PRESENT: All the Justices

MICHAEL ANTHONY YOUNG
                                                               OPINION BY
v. Record No. 180515                                     JUSTICE CLEO E. POWELL
                                                                July 3, 2019
COMMONWEALTH OF VIRGINIA




                       FROM THE COURT OF APPEALS OF VIRGINIA

       Michael Anthony Young appeals from a judgment of the Court of Appeals of Virginia

affirming his convictions for grand larceny, in violation of Code § 18.2-95; conspiracy to commit

grand larceny, in violation of Code §§ 18.2-22 and 18.2-95; and false identification to a law

enforcement officer, in violation of Code § 19.2-82.1. On appeal, Young argues that his right to

a speedy trial was violated and that the Court of Appeals erred in affirming the trial court’s

denials of his motions to dismiss.

                                       I. BACKGROUND

       On November 25, 2015, Michael Anthony Young was arrested on a charge of having

robbed a minor. Young was charged with robbery (Count 1), which was bound over for the

grand jury by the Juvenile and Domestic Relations Court on March 2, 2016. The grand jury

indicted Young on Count 1 on March 14, 2016. Young was directly indicted on March 14, 2016

for conspiracy to commit robbery, grand larceny, conspiracy to commit a felony, and giving false

identification to law enforcement (Counts 2-5). The indictment return order indicated “no bond

on all counts.” For purposes of speedy trial determinations, Young’s period of incarceration

began March 2, 2016. Absent any intervening events extending the applicable period, his speedy
trial period would expire on August 3, 2016 for Count 1 and August 15 for Counts 2 through 5.

Young’s jury trial was scheduled for August 1-3, 2016.

       On July 15, 2016, Young filed a motion to dismiss the indictments against him based

upon discovery issues with the Commonwealth. Young argued in his motion that he was

“forced . . . to choose between his right to a speedy trial and his right to the effective assistance

of counsel.” The trial court held a hearing on Young’s motion to dismiss on July 19. Young

made various arguments in support of his motion to dismiss. Among other things, he specifically

argued that the indictments should be dismissed due to the Commonwealth’s late production of

1005 recorded jail phone calls made by Young which totaled 225 hours in length and the

revelation of the existence of a previously undisclosed certificate of analysis from the victim’s

cell phone. Counsel for Young argued:

               I would suggest at the end of the day the Commonwealth has put
               [Young] in a position, and he has no choices. He can choose to
               stand on his rights to a speedy trial and go to trial on August 1st
               and be unprepared and put himself in a position to not be able to
               redevelop his defense, reinvestigate his case; reconfigure what he
               is going to do or how he is going to present it; never mind the fact
               that there is an absolute impossibility at this point in time to listen
               to all of those recordings; that there is still information that we
               simply don’t know and we don’t know if or when we’re going to
               know it; that it could come in tomorrow or a week from tomorrow
               or the day before trial, and just take his chances in court on a
               charge that is not insignificant in any way. . . .

               Or he can say to the [c]ourt, I need to have this case continued
               because I want my case to be prepared.

       After the trial court indicated it would take the motion to dismiss under advisement,

counsel for Young stated:

               if the [c]ourt doesn’t grant the motion to dismiss, regardless of
               whatever other remedies the [c]ourt chooses to fashion or not
               fashion, [Young’s] position is going to be that we’re certainly not
               in a position to go forward with trial on August 1st, regardless of
               the ways in which the Commonwealth is suggesting that this


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               evidence be limited in some fashion. I don’t want to be
               disingenuous to the [c]ourt and say I’m going to wait for your
               ruling and then have it and then turn around and come back to this
               [c]ourt and say, [“]If you’re not dismissing this case, then we’re
               now not ready to go forward.[”] I do want to be up front with the
               [c]ourt.

The trial court scheduled a hearing for July 25 for its ruling on Young’s motion to dismiss.

       At the July 25 hearing, the trial court held that it did not “find that this [was] a

comprehensive failure to provide discovery.” The trial court denied the motion to dismiss but

imposed sanctions against the Commonwealth, prohibiting it from relying on the jail phone calls

at trial, binding the Commonwealth to a stipulation regarding the certificate of analysis, and

ordering it to file supplemental discovery by August 8.

