COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Athey and Callins UNPUBLISHED
Argued at Lexington, Virginia
MICHAEL RENEA JOHNSON MEMORANDUM OPINION* BY v. Record No. 0613-22-3 JUDGE MARY BENNETT MALVEAUX APRIL 11, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE G. Carter Greer, Judge
Fred D. Smith, Jr. (Fred D. Smith, Jr., P.C., on briefs), for appellant.
John Beamer, Assistant Attorney General (Jason S. Miyares, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee.
Michael Renea Johnson1 (“appellant”) was convicted in a bench trial of assault and
battery against a household member, in violation of Code § 18.2-57.2; abduction with intent to
defile, in violation of Code § 18.2-48; strangulation, in violation of Code § 18.2-51.6; forcible
sodomy, in violation of Code § 18.2-67.1; and larceny, third offense, in violation of Code
§ 18.2-104. On appeal, he argues that the trial court erred in denying his motion to dismiss
alleging a violation of his constitutional right to a speedy trial. For the following reasons, we
affirm the trial court.
* This opinion is not designated for publication. See Code § 17.1 413. 1 Johnson’s middle name is variously rendered “Renea,” “Renae,” and “Rena” throughout the record. I. BACKGROUND
“‘In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].’ Accordingly, we regard
as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably
be drawn from that evidence.” Meade v. Commonwealth, 74 Va. App. 796, 802 (2022) (quoting
Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).
Appellant was arrested for assault and battery against a household member, strangulation,
and forcible sodomy on December 9, 2019. Held without bail, appellant was appointed
representation from the Office of the Public Defender of the City of Martinsville. The juvenile
and domestic relations district court certified appellant’s strangulation and forcible sodomy
charges to a grand jury after a preliminary hearing on March 4, 2020. The grand jury
subsequently returned indictments for those offenses, as well as direct indictments for assault and
battery against a household member, abduction with intent to defile, and larceny, third offense.
Appellant was arraigned on the strangulation and sodomy charges on May 19, 2020.
During the arraignment, counsel for appellant noted that there would be additional indictments
arising from the same incidents. Counsel accordingly requested that the trial court either
continue the matter or “set it for a trial date far enough out that those additional charges can be
folded in[].” The court then proposed two trial dates, but the first was unavailable to counsel for
appellant and the second was unavailable to the Commonwealth. After noting the recent
Supreme Court orders addressing the COVID-19 pandemic, the court then suggested an August
14, 2020 trial date, to which counsel for appellant consented.2 By order dated May 19, 2020, the
2 On March 16, 2020, the Governor of Virginia, acting in response to the spread of COVID-19, requested a declaration of judicial emergency from the Supreme Court of Virginia. See In Re: Order Declaring a Judicial Emergency in Response to COVID-19 Emergency (Va. Mar. 16, 2020). That same day, the Supreme Court entered an order suspending all non-essential, non-emergency proceedings in all circuit and district courts, tolling and extending -2- trial court set the strangulation and forcible sodomy charges for trial on August 14, 2020 and
“continued [the case] on the joint motion of counsel.”
On June 15, 2020, appellant was arraigned on the direct indictment charges. That same
day, the trial court entered an order noting that appellant was waiving a jury trial and reiterating
appellant’s August 14, 2020 trial date. The order noted that the matter was continued to August
14 “on the joint motion of the Commonwealth’s Attorney and the [appellant].”
Three days before trial, the Commonwealth moved to continue the case due to the illness
of the Commonwealth’s attorney. The Commonwealth’s attorney later told the court that his
illness was “due to [him] getting Covid.” Over the unspecified objection of appellant’s counsel,
the trial court granted the Commonwealth’s motion and continued the matter to September 2,
2020.3
On that date, the parties appeared before the court to set a new trial date. The court
initially proposed December 7, 2020, but appellant’s counsel stated that she would be
unavailable on that date. The Court then suggested December 14, 2020, to which both parties
agreed.
