Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Lacy and Koontz, S.JJ. ∗
RONNIE LEE HOWARD
v. Record No. 100912 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA MARCH 4, 2011
FROM THE COURT OF APPEALS OF VIRGINIA
The dispositive issue in this appeal is whether the tolling
provisions of Code § 19.2-243, the speedy trial statute, apply
to a trial court order entered sua sponte continuing the
defendant’s trial date.
I.
FACTS
On March 3, 2008, Ronnie Lee Howard was indicted by the
Grand Jury in the Circuit Court of Botetourt County for one
count of credit card theft, Code § 18.2-192, and one count of
breaking and entering, Code § 18.2-91. The trial court set
Howard’s trial for May 22, 2008. On May 21, 2008, the trial
court entered an order at its own “request” continuing the trial
to July 3, 2008. Howard did not object to this order.
On July 3, the date set for trial, the Commonwealth moved
for a continuance due to the absence of two witnesses scheduled
to testify at trial. Howard also asked for a continuance.
∗
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
Howard explained that he was unprepared for trial through no
fault of his own but because he had not received certain
discovery material held by the Roanoke City police department.
Thus, Howard argued that his motion for continuance should be
charged to the Commonwealth. Howard’s counsel specified that
his “client [did] not wish to waive his right to speedy trial
because of [the continuance].”
In a conversation with the trial court concerning the
impact of a continuance on the speedy trial requirements of Code
§ 19.2-243, the Commonwealth explained that 122 days had passed
from the date of the indictment, but argued that the time period
had been tolled from May 22 to July 3 because Howard did not
object to the court-initiated continuance. Howard responded
that he was not required to object because the trial court had
set the new trial date within the statutory time frame. Counsel
for the Commonwealth advised the trial court that because of his
schedule the trial would have to be scheduled for some time
after August 4, which was the end of the five-month period
required by Code § 19.2-243 for commencing Howard’s trial absent
any tolling. Howard raised no objection to setting a trial date
beyond August 4. The trial was continued until August 14 “at
the request of the Commonwealth.”
On August 5, Howard filed a motion to dismiss alleging he
had been confined continuously since his March 3 indictments
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without a trial in violation of the speedy trial period set out
in Code § 19.2-243. Howard argued that neither of the
continuances should be charged to him and that, not only had his
right to a speedy trial as provided by Code § 19.2-243 been
violated, his rights to a speedy trial as provided by the United
States and Virginia Constitutions also were violated.
Following a hearing on Howard’s motion to dismiss, the
circuit court ruled that because Howard did not object to the
first continuance, which was initiated by the court, the five-
month statutory time period for commencing Howard’s trial was
tolled during that period, May 22 until July 3. Accordingly,
the circuit court denied Howard’s motion to dismiss the
indictments and noted his exceptions to the ruling.
The circuit court proceeded with the bench trial and found
Howard guilty on both counts, sentencing him to thirteen years’
imprisonment and suspending eight years and six months of said
sentence.
The Court of Appeals of Virginia, in a published opinion,
affirmed Howard’s convictions. Howard v. Commonwealth, 55 Va.
App. 417, 686 S.E.2d 537 (2009). The Court of Appeals held that
because Howard failed to object to the continuance order entered
sua sponte by the trial court, the five-month speedy trial
period was tolled from May 22 to July 3, 2008, and there was no
speedy trial violation. Id. at 424, 686 S.E.2d at 541. Based
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on this holding, the Court of Appeals concluded that it was
unnecessary to consider whether the tolling provisions of the
speedy trial statute applied to the second continuance. Id.
The Court of Appeals also held that Howard failed to
preserve his claim of a speedy trial violation under the United
States and Virginia constitutions and dismissed that claim
pursuant to its Rule 5A:18. Id. at 425, 686 S.E.2d at 541. The
Court of Appeals also declined to apply the ends of justice
exception to that rule. Id. at 425-26, 686 S.E.2d at 541-42.
We awarded Howard an appeal.
II.
DISCUSSION
A. Statutory Claim
Code § 19.2-243, the speedy trial statute, provides that if
a defendant accused of a felony is continuously held in custody
from the time he is indicted, if there was no preliminary
hearing, he must be tried within five months of the date of the
indictment. The statute also provides that if the trial does
not commence within the stated time period, the defendant “shall
be forever discharged from prosecution” for the charged offense.
