RUDOLPH LYNWOOD HUTCHINS, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 1439-97-3             JUDGE RUDOLPH BUMGARDNER, III
                                           JANUARY 19, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                       Charles M. Stone, Judge
           Vikram Kapil, Assistant Public Defender
           (Wayne T. Baucino, Assistant Public Defender,
           on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     The defendant appeals his conviction of unlawful wounding.

He contends that the trial court denied his right to a speedy

trial.   Concluding that the trial commenced within the prescribed

time limits, we affirm the conviction.

     The defendant was arrested for malicious wounding and

remained in jail until convicted.   The district court found

probable cause on October 23, 1996.    Two weeks after the grand

jury indicted the defendant on two counts of malicious wounding,

the trial court arraigned the defendant, who pleaded not guilty

and requested a jury trial.   The arraignment was within five

months of the preliminary hearing, but the trial court did not

conduct the jury trial until well after the five-month period.
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The trial court had a practice of arraigning all defendants

indicted by the grand jury on a day shortly after term day.        On

that arraignment day, the court would not hear evidence but would

set the cases over for further proceedings.    On the succeeding

date the court would conduct the balance of the trial

proceedings.   In the defendant's case, the proceedings were set

over from February 25, 1997 to June 6, 1997 when it empaneled a

jury which heard the evidence.    The jury found the defendant

guilty of one count of unlawful wounding.
     Under Code § 19.2-243, the Commonwealth must commence the

trial within five months of a probable cause finding.        See

Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403

(1995).   The time begins to run the day after probable cause is

found.    See Randolph v. Commonwealth, 22 Va. App. 334, 335, 470

S.E.2d 132, 133 (1996).

     Six months and twenty-two days after his preliminary

hearing, the defendant filed a motion to dismiss because the

trial court had not commenced his trial within five months.        The

trial court denied the motion and convicted the defendant of one

count of unlawful wounding.   Relying on Riddick v. Commonwealth,
22 Va. App. 136, 468 S.E.2d 135 (1996), the trial court ruled

that the arraignment had commenced the trial and that satisfied

the time limitations of Code § 19.2-243.    The defendant argues

that Riddick does not hold that arraignment alone commences trial

for the purposes of Code § 19.2-243.     He maintains that



                                 - 2 -
arraignment only commences the trial when it is part of a

proceeding that includes presentation of evidence.   At a minimum,

the presentation must be a summary of stipulated evidence.

     In Riddick, the court arraigned the defendant on the

offense, he tendered a guilty plea pursuant to a plea agreement,

and the Commonwealth presented a stipulation of the evidence.

This Court rejected the defendant's argument that those

proceedings did not commence his trial.   It ruled that it is well

established that the trial of a criminal case begins with the

arraignment and ends when the trial court pronounces sentence

upon the defendant.   It held that the proceeding commenced the

trial for purposes of Code § 19.2-243.
     Riddick based its ruling on the authority of Burnley v.

Commonwealth, 208 Va. 356, 158 S.E.2d 108 (1967).    The Supreme

Court relied on a long series of cases that held the defendant

had to be present at the arraignment because it was a critical

stage of the trial.   Those cases stated that a trial begins with

the arraignment.   From that precedent, the Court concluded that a

trial starts with arraignment when applying the Sixth Amendment

rights pronounced in Miranda v. Arizona, 384 U.S. 436 (1966).
See Burnley, 208 Va. at 362, 158 S.E.2d at 112.

     In similar manner, in Riddick this Court also looked at the

cases that decided whether a defendant must be present during

arraignment.   All of that authority cited Gilligan v.

Commonwealth, 99 Va. 816, 37 S.E. 962 (1901), which stated "[t]he




                               - 3 -
trial of a criminal case begins with the arraignment of the

prisoner, and ends with the sentence pronounced upon him by the

court."   In Riddick, this Court concluded that a trial starts

with arraignment when applying the statutory rights defined in

Code § 19.2-243.   It extracted the principle from precedent and

applied it to the specific issue before it just as the Supreme

Court had done in Burnley.    Though the proceedings in Riddick

consisted of the arraignment, the plea, and the stipulation of

evidence, nothing in the analysis or opinion suggests the holding

would apply the principle only when an evidentiary proceeding

followed the arraignment.
     The term, "arraignment," is a term of art describing a

precise legal procedure.    It consists of formally calling the

defendant to the bar, reading aloud the accusation contained in

the indictment, and calling upon the defendant to plea to it.

Technically the defendant's plea is not part of the arraignment.

 See Whitehead v. Commonwealth, 60 Va. (19 Gratt.) 230 (1870);

Ronald J. Bacigal, Virginia Criminal Procedure § 15-1, at 279 (3d
ed. 1994).   When this Court in Riddick analyzed precedent, it

used "arraignment" as a term of art.    For us to hold that a trial

commences only when the arraignment is combined with further

stages of the trial would be to modify the holding of Riddick.

That case held the trial commenced at the arraignment and is

consistent with precedent.   To accept the defendant's argument

would rewrite clear and controlling precedent.




