                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, O’Brien and Malveaux
UNPUBLISHED


              Argued at Richmond, Virginia


              BRADFORD LYNORRIS GASKINS
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 0848-15-2                               JUDGE MARY BENNETT MALVEAUX
                                                                                 JULY 12, 2016
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             W. Reilly Marchant, Judge

                               William J. Dinkin (John Myers, Third Year Law Student; Stone,
                               Cardwell & Dinkin, PLC, on briefs), for appellant.

                               Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Bradford L. Gaskins (“appellant”) was convicted of abduction, in violation of Code

              § 18.2-48, and object sexual penetration, in violation of Code § 18.2-67.2. On appeal, he argues that

              the trial court violated his speedy trial rights by granting the Commonwealth a continuance for the

              introduction of DNA evidence pursuant to Code § 19.2-270.5. As appellant has failed to provide a

              record sufficient to permit proper appellate review, we affirm the judgment of the trial court.

                                                       I. BACKGROUND

                     On January 15, 2014, appellant was indicted in the Circuit Court of the City of Richmond

              for abduction, object sexual penetration, and forcible sodomy.1 Appellant was arrested on those

              indictments on January 22, 2014. On February 27, 2014, appellant appeared before the trial

              court to set a trial date for the charges. Counsel for appellant stated that appellant was not ready

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      On February 12, 2014, appellant was indicted and later convicted for robbery of the
              same victim. That conviction is not before this Court on appeal.
to waive trial by jury at that point, and requested two dates, one for a motions hearing and the

second for a bench trial. The court set two dates: a motions hearing for April 28, 2014, which

was also a status date for appellant’s election of a jury or bench trial; and May 19, 2014, a bench

trial date if appellant decided to proceed with a bench trial.

       On April 4, 2014, appellant’s attorney from the Richmond Public Defender’s Office was

relieved as counsel due to a conflict. That same day, another attorney was appointed to represent

appellant. Appellant’s new counsel informed the court that he was available for the status

hearing date on April 28, but was not available for the trial date of May 19. The court removed

the May 19 date from the court docket. The court’s order did not note that either party objected

to the continuance. At the April 28 status hearing, appellant requested a jury trial. The parties

selected June 23, 3014 as the jury trial date.

       On June 18, 2014, the Commonwealth moved for a continuance of the jury trial

scheduled for June 23, 2014 because it had received a supplemental lab report from the Virginia

Department of Forensic Science. Appellant objected to the continuance. A new trial date was

set for July 14, 2014.

       On June 24, 2014 appellant filed a motion asking the trial court to appoint a DNA expert

for his use. At a hearing on July 9, appellant told the court he was unable to obtain an expert in

that time period, and asked the court to continue the case. The court granted the continuance and

set another status hearing date for July 31, 2014. On that date, appellant waived his speedy trial

rights, in order for counsel to have time to prepare for trial with an expert witness.2


       2
         On brief, appellant acknowledges that on July 31, 2014 he waived his speedy trial rights
“going forward.” However, he arguably waived his speedy trial rights at the July 9, 2014
hearing. At that hearing, after telling the trial judge that he needed an expert, the trial judge
asked him if he was waiving speedy trial. Counsel for appellant responded that he “didn’t have a
choice” and agreed that it was a defense motion to continue. Since the resolution of whether this
constituted a waiver of his speedy trial rights is not determinative of the outcome of this appeal,
we do not decide on what date appellant actually waived his right to speedy trial.
                                                   -2-
       On September 22, appellant filed a motion to dismiss on speedy trial grounds. The trial

court held a hearing on the motion on October 8, 2014. The record on appeal does not contain a

transcript of the October 8 hearing. The court denied appellant’s motion.

       On January 27, 2015, appellant’s jury trial began. The next day, January 28, he was

found guilty of abduction, object sexual penetration, and robbery and not guilty of forcible

sodomy.

                                         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

speedy trial period “shall commence to run from the date of his arrest thereon,” which, here, was

January 22, 2014. “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)). Further,

                Any 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. If the
                time thus calculated exceeds 152 and a fraction days, the defendant
                “shall be forever discharged from prosecution for such offenses.”

Robinson v. Commonwealth, 28 Va. App. 148, 152, 502 S.E.2d 704, 706 (1998) (quoting Code

§ 19.2-243)).

       Appellant argues that his statutory speedy trial rights were violated when the trial court

granted the Commonwealth a continuance on June 18, 2014 to comply with Code § 19.2-270.5,

the statute concerning the introduction of DNA evidence in criminal proceedings. On appeal,

appellant presents a novel interpretation of Code § 19.2-270.5, contending that the notice

required under the statute should be tolled against the Commonwealth because it was the




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proponent of the DNA evidence in this case. We are unable to reach this issue of first

impression, however, because appellant has failed to preserve an adequate record for appeal.

