                                                                    COURT OF APPEALS OF VIRGINIA
PUBLISHED


            Present: Judges Petty, Alston and Russell
            Argued at Lexington, Virginia


            LEE ANTONIO TURNER
                                                                                                OPINION BY
            v.            Record No. 1284-16-3                                             JUDGE WILLIAM G. PETTY
                                                                                               AUGUST 8, 2017
            COMMONWEALTH OF VIRGINIA


                                                  FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                                            Charles L. Ricketts, III, Judge

                                         Eric M. Anderson, Assistant Public Defender, for appellant.

                                         Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
                                         Attorney General, on brief), for appellee.


                          Lee Antonio Turner argues on appeal that, because of the Commonwealth’s violation of

            the speedy trial statute, the trial court erred in denying his motion to dismiss the felony

            indictment against him, along with an ancillary misdemeanor charge. We agree regarding the

            felony conviction,1 but affirm the misdemeanor conviction.

                                                                            BACKGROUND

                          Turner was arrested for felony assault and battery of a family member, third offense, in

            violation of Code § 18.2-57.2 and for misdemeanor use of profane, threatening, or indecent

            language over public airways in violation of Code § 18.2-427. He was continually held in

            custody for the duration of the prosecution. On October 14, 2015, after a preliminary hearing,

                                                                        
                          1
                     Turner also argues regarding the felony conviction that the trial court erred in admitting
            a warrant, erred in admitting two prior convictions, and erred in finding the evidence sufficient to
            convict him of assault and battery of a family member, third offense, in violation of Code
            § 18.2-57.2. Because we resolve the appeal on the speedy trial grounds, we do not address the
            other assignments of error. 
             
the Augusta County Juvenile and Domestic Relations District Court certified the felony charge to

the grand jury and, at the same time, certified the ancillary misdemeanor to the circuit court

pursuant to Code § 19.2-190.1. On November 23, 2015, the grand jury indicted Turner for the

felony offense. On the same day, Turner filed with the trial court a motion in limine2 to exclude

two prior convictions from the juvenile and domestic relations district court. Turner argued the

convictions could not qualify as the predicate convictions for the “third offense” element of the

crime for which he was indicted; they were therefore irrelevant and consequently inadmissible.

A hearing on the motion was originally set for January 22, 2016, but the court was closed that

day due to inclement weather. The hearing was rescheduled, and the trial court heard oral

argument on the motion on February 8, 2016. At the conclusion of that hearing, the trial court

took the motion under advisement. The trial court issued a letter opinion on February 16, 2016,

denying Turner’s motion to exclude and asking defense counsel to prepare the order. The order,

noting defense counsel’s objection, was entered on March 11, 2016.

              The trial court scheduled a hearing on April 15, 2016, to set an initial trial date. During

that hearing, Turner objected to the setting of any trial date because the speedy trial time had run.

The trial court entered a continuance order on April 20, 2016, setting the case for trial on May 2,

2016. The order noted Turner’s speedy trial objection and continued argument on that objection

to May 2. On May 2, Turner argued the indictment should be dismissed because the

Commonwealth failed to commence Turner’s trial within the time set by Code § 19.2-243. The

trial court denied Turner’s motion. The trial court subsequently found Turner guilty; this appeal

followed.




                                                            
              2
          Although Turner styled his motion a “Motion to Exclude,” it constituted a motion in
limine. A motion in limine is “[a] pretrial request that certain inadmissible evidence not be
referred to or offered at trial.” Motion in limine, Black’s Law Dictionary (10th ed. 2014).
                                                 ‐ 2 -
                                             ANALYSIS

                                  A. MISDEMEANOR CONVICTION

       We first address Turner’s appeal of the ancillary misdemeanor conviction of using

profane, threatening, or indecent language over public airways in violation of Code § 18.2-427.

Code § 19.2-243 provides that

               [w]here a case is before a circuit court on appeal from a conviction
               of a misdemeanor . . . in a district court, the accused shall be
               forever discharged from prosecution for such offense if the trial de
               novo in the circuit court is not commenced . . . within five months
               from the date of the conviction if the accused has been held
               continuously in custody . . . .

