COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Clements Argued at Chesapeake, Virginia

MARK ANTONIO WALLACE MEMORANDUM OPINION * BY v. Record No. 2177-04-1 JUDGE JEAN HARRISON CLEMENTS OCTOBER 18, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS C. Peter Tench, Judge Charles E. Haden for appellant. Michael T. Judge, Assistant Attorney Ge neral (Judith Williams Jagdmann, Attorney General; Amy L. Marshall, Assistant Attorney General, on brief), for appellee.

Mark Antonio Wallace was indict ed and convicted in a jury trial of abdu ction, in violation of Code § 18.2-47; burglary, in violation of Code § 18.2-89; and maliciou s wounding, in violation of Code § 18.2-51. On appeal, Wallace contends the trial court erred in de nying his motion to dismiss the indictments under the speedy trial provisions of Code § 19.2-243. We disagree and affirm. As the parties are fully co nversant with the record in this case, and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.

* Pursuant to Code § 17.1413, this opini on is not designated for publication.- 2 - I. BACKGROUND The relevant procedural history of this case is not in dispute. On June 28, 2003, Wallace was arrested on charges of abduction, burglary, and malicious wounding . At the preliminary hearing on July 29, 2003, the juvenile an d domestic relations district court found probable cause to believe that Wallace comm itted all three charged offenses. Th e court certified the charges to the grand jury. Wallace was represented at the hearing by appointed counsel Leon R. Sarfan. The grand jury indicted Wallace on the three charges on August 1 1, 2003, and trial was set for September 12, 2003. On August 25, 2003, Wallace moved the trial court “for le ave to substitute counsel.” By order entered the same day, the trial court gran ted the motion, substituted David B. Olson as Wallace’s counsel, an d continued the case, “on motion of th e defendant,” until the September 8, 2003 “docket call” for scheduling of “a date certain for trial by jury.” As reflected in Wallace’s subseq uently filed motion to dismiss fo r lack of a speedy trial, the trial was then apparently set at the September 8, 2003 “docke t call” for November 11, 2003. The record does not include a tr anscript or written order me morializing this proceeding. By order entered November 3, 2003, the trial court then continued the case, “[o]n motion of the defendant, by co unsel,” until the December 8, 2003 “docket call.” No transcript of this proceeding is in the record; however, Wallace’s motion to dismiss for lack of a speedy trial indicates that Wallace’s counsel, Ol son, “asked for a continuance . . . in order to review medical records.” Although Wallace’s motion to dismiss for lack of a speedy trial further indicates that the request for a continuance was granted “ove r [Wallace’s] objection” and that Wallace “had written to his attorney that he absolutely did not want a continuance,” nothing else regarding Wallace’s objection exis ts in the record.- 3 - As further reflected in Wallace’ s motion to dismiss for lack of a speedy trial, the trial was apparently set at the De cember 8, 2003 “docket call” for February 23 , 2004. The record does not contain a transcript or written or der memorializing this proceeding. On January 8, 2004, attorney James B. Thomas, who was retained by Wallace, moved the trial court to permit Olson to withdraw and to substitute him as Wallace’s counsel. The court granted the motion on January 9, 2004. Appare ntly, this substitution did not require a continuation of the trial date. On February 23, 2004, the Commonwealth moved for a continuance, which the trial court granted “over [Wallace’s] objection. ” Trial was set for April 26, 2004. On April 15, 2004, Wallace, who had been continuously incarcerated since the preliminary hearing, filed a motion to dismiss the indictments pursuant to the speedy trial provisions of Code § 19.2-243. Wallace argued in the motion as follows: The Defendant charges that the time frame between July 29, 2003 and November 3, 2003 should not c ount toward him since he did not ask for a substitution of counsel, nor did he concur in such a request. Furthermore, on November 3, 2003, a continuance was granted on the motion of his atto rney over his objection. The Defendant had written to his attorn ey that he abso lutely did not want a continuance. The trial court conducted a hearing on Wallace’s motion on April 26, 2004. At that hearing, Wallace’s counsel stated: I think I’m the third attorney in this. First there was Mr. Sarfan, and then he, I think, was relieved by Mr. Olson, and then Mr. Olson set a date certain fo r trial and then asked for a continuance based on one – some ot her evidence. My client did not concur in that motion for a continuance. As a matter of fact, he sent a letter to Mr. Olson telli ng him specifically he did not want the continuance. And based on that, we don’t f eel that the continuance that Mr. Olson got on his behalf should be held against him, and for that purpose, and for that r eason, we would ask the Court to dismiss the charges against him because of lack of speedy trial.- 4 - In response, the prosecutor stated : “The Commonwealth didn’t re ceive a copy of the letter. The Court didn’t receive a copy of the letter.” No letter or other evidence was presented at the hearing. The trial court denied th e motion, and a jury trial commenced. On April 27, 2004, Wallace was found guilty on all th ree charges. This appeal followed.
II. ANALYSIS Wallace contends his right to a speedy trial under Code § 19.2-243 was violated because neither of the two delays at issue in this case is attributab le to him. 1 Specifically, he argues on appeal, as he did belo w, solely that (1) th e period of delay re sulting from the subs titution of attorney Olson for attorney Sarfan on Augu st 25, 2003, is not attributable to him because he did not request or concur in that substitution, an d (2) the period of delay resulting from the granting of his counsel’s motion for a continuance on November 3, 2003, is not attributable to him because he did not concur in that continuance. 2 We disagree. The time limitation for the commencement of fe lony trials is governed by Code § 19.2-243, which provides in pertin ent part as follows: Where a general district court ha s found that there is probable cause to believe that the accu sed has committed a felony, the accused, if he is held continuously in custod y thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circu it court within five months from the date such probable cause was found by the dist rict court . . . .