On December 14, 2020, the parties appeared for trial. At the outset of proceedings, the
Commonwealth’s attorney moved for a continuance. He informed the court that he was feeling
unwell and did not think he could adequately represent the Commonwealth at that time, due to
what “appear[ed] to be post[-]Covid symptoms.” The court granted the motion and continued
all deadlines for twenty-one days, and “[c]ontinu[ing] all civil, traffic and criminal matters . . . subject to a defendant’s right to a speedy trial.” Id. Thirty-nine subsequent orders of the Court extended the judicial emergency, to include tolling of statutory speedy trial deadlines, through June 22, 2022. See In Re: Fortieth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency (Va. May 27, 2022). These and other orders of the Supreme Court relating to the COVID-19 pandemic are available on the website of Virginia’s judicial branch at, https://www.vacourts.gov/main.htm. 3 The record does not contain a transcript of the August 11, 2020 hearing. -3- the case to February 18, 2021 to set a new trial date. That same day, the court entered an order
reflecting the continuance and noting that “the Commonwealth became ill[,] made a motion to
continue, no objection of [appellant].”
On February 17, 2021, the day before the scheduled hearing, the presiding judge of the
Martinsville Circuit Court entered a continuance order for all matters scheduled to be heard the
following day. Acting pursuant to his authority under Code § 17.1-207(A)(3), the judge
determined that impending inclement weather necessitated closure of the court and continued all
the affected matters to March 16, 2021.
At a hearing on that date, the trial court suggested thirteen new trial dates ranging from
April 19 to July 23, 2021. Five of those dates were unavailable to the Commonwealth, and the
remaining eight presented conflicts for appellant’s counsel. Ultimately, the court suggested July
26, 2021 as a new trial date, and the parties agreed. The court entered an order that same day
that memorialized the new trial date. Signed by appellant, his counsel, and the Commonwealth’s
attorney, the order reflected no objections to the new date.
On May 12, 2021, counsel for appellant moved the trial court to withdraw due to a
conflict of interest that had come to her attention. The court granted the motion on May 14, 2021
and appointed a new attorney for appellant.
At a hearing on May 18, 2021, appellant’s newly appointed counsel informed the trial
court that he would be unavailable on the July 26, 2021 trial date. 4 At the conclusion of the
hearing, the court entered an order setting a new trial date of August 3, 2021. The order was
signed by appellant, his newly appointed counsel, and the Commonwealth’s attorney, without
objection by any party.
4 The record does not contain a transcript of the May 18, 2021 proceedings. -4- The day before trial, appellant filed a motion to dismiss all the charges. He argued that
his state and federal constitutional rights to a speedy trial had been violated because his
nineteen-month detention without trial was so lengthy as to be presumptively prejudicial under
Barker v. Wingo, 407 U.S. 514 (1972), and Fowlkes v. Commonwealth, 218 Va. 763 (1978).
When the parties appeared for trial the following day, the court continued the case for argument
on appellant’s motion to dismiss and set a new trial date of December 17, 2021.
At a November 19, 2021 hearing on the motion to dismiss, appellant argued that he had
been held in jail for 710 days, that such a lengthy pre-trial detention was presumptively
prejudicial under Barker and Fowlkes, and that further analysis as required by those cases would
show his defense had suffered “irreparable prejudice.” The Commonwealth contended that
much of the delay was chargeable to or had been acquiesced in by appellant and that appellant
had failed to demonstrate any prejudice to his defense.
In ruling on the motion, the trial court considered each of the four factors enumerated by
Barker and Fowlkes. First, with respect to the length of the delay in bringing appellant to trial,
the court found that the 710-day period of pretrial incarceration to that point was presumptively
prejudicial and necessitated further inquiry. The court also found that the delay was the product
of five continuances. One continuance occurred when the court was closed due to inclement
weather on February 18, 2021, and the court did not charge that continuance against either party
because it “concerned matters of public safety.” Two continuances had been requested by the
Commonwealth, on August 11 and December 14, 2020, because the Commonwealth’s attorney
had been ill.5 A further two continuances had been granted on behalf of appellant: on May 18,
2021, when appellant’s newly appointed counsel informed the court that he would be unavailable
5 During argument, the Commonwealth’s attorney erroneously referred to the first continuance date as August 14, 2020, and the trial court adopted and repeated that erroneous date in its own statements. -5- on the July 26, 2021 trial date; and on August 3, 2021, when a continuance was granted so that
appellant’s motion to dismiss could be considered. 6
Second, the court considered the reasons for the delay in bringing appellant to trial.
Because one continuance was due to court action in response to inclement weather and two were
chargeable to appellant, the two continuances at issue were those the Commonwealth requested
due to illness on August 11 and December 14, 2020. The court found that both continuances had
been justifiable, given the COVID-19 pandemic that had made it “extremely difficult, to say the
least, to get cases to trial.”
