                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Beales
Argued at Chesapeake, Virginia


MICHAEL GARDNER
                                                               MEMORANDUM OPINION * BY
v.      Record No. 2367-09-1                                   JUDGE RANDOLPH A. BEALES
                                                                   DECEMBER 14, 2010
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                Westbrook J. Parker, Judge

                  James L. Grandfield, Public Defender (Office of the Public
                  Defender, on brief), for appellant.

                  Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellee.


        Michael Gardner (appellant) was convicted by the trial court of aggravated malicious

wounding (under Code § 18.2-51.2); shooting, stabbing, cutting, or wounding in the commission

of a felony (under Code § 18.2-53); and robbery (under Code § 18.2-58). 1 On appeal, appellant

argues that the trial court erred when it did not dismiss those charges for failure of the

Commonwealth to prosecute them within the time afforded by Virginia’s speedy trial statute,

Code § 19.2-243. For the following reasons, we affirm the convictions.

                                           I. BACKGROUND

        Appellant was indicted on June 25, 2008, was arrested the following day, and remained in

custody until his trial. At appellant’s July 23, 2008 arraignment, the parties agreed on a trial date of


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
          Appellant challenged the sufficiency of the evidence supporting these convictions in his
petition for appeal, but this Court did not grant an appeal on that issue.
October 6, 2008. Three days prior to this anticipated trial date, the trial court granted appellant’s

motion for a continuance and set a new trial date of January 15, 2009.

        On January 14, 2009, the Commonwealth moved for a continuance claiming that one of

its witnesses, Detective McCarley, was on active military duty and unavailable to appear at trial.

The trial court conducted a hearing and granted the Commonwealth’s continuance motion,

noting in its written order that the continuance was granted under Code § 19.2-243(2) because

“Det. McCarley is currently on active military duty.” The court set a new trial date of April 23,

2009.

        A transcript of the January 14, 2009 hearing is not a part of the record on appeal.

Appellant failed to file the transcript within sixty days after entry of the final judgment in the

trial court as explicitly required by the Rules of the Court of Appeals of Virginia. See Rule

5A:7(a)(7), 5A:8(a).

        On April 23, 2009, appellant moved to dismiss the charges, contending that the trial had

not occurred within the statutory speedy trial period. Appellant’s counsel made no specific

arguments in support of this motion, and no evidence concerning the Commonwealth’s earlier

continuance motion was presented at that time. Noting that Detective McCarley had been “kept

away” under Code § 19.2-243(2), 2 the trial court denied appellant’s motion to dismiss the

charges.

                                            II. ANALYSIS

        Code § 19.2-243 provides that, “[i]f an indictment or presentment is found against the

accused but he has not been arrested for the offense charged therein,” the five-month statutory


        2
        Appellant never challenged the entry of the trial court’s written order of April 23, 2009,
nunc pro tunc January 29, 2009, in which the trial court found that Detective McCarley had been
“kept away” under Code § 19.2-243(2). This order replaced the trial court’s earlier January 29,
2009 written order granting the Commonwealth’s motion for a continuance.

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speedy trial period “shall commence to run from the date of his arrest thereon” – which, in this

case, was June 26, 2008. “The five-month requirement translates ‘to 152 and a fraction days.’”

Howard v. Commonwealth, 55 Va. App. 417, 423, 686 S.E.2d 537, 540 (2009) (quoting Ballance

v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995)). However, Code § 19.2-243

provides for tolling of this time period for several reasons, such as “[f]or the witnesses for the

Commonwealth being enticed or kept away, or prevented from attending by sickness or

accident.” Code § 19.2-243(2). 3

           Appellant argues that the continuance from January 15, 2009 to April 23, 2009, should be

included in the five-month limitation period set by Code § 19.2-243, which would put the start of

his trial outside the 152 and a fraction days. He claims that the “kept away” tolling provision in

Code § 19.2-243(2) does not include situations like Detective McCarley’s active military duty.