Here, however, the accused was never convicted in the district court. Instead the district court

certified the ancillary misdemeanor to the circuit court pursuant to Code § 19.2-190.1, which

states, “Upon certification of any felony offense pursuant to this chapter, the court shall also

certify any ancillary misdemeanor offense to the clerk of the circuit court provided that the

attorney for the Commonwealth and the accused consent to such certification.” Code § 19.2-243

is silent on when speedy trial time requirements commence when a misdemeanor is so certified.

       “Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,

the argument, and the authorities relating to each question presented.’ Unsupported assertions of

error ‘do not merit appellate consideration.’” Bartley v. Commonwealth, 67 Va. App. 740, 744,

800 S.E.2d 199, 201 (2017) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d

343, 345 (2008)). Although Turner listed both the felony and misdemeanor convictions in his

notice of appeal, he makes no legal argument in his opening brief regarding the computation of

speedy trial time for an ancillary misdemeanor and does not argue any other grounds for

reversing the misdemeanor conviction. Turner’s lone statement, which appears in the reply brief,

that the ancillary misdemeanor “is implicated in this [speedy trial] assignment of error” is not



                                                ‐ 3 -
sufficient to meet the requirements of Rule 5A:20(e).3 Turner’s “failure to provide us with legal

argument and authority as required by Rule 5A:20(e) leaves us without a legal prism through

which to view his alleged error.” Id. at 746, 800 S.E.2d at 202. Because we consider such lack

of legal argument and authority significant in resolving the issue, we deem the argument waived.

Id. Accordingly, we affirm Turner’s misdemeanor conviction for Code § 18.2-427, and limit our

discussion to Turner’s appeal of his felony conviction.

                                                               B. FELONY CONVICTION

              In cases involving statutory speedy trial issues, the reviewing court gives deference to the

trial court’s findings of fact, but reviews de novo the trial court’s interpretation and application of

Code § 19.2-243. Brown v. Commonwealth, 57 Va. App. 381, 390, 702 S.E.2d 582, 586 (2010).

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, 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[.]

“The five-month requirement of Code § 19.2-243 translates to 152 and a fraction days. The

Commonwealth is required to commence trial within that time.” Moten v. Commonwealth, 7

Va. App. 438, 441, 374 S.E.2d 704, 706 (1988). However, the speedy trial period is tolled where

the delay is caused

                             [b]y 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 . . . .




                                                            
              3
        Turner makes no argument that the other assignments of error implicate the appeal of
the misdemeanor conviction.
                                            ‐ 4 -
Code § 19.2-243(4). “[T]he burden of demonstrating that a delay in commencing trial is excused

under Code § 19.2-243 lies upon the Commonwealth.” Heath v. Commonwealth, 32 Va. App.

176, 181, 526 S.E.2d 798, 800 (2000) (quoting Robinson v. Commonwealth, 28 Va. App. 148,

153, 502 S.E.2d 704, 706 (1998)). “The time elapsing from the finding of probable cause to the

initial trial date, even though the accused concurs in the trial date, is not a continuance within the

contemplation of subsection (4) of the statute, but counts against the Commonwealth in a

calculation of compliance.” Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403

(1995). But cf. Commonwealth v. Hutchins, 260 Va. 293, 533 S.E.2d 622 (2000) (holding that

speedy trial requirements are not violated when the defendant affirmatively agrees without

objection to an initial trial date beyond the five-month deadline). Moreover, “Code § 19.2-243

envisions that routine and customary motions will be raised and disposed of within this [speedy

trial] time provided.” Adkins v. Commonwealth, 13 Va. App. 519, 523, 414 S.E.2d 188, 190

(1992). In contrast, where complex or last-minute motions necessitate a delay in the judicial

process, the delay will be attributed to the defendant. Cantwell v. Commonwealth, 2 Va. App.

606, 612, 347 S.E.2d 523, 526 (1986) (concluding the record clearly established that the delay

was attributable to defendant’s filing, two weeks before trial, of six motions raising eight

difficult issues for the trial judge); see also Perry v. Commonwealth, No. 160530, 2017

Va. Unpub. LEXIS 12 (Va. May 18, 2017) (attributing delay to defendant because defendant’s

last-minute demand for a jury trial “necessitated a slowdown of the judicial process” when “the

trial court had no choice but to extend the requisite time to empanel a jury and provide notice to

witnesses to appear on a different date”).