       Despite the sanctions the trial court imposed, Young continued to argue that

               we don’t feel this should be a situation which Mr. Young has to
               forfeit his rights to a speedy trial in light of his rights to have the
               information that he’s entitled to, which again, once we move this
               court date will all but ensure we will be outside the speedy trial
               time.

In light of Young’s position, a discussion regarding bond ensued. In response to the trial court’s

statement that “it’s a practical concession that bond would need to be granted,” Young stated that

bond was “not really a solution . . . because he [was] being held on other matters from other

jurisdictions. So setting a bond in this case will actually do nothing to provide him any liberty.”

At the conclusion of the discussion, Young recommended placing the case on the August 15

scheduling docket but stated, “I don’t want the [c]ourt to take that as the defense is now agreeing

that this, in essence, three-week window would be attributable to Mr. Young because I’m asking

to use the 15th.” In light of the fact that August 15th was outside the speedy trial window, the

Commonwealth offered to try to provide the required responses earlier in order to keep the trial

date and keep Young’s speedy trial rights intact. Directly addressing the speedy trial issue, the



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Commonwealth raised the issue of whether Young was requesting a continuance or if “we’re just

kind of putting the case out.” In response, defense counsel stated:

                [w]e’re certainly not in a position to go forward even if a response
                came in.

                                                  ....

                To now attribute this idea and say this is now the defendant’s
                continuance and he has to eat this time or it should be held against
                him, again, would be fundamentally unfair and quite frankly
                inappropriate. The Commonwealth had this information all along.

                                                  ....

                [T]his time should be attributable to the Commonwealth.

In response to this colloquy, the trial court replied, “this [c]ourt is not today ruling that this is the

defendant’s motion to remove this case from the docket. I don’t know what that means down the

road, but I do not count this as a defense motion.”

        Thereafter, on August 8th and 15th, Young filed additional motions to dismiss the

charges against him alleging violations of the speedy trial statute. Young argued that his speedy

trial rights were violated because the trial court failed to count the continuance against the

Commonwealth. In response, the Commonwealth argued that Young stated that he would not be

ready for trial by August 1, thus causing the trial court to remove the matter from the August 1

trial docket. Prior to rendering its decision, the trial court recounted the events leading up to the

continuance. Specifically, the trial court recounted that

                [o]n July 19th, the [trial court] recognized that the August 1st trial
                date was approaching and when attempting to determine a date to
                set for a ruling on the pending motion . . . defense counsel
                informed the [c]ourt that regardless of the [c]ourt’s ruling on the
                motion to dismiss, that the defense would not be [in] a position to
                try the case on August 1st due to various discovery issues . . . .




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               Taking note of that, and without objection of either counsel, the
               [c]ourt then set July 25th as the date for the ruling on the motion to
               dismiss.

                                               ....

               [J]ust because the [c]ourt has determined that [Young] didn’t file a
               motion to continue does not [lead to] the conclusion that the
               speedy trial provisions had been violated and the [c]ourt is required
               to dismiss the charges.

Against this backdrop, the trial court continued:

               As I said, the defense had not filed any document that was styled
               motion to continue but the removal of the August 1 trial date was
               originated by [Young’s] declaration that he would not be prepared
               to try the case on August 1st.

               So the [c]ourt finds that the process then occurred that resulted in
               the removal of the trial date was in pari ratione, that is by like
               mode or reasoning or for the like reason as if [Young] had filed a
               motion to continue.

Having reached this conclusion, the trial court applied the analysis of Taylor v. Commonwealth,

4 Va. App. 45 (1987) (holding that absent a showing of bad faith by the Commonwealth,

continuances requested by defendant will not be charged to the Commonwealth), specifically

found no bad faith on the part of the Commonwealth, and denied the motion to dismiss.

       Young thereafter pled guilty to Count 5 (false identification to a law enforcement

officer). At his November 2016 jury trial, the trial court granted the motion to strike Counts 1

(robbery) and 2 (conspiracy to commit robbery). The jury found Young guilty on Counts 3

(grand larceny) and 4 (conspiracy to commit larceny). Young was sentenced to a total of 16

months’ incarceration.

       On appeal, the Court of Appeals affirmed the judgment of the trial court. Young v.

Commonwealth, Record No. 0265-17-4, 2018 WL 1385405 (Mar. 20, 2018) (unpublished).