However, it is impossible for this Court to evaluate the propriety of the trial court’s finding that

Detective McCarley was “kept away” under subsection (2) of this statute. The record does not

contain the transcript of the January 14, 2009 hearing during which the parties addressed this

issue. 4

           “[O]n appeal the judgment of the lower court is presumed to be correct and the burden is on

the appellant to present to us a sufficient record from which we can determine whether the lower


           3
        The statutory speedy trial time period is also tolled “[b]y continuance granted on the
motion of the accused or his counsel.” Code § 19.2-243(4). Appellant concedes that the
continuances from July 7, 2008 to July 23, 2008 and from October 6, 2008 to January 15, 2009
were not attributable to the Commonwealth under the speedy trial statute because those
continuances resulted from appellant’s own motions.
           4
         Appellant also contends that a witness is “kept away” within the meaning of Code
§ 19.2-243(2) only when the defendant is the cause for the witness being kept away. It is unclear
whether appellant actually made this specific argument to the trial court since the transcript of
the January 14, 2009 hearing is not a part of the record on appeal. Therefore, we do not address
the merits of this argument. See Rule 5A:8.


                                                   -3-
court has erred in the respect complained of.” Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,

256-57 (1961). “An appellate court must dispose of the case upon the record and cannot base its

decision upon appellant’s petition or brief, or statements of counsel in open court. We may act only

upon facts contained in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2,

6 (1993). Therefore, “[w]hen the appellant fails to ensure that the record contains transcripts or a

written statement of facts necessary to permit resolution of appellate issues, any assignments of

error affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii).

        It is clear from the April 23, 2009 transcript, which is a proper part of the record on appeal,

that the factual circumstances pertinent to Detective McCarley’s inability to testify on the scheduled

January 15, 2009 trial date were developed and argued during the January 14, 2009 hearing on the

Commonwealth’s continuance motion. However, appellant failed to ensure that the transcript of the

January 14, 2009 hearing was a part of the record on appeal, and “[t]his Court has no authority to

make exceptions to the filing requirements” of the Rules of the Court. Turner v. Commonwealth,

2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986).

        Furthermore, the transcript of the April 23, 2009 hearing contains only brief and incomplete

references to the facts presented at the January 14, 2009 hearing. For example, although the

prosecutor noted at the April 23, 2009 hearing that Detective McCarley was in Japan on active

military duty during January 2009, the transcript of that April 23, 2009 hearing sheds no light on

important factual considerations including, but not limited to, in what branch of the military the

detective served; what efforts, if any, the Commonwealth took to request the detective’s presence at

trial; what response, if any, the military made to this request; and what the military’s terms for

returning the detective to Virginia to appear at trial were (if the military even agreed to McCarley’s

returning to testify). This April 23, 2009 hearing transcript also contains no references to the

specific arguments appellant made in opposition to the Commonwealth’s motion for a continuance

                                                  -4-
during the January 14, 2009 hearing. Thus, the transcript of the April 23, 2009 hearing certainly is

insufficient for evaluating the trial court’s ruling that Detective McCarley had been “kept away”

under Code § 19.2-243(2).

       Based on this scant record, therefore, we cannot conclude that the trial court’s ruling that

Detective McCarley had been “kept away” under the speedy trial statute, which is presumed to be

correct, was instead erroneous. See Justis, 202 Va. at 632, 119 S.E.2d at 256-57.

                                          III. CONCLUSION

       Appellant failed to ensure that the record on appeal contained the transcript of the January

14, 2009 hearing, and this transcript is “necessary to permit resolution of appellate issues.” Rule

5A:8(b)(4)(ii). Therefore, the record on appeal is inadequate to determine whether the trial court

erred when it found that Detective McCarley was “kept away” under Code § 19.2-243(2).

Accordingly, for the foregoing reasons, we affirm appellant’s convictions.

                                                                                       Affirmed.




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