                                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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