                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia


PERNELL JEFFERSON
                                                OPINION BY
v           Record No. 2943-95-1         JUDGE NELSON T. OVERTON
                                            DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                   Russell I. Townsend, Jr., Judge
            Randolph D. Stowe (Stowe & Stanton, P.C., on
            briefs), for appellant.

            Michael T. Judge, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



       Pernell Jefferson entered a plea of guilty to burglary,

reserving the right to appeal on the grounds that his statutory

and constitutional speedy trial rights were violated.      We hold

that none of his rights were violated, and we affirm his

conviction.

                                   I

       In May 1989, Jefferson, armed with a deadly weapon, broke

into the Chesapeake City house of Regina Butkowski and abducted

her.   At some later point, he shot and killed her.   In March

1991, he was tried and convicted in Amelia County on the charge

of capital murder.    He was sentenced to life imprisonment.

       In the January 1992 Criminal Term, Jefferson was indicted in

Chesapeake for (1) breaking and entering the dwelling of

Butkowski at night, while armed with a deadly weapon and with the
intent to commit abduction and (2) abduction.    Jefferson moved to

dismiss the indictments, on the double jeopardy ground that he

had already been convicted of Butkowski's murder.    On May 7,

1992, the judge dismissed the abduction indictment but refused to

dismiss the burglary charge.    Jefferson appealed that ruling and

a continuance order was prepared.    The form order was amended

with additions and deletions and was entered on July 13, 1992 in

the following final wording:
                                 ORDER
                  Upon motion of the defendant, it is
             hereby ORDERED that this case is continued
             from July 9, 1992 generally because defendant
             is appealing the court's ruling on his double
             jeopardy motion.


Under the caption "I ask for this:" was the signature of the

defendant's attorney.    Below, under the caption "Seen" was the

signature of the Commonwealth's attorney.

        The Court of Appeals granted the petition on October 22,

1993, and transferred it to the Supreme Court on June 24, 1994.

The Supreme Court ruled that interlocutory appeals of double

jeopardy claims are prohibited and dismissed the appeal on May 9,

1995.

        A trial was set for the burglary charge on October 30, 1995,

then reset for December 7, 1995, because defense counsel was not

available on October 30.    On October 27, 1995, Jefferson filed a

motion to dismiss, alleging that his right to a speedy trial was

violated.    His motion was denied, and he entered his conditional

guilty plea.    His conviction and this appeal followed.



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                                II

     Jefferson was indicted in January 1992 and held continuously

in custody thereafter.   He therefore had the statutory right to

be tried within five months from the time of the indictment.     See

Code § 19.2-243.   The running of this time limit, however, may be

tolled under certain circumstances enumerated in the statute, one

of which is a continuance granted on the motion of the accused or

his counsel.   See Code § 19.2-243(4).   "[T]o the extent that the

defendant requested or concurred in any delay, that time will be

excluded in determining whether the trial took place within the

mandated time period."   Shearer v. Commonwealth, 9 Va. App. 394,

400, 388 S.E.2d 828, 830 (1990).

     In the case at bar, Jefferson, by counsel, moved for a

continuance.   Jefferson argues that the wording in the trial

court's order, "because defendant is appealing the court's ruling

on his double jeopardy motion," means that the continuance

terminated on May 9, 1995, when the Supreme Court dismissed his

appeal.   Under this approach, the first trial date set on October

30 was beyond the five-month period allowed by statute.

     We disagree with Jefferson's interpretation.   First, the

order clearly states "continued from July 9, 1992 generally."

Although the wording of the order intimates that defense counsel

and the prosecutor may have had an understanding as to the length

of the continuance, that understanding was not memorialized in

any firm way in the record and cannot be a basis for our



                               - 3 -
decision.    See Woodard v. Commonwealth, 214 Va. 495, 499, 201

S.E.2d 785, 788 (1974); Shearer, 9 Va. App. at 410, 388 S.E.2d at

836.   "A court speaks only through its order."   Cunningham v.

Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964).

