                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Huff, Judges Alston and Russell
              Argued at Alexandria, Virginia


              MICHAEL ANTHONY YOUNG
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0265-17-4                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                                  MARCH 20, 2018
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                              Stephen E. Sincavage, Judge

                               Catherine French, Chief Appellate Counsel (Virginia Indigent
                               Defense Commission, on briefs), for appellant.

                               Christopher P. Schandevel, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Michael Anthony Young (appellant) argues that his right to a speedy trial was violated

              pursuant to Code § 19.2-243. He specifically contends that neither the enumerated continuance

              exception nor an implied exception to Code § 19.2-243 excuses the Commonwealth’s delay in

              timely prosecuting appellant. We disagree.

                                                          BACKGROUND

                     On November 25, 2015, appellant and Lorenzo Huffman (Huffman) allegedly robbed a

              minor, D.C. Among the items taken were D.C.’s iPhone and money. Appellant and Huffman

              left the scene in a vehicle driven by S.K. D.C.’s father called 911 to report the robbery. Deputy

              Osborn first responded to the call, and upon his arrival, began interviewing D.C. Deputy Osborn

              recorded D.C.’s responses through handwritten notes. Deputy Cote then responded to the

              scene--he was wearing a body camera. From that point forward, the interview was captured on


                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
tape. As D.C.’s interview was taking place, a vehicle matching the description of the vehicle

used by the assailants in the robbery was stopped. Inside were S.K., Huffman, and appellant.

Huffman and appellant denied involvement and were taken into custody. Later that evening,

Huffman and appellant were interrogated in separate rooms by Detective Cunningham. Upon

realizing that the recording software malfunctioned, Detective Cunningham briefly interviewed

Huffman and appellant again, capturing those interviews on her cell phone. Appellant was

charged with robbery (Count 1), conspiracy to commit robbery (Count 2), grand larceny (Count

3), conspiracy to commit a felony (Count 4), and false identification to law enforcement (Count

5). The case was to be heard before the Juvenile and Domestic Relations District Court of

Loudoun County (J&DR court) due to D.C.’s minor status. Appellant filed a motion for

discovery on December 4, 2015. The Commonwealth provided appellant open file discovery on

December 22, 2015. Appellant requested additional information thought to be contained in the

file. The Commonwealth then provided the 911 call made by D.C.’s father, which occurred one

hour after the alleged robbery. On January 14, 2016, the Commonwealth produced the following

evidence: Deputy Cote’s body camera footage, recordings of Detective Cunningham’s

interviews with appellant and Huffman, an analysis of S.K.’s phone, an analysis of appellant’s

phone, and photographs. The Commonwealth further provided appellant with the ability to

review and take notes on Detective Cunningham’s report. The preliminary hearing scheduled to

be heard on January 20, 2016 was continued on appellant’s motion to allow him time to review

the evidence.

       On February 3, 2016, appellant requested additional information, including an analysis of

D.C.’s phone, written statements by Huffman, as well as the substance of the unrecorded

statements made by Huffman and appellant in their unrecorded interviews. The parties appeared

before the J&DR court on February 10, 2016. Appellant again inquired about the status of an

                                              -2-
analysis of D.C.’s phone and was advised that the sheriff’s office took the phone, that Deputy

Butler met with D.C. to examine the phone’s content, that D.C. could not remember the required

passcode, and that the phone was then returned to D.C. The Commonwealth represented to

appellant that no other analysis had been done. The case was continued on a joint motion to

March 2, 2016. On February 21, 2016, appellant requested via email additional discs the

Commonwealth was copying for appellant. The Commonwealth responded that appellant had

most of them except for footage from Deputy Roque’s body camera and Deputy Selby’s cruiser.

The Commonwealth then allowed appellant to view the footage from Deputy Roque as it was

unable to be copied and produced the footage from Deputy Selby.

       The preliminary hearing occurred on March 2, 2016. Appellant’s robbery charge (Count

1) was bound over to be heard by the grand jury. Appellant was directly indicted on Counts 2-5.

The Commonwealth then informed appellant that Deputy Butler was unsuccessful in evaluating

D.C.’s phone and subsequently forwarded appellant an email exchange between Deputy Butler

and the Commonwealth dated March 6. At the March 15, 2016 scheduling hearing before the

Circuit Court of Loudoun County (trial court), the trial court asked when speedy trial

circumstances would be implicated. The Commonwealth responded that it was August 2, 2016.