With respect to factor three—the assertion of the right to a speedy trial—the court found
that the factor weighed in appellant’s favor “because although he did not object to the second
continuance of the Commonwealth, he did object to the first.” Lastly, in considering prejudice to
appellant—the fourth factor—the court noted that only two continuances were chargeable to the
Commonwealth, and both had been “entirely justifiable.” Consequently, “[t]he only reason for
the delay” on the part of the Commonwealth in bringing appellant to trial had been illness on the
part of the Commonwealth’s attorney, and there had been “no negligence on the part of the
Commonwealth in the failure to try [appellant] before now.” Considering all relevant factors
together, the trial court denied appellant’s motion to dismiss. 7 This appeal followed.
Also during argument, the Commonwealth’s attorney erroneously referred to the second 6
continuance date as August 10, 2021, and the trial court erroneously referred to the date as August 20, 2021. 7 In so ruling, the court necessarily held that the Commonwealth had overcome the presumption of prejudice found by the court when it considered the first Barker factor—the length of the delay in bringing appellant to trial. See, e.g., Osman v. Commonwealth, 76 Va. App. 613, 668 (2023) (holding, after “weighing and balancing all the [Barker] factors together,” that “their sum total rebuts the presumption” of prejudice established under the first factor). -6- II. ANALYSIS
Appellant argues that the trial court erred in denying his motion to dismiss on federal and
state constitutional speedy trial grounds, 8 because the Commonwealth “failed to prove
justification for that part of the delay attributable to the Commonwealth.”
“Constitutional issues present questions of law reviewed de novo on appeal. To the
extent such review involves underlying factual findings, those findings may not be disturbed
unless ‘plainly wrong’ or ‘without evidence to support them.’” Ali v. Commonwealth, 75
Va. App. 16, 33 (2022) (citation omitted) (quoting Wilkins v. Commonwealth, 292 Va. 2, 7
(2016)).
“In contrast to the statutory right to a speedy trial, the constitutional right to a speedy
trial . . . ‘is governed by a balancing test that is not tied inextricably to calendar dates.’” Osman
v. Commonwealth, 76 Va. App. 613, 659 (2023) (quoting Brown v. Commonwealth, 75 Va. App.
388, 406-07 (2022)). Thus, “[u]nlike the statutory speedy trial right in Virginia, the
constitutional right cannot be ‘quantified into a specified number of days or months.’” Ali, 75
Va. App. at 34 n.6 (quoting Barker, 407 U.S. at 523). Instead, “[t]he 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, 407 U.S. at 530). Such a determination “requires
balancing four factors—the ‘[l]ength of delay, the reason for the delay, the defendant’s assertion
8 “Both the United States and Virginia Constitutions provide criminal defendants with the right to a speedy trial. Virginia’s constitutional speedy trial right is coextensive with the federal right.” Ali v. Commonwealth, 75 Va. App. 16, 33-34 (2022) (citations omitted). See U.S. Const. amend. VI; Va. Const. art. 1, § 8. “Accordingly, such claims may be analyzed ‘without distinction.’” Ali, 75 Va. App. at 34 (quoting Holliday v. Commonwealth, 3 Va. App. 612, 615 (1987)). -7- of his right, and prejudice to the defendant.’” Ali, 75 Va. App. at 34 (alteration in original)
(quoting Barker, 407 U.S. at 530). An appellant must establish that these factors, considered
together, “weigh in his favor.” Id. at 35 (quoting United States v. Thomas, 55 F.3d 144, 148 (4th
Cir. 1995)).
Here, considering the first factor—the length of the delay in bringing appellant to trial—
the trial court found that appellant’s pretrial detention was sufficiently lengthy to be
presumptively prejudicial. Such a conclusion “triggers consideration of the other Barker
factors,” including the one addressed by appellant’s assignment of error: “the reasons for [the]
delay.”9 Osman, 76 Va. App. at 660. In considering this factor, “the burden ‘[shifts to] the
Commonwealth’ . . . to show two things.” Ali, 75 Va. App. at 36 (first alteration in original)
(quoting Beachem v. Commonwealth, 10 Va. App. 124, 131-32 (1990)). “First, the prosecution
must show ‘what delay was attributable to the defendant and not to be counted against the
Commonwealth.’ Second, it must show what part of any delay not attributable to the defendant
was ‘justifiable.’” Id. (quoting Fowlkes, 218 Va. at 767).
