Ronnie Lee Howard v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judges Elder and Petty
Argued at Salem, Virginia
RONNIE LEE HOWARD
OPINION BY
v. 	Record No. 0413-09-3 	JUDGE LARRY G. ELDER
DECEMBER 22, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Michael S. Irvine, Judge
Seth C. Weston (Law Office of Seth C. Weston, Esq., on brief), for
appellant.
Rosemary V. Bourne, Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Ronnie Lee Howard (appellant) appeals from his bench trial convictions for breaking and
entering and credit card theft. On appeal, he contends the convictions violated his speedy trial
rights under Code § 19.2-243 and the United States and Virginia Constitutions. He challenges
both a continuance granted on the court’s motion and a continuance granted because of the
Commonwealth’s alleged failure to provide court-ordered discovery in a timely fashion. We
hold no violation of appellant’s statutory speedy trial rights occurred because appellant failed to
object to the continuance resulting from the trial court’s motion and, thus, the running of the
speedy trial statute was tolled during that period. As a result of this ruling, we need not consider
whether the second continuance tolled the running of the statute. We also hold appellant failed
to preserve for appeal his claim of a violation of his constitutional speedy trial rights. Thus, we
affirm his convictions.

- 2 -
I.
BACKGROUND
On March 3, 2008, a grand jury returned a direct indictment against appellant for the
instant offenses committed in Botetourt County. He was arrested that same day, and he was held
continuously in custody thereafter. The matter was set for trial on May 22, 2008.
On May 21, 2008, the day prior to the date scheduled for trial, the trial court entered an
order indicating the cases “have been continued, at the request of the Court, until July 3, 2008 at
1:30 p.m.” No transcript or statement of facts regarding any proceeding related to that
continuance is contained in the record, and appellant later conceded that he did not object to the
court’s continuance and agreed to the new date set for trial.
On June 11, 2008, appellant requested issuance of a subpoena duces tecum for copies of
documents related to his arrest and any related searches. Although the discovery order entered
April 8, 2008, covered these items, appellant argued that they were not contained in the Botetourt
County prosecutor’s files and were instead in the custody of the Roanoke City Police
Department. He requested that the items be delivered to the Botetourt County Circuit Court
clerk’s office by noon on July 2, 2008, the day before the continued trial date. The court issued
the subpoena on June 13, 2008, and it was served on June 16, 2008.
On July 3, 2008, appellant’s counsel and the Commonwealth’s attorney appeared in the
trial court and informed the court they were not ready for trial. Appellant’s counsel indicated he
had not received the discovery the court had ordered and that he had attempted to obtain via
alternative means in a timely fashion. As a result, he argued the continuance should not be
charged to him for speedy trial purposes. The trial court agreed, stating, “[s]ince it was the
discovery issue, that he had no part in not getting the discovery[,] I don’t see any reason . . . why

- 3 -
we should charge it to him.” The trial court entered an order continuing the case until August 14,
2008, which reflected that the continuance was at the request of the Commonwealth.
On August 4, 2008, appellant moved to dismiss on speedy trial grounds. He averred that
neither the May 21 nor the July 3, 2008 continuance was chargeable to him and, thus, that the
Commonwealth was required to see that trial commenced by August 4, 2008. He alleged that
failure to try him by that date violated both Code § 19.2-243 and his state and federal
constitutional speedy trial rights.
A hearing on the motion was held August 14, 2008, before a different judge. Appellant’s
counsel argued that nothing in the statute required him to object to a continuance made at the
court’s request and that the statute had to be construed narrowly. He also pointed out that the
new trial date was within the statutory speedy trial period such that he had no reason to object at
that point. The Commonwealth responded that pursuant to the Virginia Supreme Court’s
decision in Hudson v. Commonwealth, 267 Va. 36, 591 S.E.2d 679 (2004), appellant still had to
object to the May 21 court continuance for purposes of preserving his speedy trial rights. It also
argued that appellant was not prepared to go forward on July 3 and did not object to the July 3
continuance because asking to have that continuance charged to the Commonwealth did not
constitute an objection.
The trial court ruled that although appellant did not waive his speedy trial rights as to
either continuance, he also did not object to either the May 22 to July 3 continuance or the July 3
to August 14 continuance, and he admitted he was not ready for trial on July 3. Thus, the court
denied appellant’s motion to dismiss.
In the bench trial that followed, the trial court found appellant guilty of the charged
offenses. After sentencing, appellant noted this appeal.

