Robert M Drew v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia
ROBERT M. DREW
OPINION BY
v. 	Record No. 2241-01-1 	JUDGE ROBERT P. FRANK
NOVEMBER 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
William H. Oast, Jr., Judge Designate
J. Brian Donnelly (Price, Perkins, Larkin &
Donnelly, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Robert M. Drew (appellant) was convicted after a jury trial
of one count of possession of firearms by a convicted felon, in
violation of Code § 18.2-308.2. 	On appeal, he alleges the trial
court erred in denying his motion to dismiss the indictment after
it was amended. 	Appellant argues the Commonwealth had no
authority to amend the indictment because his presence in court
was pursuant to the Agreement on Detainers, Code §§ 53.1-210 to
-215. 	We affirm the conviction.
Appellant was in federal custody, serving a sentence for a
federal conviction, when he requested disposition, pursuant to
the Agreement on Detainers (the Agreement), of six indictments
outstanding in York County. 	He was transferred to York County,

pursuant to his request, for trial on six indictments of
possession of a firearm by a convicted felon, each alleging
possession of a different firearm on February 26, 2001.
However, on motion of the Commonwealth, the trial court nolle
prosequied five of the indictments. 	The prosecutor later
amended the remaining indictment, with the permission of the
trial court and over appellant's objection. 	The amendment added
to the language of the remaining indictment, including as an
element of that indictment the possession of the five firearms
previously specified in the five nolle prosequied indictments.
Appellant was convicted on the amended indictment.
Appellant claims, because the trial proceeded "on an
Indictment that was different from the detainer which had been
lodged against him and which served as a basis of his transfer,"
the trial court should have dismissed the amended indictment and
returned appellant to federal custody. 	We disagree.
When making a request for final disposition of pending
charges under the provisions of the Agreement, a defendant must
strictly comply with the procedure established by the Code. 	See
Yiaadey v. Commonwealth, 29 Va. App. 534, 541-42, 513 S.E.2d
446, 450 (1999). 	However, once properly invoked, "[t]his
[A]greement shall be liberally construed so as to effectuate its
purposes." 	Code § 53.1-210, art. IX. 	The legislature enacted
the Agreement to "secure speedy trials" to defendants held in
other jurisdictions and to "reduce uncertainties which obstruct
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programs of prisoner treatment and rehabilitation." 	Code
§ 53.1-210, art. I.
Article V(d) of the Agreement explains:
The temporary custody referred to in this
agreement shall be only for the purpose of
permitting prosecution on the charge or
charges contained in one or more untried
indictments, informations or complaints
which form the basis of the detainer or
detainers or for prosecution on any other
charge or charges arising out of the same
transaction.
(Emphasis added).
Appellant was tried on one of the indictments that formed
the basis of the detainer. 	Although the original indictment was
amended, the charge, date of offense, and factual elements
remained essentially the same. 	Appellant conceded at oral
argument that he was tried on the same offense for which he was
originally indicted. 	We conclude he was not tried on a
"different" indictment.
In addition, even if the amended indictment were
"different," it effectively incorporated the elements of the
five nolle prosequied indictments into the remaining charge.
All six indictments were based on appellant's possession of six
firearms in his home on February 26, 2001. 	The "different"
indictment, therefore, arose out of the same transaction as the
original six charges. 	Article V clearly allows such trials.
See, e.g., Valentine v. Commonwealth, 18 Va. App. 334, 338, 443
S.E.2d 445, 447 (1994) (affirming two convictions where the
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charging indictments "arose from the same criminal transaction
underlying the [three] arrest warrant[s], which accompanied the
detainer," although the three warrants eventually were quashed
without being served).
Finally, even if appellant were correct that the detainer
did not include the charge of which he was convicted, his
conclusion that the trial court did not have jurisdiction and
should have dismissed the indictment is wrong. 	As this Court
has held previously, "[A] defect in the manner in which a
criminal defendant is brought before the court does not deprive
that court of personal jurisdiction, preclude prosecution or
vitiate a subsequent conviction. 	Therefore, the trial court did
not err in denying appellant's motion to dismiss." 	Id. at 339,
443 S.E.2d at 448 (citation omitted).
For the reasons stated above, we affirm the trial court's
ruling.
Affirmed.
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