Leon Gary Newsome v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Powell and Senior Judge Clements
Argued at Richmond, Virginia
LEON GARY NEWSOME
MEMORANDUM OPINION * BY
v. Record No. 0005-08-1 JUDGE CLEO E. POWELL
FEBRUARY 10, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Ben Pavek (Office of the Public Defender, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Leon Gary Newsome (“Newsome”) appeals his convictions for murder in the second degree
and use of a firearm in the commission of a felony. On appeal, Newsome contends that the trial
court erred in denying his motion to dismiss the charges against him for failure to provide a speedy
trial as required by Code § 19.2-243. We hold Newsome failed to make a timely objection to the
trial date and, therefore, his statutory speedy trial rights were not violated. As such, we affirm the
convictions.
BACKGROUND
On December 5, 2006, the General District Court for the City of Hampton found probable
cause that Newsome committed murder and used a firearm in the commission of a felony. A
scheduling hearing was subsequently set for December 19, 2006. At the December 19 scheduling
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
hearing, the case was continued until January 5, 2007, on motion by the Public Defender,
Newsome’s counsel.
On January 4, 2007, the Hampton Circuit Court Docket Coordinator sent an email listing the
dates available for trial to Newsome’s counsel and the Commonwealth’s attorney. Shortly
thereafter, Newsome’s counsel replied to the email, stating “[The dates] all look ok on this end.”
The Commonwealth’s attorney then replied, asking if Newsome was willing to waive speedy trial.
If not, the Commonwealth’s attorney stated that he would “have to request an earlier trial date.”
On January 5, 2007, the case was continued until January 11, 2007 on joint motion of
Newsome’s counsel and the Commonwealth’s attorney. On January 10, 2007, Newsome’s counsel
responded to the January 4, 2007 email from the Commonwealth’s attorney, stating:
Although I am in no hurry to try the case and have plenty of work
to do on it, I don’t have a good reason to advise Mr. Newsome to
waive speedy trial. . . . If you want to push for earlier dates in
anticipation of a need to continue, I guess you can do that.
At the January 11, 2007 scheduling hearing, the court set the trial date for June 7, 2007,
without objection from either party. Although Newsome was present at the hearing, his counsel, the
Public Defender, was not. An Assistant Public Defender was instructed to stand in as counsel for
purposes of the scheduling hearing.
On May 21, 2007, Newsome filed a motion to dismiss, claiming that the statutory speedy
trial deadline expired on May 6, 2007. Following a hearing on May, 23, 2007, the trial court
denied the motion. On June 4, 2007, Newsome sought and was granted a continuance to allow
an expert to examine the evidence. He subsequently entered a conditional Alford plea on
October 26, 2007.
ANALYSIS
“When an accused asserts that he has been denied a speedy trial, the burden is on the
Commonwealth to explain and excuse the delay.” Adkins v. Commonwealth, 13 Va. App. 519,
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521, 414 S.E.2d 188, 189 (1992). “The Commonwealth must prove that the delay was based on
‘one of the reasons enumerated in [Code § 19.2-243] or on [the accused’s] waiver, actual or
implied, of his right to be tried within the designated period.’” Powell v. Commonwealth, 29
Va. App. 745, 748, 514 S.E.2d 785, 787 (1999) (citation omitted).
Newsome’s preliminary hearing was December 5, 2006; the first scheduling hearing was
December 19, 2006. These fourteen days are counted against the Commonwealth for purposes
of the speedy trial act. Then, on December 19, 2006, the case was continued on a motion by the
defense until January 5, 2007. On January 5, 2007, Newsome agreed to another continuance
until January 11, 2007. “Where a defendant moves for, or concurs in the continuance of a trial
date, such action tolls the running of the speedy trial bar and that time is specifically excepted
under the statute.” Mitchell v. Commonwealth, 30 Va. App. 520, 528, 518 S.E.2d 330, 334
(1999) (citing Code § 19.2-243(4)). As such, the time period between December 19, 2006
through January 11, 2007 are excepted under the statute.
On January 11, 2007, the trial court set the trial date as June 7, 2007. Newsome concedes
that the record does not reflect that any objection was raised to the trial court at that time. 1 “The
defendant’s 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).” Heath v. Commonwealth, 261 Va. 389, 394, 541
S.E.2d 906, 909 (2001). “When 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.” Id. at 393,
1
The issue of whether the filing of the motion to dismiss acts as a timely objection was
not raised before the trial court, and as such, we make no decision regarding that matter at this
time. See Rule 5A:18.
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541 S.E.2d at 908 (citing Commonwealth v. Hutchins, 260 Va. 293, 297-98, 533 S.E.2d 622,
624-25 (2000)).
In the present case, the record demonstrates that Newsome waited for over four months
before filing his motion to dismiss on speedy trial grounds. At no time during that four-month
period did Newsome or his counsel “make a timely objection” to the motion to set the trial for
June 7, 2007, as required under Code § 19.2-243. As such, Newsome’s failure to raise an
objection to the trial date constitutes his acquiescence to the continuance. See Heath, 261 Va. at
394, 541 S.E.2d at 909. Therefore, Newsome’s statutory speedy trial period was tolled from
January 11, 2007 to June 7, 2007.
CONCLUSION
Newsome failed to make a timely objection to the trial date, and as such, the time period
cannot be attributed to the Commonwealth for purposes of statutory speedy trial under
Code § 19.2-243(4). Therefore, the decision of the trial court is affirmed.
Affirmed.
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