       In Virginia an affirmative duty rests on the Commonwealth to ensure a defendant is tried

within the time limit mandated by Code § 19.2-243. See Moten, 7 Va. App. at 441-42, 374

S.E.2d at 706. “A defendant does not waive his right to a speedy trial merely because he remains

                                                 ‐ 5 -
silent or does not demand that a trial date be set within the prescribed period.” Godfrey v.

Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984).

               [I]t is the prosecution which has the responsibility of vindicating
               society’s interests in swift and certain justice; it is the prosecution
               which has the duty of implementing the constitutional guarantee of
               a speedy trial . . . . We believe, therefore, that when a defendant
               challenges the delay as unreasonable, the burden devolves upon the
               Commonwealth to show, first, what delay was attributable to the
               defendant and not to be counted against the Commonwealth and,
               second, what part of any delay attributable to the prosecution was
               justifiable.

Stephens v. Commonwealth, 225 Va. 224, 231-32, 301 S.E.2d 22, 26 (1983) (quoting Fowlkes v.

Commonwealth, 218 Va. 763, 766-67, 240 S.E.2d 662, 664 (1978)).

       “In assessing responsibility for delay in trying a defendant, we must confine our review

to the record that comes before us.” Cantwell, 2 Va. App. at 611, 347 S.E.2d at 525-26. “An

order granting a continuance speaks for itself, and the record must reflect the reason for any

delay of defendant’s trial.” Godfrey, 227 Va. at 463, 317 S.E.2d at 783 (“Courts act by orders

and decrees that become a part of the record on appeal. Continuances in criminal cases,

therefore, must be documented to enable us to review and evaluate them when they are

challenged.”); Heath, 32 Va. App. at 181, 526 S.E.2d at 800-01 (“To decide the question

presented, we look to the court’s orders explaining the delays in proceeding to trial.”). “Without

anything in a court order or elsewhere in the record to show that a defendant agreed to or

concurred in the delay of his trial, or instigated a proceeding which of necessity brought about a

delay of his trial, the delay must be attributed to the Commonwealth.” Cantwell, 2 Va. App. at

611, 347 S.E.2d at 526 (emphasis added).

       It is undisputed that the period between Turner’s preliminary hearing and his initial trial

date was 201 days. In the absence of tolling, the Commonwealth was required to commence the

trial within five months from the October 14, 2015 preliminary hearing, or by March 14, 2016.

                                                ‐ 6 -
Here, there is no evidence in the record that the Commonwealth requested that a trial date be set

within the speedy trial timeframe.4 “No orders were entered granting continuances [before the

time for speedy trial expired] or showing why the case was not scheduled for trial within five

months.” Adkins, 13 Va. App. at 522, 414 S.E.2d at 189 (dismissing on speedy trial grounds).

The April 20, 2016 order establishing the initial trial date was the first ordered continuance in the

record,5 and Turner objected at that time. By April 20, the speedy trial time limit had already run

on Turner’s case.

              Nevertheless, quoting Stephens, 225 Va. at 233-34, 301 S.E.2d at 27-28, the

Commonwealth argues that Turner’s motion in limine tolled the speedy trial time clock because

Turner was the “moving party in a proceeding which necessitated the continuance, and he should

not be permitted to take advantage of the delay thus occasioned.” The Commonwealth argues

that rather than setting a trial date, the court set a date to hear Turner’s motion. It argues that the

delay between the filing of the motion and its resolution should accordingly be charged to

Turner. The Commonwealth’s reliance on Stephens is misplaced.

              In Stephens, the defendant filed a motion to suppress evidence. After a hearing, the trial

court took the issue under advisement and entered an order continuing the case. Id. at 224, 301

S.E.2d at 24. The prosecutor “insist[ed] that at all times he ha[d] been ready to try defendant’s

cases and on one or more occasions asked that trial dates be set.” Id. at 232, 301 S.E.2d at 26.