By agreement, the cases were set for a jury trial on August 1-3, 2016. The trial court then

ordered that appellant would be held without bond pending trial. On the same date, the trial

court entered a discovery order, directing the Commonwealth to complete discovery within 30

days and further stated that the Commonwealth had a continuing obligation to “timely provide”

evidence in compliance with Brady v. Maryland, 377 U.S. 83 (1963), and its progeny.

       Appellant filed a Brady motion on May 10, 2016. On May 31, 2016, the trial court heard

that motion in addition to several others. The Commonwealth agreed to provide a written

response by June 3. The Commonwealth complied and noted that there were issues in acquiring

                                               -3-
some of the requested information. Appellant emailed the Commonwealth on June 16, 2016

again requesting information related to the case, such as Huffman’s statements to Deputy

Cunningham, Huffman’s written statement, and initial descriptions given to Deputy Osborn. The

Commonwealth responded on June 22, indicating that the information was forthcoming. By

June 29, appellant still had not received the requested information, so appellant again contacted

the Commonwealth and received the same reply. The parties appeared for a hearing on

appellant’s motion to compel on July 7, 2016. There, the Commonwealth produced Deputy

Cote’s and Deputy Osborn’s handwritten notes. The Commonwealth stated that the sheriff’s

office was unable to locate Huffman’s written statement.

       Also on July 7, the Commonwealth for the first time provided over 1,000 recorded

telephone calls made by appellant while incarcerated. On July 12, appellant was given access to

Huffman’s statements. Appellant was also informed for the first time that there was a certificate

of analysis completed on D.C.’s phone. Results were “inconclusive” when comparing the found

latent print to appellant’s fingerprints. Appellant complained that this late disclosure prevented

appellant from additional investigation of the phone as it was ultimately returned to D.C. On

July 14, the Commonwealth responded to appellant’s motion for discovery and inspection and

provided appellant a recording of a July 13 “proffer session” with Huffman; Huffman had agreed

to the proffer session with the Commonwealth and to testify against appellant in exchange for a

lighter sentence. The session was supposed to occur on June 1. Huffman provided inconsistent

statements in his proffer. Appellant filed a motion to dismiss the indictments on July 15, 2016,

arguing that appellant is “forced . . . to choose between his right to a speedy trial and his right to

the effective assistance of counsel” due to the Commonwealth’s discovery failures.

       On July 19, 2016, the trial court heard appellant’s motion to dismiss in which appellant

argued that the Commonwealth’s alleged discovery violations merited dismissal. The

                                                 -4-
Commonwealth acknowledged that its most egregious failure was not divulging the certificate of

analysis on D.C.’s phone. The Commonwealth noted that law enforcement personnel indicated

that no analysis had been done on D.C.’s phone and that the Commonwealth had relied on that

statement. The Commonwealth recalled receiving the certificate but not when. The certificate

was dated January 26. The Commonwealth had previously represented to appellant on multiple

occasions that no such analysis had been done. The Commonwealth suggested a stipulation or a

continuance as remedies but argued that dismissal was not appropriate. The Commonwealth also

suggested granting a bond and continuing the case would be appropriate to put appellant “at

liberty.”

        Conversely, appellant argued for dismissal. Appellant noted that the Commonwealth’s

late disclosures forced appellant to choose between asserting “his rights to a speedy trial [or]

go[ing] to trial on August 1 and be[ing] unprepared and put[ting] himself in a position to not be

able to redevelop his defense . . . [and] reinvestigate his case.” Appellant stated on two

occasions that if the trial court did not grant the motion to dismiss “regardless of whatever other

remedies the [trial c]ourt chooses to fashion . . . , [appellant’s] position is . . . that we’re certainly

not in a position to go forward with trial on August 1.” The trial court then took the matter under

advisement and continued the hearing to July 25, 2016 for its ruling.

        In its ruling, the trial court found that this was not “a comprehensive failure to provide

discovery but because of the way the discovery has occurred or not occurred, it [i]s clear that

concerns such that [appellant] has brought to the [trial court’s] attention . . . are valid concerns.”