       “[T]he burden is on the appellant to present to us a sufficient record from which we can

determine whether the lower court has erred in the respect complained of.” Justis v. Young, 202

Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). “Whether the record is sufficiently complete to

permit our review on appeal is a question of law subject to our de novo review.” Bay v.

Commonwealth, 60 Va. App. 520, 529, 729 S.E.2d 768, 772 (2012).

       Rule 5A:8(b)(4)(ii) requires that any transcripts or written statements of facts necessary

to the disposition of an appeal must be made a part of the record and “[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.” “The importance of the record is obvious, for it is axiomatic that an appellate

court’s review of the case is limited the record on appeal.” Turner v. Commonwealth, 2

Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). “If . . . the transcript is indispensable to the

determination of the case, then the requirements for making the transcript a part of the record on

appeal must be strictly adhered to.” Id. “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. “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).

         The trial court held a hearing on the motion to dismiss for violation of appellant’s right

to a speedy trial on October 8, 2014. The record does not contain a transcript of the hearing.

Despite the lack of this transcript, appellant contends that we can consider the merits of his

                                                -4-
appeal because the statutory speedy trial issue was objected to and fully argued at the June 18

hearing. He further asserts that the subsequent motion to dismiss was based solely on a separate

Sixth Amendment speedy trial argument. After reviewing the record in total, we find this

argument unpersuasive.

       On June 18, 2014, the Commonwealth moved for a continuance because it had recently

received the results of a new DNA analysis from the Department of Forensic Science, and under

Code § 19.2-270.5, was required to give appellant twenty-one days’ notice of its intent to enter

the results into evidence. At the June 18 continuance hearing, appellant’s counsel informed the

court that there might be a potential speedy trial issue if the court granted the Commonwealth’s

continuance. Appellant’s counsel noted that his client had been incarcerated for over five

months at that time and was prepared to go to trial. Appellant also argued during the hearing that

the Commonwealth had not shown good cause for the continuance. The court granted the

Commonwealth’s motion for a continuance for good cause shown and did not specifically make

a ruling regarding the speedy trial issue.

       The only place in the record where the trial court clearly made a ruling on speedy trial

was in its order entered on October 17, 2014, subsequent to the October 8 speedy trial hearing, in

which it denied appellant’s motion to dismiss. Although appellant argues that his motion to

dismiss was based solely on a separate Sixth Amendment speedy trial argument, this assertion is

not evident from the record. Appellant styled his motion as a “Motion to Dismiss (Speedy

Trial).” In the motion, he asked the trial court to “dismiss this matter pursuant to the Sixth

Amendment.” Appellant’s motion then calculated the speedy trial date using the five-month

statutory requirement, stating that appellant was arrested on January 22, had been held

continuously in jail, and had a speedy trial date of June 21. The motion itself did not discuss any

of the four factors used to determine whether there was a violation of his speedy trial rights

                                                -5-
under the Sixth Amendment. The Commonwealth Attorney’s written response to the motion to

dismiss addressed both constitutional and statutory speedy trial grounds.

       With this record, we are unable to know for certain that the sole argument advanced by

appellant at the October 8 hearing involved a constitutional speedy trial claim. The court’s order

only states that appellant’s motion was denied, and does not specify whether it was denied on

constitutional or statutory grounds. Without the transcript of the hearing, this Court cannot

determine that appellant only raised a constitutional speedy trial argument at this hearing, as he

claims on appeal. We do not know what argument appellant presented to the trial court and if

that argument was the same one that he advances on appeal, as required by Rule 5A:18. See

Delaney v. Commonwealth, 55 Va. App. 64, 67, 683 S.E.2d 834, 835-36 (2009) (noting that

defendant’s “statement of facts . . . [was] devoid of any indication as to what arguments and

objections were presented to the trial court” and thus his arguments on appeal were not preserved

under Rule 5A:18). Additionally, we do not know what justification the Commonwealth

provided at the hearing for any delay regarding speedy trial and therefore cannot say that the trial

court erred in denying appellant’s motion to dismiss. For all of these reasons, we hold that a

transcript of the speedy trial hearing is indispensable to our review of appellant’s claim that his

statutory right to a speedy trial was violated. See Bunton v. Commonwealth, 6 Va. App. 557,

370 S.E.2d 470 (1988) (holding that a missing transcript of a speedy trial hearing was

indispensable for review of a speedy trial claim on appeal).

                                        III. CONCLUSION

       We conclude that the transcript of the October 8, 2014 speedy trial hearing is

indispensable to our review of the issue and, thus, appellant has waived his speedy trial claim on

appeal. See Smith v. Commonwealth, 281 Va. 464, 469, 706 S.E.2d 889, 892 (2011) (holding




                                                -6-
that the proper disposition of a Rule 5A:8 violation is a waiver of the argument rather than

dismissal of the appeal). Therefore, we affirm appellant’s convictions.

                                                                                         Affirmed.




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