COURT OF APPEALS OF VIRGINIA PUBLISHED
Present: Judges Petty, Alston and Russell Argued at Lexington, Virginia
LEE ANTONIO TURNER OPINION BY v. Record No. 1284-16-3 JUDGE WILLIAM G. PETTY AUGUST 8, 2017 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Charles L. Ricketts, III, Judge
Eric M. Anderson, Assistant Public Defender, for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Lee Antonio Turner argues on appeal that, because of the Commonwealth’s violation of
the speedy trial statute, the trial court erred in denying his motion to dismiss the felony
indictment against him, along with an ancillary misdemeanor charge. We agree regarding the
felony conviction,1 but affirm the misdemeanor conviction.
BACKGROUND
Turner was arrested for felony assault and battery of a family member, third offense, in
violation of Code § 18.2-57.2 and for misdemeanor use of profane, threatening, or indecent
language over public airways in violation of Code § 18.2-427. He was continually held in
custody for the duration of the prosecution. On October 14, 2015, after a preliminary hearing,
1 Turner also argues regarding the felony conviction that the trial court erred in admitting a warrant, erred in admitting two prior convictions, and erred in finding the evidence sufficient to convict him of assault and battery of a family member, third offense, in violation of Code § 18.2-57.2. Because we resolve the appeal on the speedy trial grounds, we do not address the other assignments of error.
the Augusta County Juvenile and Domestic Relations District Court certified the felony charge to
the grand jury and, at the same time, certified the ancillary misdemeanor to the circuit court
pursuant to Code § 19.2-190.1. On November 23, 2015, the grand jury indicted Turner for the
felony offense. On the same day, Turner filed with the trial court a motion in limine2 to exclude
two prior convictions from the juvenile and domestic relations district court. Turner argued the
convictions could not qualify as the predicate convictions for the “third offense” element of the
crime for which he was indicted; they were therefore irrelevant and consequently inadmissible.
A hearing on the motion was originally set for January 22, 2016, but the court was closed that
day due to inclement weather. The hearing was rescheduled, and the trial court heard oral
argument on the motion on February 8, 2016. At the conclusion of that hearing, the trial court
took the motion under advisement. The trial court issued a letter opinion on February 16, 2016,
denying Turner’s motion to exclude and asking defense counsel to prepare the order. The order,
noting defense counsel’s objection, was entered on March 11, 2016.
The trial court scheduled a hearing on April 15, 2016, to set an initial trial date. During
that hearing, Turner objected to the setting of any trial date because the speedy trial time had run.
The trial court entered a continuance order on April 20, 2016, setting the case for trial on May 2,
2016. The order noted Turner’s speedy trial objection and continued argument on that objection
to May 2. On May 2, Turner argued the indictment should be dismissed because the
Commonwealth failed to commence Turner’s trial within the time set by Code § 19.2-243. The
trial court denied Turner’s motion. The trial court subsequently found Turner guilty; this appeal
followed.
2 Although Turner styled his motion a “Motion to Exclude,” it constituted a motion in limine. A motion in limine is “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.” Motion in limine, Black’s Law Dictionary (10th ed. 2014). ‐ 2 - ANALYSIS
A. MISDEMEANOR CONVICTION
We first address Turner’s appeal of the ancillary misdemeanor conviction of using
profane, threatening, or indecent language over public airways in violation of Code § 18.2-427.
Code § 19.2-243 provides that
[w]here a case is before a circuit court on appeal from a conviction of a misdemeanor . . . in a district court, the accused shall be forever discharged from prosecution for such offense if the trial de novo in the circuit court is not commenced . . . within five months from the date of the conviction if the accused has been held continuously in custody . . . .
Here, however, the accused was never convicted in the district court. Instead the district court
certified the ancillary misdemeanor to the circuit court pursuant to Code § 19.2-190.1, which
states, “Upon certification of any felony offense pursuant to this chapter, the court shall also
certify any ancillary misdemeanor offense to the clerk of the circuit court provided that the
attorney for the Commonwealth and the accused consent to such certification.” Code § 19.2-243
is silent on when speedy trial time requirements commence when a misdemeanor is so certified.
“Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,
the argument, and the authorities relating to each question presented.’ Unsupported assertions of
error ‘do not merit appellate consideration.’” Bartley v. Commonwealth, 67 Va. App. 740, 744,
800 S.E.2d 199, 201 (2017) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d
343, 345 (2008)). Although Turner listed both the felony and misdemeanor convictions in his
notice of appeal, he makes no legal argument in his opening brief regarding the computation of
speedy trial time for an ancillary misdemeanor and does not argue any other grounds for
reversing the misdemeanor conviction. Turner’s lone statement, which appears in the reply brief,
that the ancillary misdemeanor “is implicated in this [speedy trial] assignment of error” is not
‐ 3 - sufficient to meet the requirements of Rule 5A:20(e).3 Turner’s “failure to provide us with legal
argument and authority as required by Rule 5A:20(e) leaves us without a legal prism through
which to view his alleged error.” Id. at 746, 800 S.E.2d at 202. Because we consider such lack
of legal argument and authority significant in resolving the issue, we deem the argument waived.
Id. Accordingly, we affirm Turner’s misdemeanor conviction for Code § 18.2-427, and limit our
discussion to Turner’s appeal of his felony conviction.
B. FELONY CONVICTION
In cases involving statutory speedy trial issues, the reviewing court gives deference to the
trial court’s findings of fact, but reviews de novo the trial court’s interpretation and application of
Code § 19.2-243. Brown v. Commonwealth, 57 Va. App. 381, 390, 702 S.E.2d 582, 586 (2010).
Code § 19.2-243 provides:
Where a district court has found that there is probable cause to believe that an adult has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court[.]
“The five-month requirement of Code § 19.2-243 translates to 152 and a fraction days. The
Commonwealth is required to commence trial within that time.” Moten v. Commonwealth, 7
Va. App. 438, 441, 374 S.E.2d 704, 706 (1988). However, the speedy trial period is tolled where
the delay is caused
[b]y continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth . . . .
3 Turner makes no argument that the other assignments of error implicate the appeal of the misdemeanor conviction. ‐ 4 - Code § 19.2-243(4). “[T]he burden of demonstrating that a delay in commencing trial is excused
under Code § 19.2-243 lies upon the Commonwealth.” Heath v. Commonwealth, 32 Va. App.
176, 181, 526 S.E.2d 798, 800 (2000) (quoting Robinson v. Commonwealth, 28 Va. App. 148,
153, 502 S.E.2d 704, 706 (1998)). “The time elapsing from the finding of probable cause to the
initial trial date, even though the accused concurs in the trial date, is not a continuance within the
contemplation of subsection (4) of the statute, but counts against the Commonwealth in a
calculation of compliance.” Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403
(1995). But cf. Commonwealth v. Hutchins, 260 Va. 293, 533 S.E.2d 622 (2000) (holding that
speedy trial requirements are not violated when the defendant affirmatively agrees without
objection to an initial trial date beyond the five-month deadline). Moreover, “Code § 19.2-243
envisions that routine and customary motions will be raised and disposed of within this [speedy
trial] time provided.” Adkins v. Commonwealth, 13 Va. App. 519, 523, 414 S.E.2d 188, 190
(1992). In contrast, where complex or last-minute motions necessitate a delay in the judicial
process, the delay will be attributed to the defendant. Cantwell v. Commonwealth, 2 Va. App.
606, 612, 347 S.E.2d 523, 526 (1986) (concluding the record clearly established that the delay
was attributable to defendant’s filing, two weeks before trial, of six motions raising eight
difficult issues for the trial judge); see also Perry v. Commonwealth, No. 160530, 2017
Va. Unpub. LEXIS 12 (Va. May 18, 2017) (attributing delay to defendant because defendant’s
last-minute demand for a jury trial “necessitated a slowdown of the judicial process” when “the
trial court had no choice but to extend the requisite time to empanel a jury and provide notice to
witnesses to appear on a different date”).
