COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Fulton and Lorish

GREGORY SHAWN MERCER

MEMORANDUM OPINION*

v. Record No. 1193-21-4 PER CURIAM

MARCH 28, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Penney S. Azcarate, Judge

(Gregory Shawn Mercer, on brief), pro se.

No brief for appellee.

Gregory Shawn Mercer was convicted for failing “to pay full time and attention, County 

Code § 82-4-24” after a bench trial. The circuit court sentenced Mercer to a suspended fine of $20. 

Mercer assigns errors based on many alleged violations of the United States and Virginia 

Constitutions. Because Mercer does not identify any way that he preserved any of these issues for 

appellate review and because he otherwise ignores the rules of this Court, we decline to consider the 

assignments of error. After examining the brief and record, the panel unanimously holds that oral 

argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); 

Rule 5A:27(a). Accordingly, we affirm the judgment. 

* This opinion is not designated for publication. See Code § 17.1 413.

UNPUBLISHED
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PROCEDURAL HISTORY AND BACKGROUND

Police charged Mercer with passing while on the shoulder or off a highway in violation of 

“82-1-6/46.2-841” on February 6, 2020.1 His trial date was continued several times in 2020 and 

2021 during the time period when the Supreme Court of Virginia declared a judicial emergency in 

response to COVID-19. Mercer requested one continuance from June 29, 2021, to July 13, 2021. 

On the July date, a required law enforcement officer did not appear. Over Mercer’s apparent 

objection, the trial was continued to September 2021 when the Fairfax County General District 

Court found Mercer guilty as charged and imposed a fine of $100. Mercer noted an appeal to the 

Fairfax County Circuit Court. 

At his bench trial before the circuit court in November 2021, where no prosecutor appeared, 

Mercer argued that his constitutional speedy trial rights were violated by delays in the district court. 

The circuit court found that the delays in the general district court were due to a combination of the 

judicial emergency, a continuance that Mercer requested, and the 70 days following the date the law 

enforcement officer did not come to trial. Once the matter was before the circuit court, the only 

continuance was at the defendant’s request. Thus, the court found no speedy trial violation had 

occurred. 

The court noted Mercer’s “excellent record” and that his employment required him to 

drive. Therefore, the court convicted him for failure to “pay full time and attention” in violation 

of Fairfax County Code § 82-4-24, an infraction which would not impact the points on his 

1 Fairfax County Code § 82-1-6 incorporates by reference certain portions of the Code of 

Virginia, including Code § 46.2-841, which prohibits passing another vehicle on the right using 

the shoulder of the road.
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driving record, and sentenced him to a suspended fine of $20.

2

 The final order named the 

Commonwealth of Virginia as the moving party against Mercer. 

Mercer timely noted an appeal to this Court, naming as appellees both the 

Commonwealth of Virginia and Fairfax County. Mercer originally served the Fairfax County 

Commonwealth’s Attorney with the notice of appeal. After the Attorney General noted an 

appearance, Mercer served both the Commonwealth’s Attorney and Attorney General with later 

pleadings, including his opening brief. Within the body of that brief, Mercer moved this Court to 

eliminate the requirement of an appeal bond; he also moved for leave to amend his previously 

filed assignments of error and to add a fifth assignment of error. 

Three days before the deadline for filing the appellee’s brief (following a granted 

extension of time), the Attorney General moved to suspend the briefing schedule until this Court 

ruled on Mercer’s pending motion to amend. Then, the Attorney General moved this Court to 

remand the case to the circuit court “to resolve ambiguity between the charging document,” its 

final order, and the notice of appeal about the proper appellee for the appeal, and requested 

suspension of the briefing schedule during the proposed remand.

3

 

Because the assignments of error in Mercer’s opening brief were stated as questions 

rather than in the affirmative, this Court’s clerk’s office advised Mercer by email in May 2022 

that he should file an amended brief within ten days. Mercer objected to this notice, several 

months later, arguing he had not read the prior email. 

2 Under Fairfax County Code § 82-4-24, “[n]o person shall operate a motor vehicle upon 

the highways of this County without giving his full time and attention to the operation of the 

vehicle.”

3 The assistant attorney general assigned to the case stated that she failed to previously 

recognize the potential issue about the proper party on appeal. 
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This Court granted the Attorney General’s motion and remanded the matter to the circuit

court to determine whether the Commonwealth of Virginia or Fairfax County is the proper party 

in the case and to “enter any appropriate nunc pro tunc orders.” The circuit court then entered an 

order acknowledging that the Commonwealth of Virginia is the proper party on appeal. Then, 

this Court entered an order stating the circuit court’s ruling, styling this appeal with the 

Commonwealth of Virginia as appellee, lifting the stay of the proceedings, and granting the 

Commonwealth additional time to file its brief in response. 

Rather than filing a brief in response, the Commonwealth moved to amend the style of 

the case to signify that the proper appellee was Fairfax County, to withdraw as counsel, and to 

again suspend the briefing schedule. The Commonwealth disputes the circuit court’s finding 

upon remand that the Commonwealth is the proper party on appeal and asserts instead that 

Fairfax County is the correct appellee. 