Appellant concedes that the failures to proceed to trial on the specific dates of August 14
and December 14, 2020 were justifiable because of the COVID-19 illness of the
Commonwealth’s attorney. He also concedes that the failure to proceed to trial on the specific
date of February 18, 2021 was justifiable because of inclement weather. However, he contends
that “the Commonwealth fails to show justification for not trying [appellant] on any other days
between [appellant’s] arrest and the March 16, 2021, administrative calendar” and that “[a]ll
these further delays were attributable to the Commonwealth.” Accordingly, appellant argues,
9 During oral argument, counsel for appellant was asked if appellant’s assignment of error was “narrowly drawn” to simply question “what [were] justified delays,” and he acknowledged this was the case. Accordingly, given our resolution of this matter, supra, we need not address the remaining Barker factors—“the defendant’s assertion of his right [to a speedy trial], and prejudice to the defendant.” Ali, 75 Va. App. at 34 (quoting Barker, 407 U.S. at 530). -8- “[b]ecause the Commonwealth failed to ‘spread on the record’ the reasons for the . . . delays
attributable to the initial trial setting and the two subsequent continuances, it was negligent” and
“breached its [speedy trial] duty.”
A. Apportionment of Delay Between the Commonwealth and Appellant
This Court must first determine which portion of the delay between appellant’s arrest on
December 9, 2019 and March 16, 2021 is attributable to appellant and which portion is
attributable to the Commonwealth. “[A]ny delay not attributable to the defendant is the
responsibility of the Commonwealth for speedy trial purposes.” Ali, 75 Va. App. at 42. A
defendant is chargeable with a delay where he requested a continuance, see Price v.
Commonwealth, 24 Va. App. 785, 790-91 (1997), or concurred in a continuance, see Arnold v.
Commonwealth, 18 Va. App. 218, 223, aff’d on reh’g en banc, 19 Va. App. 143 (1994).
1. December 9, 2019 to May 19, 2020: Arrest to Initial Arraignment
Appellant was arrested on December 9, 2019, and “the constitutional speedy trial clock
begins at the time of a defendant’s arrest.” Wallace v. Commonwealth, 65 Va. App. 80, 98
(2015). Appellant was arraigned on charges of strangulation and forcible sodomy on May 19,
2020. Although the trial court did not specifically consider the 163-day period between these
two dates, it is “attributable to the Commonwealth in the ordinary course of the administration of
justice.” Ali, 75 Va. App. at 37.
2. May 19, 2020 to August 14, 2020: Initial Arraignment to First Trial Date
During appellant’s initial arraignment on May 19, 2020, counsel for appellant informed
the trial court that additional charges against appellant would be forthcoming and requested that
the court either continue the matter or set trial “far enough out that those additional charges can
be folded in[].” After the court suggested one trial date that was unavailable for appellant’s
counsel and a second trial date that was unavailable for the Commonwealth, the court suggested
-9- August 14, 2020. Counsel for appellant and the Commonwealth’s attorney consented to this
date, and the trial court entered an order that continued the matter to trial on August 14, 2020 “on
the joint motion of counsel.”10
Eighty-seven days elapsed between the initial arraignment on May 19, 2020 and the first
trial date of August 14, 2020. Although the trial court did not specifically consider this period, it
is attributable to appellant. Counsel for appellant initially sought a trial date “far enough out” to
encompass both the existing and the forthcoming charges against appellant, and then consented
to the August 14, 2020 date. Further, the trial court’s order memorializing the initial arraignment
specified that appellant’s case was continued to that date on a joint motion of the parties. Thus,
appellant concurred in the delay from May 19 to August 14, 2020. See Arnold, 18 Va. App. at
223.
3. August 14, 2020 to December 14, 2020: The First Illness Continuance
Three days before the first trial date, the Commonwealth’s attorney moved the court for a
continuance due to an illness that rendered him “unable to prosecute the . . . case[].” As the
Commonwealth’s attorney later explained to the court, he was ill at that time with COVID-19.
The trial court granted the continuance over an unspecified objection by counsel for appellant
and continued the matter to September 2, 2020 to set a new trial date. At the September 2, 2020
hearing, the parties agreed to a trial date of December 14, 2020. The trial court found that this
period of 122 days was attributable to the Commonwealth and did not err in doing so because the
Commonwealth was the party that had moved for a continuance.