                                - 4 -
     The defendant complains that his right to a speedy trial

means nothing if the trial court can simply hold the arraignment

and then postpone the main trial proceedings as long as it wants.

The argument has appeal, but it is not before us in this appeal.

The trial court arraigned the defendant and commenced the trial.

The defendant made no objection when the trial court continued

the balance of the proceedings to June.    He cannot now complain

that the continuance violated his statutory or constitutional

rights because his trial commenced within the permissible limits

and he took no action to object to the trial court's continuing

the balance of the trial.   Had he done so, the trial court could

have limited the delay, or on appeal we could have reviewed the

ruling.   See Rule 5A:18

     We conclude that the trial commenced within the period

required by statute and that the trial court did not err in

denying the defendant's motion to dismiss for failure to commence

the trial within those time limitations.   Accordingly, we affirm.
                                                          Affirmed.




                               - 5 -
Lemons, J., concurring.

     Under Code § 19.2-243, where an accused is charged with a

felony and continuously incarcerated, the Commonwealth must

"commence" the trial within five months of a finding of probable

cause by the district court or, if there has been no preliminary

hearing in the district court, within five months of a grand jury

indictment or presentment.

     In Riddick v. Commonwealth, 22 Va. App. 136, 143, 468 S.E.2d

135, 138 (1996), citing the Virginia Supreme Court in Burnley v.
Commonwealth, 208 Va. 356, 362, 158 S.E.2d 108, 112 (1967), and

Gilligan v. Commonwealth, 99 Va. 816, 827, 37 S.E. 962, 965

(1901), we held that, "it is well established that '"[t]he trial

of a criminal case begins with the arraignment . . ., and ends

with the sentence pronounced upon him by the court."'"

     In Johnson v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d

539, 541 (1996), the Virginia Supreme Court stated, "we hold that

a decision of a panel of the Court of Appeals becomes a predicate

for application of the doctrine of stare decisis until overruled
by a decision of the Court of Appeals sitting en banc or by a

decision of this Court."

     Accordingly, we are bound by the determination of the

three-judge panel in the published decision in Riddick holding

that for purposes of Code § 19.2-243 trial commences upon

arraignment.

     Having commenced the trial in compliance with Code




                              - 6 -
§ 19.2-243, the trial judge continued the proceedings without

objection from Hutchins.

     Accordingly, I concur in the result reached in Judge

Bumgardner's opinion.




                              - 7 -
Coleman, J., dissenting.

        Code § 19.2-243, referred to as the speedy trial act,

provides that a person charged with a felony, whether confined in

jail or on bail, shall be forever discharged from prosecution "if

no trial is commenced" in the circuit court within specified

times, subject to certain exceptions.    This case requires that we

determine when "a trial commence[s]" under Code § 19.2-243 for

the purpose of tolling the speedy trial statutory period.
        As to the right to a speedy trial as guaranteed by the

United States Constitution, the United States Supreme Court has

said:
             The speedy trial guarantee is designed to
             minimize the possibility of lengthy
             incarceration prior to trial, to reduce the
             lesser, but nevertheless substantial,
             impairment of liberty imposed on an accused
             while released on bail, and to shorten the
             disruption of life caused by arrest and the
             presence of unresolved criminal charges.


United States v. MacDonald, 456 U.S. 1, 8 (1982).

        The Virginia General Assembly enacted Code § 19.2-243 to

"clarify and augment the constitutional guarantees of the Sixth

Amendment of the United States Constitution and Article I, § 8 of

the Virginia Constitution."     Bunton v. Commonwealth, 6 Va. App.

557, 558, 370 S.E.2d 470, 470 (1988).    The statute establishes as

state policy, the maximum time periods that the state may hold an

accused in jail or on bail before commencing his or her trial.

If the state holds the accused in excess of the statutorily

defined periods, the charges must be dismissed, subject to



                                 - 8 -
certain exceptions.   As such, we are obligated to "construe [Code

§ 19.2-243] so as to assure both a defendant's constitutional

right to a speedy trial and society's interest in 'swift and

certain justice.'"    Clark v. Commonwealth, 4 Va. App. 3, 5, 353

S.E.2d 790, 791 (1987) (quoting Fowlkes v. Commonwealth, 218 Va.

763, 766-67, 240 S.E.2d 662, 664 (1978)).   In my opinion, the

majority's construction of the statute, specifically its

determination of when the "trial is commenced," achieves neither

of the purposes for which the statute was enacted.   The

majority's construction renders any protection for the defendant

or assurance for the public that an accused will be promptly

brought to trial on the charges essentially meaningless.
     The majority relies upon our holding in Riddick v.

Commonwealth, 22 Va. App. 136, 468 S.E.2d 135 (1996), for the

proposition that arraignment of an accused constitutes "the

commencement of trial" in every speedy trial situation.     The

majority holds that arraignment invariably constitutes

"commencement of trial" for speedy trial purposes.   Under the

majority's analysis, a trial court that merely arraigns a

defendant within the statutory speedy trial period may thereafter

subject the accused to prolonged and indefinite custody or bail

prior to the actual trial of the case without violating the

speedy trial statute.   The Riddick holding, however, is not so

broad.   Accordingly, I respectfully dissent.