DISPOSITION OF MOTIONS

We first consider and dispose of motions filed by the parties.

First, we deny the Commonwealth’s motion to amend the style of the case to reflect Fairfax 

County as the proper party on appeal. The “controlling documents for determining what entity 

served as the prosecuting authority in a criminal trial are the instrument, that is the summons, 

warrant, or indictment, under which the charge is brought[,] and the orders of conviction and 

sentencing that conclude the trial.” Roberson v. Commonwealth, 279 Va. 396, 406 (2010). The 

Commonwealth moved this Court to remand the case to the circuit court to make a factual 

determination about the proper party on appeal. The circuit court did so. The circuit court then 

examined its final order and determined that the Commonwealth was indeed the proper party to the 

case. Given the record now before us on appeal, we cannot say that the circuit court erred in its 

finding. Accordingly, we also deny the Attorney General’s motion to withdraw as counsel. See
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Code § 2.2-511(A) (providing that “[i]n all criminal cases before the Court of Appeals . . . in 

which the Commonwealth is a party . . . , the Attorney General shall appear and represent the 

Commonwealth,” unless the prosecuting Commonwealth’s Attorney files a notice of appearance 

and the Attorney General consents).

Second, we hold that Mercer’s motion to eliminate the requirement of an appeal bond is

moot.

4

 No appeal bond is ever required in a criminal case. See Code § 8.01-676.1(A1). 

Third, we grant Mercer’s motion relating to his assignments of error. Mercer moved for 

leave to amend his assignments of error to the five stated in his brief. In essence, he asks to add

references to amendments to the United States Constitution to two assignments of error and to 

add an assignment of error arguing for incorporation of the Ninth and Tenth Amendments to the 

United States Constitution through the Fourteenth Amendment Due Process Clause. The 

material Mercer seeks to add to his assignments of error does not significantly alter our 

consideration or disposition of the issues on appeal. 

Finally, we deny the Commonwealth’s motion to keep staying the proceedings here. This 

Court has already granted the Commonwealth two extensions to file its brief. Rather than filing 

a brief, the Commonwealth moved to amend the style of the case and further stay the 

proceedings. The Commonwealth has had ample time to file a brief but elected not to do so. 

Because we affirm the circuit court, the Commonwealth is not prejudiced by our refusal to delay 

disposition of this case any further.

4 We note that the two motions contained within Mercer’s opening brief disregarded this

Court’s motions practice as set forth in Rule 5A:2(a)(1), requiring motions to “contain a 

statement by the movant that the other parties to the appeal have been informed of the intended 

filing of the motion.”
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ANALYSIS

I. Speedy Trial

Mercer frames his first assignment of error as follows: “Whether or not the FCCC Trial 

Court erred by denying Defendant’s invoked U.S. Amendment V, VI, and/or XIV Rights?” Rule 

5A:20(c) requires an appellant’s assignments of error to “list, clearly and concisely and without 

extraneous argument, the specific errors in the rulings below” on which he intends to rely. With 

this assignment of error, Mercer cites the portions of the record where he argued, and the circuit 

court took up, his constitutional speedy trial argument. The rest of the assignment of error, 

referencing the Fifth and Fourteenth Amendments, fails to adequately identify any other “alleged 

misjudgment of the court below.” Stoltz v. Commonwealth, 297 Va. 529, 534 (2019) (quoting 

Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 122 (2017)).5 

Mercer’s traffic infraction occurred on February 6, 2020. He argues that the delay 

between that infraction and his general district court trial on September 21, 2021, violated his 

constitutional right to a speedy trial. Mercer zones in on the 70-day delay that resulted when the 

police officer failed to appear at his July 13, 2021 trial date, arguing that he was “prejudiced by 

the 70-day delay . . . and demands due Relief” because “[t]his case should have been dismissed 

on [July 13, 2021] . . . BEFORE Appellant was prejudiced.” Mercer argues that during the 

“additional 70 days” between the July and September dates, he “fell behind on his mortgage” 

because he had to accept a different job due to the alleged pending traffic infraction and that he 

had to withdraw tax-free funds from his retirement account that he was ultimately able to repay 

5 Rule 5A:20(c) requires an appellant’s assignments of error to “list, clearly and concisely 

and without extraneous argument, the specific errors in the rulings below” on which he intends to 

rely. “An assignment of error that does not address the findings, rulings, or failures to rule on 

issues in the trial court . . . is not sufficient.” Rule 5A:20(c)(2). 
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into his account a month later. Mercer claims he was “prejudiced in that he would not be able to 

withdraw tax-free from his IRA until another year” as a result. 

“Constitutional issues present questions of law reviewed de novo on appeal.” Ali v. 

Commonwealth, 75 Va. App. 16, 33 (2022). “To the extent such review involves underlying 

factual findings, those findings may not be disturbed unless ‘plainly wrong’ or ‘without evidence 

to support them.’” Id. (quoting Wilkins v. Commonwealth, 292 Va. 2, 7 (2016)).

