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 
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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 
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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. 
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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)). 
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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 
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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 
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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.
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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 
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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.