The trial court denied the motion to dismiss but sanctioned the Commonwealth for its discovery

violations; the Commonwealth was prohibited from using the jail calls for any purpose, and it

was bound by its stipulation offer regarding the certificate of analysis. Appellant reiterated that




                                                   -5-
he should not be required “to forfeit his rights to a speedy trial in light of his rights to have the

information that he’s entitled to.” The following colloquy ensued:

                THE COURT: [I]t’s a practical concession that bond would need
                to be granted.

                [COMMONWEALTH]: I wouldn’t oppose that at this time, Your
                Honor.

                [APPELLANT]: It’s not really a solution for [appellant] because
                he is being held on other matters . . . . So setting a bond in this
                case will actually do nothing to provide him any liberty.

        When discussing the trial date, appellant proposed that the scheduling hearing be held on

August 15. He indicated that by suggesting this date, “[Appellant] is [not] now agreeing that this

[delay] . . . would be attributable to [him] because [he is] asking to use the 15th.” Appellant

again noted that bond was a “hollow remedy . . . [and] that anything short of dismissal would, in

fact, not be appropriate.” The Commonwealth inquired as to whether appellant was asking for a

continuance. Appellant replied that “given the nature of the information, the quality of the

information[,] and even with the [trial court’s] rulings, . . . [appellant is] certainly not in a

position to go forward even if a response came in.” And appellant argued that attributing the

delay to him would be “fundamentally unfair” in light of the Commonwealth’s errors. The trial

court ultimately said “I do not count this as a defense motion.” The trial court denied the motion

to dismiss and removed the matter from the trial docket.

        Appellant filed two additional motions to dismiss Count 1 and Counts 2-5 on August 8

and 15 due to the Commonwealth’s alleged speedy trial violations (speedy trial motions). The

speedy trial motions were heard on August 24, 2016. Appellant calculated the speedy trial

deadlines: because “Count [1] [was] . . . bound over and the remaining counts [were the subject

of] a direct indictment, the 153rd day [was] August 3rd for Count I and the 153rd day [was]

August 15th for Counts [2] through [5].” Appellant argued that at the July 25 ruling, the trial

                                                  -6-
court stated that it did not attribute the continuance to appellant. Appellant detailed continuing

issues with the Commonwealth’s supplemental discovery after it was sanctioned by the trial

court. Appellant further suggested that the statutory five-month speedy trial provision applied

because although bond was discussed, the Commonwealth did not formally move for bond nor

did the trial court formally offer it. He then argued that the Commonwealth’s discovery

violations were egregious, which resulted in appellant not being “prepared for trial [on August

1].” Appellant contended that the trial court continued the case or removed it from the docket

due to the Commonwealth’s actions, and thus the delay should be attributed to the

Commonwealth. Consequently, appellant argued that his right to a speedy trial was violated.

       The Commonwealth indicated that it did not move for a continuance. The

Commonwealth highlighted that appellant “state[d] twice that [he was] not going to be prepared

on August 1[]” at the July 19 hearing. And while the trial court did say in its July 25 ruling that

it was not charging the continuance to appellant, that did not mean the trial court charged the

continuance to the Commonwealth. Thus the issue of to whom the continuance should be

attributed to remained “an open question.” The Commonwealth argued that the delay should be

attributed to appellant because the trial court effectively continued the case because appellant

stated he was not going to be able to proceed to trial on August 1. The Commonwealth

contended that the delay would be attributed to it if the trial court found it acted in bad faith.

Because the trial court found that the Commonwealth did not act in bad faith, the continuance

must be charged to appellant.

       Appellant countered that it was the Commonwealth’s “actions and inactions that brought

us to this point” and that it was “forcing [appellant] to make a choice between his right to

effective representation and his right to a speedy trial.” Appellant distinguished his case from

Taylor v. Commonwealth, 4 Va. App. 45, 354 S.E.2d 74 (1987). Appellant argued that the trial

                                                 -7-
court should not reach the issue of bad faith “unless there [was] a continuance by [appellant].”

Here, according to appellant, he did not request a continuance; rather, it was court-ordered.