“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 (1994) (quoting Barker v. Wingo, 

407 U.S. 514, 530 (1972)). The test for determining whether a speedy trial violation has 

occurred requires balancing four main factors—the “length of delay, reason for delay, 

defendant’s assertion of his right, and prejudice to the defendant.” Howard v. Commonwealth, 

281 Va. 455, 462 (2011) (citing Barker, 407 U.S. at 530). An appellant must establish that those 

factors, when considered together, “weigh in his favor.” Ali, 75 Va. App. at 35 (quoting United 

States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995)).

We will assume without deciding that the delay between Mercer’s infraction in February 

2020 and his ultimate trial before the circuit court in November 2021 was long enough to be 

presumptively prejudicial such that we must consider the remaining factors.6 Balancing all the 

factors, however, we find no violation. The record before us on the “reason for delay” is limited 

6 The “triggering mechanism” for constitutional speedy trial analysis is the length of 

the delay. Barker, 407 U.S. at 530. Absent “sufficient delay to be ‘presumptively prejudicial, 

there is no necessity for inquiry into the other factors.’” Kelley, 17 Va. App. at 544 (quoting

Barker, 407 U.S. at 530). “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.” Id. at 

545. 
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to the circuit court’s finding that the delay before the general district court was largely due to the 

judicial emergency and a motion made by Mercer. See Ali, 75 Va. App. at 45 (pandemic-related 

delay is “valid, unavoidable, and outside the Commonwealth’s control”). Only 70 days were due 

to the non-appearance of a necessary witness. 

As for Mercer’s assertion of his speedy trial right, the record before us shows he did not 

object to any of the many court-initiated continuances between the first trial date of April 21, 

2020, up through the continuance Mercer requested himself. In other words, Mercer readily 

consented to a trial date 17 months from the infraction. He first raised his speedy trial concern 

only after the last 70-day continuance from July 13, 2021 to September 21, 2021 was granted due 

to the officer’s nonappearance. We find that this is the sort of “delay in asserting the right [that] 

weighs against finding a violation.” Id. at 46 (assigning less weight to an assertion of the right 

six and a half months after the appellant was in custody). Finally, Mercer only assigns prejudice 

to this same 70-day period of delay. And the prejudice—the inability to make a tax-free 

withdrawal from a retirement account for one year—has nothing to do with his trial.7 For these 

reasons, we agree with the circuit court that Mercer’s constitutional right to speedy trial was not 

violated. 

II. Ninth and Tenth Amendments

Mercer’s second assignment of error states: “Whether or not the FCCC Trial Court failed 

to rule on Defendant’s U.S. Amendment IX & XIV argument raised in language from Duncan v. 

7 Concerning prejudice, the constitutional speedy trial right aims to protect three separate 

interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of 

the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most 

serious is the last.” Barker, 407 U.S. at 532. We note that Mercer was never arrested, or 

incarcerated, while awaiting trial for this infraction, nor does he present any theory for how his 

defense was impaired.
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McCall, . . . and/or Defendant’s U.S. Amendment X & XIV argument raised in language within 

the U.S. Supremacy Clause?”

Rule 5A:20(c) requires an appellant’s assignments of error to “list, clearly and concisely 

and without extraneous argument, the specific errors in the rulings below” on which he intends to 

rely. “An assignment of error that does not address the findings, rulings, or failures to rule on 

issues in the trial court . . . is not sufficient.” Rule 5A:20(c)(2). Furthermore, “[n]o ruling of the 

trial court . . . will be considered as a basis for reversal unless an objection was stated with 

reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court 

to attain the ends of justice.” Rule 5A:18. Under Rule 5A:18, it is an appellant’s burden “to 

obtain a ruling from the [trial] court” on the issue for which he seeks appellate review. Fisher v. 

Commonwealth, 16 Va. App. 447, 454 (1993). This assignment of error fails to allege the 

specific ruling of the circuit court he challenges on appeal—to the contrary, as phrased, it admits 

the circuit court never made a ruling on the issues Mercer raises. 

This assignment of error is not enough to alert this Court to the specific ruling Mercer 

challenges on appeal. Because “there is no ruling for us to review on appeal,” we do not 

consider this assignment of error. Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998) (citing

Fisher, 16 Va. App. at 454).

III. Remaining Constitutional Arguments

Mercer’s final three assignments of error allege that portions of the Constitution of 

Virginia violate the Constitution of the United States and advocate for the extension of the 

incorporation doctrine. As noted above, Rule 5A:20(c) requires assignments of error to identify 

the rulings of the circuit court that the appellant claims were erroneous. These three assignments 

of error do not challenge any ruling of the circuit court. Because we have no circuit court rulings 
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before us as to these three issues, we have nothing to consider on appeal. See Ohree, 26 

Va. App. at 308 (citing Fisher, 16 Va. App. at 454).

CONCLUSION

For these reasons, we have no basis to disturb Mercer’s conviction and the judgment is 

affirmed.

Affirmed.