Contrary to the trial court’s finding that Young’s actions were in pari ratione to a defense




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continuance motion, the Court of Appeals found that the continuance was court-ordered. The

Court of Appeals held that a court-ordered continuance is considered an implied exception to the

time periods under the speedy trial act under Howard v. Commonwealth, 281 Va. 455, 461

(2011). Young, 2018 WL 1385405, at *6. It found that the trial court expressly ruled that the

Commonwealth did not act in bad faith, that this determination was not contested on appeal, and

that it was the “law of the case.” Id. at *7. The Court of Appeals also applied its previous

holding in Taylor and held that “even though the Commonwealth’s discovery failures

necessitated the court-ordered continuance, because the trial court ruled that the Commonwealth

did not act in bad faith, we cannot impute the continuance to the Commonwealth.” Id. at *7.

This appeal followed.

                                         II. ANALYSIS

       On appeal, a statutory speedy trial challenge presents a mixed question of law and fact.

The Court reviews legal questions de novo, while giving deference to the trial court’s factual

findings. Harris v. Commonwealth, 266 Va. 28, 32 (2003).

               The defendant’s right to a speedy trial is one accorded him under
               the[S]ixth [A]mendment 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 (1983). Code § 19.2–241 provides

               [w]hen an indictment is found against a person for felony or when
               an appeal has been perfected from the conviction of a
               misdemeanor or traffic infraction, the accused, if in custody, or if
               he appear according to his recognizance, may be tried at the same
               term and shall be tried within the time limits fixed in [Code]
               § 19.2-243.

       Code § 19.2-243, the speedy trial statute, provides that if a defendant, who stands accused

of a felony, is continuously held in custody from the time he was indicted or from his



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preliminary hearing, he “shall be forever discharged from prosecution for such offense if no trial

is commenced in the circuit court within five months.” Here, Young had been continuously

incarcerated since the March 2, 2016 preliminary hearing and, for purposes of speedy trial, his

trial should have commenced within five months of the preliminary hearing date. Young was not

tried until November 14-17, 2016, well beyond the five-month time limit set forth in Code

§ 19.2-243. The Court of Appeals found that the trial’s continuance from August 2016 until

November 2016 was a court-ordered continuance that was not counted against the

Commonwealth. The Court of Appeals held that because the trial court found the

Commonwealth did not act in bad faith, * it could not “impute the continuance to the

Commonwealth” and affirmed Young’s convictions. Young, 2018 WL 1385405 at *7. “While

we do not agree with the Court of Appeals’ rationale in” affirming Young’s convictions, we do

agree that Young’s speedy trial rights were not violated. Ricks v. Commonwealth, 290 Va. 470,

480-81 (2015) (applying the right result, wrong reason doctrine). Because Young’s failure to

make an affirmative objection to the trial court’s continuation of the case is dispositive, we need

not address the arguments that the continuance should be attributed to the Commonwealth and

that Taylor should be overruled, modified, or reversed.

       The five-month period provided for in Code § 19.2-243 is not absolute. Code § 19.2-243

provides that the 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 and 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 Howard, we




       *
      We take no position on the correctness of the trial court’s finding that the
Commonwealth did not act in bad faith.


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recognized that not all continuances will be requested by either the Commonwealth or the

defendant. Indeed, due to the nature of trial proceedings, sometimes continuances are initiated

by the court. We specifically held in Howard that even continuances “entered by the court sua

sponte . . . are subject to the same requirements regarding objections [by the defendant] as other

continuances.” 281 Va. at 461.

        Young argues that while the Court of Appeals correctly applied the reasoning of Howard

in finding that the provisions of Code § 19.2-234(4) apply to a “court-ordered” continuance, he

nevertheless contends that the Court of Appeals erred in the sequencing of its analysis because,

under Howard, after deciding there was a court-ordered continuance, the threshold issue is

whether or not Young objected to the court-ordered continuance. We agree with Young that that

analytical sequencing applies under the facts of this case. We disagree, however, with Young’s

interpretation of the facts.

        Young argues that because he objected to any court-ordered continuance if the time

would not be attributed to the Commonwealth, this period of delay may not be attributed to him.