1 The parties agree that the February 23, 2004 continuance of the trial date to April 26, 2004, was not attributable to Wallace.

2 As framed by Wallace in his appellate issues and arguments, the delay resu lting from the substitution of attorney Ol son for attorney Sarfan on August 25, 2003, enco mpasses that period of time from September 12, 2003, the originally sche duled trial date, to Nove mber 11, 2003, the date to which the trial was apparently continued, a period of 60 days, and the delay resulting from the continuance granted November 3, 2003, encompasses that period of time from Nove mber 11, 2003, to February 23, 2004, the date to which the trial was then appare ntly continued, a period of 104 days.- 5 - “The five[-]month requirement of Code § 19.2- 243 translates to 152 a nd a fraction days.” Ballance v. Commonwealth , 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995). When a defendant has not been brought to trial w ithin that time period, “the Commonwealth has the burden to satisfactorily explain the delay or the prosecution will be dismissed. Any delay in the trial, however, [that] is attributable to the defendant will not be counted in determining whether the Commonwealth complied with the statutory spee dy trial mandate.” Shearer v. Commonwealth , 9 Va. App. 394, 399, 388 S.E.2d 828, 830 (1990). Thus, in determining whether the five-month requirement has been met, “[a]ny 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.” Robinson v. Commonwealth , 28 Va. App. 148, 152, 502 S.E.2d 704, 706 (1998). “Code § 19.2-243 enumerates [various] reasons fo r a delay [that] will be attributable to the defendant.” Shearer , 9 Va. App. at 399, 388 S.E.2d at 830. Code § 19.2-243(4), for example, states in relevant part that the statute’s five-month spee dy trial requirement is tolled if the delay is caused by a “continuance granted on the motion of the accused or his counsel.” Here, 272 days elapsed between the time the juvenile and domestic relations district court found probable cause to believe that Wallace committed the three char ged felonies and the commencement of Wallace’s trial on those charges. Thus, in orde r for the Commonwealth to meet the five-month requirement of Code § 19.2-243, at least 11 9 days of delay must be attributable to Wallace. Because neither of the delays at issue, by itself, is at least 119 days in length, both delays must be attributable to Wallace to satisfy the statute’s mandate. To determine whether the two delays at issu e are attributable to Wallace, “we look to the court’s orders explaining the delays in proceeding to trial. We may also look to the rest of the record to assess the responsibility for delay that caused ‘the failure to tr y the accused’ within the- 6 - time frame mandated by statute.” Heath v. Commonwealth , 32 Va. App. 176, 181-82, 526 S.E.2d 798, 800-01 (2000) (en banc) (citation omitted) (quoting Stinnie v. Commonwealth , 22 Va. App. 726, 729, 473 S.E.2d 83, 84 (1996) (en banc)), aff’d , 261 Va. 389, 541 S.E.2d 906 (2001); see also Baity v. Commonwealth , 16 Va. App. 497, 503, 431 S.E.2d 891, 894-95 (1993) (noting that “the proper assessment and dete rmination of the merits of a Code § 19.2-243 cl aim involve a review of the whole record,” not just the court’s orders). Upon reviewing the entirety of the record a nd applying the principles set forth above, we conclude that both delays are attr ibutable to Wallace. We first note that Wallace’s claim that the delay resulting from the substitution of counsel on August 25, 2003, is not attributable to him because he did not request or concur in that substitution is unsupported by the record. To the contrary, the record clearly shows that he wa s the moving party in the substitution proceeding. The motion to substitute counsel specifically states, “This day came the Defendant, by counsel, and moved the Court for leave to substitute counsel . . . .” The trial court’s