10 Although the transcript of the May 19, 2020 arraignment does not reflect such a “joint motion,” the trial court’s order indicates such a motion, and “[a] court speaks through its orders and those orders are presumed to accurately reflect what transpired.” Epps v. Commonwealth, 66 Va. App. 393, 401 (2016) (quoting McBride v. Commonwealth, 24 Va. App. 30, 35 (1997)). - 10 - 4. December 14, 2020 to February 18, 2021: The Second Illness Continuance
At the outset of proceedings on December 14, 2020, the Commonwealth’s attorney
informed the trial court that he was feeling unwell and did not think he could adequately
represent the Commonwealth due to what he believed were “post[-]Covid symptoms.” The
Commonwealth moved for a continuance, and the court granted the motion and continued the
matter to February 18, 2021 to set a new date for trial. The trial court attributed this
sixty-six-day period between December 14, 2020 and February 18, 2021 to the Commonwealth
and was correct to do so because the Commonwealth was the party who had requested the
continuance.
5. February 18, 2021 to March 16, 2021: The Inclement Weather Continuance
The day before the February 18, 2021 hearing date, the presiding judge of the
Martinsville Circuit Court issued an order closing the court due to impending inclement weather.
All matters that were scheduled to be heard on February 18, 2021, including appellant’s, were
continued until March 16, 2021. Although the trial court did not attribute this delay of
twenty-six days to either party because it “concerned matters of public safety,” because it is a
delay not attributable to appellant, it is attributable to the Commonwealth. See Ali, 75 Va. App.
at 42.
6. Summary of Apportioned Delays Prior to March 16, 2021
Here, there were five distinct delays in bringing appellant to trial during the period
appellant challenges on brief: an arrest to initial arraignment period of 163 days, which is
attributable to the Commonwealth; a period of eighty-seven days from the initial arraignment to
the first trial date, which is attributable to appellant; an illness-related delay of 122 days between
the first and second trial dates, which is attributable to the Commonwealth; a further
illness-related delay of sixty-six days following the second trial date, which is also attributable to
- 11 - the Commonwealth; and a final twenty-six-day delay due to inclement weather, which is also
attributable to the Commonwealth. Thus, four of the five delays during the period challenged by
appellant are attributable to the Commonwealth, representing 377 of 464 elapsed days.
Accordingly, we reject appellant’s argument that all the delays in bringing him to trial between
December 9, 2019 and March 16, 2021, except for the three specific dates on which the
Commonwealth’s attorney was ill and the court issued its inclement weather order, were
attributable to the Commonwealth.
B. Justification for Delays Attributed to the Commonwealth
After determining the delays in bringing appellant to trial, and how those delays should
be apportioned between the parties, we “must determine what part of the delay assigned to the
[Commonwealth] was justifiable.” Ali, 75 Va. App. at 42. In considering this question, “the
intent of the [Commonwealth] becomes highly relevant.” Beachem, 10 Va. App. at 132.
“Barker recognizes three categories of fault for delay attributable to the government—delay that
is deliberately improper, merely negligent, and valid and unavoidable.” Ali, 75 Va. App. at 42.
Deliberately improper delay, “such as that caused with an intent to ‘hamper the defense’ or
harass the defendant, ‘should be weighed heavily against the government.’” Id. (quoting Barker,
407 U.S. at 531 & n.32). Merely negligent delay may arise from “[n]egligence in scheduling,
understaffing of a prosecutor’s office, or ‘overcrowd[ing of the] courts,’” and “receives ‘less’
weight ‘but nevertheless [is] considered since the ultimate responsibility for such circumstances
must rest with the government rather than with the defendant.’” Id. (alterations in original)
(quoting Barker, 407 U.S. at 531). Lastly, “a reason deemed ‘valid’ fully ‘justif[ies] appropriate
delay.’” Id. (alteration in original) (quoting Barker, 407 U.S. at 531).
With respect to the delays attributable to the Commonwealth, appellant does not argue
that they were deliberately improper. Instead, he contends only that the Commonwealth was
- 12 - negligent in failing to bring him to trial soon after his arrest or during subsequent continuances.
Appellant argues that this negligent delay is reflected in the Commonwealth’s failure to
“place[] . . . evidence in the record to explain or justify” the delays attributable to it and that in
the absence of such positive, affirmative evidence providing justification, the Commonwealth’s
delays were necessarily unjustifiable.