Furthermore, in Stephens, the Court “conclu[ded] that the continuance granted by order of the

                                                            
              4
          Because no trial date had ever been set, Code § 19.2-243(4), which requires a defendant
to affirmatively object to a continuance requested by the Commonwealth, does not apply to toll
the running of the speedy trial clock. See Howard v. Commonwealth, 281 Va. 455, 460, 706
S.E.2d 885, 888 (2011) (applying Code § 19.2-243(4) and concluding that “[o]nce the initial
trial date is set, every continuance postpones the trial date regardless of the reason for the
continuance or the identity of the moving party” (emphasis added)).
              5
        The only order in the record dated prior to the April 20, 2016 order is the March 11,
2016 order denying Turner’s motion to exclude, which did not mention a continuance. 
                                              ‐ 7 -
lower court . . . was ‘agreed to’ and ‘concurred in’ by both the Commonwealth’s Attorney and

the defendant and that this [wa]s reflected by the order and the record.” Id. at 234, 301 S.E.2d at

28. In contrast, here the Commonwealth never sought a trial date within the speedy trial

timeframe and Turner never agreed to a continuance ordered by the trial court.

        Moreover, the Commonwealth’s reliance on Stephens is misplaced in light of Robbs v.

Commonwealth, 252 Va. 433, 478 S.E.2d 699 (1996). In Robbs, the Supreme Court addressed

the effect of a defendant’s motion to suppress on the defendant’s right to a speedy trial and

distinguished Robbs from Stephens. As in Stephens, the defendant in Robbs filed a motion to

suppress evidence. The trial court heard and orally overruled the motion twenty days later. Id. at

435, 478 S.E.2d at 699. The question before the Court was whether the twenty days between the

defendant’s filing of the motion and the trial court’s ruling on it were attributable to the

defendant for speedy trial purposes. The Court distinguished Stephens, concluding that

“[n]othing in the record show[ed] that ‘the filing of the motion necessitated a slow-down of the

judicial process.’” Id. at 436, 478 S.E.2d at 700. The Court reasoned that at the time of the

defendant’s motion, “the case had not yet been set for trial and the filing of [the defendant’s]

motion did not necessitate a continuance of the trial date (as in Stephens).” Id. The Court

concluded that the time period between filing of the motion and resolution by the trial court

should not be attributed to the defendant “[s]ince the record fail[ed] to show that the motion

delayed the court in setting the case for trial.” Id.

        Here, as in Robbs, the record fails to show that Turner’s motion delayed the trial court in

setting the case for trial. Turner’s motion in limine regarding the admissibility of Turner’s prior

convictions could have been raised during the trial, or the trial court could have taken the motion

under advisement until it heard the evidence presented during the trial. Simply put, the

commencement of the trial was not dependent upon the outcome of the motion. Moreover, as in

                                                  ‐ 8 -
Robbs, no trial date had yet been set during the pendency of the motion. “Since the matter had

not been set for trial, neither the accused nor the attorney for the Commonwealth had any reason

to move for a continuance.” Nelms v. Commonwealth, 11 Va. App. 639, 642, 400 S.E.2d 799,

801 (1991) (dismissing on speedy trial grounds). Thus, in contrast to Stephens, Turner did not

agree to a court-ordered continuance.

       Nevertheless, the Commonwealth argues that this case is similar to Heath v.

Commonwealth, 261 Va. 389, 541 S.E.2d 906 (2001), where the defendant’s motion for a

psychiatric evaluation tolled the speedy trial period. The Commonwealth argues that, as in

Heath, Turner’s motion had to be resolved before the trial commenced because the trial court’s

decision would determine what charges the Commonwealth would seek. The Commonwealth

argues that, as in Heath, the fact that a trial date had not yet been set was irrelevant because

Turner’s motion in limine was for Turner’s benefit and the delay should therefore be attributed to

Turner. In Heath, the trial court found “that the record does not disclose, and the defendant does

not claim, that the defendant objected to the action of the court in fixing the trial date [past the

speedy trial deadline].” Id. at 392, 541 S.E.2d at 908. Moreover, the Court in Heath found that

the defendant’s “motion affirmatively demonstrated that he was not ready for trial and could not

proceed until he received the results of his psychiatric examination . . . . [M]anifestly, a trial

could not have been held as long as the issue of [the defendant’s] mental competency remained

unresolved.” Id. at 393, 541 S.E.2d at 909.