In Virginia an affirmative duty rests on the Commonwealth to ensure a defendant is tried
within the time limit mandated by Code § 19.2-243. See Moten, 7 Va. App. at 441-42, 374
S.E.2d at 706. “A defendant does not waive his right to a speedy trial merely because he remains
‐ 5 - silent or does not demand that a trial date be set within the prescribed period.” Godfrey v.
Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984).
[I]t is the prosecution which has the responsibility of vindicating society’s interests in swift and certain justice; it is the prosecution which has the duty of implementing the constitutional guarantee of a speedy trial . . . . We believe, therefore, that when a defendant challenges the delay as unreasonable, the burden devolves upon the Commonwealth to show, first, what delay was attributable to the defendant and not to be counted against the Commonwealth and, second, what part of any delay attributable to the prosecution was justifiable.
Stephens v. Commonwealth, 225 Va. 224, 231-32, 301 S.E.2d 22, 26 (1983) (quoting Fowlkes v.
Commonwealth, 218 Va. 763, 766-67, 240 S.E.2d 662, 664 (1978)).
“In assessing responsibility for delay in trying a defendant, we must confine our review
to the record that comes before us.” Cantwell, 2 Va. App. at 611, 347 S.E.2d at 525-26. “An
order granting a continuance speaks for itself, and the record must reflect the reason for any
delay of defendant’s trial.” Godfrey, 227 Va. at 463, 317 S.E.2d at 783 (“Courts act by orders
and decrees that become a part of the record on appeal. Continuances in criminal cases,
therefore, must be documented to enable us to review and evaluate them when they are
challenged.”); Heath, 32 Va. App. at 181, 526 S.E.2d at 800-01 (“To decide the question
presented, we look to the court’s orders explaining the delays in proceeding to trial.”). “Without
anything in a court order or elsewhere in the record to show that a defendant agreed to or
concurred in the delay of his trial, or instigated a proceeding which of necessity brought about a
delay of his trial, the delay must be attributed to the Commonwealth.” Cantwell, 2 Va. App. at
611, 347 S.E.2d at 526 (emphasis added).
It is undisputed that the period between Turner’s preliminary hearing and his initial trial
date was 201 days. In the absence of tolling, the Commonwealth was required to commence the
trial within five months from the October 14, 2015 preliminary hearing, or by March 14, 2016.
‐ 6 - Here, there is no evidence in the record that the Commonwealth requested that a trial date be set
within the speedy trial timeframe.4 “No orders were entered granting continuances [before the
time for speedy trial expired] or showing why the case was not scheduled for trial within five
months.” Adkins, 13 Va. App. at 522, 414 S.E.2d at 189 (dismissing on speedy trial grounds).
The April 20, 2016 order establishing the initial trial date was the first ordered continuance in the
record,5 and Turner objected at that time. By April 20, the speedy trial time limit had already run
on Turner’s case.
Nevertheless, quoting Stephens, 225 Va. at 233-34, 301 S.E.2d at 27-28, the
Commonwealth argues that Turner’s motion in limine tolled the speedy trial time clock because
Turner was the “moving party in a proceeding which necessitated the continuance, and he should
not be permitted to take advantage of the delay thus occasioned.” The Commonwealth argues
that rather than setting a trial date, the court set a date to hear Turner’s motion. It argues that the
delay between the filing of the motion and its resolution should accordingly be charged to
Turner. The Commonwealth’s reliance on Stephens is misplaced.
In Stephens, the defendant filed a motion to suppress evidence. After a hearing, the trial
court took the issue under advisement and entered an order continuing the case. Id. at 224, 301
S.E.2d at 24. The prosecutor “insist[ed] that at all times he ha[d] been ready to try defendant’s
cases and on one or more occasions asked that trial dates be set.” Id. at 232, 301 S.E.2d at 26.