We are unpersuaded by appellant’s argument. With respect to the first period of delay
attributable to the Commonwealth—the 163 days that elapsed between appellant’s arrest and his
initial arraignment—this delay is “assign[able] to the administration of justice.” Ali, 75 Va. App.
at 45. See also Fowlkes, 218 Va. at 766 (noting that “in the orderly administration of justice,
some delay is unavoidable and some essential to due process”). This Court recently held that a
delay of 244 days that was due to the administration of justice, and for which there was no
evidence of intentional or negligent conduct by the Commonwealth, was “valid and
unavoidable.” Ali, 75 Va. App. at 45. Thus, it fell into Barker’s third category of delays
chargeable to the prosecution that was “fully ‘justif[ied].’” Id. at 42 (quoting Barker, 407 U.S. at
531). Like the 244-day period of delay in Ali, the 163-day period attributable to the
administration of justice here was not accompanied by any evidence of intentional or negligent
conduct by the Commonwealth, and thus was fully justifiable.
The second and third delays chargeable to the Commonwealth were caused by the
COVID-19 illness of the Commonwealth’s attorney at the first two trial dates. Three days before
the first trial date, the Commonwealth’s attorney moved the court for a continuance because he
had contracted COVID-19. Trial was scheduled for August 14, 2020 in an open courtroom.
This Court has recently acknowledged that “the pandemic made it unsafe for . . . trial participants
to come to court . . . rendering them justifiably absent to protect their ‘health and safety.’” Id. at
44 (quoting United States v. Morgan, 493 F. Supp. 3d 171, 219 (W.D.N.Y. 2020)). Absenting
- 13 - himself from court proceedings until he recovered from a highly infectious and novel disease
was a justifiable measure by which the Commonwealth’s attorney sought to safeguard his own
health and the health of other trial participants. At the second trial date, the Commonwealth’s
attorney informed the court that due to the ongoing effects of his COVID-19, he did not feel he
could adequately represent the Commonwealth at that time. As this Court has recognized, it is a
“faulty premise[] that prosecutors are interchangeable and can be substituted, one for another, on
the eve of trial without adequate preparation.” Wallace, 65 Va. App. at 95. Accordingly, we
conclude that the two delays attributable to the Commonwealth due to COVID-19 illness were
justified.11
The fourth and final delay attributable to the Commonwealth was the twenty-six-day
period that arose from the closure of the trial court due to inclement weather. Although the trial
court did not attribute that period of delay to either party, it did find that the delay “concerned
matters of public safety.” We conclude that this delay due to public safety concerns arising from
inclement weather was valid and fully justified. See, e.g., United States v. Richman, 600 F.2d
286, 293-94 (1st Cir. 1979) (holding there was “no constitutional [speedy trial] deprivation”
where the delay in prosecution arose, in part, from a “devastating snowstorm” that required a
continuance); cf. Allie v. Whole Foods Market Grp., Inc., 746 F. Supp. 2d 773, 776 (E.D. Va.
2010) (holding that circuit court closure pursuant to Code § 17.1-207 “because of hazardous
11 Appellant argues that the trial court relied on the Virginia Supreme Court’s emergency orders tolling the provisions of Virginia’s Speedy Trial Act “as carte blanche justification for delays” and questions whether such reliance was “sufficient . . . to prove the justification for the length of delays.” An examination of the record demonstrates that the court did not, in fact, rely upon the emergency orders as authority for its finding that the two continuances chargeable to the Commonwealth for illness were justified. Rather, the court referred to the orders as one example among several of the significant disruptions to normal court operations occasioned by the COVID-19 pandemic. - 14 - snow storms, which were a threat to the health and safety of [staff] and the general public,” was a
proper exercise of statutory power authorized by the General Assembly).
Contrary to appellant’s argument, the evidence supports the conclusion that the delays at
issue that were attributable to the Commonwealth were valid and justified. Thus, the evidence
supports the trial court’s finding at the hearing on the motion to dismiss that there had been “no
negligence on the part of the Commonwealth in the failure to try [appellant]” prior to that time.
Finding no error by the trial court as alleged by appellant, we agree with the court’s conclusion
that the reasons for the delay in bringing appellant to trial, considered and balanced together with
the other Barker factors, overcame the presumptive prejudice of appellant’s lengthy pre-trial
incarceration and did not weigh in appellant’s favor. Accordingly, we affirm the trial court’s
denial of appellant’s motion to dismiss on constitutional speedy trial grounds.
III. CONCLUSION
For the foregoing reasons, we find no error by the trial court in denying appellant’s
motion to dismiss and affirm appellant’s convictions.
Affirmed.
- 15 -