August 25, 2003 order granting the substitution expr essly indicates that, consequent to the substitution of counsel, the matter was continued, “on motion of the defenda nt,” until the September 8, 2003 “docket call” for scheduling of “a date certain for trial by jury.” “A court sp eaks through its written orders.” Robinson , 28 Va. App. at 155, 502 S.E.2d at 708. Moreover, Wallace’s claim that the delay re sulting from the substitution of counsel on August 25, 2003, is not attributable to him because he did not ask for or concur in th at substitution, flies in the face of the provisi on of Code § 19.2-243(4) that states that Code § 19.2-243’s five-month requirement does not apply to a period of time caused by a continuance “granted on the motion of the accused or his counsel .” (Emphasis added.) The record makes clear that attorney Sarfan was acting as Wallace’s coun sel at the time of the August 25, 2003 substitution motion, and Wallace makes no cl aim to the contrary. Thus, even werewe to accept Wall ace’s unsupported- 7 - assertion that he did not concur with his attorney’s actions with regard to th e substitution of counsel, the delay resulting from the substitution of Wallac e’s counsel is still attributable to Wallace for speedy trial purposes. See also Shearer , 9 Va. App. at 402, 388 S.E. 2d at 832 (“Defense counsel may . . . request or concur in a continuance without the consent or presence of a defendant and a defendant will be bound by counsel’s [request or] assent to the delay.”). For the same reasons, we reject Wallace’s claim that the period of delay resulting from the granting of the motion for a continuance on No vember 3, 2003, is not attr ibutable to him because he did not concur in that continuance. The order en tered November 3, 2003, expressly indicates that the case was continued “[o]n motion of the defenda nt.” Wallace asserts he objected in writing to the continuance moved for by attorney Olson on November 3, 2003; however, there is nothing in the record beyond Wallace’s similar claim in his mo tion to dismiss that su pports this assertion. “While the Commonwealth must prove that a gi ven delay was excusable under the statute, the appellant has the responsibil ity of providing us with an adequate record.” Robinson , 28 Va. App. at 155, 502 S.E.2d at 708. Additionally, we are aware of no authority, and Wallace point s to none, that supports the proposition that a continuance moved for by defens e counsel on behalf of his or her client will not be attributable to the defendant under the provisions of Code § 19.2-243(4) simply because the defendant opposed the continuance in a writing to his attorney. Indeed, as we previously indicated, a “[d]efense counsel may . . . request or concur in a continuance without the consent or presence of a defendant and a defendant will be bound by counsel’s [reque st or] assent to the delay.” Shearer , 9 Va. App. at 402, 3 88 S.E.2d at 832; see also Code § 19.2-243(4). To hold otherwise, particularly under the circumstances of this case, would undermine the “orderly administration of justice,” which “requires that t actical matters, such as continuances, be left with counsel.” St ockton v. Commonwealth , 227 Va. 124, 141, 314 S.E.2d 371, 382 (1984).- 8 - Hence, even were we to accept Wallace’s unsuppor ted claim that he did not concur in his counsel’s request for a continuance, the delay resu lting from the granting of that continuance is attributable to Wallace for speedy trial purposes. Excluding these two delays attributable to Wallace in resolving Wallace’s speedy trial claim under Code § 19.2-243, we conclude that Wallace’s trial commenced within the five-month period required by that st atute. Accordingly, the trial co urt did not err in finding that Wallace’s statutory right to a speedy trial was not violated.
III. CONCLUSION For these reasons, we affirm the judgment of the trial court and Wallace’s conviction. Affirmed.