Furthermore, in Stephens, the Court “conclu[ded] that the continuance granted by order of the
4 Because no trial date had ever been set, Code § 19.2-243(4), which requires a defendant to affirmatively object to a continuance requested by the Commonwealth, does not apply to toll the running of the speedy trial clock. See Howard v. Commonwealth, 281 Va. 455, 460, 706 S.E.2d 885, 888 (2011) (applying Code § 19.2-243(4) and concluding that “[o]nce the initial trial date is set, every continuance postpones the trial date regardless of the reason for the continuance or the identity of the moving party” (emphasis added)). 5 The only order in the record dated prior to the April 20, 2016 order is the March 11, 2016 order denying Turner’s motion to exclude, which did not mention a continuance. ‐ 7 - lower court . . . was ‘agreed to’ and ‘concurred in’ by both the Commonwealth’s Attorney and
the defendant and that this [wa]s reflected by the order and the record.” Id. at 234, 301 S.E.2d at
28. In contrast, here the Commonwealth never sought a trial date within the speedy trial
timeframe and Turner never agreed to a continuance ordered by the trial court.
Moreover, the Commonwealth’s reliance on Stephens is misplaced in light of Robbs v.
Commonwealth, 252 Va. 433, 478 S.E.2d 699 (1996). In Robbs, the Supreme Court addressed
the effect of a defendant’s motion to suppress on the defendant’s right to a speedy trial and
distinguished Robbs from Stephens. As in Stephens, the defendant in Robbs filed a motion to
suppress evidence. The trial court heard and orally overruled the motion twenty days later. Id. at
435, 478 S.E.2d at 699. The question before the Court was whether the twenty days between the
defendant’s filing of the motion and the trial court’s ruling on it were attributable to the
defendant for speedy trial purposes. The Court distinguished Stephens, concluding that
“[n]othing in the record show[ed] that ‘the filing of the motion necessitated a slow-down of the
judicial process.’” Id. at 436, 478 S.E.2d at 700. The Court reasoned that at the time of the
defendant’s motion, “the case had not yet been set for trial and the filing of [the defendant’s]
motion did not necessitate a continuance of the trial date (as in Stephens).” Id. The Court
concluded that the time period between filing of the motion and resolution by the trial court
should not be attributed to the defendant “[s]ince the record fail[ed] to show that the motion
delayed the court in setting the case for trial.” Id.
Here, as in Robbs, the record fails to show that Turner’s motion delayed the trial court in
setting the case for trial. Turner’s motion in limine regarding the admissibility of Turner’s prior
convictions could have been raised during the trial, or the trial court could have taken the motion
under advisement until it heard the evidence presented during the trial. Simply put, the
commencement of the trial was not dependent upon the outcome of the motion. Moreover, as in
‐ 8 - Robbs, no trial date had yet been set during the pendency of the motion. “Since the matter had
not been set for trial, neither the accused nor the attorney for the Commonwealth had any reason
to move for a continuance.” Nelms v. Commonwealth, 11 Va. App. 639, 642, 400 S.E.2d 799,
801 (1991) (dismissing on speedy trial grounds). Thus, in contrast to Stephens, Turner did not
agree to a court-ordered continuance.
Nevertheless, the Commonwealth argues that this case is similar to Heath v.
Commonwealth, 261 Va. 389, 541 S.E.2d 906 (2001), where the defendant’s motion for a
psychiatric evaluation tolled the speedy trial period. The Commonwealth argues that, as in
Heath, Turner’s motion had to be resolved before the trial commenced because the trial court’s
decision would determine what charges the Commonwealth would seek. The Commonwealth
argues that, as in Heath, the fact that a trial date had not yet been set was irrelevant because
Turner’s motion in limine was for Turner’s benefit and the delay should therefore be attributed to
Turner. In Heath, the trial court found “that the record does not disclose, and the defendant does
not claim, that the defendant objected to the action of the court in fixing the trial date [past the
speedy trial deadline].” Id. at 392, 541 S.E.2d at 908. Moreover, the Court in Heath found that
the defendant’s “motion affirmatively demonstrated that he was not ready for trial and could not
proceed until he received the results of his psychiatric examination . . . . [M]anifestly, a trial
could not have been held as long as the issue of [the defendant’s] mental competency remained
unresolved.” Id. at 393, 541 S.E.2d at 909.