Applying that provision to this case required that Howard’s
trial commence no later than August 4, 2008, five months from
the date he was indicted.
4
Circumstances will arise, however, that require and justify
delay in the prosecution of a defendant. Stephens v.
Commonwealth, 225 Va. 224, 231, 301 S.E.2d 22, 26
(1983)(“[W]hile in the orderly administration of justice some
delay is unavoidable and some is essential to due process,
courts must inquire into the reasons for the delay.”) Paragraph
4 of Code § 19.2-243 balances the interests of a defendant to be
tried in a timely manner with such circumstances. These
provisions are generally referred to as the tolling provisions.
As relevant here, paragraph 4 provides that calculation of the
time period for commencing the trial will be tolled for time
attributed to a continuance granted on a motion made by the
defendant or his counsel, or time attributed to a continuance
granted on a motion made by the Commonwealth in which the
defendant or his counsel concurred or did not make a timely
objection.
In his first assignment of error, Howard argues that
because no express language in the speedy trial statute
addresses court-initiated continuances, the statute’s tolling
provisions do not apply and, in any event, he was not required
to object to the continuance because the court-initiated
continuance did not extend the trial date beyond the five-month
statutory time period. We reject both of Howard’s arguments.
5
We have held on prior occasions that the specific
circumstances identified in the statute as exceptions tolling
the time for commencing the trial were “not meant to be all-
inclusive, but that others of a similar nature were implied.”
Stephens, 225 Va. at 230, 301 S.E.2d at 25. For example, in
Wadley v. Commonwealth, 98 Va. 803, 35 S.E. 452 (1900), we held
that an injunction, entered by a federal court restraining a law
officer from proceeding with the prosecution of a case and
prohibiting the use of certain material as evidence, tolled the
required statutory time period for commencing a criminal trial
even though that exception was not included in the statute. We
stated that “[i]t would defeat rather than carry out the purpose
of the enactment to give its language the narrow and technical
meaning contended for” by the plaintiff. Id. at 805, 35 S.E. at
453. Thus, in the absence of language specifically including a
court-initiated continuance within the tolling provisions of the
speedy trial statute, we must consider if such a continuance is
of a “similar nature” to those contained in the statute.
Once 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. This is true
whether or not the postponement extends the trial date beyond
the statutorily required date. The provisions of paragraph 4 of
Code § 19.2-243 relevant in this case clearly demonstrate that
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in order to avoid the tolling provision, the defendant must be
adverse to the granting of the continuance and must
affirmatively express his objection even when a new trial date
is set within the speedy trial time limits for the commencement
of the trial. Because a continuance entered by the court sua
sponte has the same effect as a continuance entered at the
request of the defendant or the Commonwealth, we conclude that a
court-initiated continuance is of “a similar nature” and
therefore is subject to the same requirements regarding
objections as other continuances. Stephens, 225 Va. at 230, 301
S.E.2d at 25. Consequently, Howard’s failure to object to the
continuance initiated by the trial court that extended the date
for trial from May 22 to July 3 resulted in tolling the five-
month time period for that 43-day period. Accordingly, there
was no error in the Court of Appeals’ judgment that Howard’s
trial, commencing on August 14, was within the five-month period
required by the speedy trial statute. 1
B. Constitutional Claim
Howard’s final assignment of error asserts that the Court
of Appeals erred in holding that he failed to preserve his claim
1
In his second assignment of error, Howard asserts that the
Court of Appeals erred in failing to consider whether the speedy
trial statute was tolled during the second continuance from July
3 to August 14. In light of our holding regarding the first
assignment of error, we, like the Court of Appeals, need not
address this issue.
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that his constitutional speedy trial rights were violated and in
refusing to apply the ends of justice exception under Rule
5A:18. Howard does not present any argument on brief to support
his contention that the Court of Appeals erred in its
determination that this constitutional issue was not preserved
for appeal. Rather, Howard’s argument is directed only to the
Court of Appeals’ conclusion that failure to apply the ends of
justice exception would not result in a miscarriage of justice
based on a finding that Howard could show no prejudice from the
short delay in the commencement of his trial. Accordingly, we
need not address whether Howard preserved his claims based on a
constitutional violation. Rule 5:27(d); Andrews v.
Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237, 249 (2010) (lack
of an adequate argument on brief in support of an assignment of
error constitutes a waiver of that issue.)
Howard asserts that the Court of Appeals limited its
analysis of Howard’s constitutional claims to the issue of
prejudice and that such a limitation was error. He argues that
a showing of prejudice is not an affirmative requirement for
establishing the denial of a federal constitutional right to a
speedy trial. Moore v. Arizona, 414 U.S. 25, 26 (1973). Howard
also argues that because Code §§ 19.2-241 and 19.2-243, have
been held to be a legislative interpretation of what constitutes
a speedy trial, Stephens, 225 Va. at 229-30, 301 S.E.2d at 25,
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no showing of prejudice is required to establish a violation of
either the statutory speedy trial statute or Art. I, § 8 of the
Virginia Constitution. Thus, Howard contends that the Court of
Appeals erred in declining to apply the ends of justice
exception to his state and federal constitutional speedy trial
claims.
Determining whether the ends of justice exception should be
applied requires the appellate court first to determine whether
there was error as Howard contends and then “whether the failure
to apply the ends of justice provision would result in a grave
injustice.” Gheorghiu v. Commonwealth, 280 Va. 678, 689, 701
S.E.2d 407, 413-14 (2010) (citing Charles v. Commonwealth, 270
Va. 14, 20, 613 S.E.2d 432, 434-35 (2005)).
A claim of a violation of speedy trial rights under the
federal constitution is resolved by the balancing of four
factors – length of delay, reason for delay, defendant's
assertion of his right, and prejudice to the defendant. Barker
v. Wingo, 407 U.S. 514, 530 (1972). As Howard properly
contends, there is no requirement that prejudice be established,
but evidence relating to these factors is considered, together
with any other circumstances as may be relevant, and balanced in
determining whether a constitutional violation has occurred.
Moore, 414 U.S. at 26.
9
In this case, as we discussed above, there was no speedy
trial violation based on Code § 19.2-243. Furthermore, as the
Court of Appeals noted the time from Howard’s indictment to
trial, without consideration of any tolling, was five months and
12 days – a time period that, regardless of the statutory
requirement, is not an unreasonable delay. Furthermore, Howard
acquiesced in much of that “delay” by not objecting. And
finally, Howard’s only assertion of prejudice was that he lost
the opportunity to have the charges against him dismissed.
Considering all the factors involved in determining whether
there was a federal constitutional speedy trial violation, we
conclude that no such violation occurred and, therefore, there
is no basis for applying the ends of justice exception to this
case.
Similarly, Howard’s state constitutional claim is not
sufficient to invoke the ends of justice exception. Howard
argues that determination of a violation of the state
constitutional speedy trial provision, Art. I, § 8, does not
require the same test as that applied to a claim of a federal
constitutional speedy trial violation, and that the Virginia
Constitution affords greater protection than the United States
Constitution in this regard. According to Howard, because
prejudice is not an element of the speedy trial statute, Hudson
v. Commonwealth, 267 Va. 36, 41, 591 S.E.2d 679, 681-82 (2004),
10
and because that statutory scheme supplements the state
constitutional provision, Stephens, 225 Va. at 229-30, 301
S.E.2d at 25, prejudice should not be relevant to a
determination of whether the Virginia constitutional provision
is violated.
Assuming without deciding whether the standard Howard
proposes is correct, application of his standard would not
support invoking the ends of justice exception in this case. As
stated above, the speedy trial statute was not violated in this
case, and if, as Howard contends, the constitutional standard
comports with the speedy trial statute, there is no violation of
Art. I, § 8 of the Virginia Constitution.
In summary, we hold that the Court of Appeals did not err
in finding that the period between May 22, 2008, and July 3,
2008, was tolled pursuant to Paragraph 4 of Code § 19.2-243. We
also conclude that there is no basis to apply the ends of
justice exception to allow consideration of Howard’s claim of a
violation of his federal and state constitutional speedy trial
rights. Accordingly, we will affirm the judgment of the Court
of Appeals.
Affirmed.
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