Opinion
Record No. 0791-92-1
March 8, 1994
FROM THE CIRCUIT COURT OF YORK COUNTY RUSSELL M. CARNEAL, JUDGE DESIGNATE.
(W. Alan Maust, on brief), for appellant. Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; Marla Lynn Graff, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Donald L. Patrick (defendant) was convicted by a jury of arson in violation of Code § 18.2-80. He argues on appeal that he was denied his statutory right to a speedy trial. However, we find the record insufficient to permit proper appellate review of this issue and, therefore, affirm the judgment of the trial court.
Defendant does not assert a violation of any state or federal constitutional rights of speedy trial.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
The record discloses that this prosecution was commenced by a grand jury indictment on March 19, 1991, followed by defendant's arrest on March 22, 1991. On October 3, 1991, the court, sua sponte, convened defendant, his counsel and counsel for the Commonwealth to consider recusal of the trial judge. At the inception of that hearing, the court stated, without objection, "I asked you to be here today, even though this case has been continued on motion of the defendant. . . ." The transcript of that proceeding contains no further references to a trial date or continuance, and no order memoralized any rulings in this respect.
It is uncontroverted that trial was thereafter scheduled for March 4, 1992, and defendant was then convicted of the offense, with sentencing delayed until March 23. At the later hearing, defense counsel requested the trial court to "place on the record that prior to the beginning of the trial, Defense had made a motion to dismiss the proceeding based on the lack of speedy trial which said motion was denied." Defendant expressly did not seek to "[re-]argue that motion" but simply wanted the record to reflect that "[he] made it and the Court denied it." Responding, the court noted that "a motion was made" but, despite counsel's efforts to reconstruct the earlier arguments and ruling, recalled "only . . . [that] this matter was taken up" and "Mr. Storm [defense co-counsel] could neither confirm or deny" the Commonwealth's contention that defendant "had . . . asked for a continuance" of an earlier trial date, to which Mr. Storm agreed, commenting, "That's, I think, correct, Your Honor."
Code § 19.2-243 requires that the defendant, "if . . . not held in custody but . . . recognized for his appearance in the circuit court to answer for [the] offense, . . . shall be forever discharged from prosecution therefor if no trial [was] commenced in the circuit court within nine months from the date" of his arrest on the subject indictment, absent an applicable exception. Although evidence of an exception must be found in the record to justify a departure from the statutory mandate, it need not always be reflected in "court orders, decrees, or journal or docket entries" and "may become a part of the record for the first time at the speedy trial hearing." Bunton v. Commonwealth, 6 Va. App. 557, 560, 370 S.E.2d 470, 471-72 (1988). Nevertheless, such "evidence, or the lack thereof, is essential to [appellate] review" of the issue. Id. at 560-61, 370 S.E.2d at 472.
It is well established that the burden rests upon appellant to provide "the record on appeal necessary to enable the reviewing court to address the issues." Id. at 561, 370 S.E.2d at 472;see also Ferguson v. Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff'd in part, rev'd in part, 240 Va. ix, 396 S.E.2d 675 (1990). Here, defendant apparently moved at the time of trial to dismiss the prosecution based upon noncompliance with the time constraints of Code § 19.2-243 and, following argument of counsel, was overruled by the trial judge. However, a proper record of these proceedings, though clearly necessary to our consideration of any related error, is not before the Court. See Bunton, 6 Va. App. 557, 370 S.E.2d 470. Counsel's attempt to reconstruct that hearing for the record, weeks later, is inadequate. See Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146, 148 (1986) ("[b]ecause of the fragility of memories '[r]epresentations of counsel, or even of the trial judge, if not supported by the record, are insufficient'").
Therefore, finding the record incomplete and insufficient to properly consider the speedy trial issue, we affirm the conviction.
Affirmed.