David Gene Thorsted v. Commonwealth of Virginia ( 2016 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, O’Brien and Malveaux
Argued at Richmond, Virginia
DAVID GENE THORSTED
MEMORANDUM OPINION* BY
v. Record No. 1039-15-2 JUDGE MARY GRACE O’BRIEN
JULY 12, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Kevin E. Smith for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Following a jury trial, David Gene Thorsted (“appellant”) was convicted of three offenses:
manufacturing methamphetamine, in violation of Code § 18.2-248; possession of a controlled
substance, in violation of Code § 18.2-250; and possession of a firearm while manufacturing
methamphetamine, in violation of Code § 18.2-308.4. Appellant asserts that the trial court erred in
failing to dismiss the convictions because his right to a speedy trial was violated. Finding no error,
we affirm.
On September 30, 2013, police officers went to appellant’s property to evict him. While
there, the officers discovered a locked camper trailer. When an officer asked appellant for the keys
to the camper, appellant advised him that he was going to move it. The officer could see guns
inside the camper, and he noticed a “very violent, noxious chemical smell” emanating from behind
the camper.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The officers broke into the camper and found guns, a “chemical-type mask,” and a plate
with “a white chunky substance on” it. In a closet, an officer found a “working meth lab.”
Appellant was arrested and charged with manufacturing methamphetamine, possession of a
controlled substance, and possession of a firearm while manufacturing a controlled substance.
Appellant asserts two assignments of error:
1. The trial court erred when it denied Appellant’s motion to
dismiss for violating the speedy trial statute when it calculated
time delays waiting for trial to commence attributed to
Appellant.
2. The trial court erred when it denied Appellant’s motion to
dismiss for violating the speedy trial statute when it determined
that Appellant caused the delays in getting his case to trial.
I. Procedural History
Following his arrest, appellant waived his preliminary hearing in general district court and
the grand jury returned an indictment against him on November 25, 2013. Appellant was released
on bond, and the circuit court set a trial date of April 3, 2014.
Prior to that date, appellant filed a motion to suppress and the suppression motion was heard
and denied on April 3. On that date, the parties reset the matter for trial and after some discussion
off the record, appellant’s counsel told the court “[w]e are going to waive speedy trial to whatever
date the Commonwealth wants to set, Your Honor.” After the court asked appellant whether he
understood his speedy trial rights and verified that appellant wished to waive those rights, the court
set a trial for July 17 and 18, 2014.
On June 30, 2014, appellant filed a “Motion for Scientific Investigation by the Department
of Forensic Science and for a Continuance.” The court held a hearing on appellant’s request on July
17, granted the motion for scientific discovery, and granted a defense motion for supplemental
discovery. The court set a review date of August 21, 2014. On that date, the court entered the order
for forensic analysis and continued the case for review on September 29, 2014.
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At the September 29 hearing date, the court informed appellant that his attorney had left the
practice of law, so the court would need to appoint another lawyer if he wished to be represented by
counsel. Appellant indicated that he wanted an attorney, so the court appointed new counsel and
continued the case for review on October 2, 2014.
On October 2, appellant’s new attorney moved to withdraw the request for forensic testing
and asked to set the case for trial. When the court suggested some possible dates, appellant’s
attorney asked if they were the earliest dates available. After further discussion, appellant’s attorney
said “[i]f that’s the earliest dates, then we can just go ahead and set it for that.” The court set the
trial for January 22 and 23, 2015. On January 21, appellant filed a motion to dismiss the case based
on a violation of his right to a speedy trial.
On January 22, 2015, the court advised counsel that it would wait to rule on appellant’s
motion until the conclusion of the trial. The jury convicted appellant of all three charges, and the
court set the case for sentencing and a hearing on the motion to dismiss. On April 23, 2015, the
court denied the motion to dismiss and imposed the jury’s sentence of twelve years of incarceration.
This appeal followed.
II. Analysis
A. Statutory Background
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, . . . if the accused
is not held in custody but has been recognized for his appearance
in the circuit court to answer for such offense, he shall be forever
discharged from prosecution therefor if no trial is commenced in
the circuit court within nine months from the date such probable
cause was found.
If there was no preliminary hearing in the district court, or
if such preliminary hearing was waived by the accused, the
commencement of the running of the five and nine months periods,
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respectively, set forth in this section, shall be from the date an
indictment or presentment is found against the accused.
In this case, the speedy trial provisions of Code § 19.2-243 began to run on November 25, 2013, the
day after the grand jury returned an indictment against appellant.1 Appellant acknowledges that the
nine-month speedy trial time period applies because he was released on bond for a period of time
while he was awaiting trial.2
B. Standard of Review
“[T]he burden of demonstrating that a delay in commencing trial is excused under Code
§ 19.2-243 lies upon the Commonwealth.” Robinson v. Commonwealth, 28 Va. App. 148, 153, 502
S.E.2d 704, 706 (1998). “In its review, this Court will give deference to the trial court’s findings of
fact, but review the trial court’s ‘statutory interpretations and legal conclusions de novo.’” Brown v.
Commonwealth, 57 Va. App. 381, 390, 702 S.E.2d 582, 586 (2010) (quoting Sink v.
Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)).
The appellate inquiry is not made merely to determine in a vacuum
delay attributable to one party or the other and then to debit or
credit the appropriate party for that delay. The inquiry is made to
determine that delay which caused the failure to commence the
trial within the specified period and which is not contemplated
within the statutory time limitations. Accordingly, the proper
assessment and determination of the merits of a Code § 19.2-243
claim involve a review of the whole record and a consideration of
the trial court orders in the context of the record that comes before
us.
Baity v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d 891, 894-95 (1993) (en banc).
1
See Code § 1-210(A) (“When an act of the General Assembly or rule of court requires
that an act be performed within a prescribed amount of time after any event or judgment, the day
on which the event or judgment occurred shall not be counted against the time allowed.”). See
also Robinson v. Commonwealth, 28 Va. App. 148, 152, 502 S.E.2d 704, 706 (1998) (the speedy
trial period “begins to run on the day after the preliminary hearing at which probable cause is
found.”).
2
Appellant’s bond was revoked and reinstated at various times after indictment and before
trial.
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C. Analysis
Appellant argues that the trial date of January 22, 2015 was nine days beyond the 274 days
allowed by statute.3 He acknowledges that the original trial date of April 3, 2014 was within the
speedy trial provisions and concedes that both the continuances from April until July and July until
October were attributable to motions he filed for forensic testing. However, appellant asserts that
his speedy trial rights were violated because the continuance between October 2, 2014 and January
22, 2015 was not a delay attributable to him despite his failure to object to the court setting the
January 22 trial date at the October hearing. Appellant contends that he had “no requirement to
object in setting a trial date if the date is beyond the speedy trial cutoff.” In support of his
proposition he cites a number of cases, all of which were decided before 1995.
Code § 19.2-243, the speedy trial statute, sets out a number of exceptions. In 1995, the
General Assembly amended one of the exceptions, Code § 19.2-243(4). In the amendment, the
General Assembly inserted the following italicized language:
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, or by reason of his escaping from jail or
failing to appear according to his recognizance.
Code § 19.2-243.
Appellant argues that the amended statute only grants an exception when the
Commonwealth moves for a continuance and the defendant fails to object. The Supreme Court of
Virginia addressed this precise issue in the case of Commonwealth v. Hutchins, 260 Va. 293, 533
3
The nine-month speedy trial limitation “‘translates to’ at least 273 days.” McCray v.
Commonwealth, 44 Va. App. 334, 342, 605 S.E.2d 291, 294 (2004).
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S.E.2d 622 (2000). In Hutchins, the defendant, who was incarcerated, was indicted on two felony
offenses on February 10, 1997. Id. at 295, 533 S.E.2d at 623. On February 25, 1997, the circuit
court set a trial date of June 6, 1997. Id. In acquiescing to the trial date, defense counsel said “that’s
fine,” and the defendant and his counsel signed a form requesting a jury trial which stated that the
trial was set for June 6, 1997. Id.
Defendant subsequently filed a motion to dismiss the charges on grounds of a speedy trial
violation. Id. He contended that he did not waive his speedy trial rights by remaining silent and
failing to request that the trial court set the case within the five-month provision of the statute. Id.
The Supreme Court affirmed the trial court’s denial of the motion to dismiss, holding: “we can only
conclude that the defendant’s actions in acquiescing with and agreeing to the order dated February
25, 1997, signed by the defendant and his counsel . . . constituted a continuance of the trial date
within the intendment of Code § 19.2-243(4).” Id. at 297-98, 533 S.E.2d at 625. The Court noted
that not only did the defendant not object to the court setting the trial date, but he affirmatively
agreed to it, thereby stopping the speedy trial “clock” until the trial date. Id. See also Heath v.
Commonwealth, 261 Va. 389, 394, 541 S.E.2d 906, 909 (2001) (“failure to object to the court’s
action in fixing the 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)”).
In interpreting the speedy trial provisions of Code § 19.2-243(4), this Court has held that
“acquiescence in the entry of any order that continues a case – whether at the request of the
Commonwealth or on the court’s own motion – even where the new date is within the speedy trial
limit, effectively tolls the running of the speedy trial statute.” Howard v. Commonwealth, 55
Va. App. 417, 424, 686 S.E.2d 537, 541 (2009).
In the present case, the “continuance order” setting the final trial date was entered at the
hearing on October 2, 2014. During the colloquy with the court about the January dates, neither
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counsel objected to the date the court set and defense counsel stated “[i]f that’s the earliest dates,
then we can just go ahead and set it for that.” Therefore, the record is clear that both appellant and
the Commonwealth agreed to continue the case from October 2, 2014 to January 22, 2015, and the
speedy trial provisions of Code § 19.2-243 were tolled during that time.4 Accordingly, because
speedy trial was tolled from October 2 until the trial date, appellant was tried within the nine-month
speedy trial period.
III. Conclusion
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
4
Because we find that appellant did not object to the setting of the trial date beyond the
speedy trial time period, we do not address his remaining argument that he was not responsible
for delays that occurred due to the order for forensic testing.
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