Young takes the position that the Court of Appeals agreed that he objected because it found that

Young “did not concur in, agree to, or initiate the continuance” and that he “repeatedly and

emphatically stated at multiple stages of the proceeding that he was not waiving his speedy trial

right.” Young, 2018 WL 1385405, at *7. Again, while Young is correct as to the statement

made by the Court of Appeals, he reads too much into that statement. While Young is correct as

to the things the Court of Appeals identified and on which he relies, none of these actions and/or

inactions equates to an objection to the continuance. Had Young objected, he would be correct.

However, the facts of this case indicate that Young was not averse to the granting of the

continuance nor did he affirmatively object.




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       Young continually argued that he would not be ready for trial on August 1 and that he did

not want the continuance counted against him for purposes of speedy trial. Young recommended

placing the case on the August 15 scheduling docket and stated, “I don’t want the [c]ourt to take

that as the defense is now agreeing that this, in essence, three-week window would be

attributable to Mr. Young because I’m asking to use the 15th.” Young’s opposition to the

resulting delay being attributable to him, while simultaneously reiterating that he could not be

ready for trial and suggesting a control date outside the speedy trial window is not the same as

affirmatively objecting to a continuance. Indeed, defense counsel never used the word “object”

during the discussion regarding the continuance of trial. In Howard, we specifically stated,

“[t]he provisions of paragraph 4 of Code § 19.2-243 . . . clearly demonstrate that in order to

avoid the tolling provision, the defendant must be adverse to the granting of the continuance and

must affirmatively express his objection.” 281 Va. at 460. While Young did not explicitly

concur, agree to, or request a continuance, nowhere in the record is there an actual affirmative

objection to the court-ordered continuance. “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 [these circumstances] constitute[] a continuance of the trial date

under Code § 19.2–243(4).” Heath v. Commonwealth, 261 Va. 389, 394 (2001). With Young

having failed to lodge an affirmative objection to the continuance, we are constrained by Code

§ 19.2-243(4) and will not consider Young’s request to overturn, modify, or reverse the Court of

Appeals decision in Taylor. We will affirm the judgment of the Court of Appeals finding that

“[t]he continuance was court-ordered; an implied exception to Code § 19.2-243” to which no

affirmative objection was made. Young, 2018 WL 1385405, at *8.




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                                         III. CONCLUSION

        For the foregoing reasons, the Court of Appeals did not err in affirming Young’s

convictions for grand larceny, conspiracy to commit grand larceny, and providing false

identification to a law enforcement officer.

                                                                                           Affirmed.




JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting in part and concurring
in the result.

        Although I concur in the result, I respectfully dissent from the majority’s holding that the

defendant did not preserve an objection to the court-ordered continuance. The record is crystal

clear that Young strenuously objected to any continuance counting against him for purposes of

speedy trial. The fine distinction the Court draws between objecting to a continuance tout court

and objecting to the continuance counting against the defendant for purposes of speedy trial

strikes me as artificial, particularly when the defendant needs additional time to prepare for trial

due to a late disclosure by the Commonwealth. What the defendant sought to preserve through

his objection was not simply delay, but, in his view, delay caused by the Commonwealth in

violation of the speedy trial statute.

        Although the objection required here is statutory, in concept its purpose is the same as the

contemporaneous objection rule found in Rule 5:25 and Rule 5A:18. In applying the

contemporaneous objection rule, we have held that its purpose “is to avoid unnecessary appeals

by affording the trial judge an opportunity to rule intelligently on objections.” Maxwell v.

Commonwealth, 287 Va. 258, 264-65 (2014) (citation and internal quotation marks omitted).

The objection “allows the circuit court to remedy the error while also giving the opposing party




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the opportunity to meet the objection at that stage of the proceeding.” Id. at 265. Defense

counsel’s objection was more than sufficient to alert the trial court that, in the context of a

discussion of speedy trial, the defendant was taking issue with the continuance counting against

him.

       I would resolve the case on the same basis as the Court of Appeals, by applying the

holding in Taylor v. Commonwealth, 4 Va. App. 45 (1987). Taylor has supplied the rule of

decision in this circumstance for over 30 years. Jurisprudential stability counsels in favor of

maintaining its holding. The trial court found that there was no bad faith by the Commonwealth,

and, therefore, the delay caused by the court-ordered continuance was not attributable to the

Commonwealth.




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