- 4 -
II.
ANALYSIS
A.
SPEEDY TRIAL STATUTE
Virginia’s speedy trial statute provides in relevant part as follows:
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 . . . .
* 	* 	* 	* 	* 	* 	*
If an indictment or presentment is found against the accused but he
has not been arrested for the offense charged therein, the five . . .
month[] period[] . . . shall commence to run from the date of his
arrest thereon.
* 	* 	* 	* 	* 	* 	*
The provisions of this section shall not apply to such period of time
as the failure to try the accused was caused:
* 	* 	* 	* 	* 	* 	*
4. By 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 . . . .
Code § 19.2-243.
The five-month requirement translates “to 152 and a fraction days.” E.g. Ballance v.
Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995). If the accused is not tried within
the period of time specified in the statute, the burden is on the Commonwealth to explain and
excuse the delay. Heath v. Commonwealth, 32 Va. App. 176, 181, 526 S.E.2d 798, 800 (2000)
(en banc), aff’d, 261 Va. 389, 541 S.E.2d 906 (2001).

- 5 -
Although Code § 19.2-243 does not mention continuances required by the court, the
Virginia Supreme Court has held that “the exceptions stated in the statute are not meant to be
all-inclusive, and other exceptions of a similar nature are to be implied.” Hudson, 267 Va. at 41,
591 S.E.2d at 682. In keeping with this principle, the Supreme Court has held that a defendant’s
failure to object to the court’s fixing a trial date which is beyond the speedy trial limit, where no
trial date has previously been set, is the functional equivalent of failing to object to a continuance
requested by the Commonwealth that places the trial date beyond the speedy trial limit. Heath,
261 Va. at 394, 541 S.E.2d at 909 (holding the “defendant’s failure to object to the court’s action
in fixing the [initial] trial date is an acquiescence in the fixing of a trial date beyond the
five-month speedy trial period and constitutes a continuance of the trial date under Code
§ 19.2-243(4)”); see also Commonwealth v. Hutchins, 260 Va. 293, 297, 533 S.E.2d 622, 625
(2000) (involving parties who “acquiesced” in an initial trial date beyond the five-month period);
Hudson v. Commonwealth, 39 Va. App. 240, 249, 572 S.E.2d 486, 490 (2002) (holding, based
on Heath, that there is “no difference between a waiver of a defendant’s right to be tried within
the statutory period by agreeing to . . . a continuance beyond the time period permitted under the
statute, and the defendant initially agreeing to . . . a trial date beyond the statutory period”), aff’d,
267 Va. 36, 591 S.E.2d 679 (2004) (quoting the Court of Appeals’ language and citing Hutchins
to affirm on this point). Similarly, the Court has held that “[w]hen a defendant requests, agrees
to, or acquiesces in an order that effectively continues a case, the five-month speedy trial period
of Code § 19.2-243 is tolled during the time reasonably specified by the court to carry out the
terms of its order.” Heath, 261 Va. at 393, 541 S.E.2d at 908.
Thus, although the statute specifically refers only to continuances granted at the request
of the defendant or the Commonwealth, the Court has made clear that acquiescence in the entry
of any order that continues a case—whether at the request of the Commonwealth or on the