As in Robbs, and in contrast to Heath, Turner expressly objected on speedy trial grounds
to the Commonwealth’s initial trial date. Further, the admissibility issue here is quite different
than the mental evaluation to determine competency at issue in Heath. Turner’s motion was a
routine and customary one. See Adkins, 13 Va. App. at 522, 414 S.E.2d at 190. Although the
Commonwealth suggests Turner’s motion had to be resolved before it could determine what
‐ 9 - charges to bring, the grand jury had already indicted Turner for felony assault and battery on a
family or household member, third offense. Therefore, the resolution of the motion did not have
any bearing on the offense for which he had already been indicted, but rather would determine if
the Commonwealth, in the words of the trial court, lacked “sufficient evidence to go forward on
the felony charge because these [purported convictions] cannot be used for predicate offenses.”
The trial court recognized that granting the motion to exclude “would simply reduce the charge
from a felony to a misdemeanor.” In contrast to Heath, Turner’s motion did not manifestly
require that the trial be delayed, and nothing here prevented the Commonwealth from requesting
a trial date even though the motion was pending. The Commonwealth has offered no reason why
a trial date could not have been selected while the motion was pending.
Moreover, it was the Commonwealth’s affirmative duty to ensure statutory speedy trial
requirements were met. Godfrey, 227 Va. at 463, 317 S.E.2d at 783. The Commonwealth made
the strategic choice to wait until after Turner’s motion was resolved to request an initial trial
date. At the February 8, 2016 hearing, the trial court indicated that it fully understood the issue
and would resolve the motion promptly. The trial court stated it would “set this matter for
adjudication once I’ve had an opportunity to sort this out.” At that point, more than a month
remained on the speedy trial clock. During that hearing, or promptly after the trial court’s
issuance of its letter opinion on February 16, 2016, the Commonwealth could have requested an
initial trial date; but it did not. Id. (“A defendant does not waive his right to a speedy trial merely
because he remains silent or does not demand that a trial date be set within the prescribed
period.”).6
6 The Commonwealth also relies on Howard v. Commonwealth, 55 Va. App. 417, 686 S.E.2d 537 (2009), aff’d, 281 Va. 455, 706 S.E.2d 885 (2011), to argue that here, as in Howard, the trial court continued the case sua sponte, without objection from Turner, to consider Turner’s motion. In Howard, however, a trial date had been set within the speedy trial timeframe. Id. at
‐ 10 - The Commonwealth had the “duty of implementing the [statutory] guarantee of a speedy
trial.” Stephens, 225 Va. at 231-32, 301 S.E.2d at 26. Here, the first attempt by the
Commonwealth to set a trial date was after the speedy trial clock had run. Furthermore,
resolution of Turner’s motion did not necessitate a delay in setting a date for trial. The
Commonwealth failed to bring Turner to trial within the speedy trial timeframe; accordingly, the
indictment against Turner must be dismissed.
CONCLUSION
As noted above, we affirm Turner’s conviction under Code § 18.2-427. However,
because nothing in the record shows that Turner agreed to or concurred in the delay of his trial,
or instigated a proceeding which of necessity brought about a delay of his trial, see Cantwell, 2
Va. App. at 611, 347 S.E.2d at 526, the trial court erred in denying Turner’s motion to dismiss
the felony on speedy trial grounds. We conclude Turner must be forever discharged from
prosecution for the felony offense that is the subject of this appeal. Code § 19.2-243.
Affirmed in part, reversed and dismissed in part.
420, 686 S.E.2d at 539. On the day before trial, the trial court sua sponte entered an order continuing the trial date past the speedy trial deadline. Id. Because the defendant failed to object to the continuance order, this Court concluded that the defendant’s speedy trial rights had not been violated. Here, in contrast, no trial date had been set, and the trial court did not enter any continuance order to which Turner could object. The Commonwealth conflates a trial court’s routine administration of pretrial motions with formal continuance orders entered on the record. “[W]e must confine our review to the record that comes before us.” Cantwell, 2 Va. App. at 611, 347 S.E.2d at 526. Continuances in criminal cases “must reflect the reason for any delay of defendant’s trial [and] must be documented to enable us to review and evaluate them when they are challenged.” Godfrey, 227 Va. at 463, 317 S.E.2d at 783. Here, there is no continuance order entered prior to April 20, 2016, that explains the reason for the delay of Turner’s trial. ‐ 11 -