        The trial court continued the hearing to August 26, 2015. The trial court ruled that

appellant did not formally file a continuance on July 19. The trial court also noted that appellant

previously indicated that “regardless of the [trial c]ourt’s ruling . . . , that [appellant] would not

be [in] a position to try the case on August 1[] due to various discovery issues.” Consequently,

the trial court recognized that the need for the continuance “originated [from appellant’s]

declaration that he would not be prepared to try the case on August 1[].” The trial court noted

that what occurred was “in pari ratione . . . [meaning] for the like reason or by a like mode of

reason,” to appellant filing a motion to continue. The trial court stated that appellant framed the

issue as a Hobson’s choice: appellant was “required to choose between his rights to a speedy

trial and his right to receive the discovery and exculpatory information in the process of a fair

trial.” Then, the trial court relied on Taylor. 4 Va. App. 45, 354 S.E.2d 74. The trial court did

not find that the Commonwealth acted in bad faith and denied the speedy trial motions to

dismiss. It noted appellant’s exception. The jury trial was then set to be heard November

14-17, 2016.

        Ultimately, appellant pled guilty to Count 5, and the trial court found him guilty of that

offense. The jury trial occurred on the remaining charges. At the conclusion of the

Commonwealth’s case, appellant made a motion to strike all of the remaining indictments. The

trial court granted the motion to strike as to Counts 1 and 2. Appellant then presented his

evidence. He then renewed his motion to strike the remaining charges which the trial court

denied. The trial court then found, consistent with the jury’s verdict, appellant also guilty of

grand larceny and conspiracy to commit grand larceny. Appellant filed a motion to set aside the

verdicts which the trial court denied. Appellant was sentenced to twelve months for the grand

                                                  -8-
larceny conviction, three months for the conspiracy conviction, and one month for the false

identification conviction.

       Now comes this appeal.

                                            ANALYSIS

       On appeal,

               “[p]roper assessment and determination of the merits of a statutory
               speedy trial claim ‘involve[s] a review of the whole record and a
               consideration of the trial court orders in the context of the record
               that comes before’ the [C]ourt.” Brown v. Commonwealth, 57
               Va. App. 381, 389-90, 702 S.E.2d 582, 586 (2010) (quoting Baity
               v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d 891, 895
               (1993) (en banc)). “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.’” Id. at
               390, 702 S.E.2d at 586 (quoting Sink v. Commonwealth, 28
               Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)).

Wallace v. Commonwealth, 65 Va. App. 80, 88, 774 S.E.2d 482, 486 (2015).

       Appellant’s right to a speedy trial “is one accorded him under the sixth amendment 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, 301

S.E.2d 22, 25 (1983) (citing Flanary v. Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137

(1945)). 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; provided that no trial shall be held on the first day of
               the term unless it be with consent of the attorney for the
               Commonwealth and the accused and his attorney.




                                               -9-
       Code § 19.2-243 provides that

               [w]here 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; and 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.

       Appellant has been continuously incarcerated since his March 2, 2016 preliminary

hearing; therefore, the five-month time limit applies.1 “The five-month requirement of Code

§ 19.2-243 translates to 152 and a fraction days. The Commonwealth is required to commence

the trial within that time.” Turner v. Commonwealth, 68 Va. App. 72, 78, 802 S.E.2d 814,

817-18 (2017) (quoting Moten v. Commonwealth, 7 Va. App. 438, 441, 374 S.E.2d 704, 706

(1988)). That deadline was August 3 for Count 1, as it was bound over, and August 15 for

Counts 2-5, as those were handled by direct indictment. The jury trial was initially scheduled to


       1
           “A party may not approbate and reprobate by taking successive positions in the course
of litigation that are either inconsistent with each other or mutually contradictory. Nor may a
party invite error and then attempt to take advantage of the situation created by his own wrong.”
Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v.
LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). The Commonwealth suggested
bond and a continuance as a remedy for its discovery violations on July 19. On July 25, the trial
court seemingly agreed with that suggestion. But then, appellant argued that bond would provide
him a “hollow remedy.” Appellant explained he was being held on other charges from other
jurisdictions so bond would not effectively put him “at liberty.” The trial court then continued
the case. The Commonwealth never moved for bond nor did the trial court formally offer bond
to appellant. We note that appellant made this “hollow remedy” argument while being aware
that if he was released on bond, that would trigger the nine-month speedy trial deadline. See
Code § 19.2-243 (stating that “if the accused is not held in custody but has been recognized for
his appearance in the circuit court to answer for such offense,” the nine-month deadline applies).
It appears that the Assistant Attorney General conceded in oral argument before this Court that
the approbate-reprobate doctrine did not apply. Because bond was never offered, the nine-month
deadline was not triggered, and thus, appellant ultimately did not “invite error and then attempt
to take advantage of the situation created by his own wrong.” Rowe, 277 Va. at 502, 675 S.E.2d
at 164.
                                                 - 10 -
occur between August 1 and 3, 2016, dates within the speedy trial deadline. However, the

Commonwealth did not prosecute appellant until November 14-17, 2016, dates well outside the

speedy trial deadline.

