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 J UDGE 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, Assistan t Attorney Genera l (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

Michael Gardner (appellant) was convicted by the trial court of aggravated malicious wounding (under Code § 18.2-51.2); shooting, sta bbing, 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 reas ons, we affirm the convictions.

I. B ACKGROUND Appellant was indicted on June 25, 2008, was arrest ed the following day, and remained in custody until his trial. At appellant ’s July 23, 2008 arraignment, the pa rties agreed on a trial date of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant challenged the sufficiency of th e evidence supporting thes e convictions in his petition for appeal, but this Court did not grant an appeal on that issue.- 2 - October 6, 2008. Three days prio r 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 milita ry duty and unavailable to appear at trial. The trial court conducted a hearing and gran ted the Commonwealth’s continuance motion, noting in its written order that the continua nce was granted under Code § 19.2-243(2) because “Det. McCarley is currently on active military dut y.” 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 transc ript within sixty days after en try of the final judgment in the trial court as explicitly required by the Rule s 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, contendi ng that the trial had not occurred within the statutory speedy trial period. Appellant’s couns el 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 appe llant’s motion to dismiss the charges.

II. A NALYSIS Code § 19.2-243 provides that, “[ i]f an indictment or presen tment is found against the

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

2 Appellant never challenged the entry of th e 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 Commonw ealth’s motion for a continuance.- 3 - speedy trial period “shall commence to run from the date of his arrest ther eon” – 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 seve ral 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 fract ion days. He claims that the “kept away” tolling provision in Code § 19.2-243(2) does not include situations li ke 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 subsecti on (2) of this statute. The record does not contain the transcript of the January 14, 2009 h earing 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 dete rmine whether the lower

3 The statutory speedy trial time period is al so 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 fro m appellant’s own motions.

4 Appellant also contends th at a witness is “kept away” within the meaning of Code § 19.2-243(2) only when the defendant is the cause fo r 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.- 4 - 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 stat ements 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 ap pellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appella te issues, any assignments of error affected by such omis sion shall not be considered.” Rule 5A:8(b)(4)(ii). It is clear from the Ap ril 23, 2009 transcript, which is a pr oper part of the record on appeal, that the factual circumstances per tinent to Detective McCarley’s inab ility to testify on the scheduled January 15, 2009 trial date were developed and ar gued 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 requirem ents” 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, 20 09 hearing contains only brief and incomplete references to the facts presente d at the January 14, 2009 hearing. For example, although the prosecutor noted at the April 23, 2009 hearing that Detective Mc Carley was in Japan on active military duty during January 2009, the transcript of that April 23, 2009 hearing shed s 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 th e military’s terms for returning the detective to Virginia to appear at tr ial were (if the m ilitary even agreed to McCarley’s returning to testify). This Apri l 23, 2009 hearing transcript also contains no references to the specific arguments appellant made in opposition to th e Commonwealth’s motion for a continuance- 5 - during the January 14, 2009 hearing. Thus, the transcript of th e April 23, 2009 hearing certainly is insufficient for evaluating the tr ial court’s ruling that Detective McCarley had been “kept away” under Code § 19 .2-243(2). Based on this scant record, therefore, we cann ot conclude that the tr ial 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, 11 9 S.E.2d at 256-57.

III. C ONCLUSION Appellant failed to ensure that the record on appeal containe d the transcript of the January 14, 2009 hearing, and this transcript is “necessary to permit resolution of appella te 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 Detec tive McCarley was “kept away” under Code § 19.2-243(2). Accordingly, for the foregoing reasons, we affirm appellant’s convictions.

Affirmed.