- 6 -
court’s own motion—even where the new date is within the speedy trial limit, effectively tolls
the running of the speedy trial statute. Id. If a defendant wishes to preserve his speedy trial
rights under Code § 19.2-243 when the court requires a continuance, a defendant must object to
the continuance even if the new trial date is within the applicable time limit set out in the statute.
See id.
Accordingly, the five-month speedy trial period was tolled from May 22 to July 3, 2008.
Thus, we conclude that appellant’s trial on August 14, 2008, occurred within the five-month
period specified by Code § 19.2-243,1 and we need not consider whether the speedy trial statute
was tolled during the continuance from July 3 to August 14, 2008.
B.
CONSTITUTIONAL SPEEDY TRIAL RIGHTS
Appellant, in his “Motion to Dismiss Due to Violation of [Code §] 19.2-243,” also argued
as follows:
11. The Virginia Supreme Court has written, “The
defendant’s right to a speedy trial is one accorded him under the
sixth amendment of the United States Constitution and under
article I, section 8 of the Virginia Constitution. This right has been
supplemented by Code §§ 19.2-241 and 19.2-243, held to be a
legislative interpretation of what constitutes a speedy trial.”
Stephens v. Commonwealth, 225 Va. 224, 229-30, 301 S.E.2d 22,
25 (1983) (footnote omitted).
12. Therefore, the failure to commence trial by August 4,
2008, not only violates Virginia Code § 19.2-243, but also violates
the defendant’s U.S. and Virginia Constitutional rights.
Settled principles provide that appellant’s brief reference to the constitutional issue in his
written motion was insufficient to preserve this aspect of the claim for appeal. See
1 The speedy trial calculation for the period from March 3, 2008, to the trial on August
14, 2008, minus the tolling between May 22, 2008, and July 3, 2008, was 122 days, well below
the 152-and-a-fraction-days limit.

- 7 -
Commonwealth v. Hilliard, 270 Va. 42, 53, 613 S.E.2d 579, 586 (2005) (holding party failed to
preserve issue concerning Sixth Amendment right to counsel where he mentioned it in his
written motion to suppress, but did not raise it in argument on the motion, in which he referred
only to his Fifth Amendment right to counsel claims, and did not ask the trial court to rule on the
claim). “Pursuant to Rule 5A:18, absent good cause or to attain the ends of justice, we will not
consider on appeal an argument that was not presented to the trial court, even if it involves
constitutional claims.” Ashby v. Commonwealth, 33 Va. App. 540, 544-45, 535 S.E.2d 182, 185
(2000) (holding constitutional speedy trial claims barred).
Further, the ends-of-justice exception to Rule 5A:18 does not apply. “In order to avail
oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has
occurred . . . .” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).
In reviewing an alleged constitutional speedy trial violation, the Court must consider: (1) the
length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a
speedy trial; and (4) the prejudice to defendant. Barker v. Wingo, 407 U.S. 514, 530, 533, 92
S. Ct. 2182, 2192, 2193, 33 L. Ed. 2d 101, 117, 118 (1972). Here, appellant’s only basis for his
claim of constitutional speedy trial error is that, assuming no tolling, his trial occurred 12 days
beyond the limit of the speedy trial statute and, thus, that it violated not only the statute but also
his constitutional speedy trial rights. However, we have already held appellant’s trial did not
violate the speedy trial statute because it was tolled for 42 days. Further, inter alia, appellant has
made no allegation that he was prejudiced by the fact that, assuming no tolling of the statute, his
trial occurred 12 days beyond the five-month statutory limit. Thus, appellant has failed to prove
a miscarriage of justice, and the ends-of-justice exception to Rule 5A:18 does not apply.

- 8 -
III.
We hold no violation of appellant’s statutory speedy trial rights occurred because
appellant failed to object to the continuance effected on the trial court’s motion and, thus, the
running of the speedy trial statute was tolled during that period. As a result of this ruling, we
need not consider whether the second continuance tolled the running of the statute. We also hold
appellant failed to preserve for appeal his claim of a violation of his constitutional speedy trial
rights. Thus, we affirm his convictions.
Affirmed.