       As in Robbs, and in contrast to Heath, Turner expressly objected on speedy trial grounds

to the Commonwealth’s initial trial date. Further, the admissibility issue here is quite different

than the mental evaluation to determine competency at issue in Heath. Turner’s motion was a

routine and customary one. See Adkins, 13 Va. App. at 522, 414 S.E.2d at 190. Although the

Commonwealth suggests Turner’s motion had to be resolved before it could determine what

                                                 ‐ 9 -
charges to bring, the grand jury had already indicted Turner for felony assault and battery on a

family or household member, third offense. Therefore, the resolution of the motion did not have

any bearing on the offense for which he had already been indicted, but rather would determine if

the Commonwealth, in the words of the trial court, lacked “sufficient evidence to go forward on

the felony charge because these [purported convictions] cannot be used for predicate offenses.”

The trial court recognized that granting the motion to exclude “would simply reduce the charge

from a felony to a misdemeanor.” In contrast to Heath, Turner’s motion did not manifestly

require that the trial be delayed, and nothing here prevented the Commonwealth from requesting

a trial date even though the motion was pending. The Commonwealth has offered no reason why

a trial date could not have been selected while the motion was pending.

              Moreover, it was the Commonwealth’s affirmative duty to ensure statutory speedy trial

requirements were met. Godfrey, 227 Va. at 463, 317 S.E.2d at 783. The Commonwealth made

the strategic choice to wait until after Turner’s motion was resolved to request an initial trial

date. At the February 8, 2016 hearing, the trial court indicated that it fully understood the issue

and would resolve the motion promptly. The trial court stated it would “set this matter for

adjudication once I’ve had an opportunity to sort this out.” At that point, more than a month

remained on the speedy trial clock. During that hearing, or promptly after the trial court’s

issuance of its letter opinion on February 16, 2016, the Commonwealth could have requested an

initial trial date; but it did not. Id. (“A defendant does not waive his right to a speedy trial merely

because he remains silent or does not demand that a trial date be set within the prescribed

period.”).6

                                                            
              6
           The Commonwealth also relies on Howard v. Commonwealth, 55 Va. App. 417, 686
S.E.2d 537 (2009), aff’d, 281 Va. 455, 706 S.E.2d 885 (2011), to argue that here, as in Howard,
the trial court continued the case sua sponte, without objection from Turner, to consider Turner’s
motion. In Howard, however, a trial date had been set within the speedy trial timeframe. Id. at
 
                                                               ‐ 10 -
              The Commonwealth had the “duty of implementing the [statutory] guarantee of a speedy

trial.” Stephens, 225 Va. at 231-32, 301 S.E.2d at 26. Here, the first attempt by the

Commonwealth to set a trial date was after the speedy trial clock had run. Furthermore,

resolution of Turner’s motion did not necessitate a delay in setting a date for trial. The

Commonwealth failed to bring Turner to trial within the speedy trial timeframe; accordingly, the

indictment against Turner must be dismissed.

                                                               CONCLUSION

              As noted above, we affirm Turner’s conviction under Code § 18.2-427. However,

because nothing in the record shows that Turner agreed to or concurred in the delay of his trial,

or instigated a proceeding which of necessity brought about a delay of his trial, see Cantwell, 2

Va. App. at 611, 347 S.E.2d at 526, the trial court erred in denying Turner’s motion to dismiss

the felony on speedy trial grounds. We conclude Turner must be forever discharged from

prosecution for the felony offense that is the subject of this appeal. Code § 19.2-243.

                                                                    Affirmed in part, reversed and dismissed in part.




                                                            
420, 686 S.E.2d at 539. On the day before trial, the trial court sua sponte entered an order
continuing the trial date past the speedy trial deadline. Id. Because the defendant failed to object
to the continuance order, this Court concluded that the defendant’s speedy trial rights had not
been violated. Here, in contrast, no trial date had been set, and the trial court did not enter any
continuance order to which Turner could object. The Commonwealth conflates a trial court’s
routine administration of pretrial motions with formal continuance orders entered on the record.
“[W]e must confine our review to the record that comes before us.” Cantwell, 2 Va. App. at 611,
347 S.E.2d at 526. Continuances in criminal cases “must reflect the reason for any delay of
defendant’s trial [and] must be documented to enable us to review and evaluate them when they
are challenged.” Godfrey, 227 Va. at 463, 317 S.E.2d at 783. Here, there is no continuance
order entered prior to April 20, 2016, that explains the reason for the delay of Turner’s trial.
                                                 ‐ 11 -