       Secondly, the calculation of time asserted by Jefferson is

not sound.   The Commonwealth could not possibly conduct a trial

on the very day of the appeal's dismissal, but time would be

running against it.   Furthermore, although in retrospect the

appeal was final on May 9, the Commonwealth could not know at

that time whether Jefferson would seek a rehearing or petition

the Supreme Court of the United States for review.     See Rule 13,

Rules of the United States Supreme Court (allowing petitions for

writ of certiorari to be filed up to 90 days after the entry of

judgment by a state court of last resort).   The indefinite

continuance granted on the defendant's motion did not require the

Commonwealth to stay abreast of, much less predict, the progress

of Jefferson's appeal.   We therefore hold that the running of the

speedy trial statute did not resume automatically on the date

that the ruling on the appeal was announced.

       When the defendant requests and is granted a continuance for

an indefinite period of time, the speedy trial period will not

recommence until the defendant announces to the Commonwealth that

he stands ready for trial.    See Stinnie v. Commonwealth, 22 Va.

App. 726, 730, 473 S.E.2d 83, 85 (1996) (en banc); accord People
v. Baker, 652 N.E.2d 858, 861 (Ill. App. Ct. 1995); State v.




                                - 4 -
Lopez, 872 P.2d 1131, 1134 (Wash. Ct. App. 1994).     "[W]here the

accused affirmatively acts and invites the delay in the

commencement of trial by such motion, there is no violation of

his speedy trial right."   Stinnie, 22 Va. App. at 730, 473 S.E.2d

at 85.

     No action was taken in Jefferson's case until the

Commonwealth's attorney and counsel for the defense discussed the

case in late September to set a new trial date.    In early

October, the Commonwealth offered October 30, the first available

trial date.   Apparently the defendant never announced that he was

ready for trial until the Commonwealth tried to set a trial date

in late September and early October, and in fact did not even

stand ready for trial on the first date set.    The Commonwealth,

however, was ready to proceed on October 30, well within the

remaining time under Code § 19.2-243.    Jefferson's statutory

speedy trial rights were not violated.
                                III

     Neither did the Commonwealth infringe upon Jefferson's Sixth

Amendment right to a speedy trial.     "The determination of whether

an accused has been denied the constitutional right to a speedy

trial requires 'a difficult and sensitive balancing process' in

which the court examines on an ad hoc basis the conduct of both
the state and the accused which led to a delay in prosecution."

Kelley v. Commonwealth, 17 Va. App. 540, 544, 439 S.E.2d 616, 618

(1994) (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)).



                               - 5 -
Following the traditional four-part balancing test, we examine

"(1) the length of delay; (2) the reason for the delay; (3) the

defendant's assertion of his right [to a speedy trial]; and (4)

prejudice to the defendant."    Kelley, 17 Va. App. at 544, 439

S.E.2d at 618-19; see Holliday v. Commonwealth, 3 Va. App. 612,

616, 352 S.E.2d 362, 364 (1987).   A consideration of all of the

factors in light of the relevant circumstances clearly

demonstrates that no violation of Jefferson's constitutional

rights occurred in this case.
     The length of the delay from Jefferson's indictment to his

trial was just under four years, almost all of which being

attributable to Jefferson's appeal of the trial court's ruling.

A four-year delay for the felony of burglary, potentially

punishable by life imprisonment, may be excessive.   It does not,

however, immediately shock us, especially given the facts here

and past cases in which this factor played a significant role.

See, e.g., Barker, 407 U.S. 514 (over four years for a

misdemeanor); Shavin v. Commonwealth, 17 Va. App. 256, 437 S.E.2d
411 (1993) (over two years for a misdemeanor).   "When the charge

is for a misdemeanor or lesser offense, the length of delay that

will be tolerated is less than that when the charge is for a more

serious crime."   Kelley, 17 Va. App. at 545, 439 S.E.2d at 619;

see Barker, 407 U.S. at 531.

     Secondly, most of the delay resulted from Jefferson's

conduct.   "[A]ny period of delay in bringing the defendant to



                                - 6 -
trial that is attributable to the defendant cannot be counted

against the state in determining whether the delay was

unreasonable."   Kelley, 17 Va. App. at 545, 439 S.E.2d at 619;

see Taylor v. Commonwealth, 12 Va. App. 425, 428, 404 S.E.2d 86,

87-88 (1991); Shearer, 9 Va. App. at 399, 388 S.E.2d at 830.