         It is important to note that “[t]he provisions of [Code § 19.2-243] shall not apply to such

period of time as the failure to try the accused was 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, or by reason of his
                escaping from jail or failing to appear according to his
                recognizance.

Code § 19.2-243(4) [hereinafter enumerated continuance exception].

         It is well-settled that “the burden of demonstrating that a delay in commencing trial is

excused . . . lies upon the Commonwealth.” Turner, 68 Va. App. at 79, 802 S.E.2d at 818

(quoting Heath v. Commonwealth, 32 Va. App. 176, 181, 526 S.E.2d 798, 800 (2000)). In this

case, neither party made a motion to continue so the enumerated continuance exception does not

apply.

         We now consider whether an implied exception excuses the delay. “[E]xceptions stated

in the [speedy trial] statute are not meant to be all-inclusive, and other exceptions of a similar

nature are implied.” Hudson v. Commonwealth, 267 Va. 36, 41, 591 S.E.2d 679, 682 (2004)

(citing Stephens, 225 Va. at 230, 301 S.E.2d at 25). “[J]udicially recognized exceptions to the

time requirement are permissible as long as they are of a similar nature and have the same

rationale as the enumerated exceptions.” Wallace, 65 Va. App. at 93-94, 774 S.E.2d at 488

(quoting Stephens, 225 Va. at 230, 301 S.E.2d at 25). This Court has stated that “the rationale

behind the exceptions . . . is to ‘provide for speedy trial exceptions in circumstances ‘beyond the

control of the trial [court] and the parties,’ when delays are warranted to ‘ensure a fair trial to

                                                - 11 -
both the accused and the Commonwealth.’” Id. at 94, 774 S.E.2d at 489 (quoting Schwartz v.

Commonwealth, 45 Va. App. 407, 426, 611 S.E.2d 631, 641 (2005)). The Virginia Supreme

Court has already determined that court-ordered continuances are in pari ratione, of a similar

nature, to those contemplated by the enumerated continuance exception. See Howard v.

Commonwealth, 281 Va. 455, 461, 706 S.E.2d 885, 888 (2011) (concluding that “a continuance

entered by the court sua sponte has the same effect as a continuance entered at the request of

[appellant] or the Commonwealth” (quoting Stephens, 225 Va. at 230, 301 S.E.2d at 25)).

       Considering that this was a court-ordered continuance, we now “assess[] responsibility

for [the] delay in trying [appellant], [and] we must confine our review to the record that comes

before us.” Turner, 68 Va. App. at 80, 802 S.E.2d at 818 (quoting Cantwell v. Commonwealth, 2

Va. App. 606, 611, 347 S.E.2d 523, 525-26 (1986)). It is important to note that “Code

§ 19.2-243 envisions that routine and customary motions will be raised and disposed of within

this [speedy trial] time provided.” Id. at 79, 802 S.E.2d at 818 (quoting 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 [appellant].” Id. (quoting Cantwell, 2 Va. App. at 612, 347 S.E.2d at 526). Further,

“[a]n order granting a continuance speaks for itself, and the record must reflect the reason for

any delay of [appellant’s] trial.” Id. at 80, 802 S.E.2d at 818 (quoting Godfrey v.

Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984)). “Without anything in a court

order or elsewhere in the record to show that [appellant] 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.” Id. at 80-81, 802 S.E.2d at 818-19 (emphasis

omitted) (quoting Cantwell, 2 Va. App. at 611, 347 S.E.2d at 526).




                                                - 12 -
        The continuance was a “routine and customary [motion].” Id. at 84, 802 S.E.2d at 820.

It was not “complex” or “last minute.” In addition, appellant did not concur in, agree to, or

initiate the continuance. It was a court-ordered continuance. Appellant repeatedly and

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

right. However, appellant did note that he would not be prepared to proceed to trial on August 1

due to the Commonwealth’s discovery failures.2 The record reflects that the trial court’s

decision to continue the case was predicated on the Commonwealth’s discovery failures and the

resulting effect it had on appellant’s ability to prepare for trial.