     In Riddick the accused was not only arraigned, but pled



                                - 9 -
guilty and the Commonwealth presented evidence against him.    We

held in Riddick that under the facts of the case, the arraignment

constituted the commencement of the trial.   In support of that

finding, we underscored the important fact that Riddick pled

guilty at the arraignment.
          Article I, Section 8 of the Virginia
          Constitution provides that, "[i]n criminal
          cases the accused may plead guilty," and
          "[i]n case of such . . . plea of guilty, the
          court shall try the case." (Emphasis added).
           Code § 19.2-257 directs that "[u]pon a plea
          of guilty in a felony case, tendered in
          person by the accused after being advised by
          counsel, the court shall hear and determine
          the case without the intervention of a jury
          . . . ." (Emphasis added). The court,
          therefore, must "try," "hear" and "determine"
          the case upon a guilty plea, undertakings
          which clearly commence trial.


Riddick, 22 Va. App. at 143, 468 S.E.2d at 138 (emphasis added).

Thus, although certain language in Riddick could be construed to

hold that arraignment alone commences trial for speedy trial

purposes, as the majority elects to do, I read the Riddick

opinion to hold that with a guilty plea trial "clearly

commence[s]" when the court "tr[ies]" or "hear[s]" the case.

     In Riddick, the panel relied upon two cases in which the
Virginia Supreme Court held, in contexts other than speedy trial,

that a trial begins at arraignment.   First, in Burnley v.

Commonwealth, 208 Va. 356, 362, 158 S.E.2d 108, 112 (1967), the

Virginia Supreme Court determined whether the Miranda safeguards

applied to an appellant's prosecution.   Noting that the United

States Supreme Court had held the Miranda decision applied to


                             - 10 -
trials beginning after June 13, 1966, the Virginia Supreme Court

held that, for the purpose of applying Miranda prospectively,

trials began at arraignment.     See id. (citing Johnson v. New

Jersey, 384 U.S. 719, 734 (1966)).       To support its conclusion,

the Court cited its holding in Gilligan v. Commonwealth, 99 Va.

816, 827, 37 S.E. 962, 965 (1901), in which a defendant alleged

that the trial court violated his right to be present at a

post-verdict hearing.   The Court held that a defendant's right to

be present during trial began with arraignment and ended with

pronouncement of sentence.     See id.

     Second, in Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d

482 (1984), the appellant asserted the trial court erred by

viewing the crime scene without his being present.       See id. at

428, 317 S.E.2d at 483.    Holding that a view is part of the

trial, the Court defined the trial in this context as extending

from arraignment to sentencing.     See id.    Although these cases,

relied upon by the majority, state that arraignment is the

beginning of trial, none of them so hold in the context of the

right to a speedy trial.    Thus, while they do lend support for

the holding by our panel in Riddick, which held that arraignment
and the guilty plea constitutes commencement of the trial for

purposes of the speedy trial statute, that holding does not, in

my view, stand for the proposition or require a holding that

trial commences for all purposes with an arraignment.      A

different set of values is at stake when determining when trial




                                - 11 -
begins to alleviate a defendant's or the public's concern that an

accused be brought to trial promptly.

     I would hold that Hutchins's arraignment and plea of not

guilty did not "commence his trial."    Reason dictates that for

purposes of Code § 19.2-243, the speedy trial act, we should

determine that "trial commences" at a time which gives meaning to

the purpose of the statute by ensuring both the defendant's and

the public's rights to have an accused timely brought to justice.

Allowing a court to satisfy the statute by merely arraigning an

accused and deferring the actual beginning of a trial for months

essentially nullifies the act.   Under federal law, trial

commences for the speedy trial act not upon arraignment, but

rather upon voir dire of the jury.     See United States v. A-A-A

Elect. Co., 788 F.2d 242, 246 (4th Cir. 1986).    The logical

standard, I believe, for when "trial commences" under Code

§ 19.2-243 is when jeopardy attaches.    Thus, I would hold that

for speedy trial purposes "trial commences," not with the

arraignment, but rather with the empaneling of the jury or

swearing of the first witness in a bench trial, see Peterson v.
Commonwealth, 5 Va. App. 389, 395, 363 S.E.2d 440, 444 (1987), or

when a guilty plea is tendered, with arraignment and acceptance

of the plea, as in Riddick.   Such a holding finds support from

the similar federal standard, gives effect to the intended

purpose of the statute, and would not directly conflict with




                              - 12 -
Riddick's holding. 1

     The majority's holding frustrates the intended purpose of

the speedy trial statute, it is not dictated by our case law, and

it ignores established rules of statutory construction.   For

these reasons, I dissent.




     1
      As to when jeopardy attaches in a guilty plea, language in
Peterson suggests that jeopardy attaches upon acceptance of a
guilty plea. However, neither Peterson nor the case upon which
Peterson relied, Ricketts v. Adamson, 483 U.S. 1, 8 (1987),
foreclosed that jeopardy might also attach at an earlier time
than acceptance of the guilty plea, such as the tendering of a
guilty plea.




                             - 13 -