Therefore, the relevant period for our determination runs, at the

earliest, from May 9 to October 30, 1995, a period of little more

than five months.   As discussed above, the delay, if any, in

setting a trial date over the summer resulted from the

defendant's initial continuance to pursue his appeal.    The record

does not indicate that the Commonwealth was informed that the

defendant had ended his appeal in the state courts nor that the

defendant was forgoing any appeal in the federal court system.

Even if we attributed the delay solely to the Commonwealth's lack

of diligence in following the defendant's case, this reason for

the delay weighs less than a deliberate or malicious motive on

the part of the prosecutor.   See Kelley, 17 Va. App. at 545, 439

S.E.2d at 619; see also Barker, 407 U.S. at 531.   Furthermore,

the record indicates that the Commonwealth did in fact make an

effort to contact the defendant's attorney approximately three

months after becoming aware of the Supreme Court order of May 9.

Ultimately, the delay, if any, in setting this case for trial

after May 9, 1995, does not weigh against the government.

     The next factor, the assertion of the right to a speedy

trial, also weighs against Jefferson.   The fact that the




                               - 7 -
defendant asserted or failed to assert his right to a speedy

trial is a consideration in determining whether his

constitutional right to a speedy trial was violated.   The record

in the instant case is devoid of any assertion by Jefferson that

he requested a trial during the period after his appeal was

dismissed.

     Finally, Jefferson experienced no prejudice by the delay in

question.    Three interests in particular are protected by the

Sixth Amendment speedy trial right: "(1) preventing oppressive

pretrial incarceration; (2) minimizing the accused's anxiety; and

(3) limiting the possibility that the defense will be impaired."

 Kelley, 17 Va. App. at 546, 439 S.E.2d at 620 (citing Barker,

407 U.S. at 532).   Jefferson was incarcerated the entire period

on a previous sentence.    No claim was made that his anxiety was

increased by this delay.   He pleaded guilty to the charge, and

made no claim that his defense was impaired in any way.

     Based upon consideration of the four factors specified in
Barker, we cannot say that Jefferson's constitutional right to a

speedy trial was violated.

     For the reasons stated, the conviction is affirmed.

                                          Affirmed.




                                - 8 -
Benton, J., dissenting.

     Prior to the entry of the July 13, 1992 continuance order,

three and one-half months of the five month statutory speedy

trial limitation had expired.    See Code § 19.2-243.      The

continuance that Pernell Jefferson received pursuant to the July

13, 1992 order ended on June 1, 1995, the date the Supreme

Court's mandate dismissing the appeal was received in the trial

court.   The July 1992 order did no more than execute the

statutory provision that "the time during the pendency of any

appeal in any appellate court shall not be included as applying

to the provisions of this section."     Code § 19.2-243.    That

provision tolls the time while the pretrial appeal is pending.
See Johnson v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___,

___ (1996) (Lacy, J., and Keenan, J., concurring).

     When the mandate was received in the trial court, the appeal

ended.   After the mandate had been returned to the trial court,

the appeal could not be said to have "delayed the court in

setting the case for trial."    Robbs v. Commonwealth, ___ Va. ___,

___, ___ S.E.2d ___, ___ (1996).   Moreover, "delay [that] is

inherent in the orderly process of fixing a trial date . . . is

necessarily included within or factored into the time limitations

of . . . Code section [19.2-243]."      Baity v. Commonwealth, 16 Va.

App. 497, 507, 431 S.E.2d 891, 897 (1993) (en banc).       Because

Jefferson merely waited for a trial date to be set after the

resolution of his appeal, and did not actively cause the




                                - 9 -
additional delay, the delay was factored into the five month

period afforded the Commonwealth.

     Thus, I would hold that the delay in the trial that occurred

after June 1, 1995 was charged to the Commonwealth.   Because the

trial was not set to occur within the remaining one and one-half

months, I would hold that the conviction must be vacated and that

Jefferson is "forever discharged from prosecution."   Code

§ 19.2-243.




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