        Notwithstanding these circumstances, the Commonwealth argues that our holding in

Taylor, 4 Va. App. 45, 354 S.E.2d 74, controls. Taylor “was convicted by a jury of robbery and

use of a firearm in the commission of robbery.” Id. at 46, 354 S.E.2d at 75. On appeal, Taylor

noted that a “sawed off shotgun and clothing believed to have been worn by the robber” were

recovered from the robbery at First and Merchants Bank. Id. at 47, 354 S.E.2d at 76. Taylor

requested two continuances that were granted when Taylor “discovered that [those clothes]

w[ere] lost or missing[, and when] the Commonwealth [later] advised Taylor of [pertinent]

information from the bank manager’s wife which he wanted to investigate.” Id. at 51, 354

S.E.2d at 78. Taylor argued that his convictions should be reversed because the continuances

should have been attributed to the Commonwealth, and his right to a speedy trial was violated as

a result. There, we found that Taylor’s right to a speedy trial was not violated because “[a]bsent



        2
         Appellant argues that the Commonwealth’s failures created a “Hobson’s choice.” We
note that a “Hobson’s choice” is “no real choice at all-the only options being to either accept or
refuse the offer that is given to you . . . . [It] is different from a true choice between two (or
more) equally agreeable or disagreeable options.” Herron v. Commonwealth, 55 Va. App. 691,
696 n.2, 688 S.E.2d 901, 903 n.2 (2010). Appellant is ultimately forced to choose between
asserting his right to a speedy trial or his right to effective assistance of counsel. Appellant was
placed in this predicament by no fault of his own but because of the Commonwealth’s discovery
breaches. Id. at 704, 688 S.E.2d at 907.
                                                    - 13 -
a showing of bad faith on the part of the Commonwealth, we [were] unwilling to impute the

continuances to the Commonwealth.” Id.

       The threshold issue in determining to whom the delay should be attributed now becomes

whether or not the Commonwealth acted in bad faith. On brief and at argument, appellant

asserted that we do not reach this part of the analysis because there is no enumerated exception

and no implied exception that excuses the delay. As we previously stated, court-ordered

continuances are considered an implied exception pursuant to Howard. 281 Va. at 460-61, 706

S.E.2d at 888. Thus, we turn to the framework provided in Taylor. Appellant correctly points

out that he did not move for a continuance in this case. However, the trial court ultimately stated

in ruling on appellant’s speedy trial motions on August 26 that it continued the case due to

appellant’s statements that he would not be ready to proceed to trial due to the Commonwealth’s

failures. Then, the trial court expressly ruled that the Commonwealth did not act in bad faith.

That determination of the trial court has not been contested, so it is now the “law of the case.”

Lee v. Spoden, 290 Va. 235, 253, 776 S.E.2d 798, 808 (2015). We are further constrained by the

doctrine of interpanel accord to follow the framework set forth in Taylor.3 Consistent with

Taylor, 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. Accordingly, appellant’s right to a speedy

trial was not violated.




       3
          See Prekker v. Commonwealth, 66 Va. App. 103, 110, 782 S.E.2d 604, 607 (2016)
(noting that “[u]nder the interpanel accord doctrine, [a subsequent panel] lack[s] the authority to
revisit” prior published opinions of the Court of Appeals (quoting Butler v. Commonwealth, 64
Va. App. 7, 12, 763 S.E.2d 829, 832 (2014))). However, according to Startin v. Commonwealth,
56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc), while binding on three-judge
panels, published opinions of the Court of Appeals “do not bind the Court sitting en banc.” Id.
                                               - 14 -
       We note that when a trial court conclusively finds that the Commonwealth did not act in

bad faith even if the Commonwealth may have been party to creating a Hobson’s choice for

appellant, that no violation of the statutory speedy trial requirements is implicated thereby

justifying a dismissal of the charges.

                                           CONCLUSION

       The continuance was court-ordered; an implied exception to Code § 19.2-243. Here, in

the context of this Court’s speedy trial analysis under Taylor, we are also bound by the trial

court’s determination that there was no bad faith by the Commonwealth. That determination was

not appealed, and our assessment and determination of the merits of this claim, review of the

whole record, and consideration of the trial court’s orders in the context of the record that come

before this Court direct the result we reach. Accordingly, we affirm the trial court.

                                                                                          Affirmed.




                                               - 15 -
