                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Humphreys, O’Brien and Malveaux
              Argued at Richmond, Virginia


              DAVID GENE THORSTED
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1039-15-2                                    JUDGE MARY GRACE O’BRIEN
                                                                                    JULY 12, 2016
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF ORANGE COUNTY
                                                Daniel R. Bouton, Judge

                               Kevin E. Smith for appellant.

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


                     Following a jury trial, David Gene Thorsted (“appellant”) was convicted of three offenses:

              manufacturing methamphetamine, in violation of Code § 18.2-248; possession of a controlled

              substance, in violation of Code § 18.2-250; and possession of a firearm while manufacturing

              methamphetamine, in violation of Code § 18.2-308.4. Appellant asserts that the trial court erred in

              failing to dismiss the convictions because his right to a speedy trial was violated. Finding no error,

              we affirm.

                     On September 30, 2013, police officers went to appellant’s property to evict him. While

              there, the officers discovered a locked camper trailer. When an officer asked appellant for the keys

              to the camper, appellant advised him that he was going to move it. The officer could see guns

              inside the camper, and he noticed a “very violent, noxious chemical smell” emanating from behind

              the camper.

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        The officers broke into the camper and found guns, a “chemical-type mask,” and a plate

with “a white chunky substance on” it. In a closet, an officer found a “working meth lab.”

Appellant was arrested and charged with manufacturing methamphetamine, possession of a

controlled substance, and possession of a firearm while manufacturing a controlled substance.

        Appellant asserts two assignments of error:

                1. The trial court erred when it denied Appellant’s motion to
                   dismiss for violating the speedy trial statute when it calculated
                   time delays waiting for trial to commence attributed to
                   Appellant.

                2. The trial court erred when it denied Appellant’s motion to
                   dismiss for violating the speedy trial statute when it determined
                   that Appellant caused the delays in getting his case to trial.

                                          I. Procedural History

        Following his arrest, appellant waived his preliminary hearing in general district court and

the grand jury returned an indictment against him on November 25, 2013. Appellant was released

on bond, and the circuit court set a trial date of April 3, 2014.

        Prior to that date, appellant filed a motion to suppress and the suppression motion was heard

and denied on April 3. On that date, the parties reset the matter for trial and after some discussion

off the record, appellant’s counsel told the court “[w]e are going to waive speedy trial to whatever

date the Commonwealth wants to set, Your Honor.” After the court asked appellant whether he

understood his speedy trial rights and verified that appellant wished to waive those rights, the court

set a trial for July 17 and 18, 2014.

        On June 30, 2014, appellant filed a “Motion for Scientific Investigation by the Department

of Forensic Science and for a Continuance.” The court held a hearing on appellant’s request on July

17, granted the motion for scientific discovery, and granted a defense motion for supplemental

discovery. The court set a review date of August 21, 2014. On that date, the court entered the order

for forensic analysis and continued the case for review on September 29, 2014.
                                                   -2-
        At the September 29 hearing date, the court informed appellant that his attorney had left the

practice of law, so the court would need to appoint another lawyer if he wished to be represented by

counsel. Appellant indicated that he wanted an attorney, so the court appointed new counsel and

continued the case for review on October 2, 2014.

        On October 2, appellant’s new attorney moved to withdraw the request for forensic testing

and asked to set the case for trial. When the court suggested some possible dates, appellant’s

attorney asked if they were the earliest dates available. After further discussion, appellant’s attorney

said “[i]f that’s the earliest dates, then we can just go ahead and set it for that.” The court set the

trial for January 22 and 23, 2015. On January 21, appellant filed a motion to dismiss the case based

on a violation of his right to a speedy trial.

        On January 22, 2015, the court advised counsel that it would wait to rule on appellant’s

motion until the conclusion of the trial. The jury convicted appellant of all three charges, and the

court set the case for sentencing and a hearing on the motion to dismiss. On April 23, 2015, the

court denied the motion to dismiss and imposed the jury’s sentence of twelve years of incarceration.

This appeal followed.

                                                 II. Analysis

                                        A. Statutory Background

        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, . . . 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.

                        If there was no preliminary hearing in the district court, or
                if such preliminary hearing was waived by the accused, the
                commencement of the running of the five and nine months periods,

                                                    -3-
                   respectively, set forth in this section, shall be from the date an
                   indictment or presentment is found against the accused.

In this case, the speedy trial provisions of Code § 19.2-243 began to run on November 25, 2013, the

day after the grand jury returned an indictment against appellant.1 Appellant acknowledges that the

nine-month speedy trial time period applies because he was released on bond for a period of time

while he was awaiting trial.2

                                          B. Standard of Review

         “[T]he burden of demonstrating that a delay in commencing trial is excused under Code

§ 19.2-243 lies upon the Commonwealth.” Robinson v. Commonwealth, 28 Va. App. 148, 153, 502

S.E.2d 704, 706 (1998). “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.’” Brown v.

Commonwealth, 57 Va. App. 381, 390, 702 S.E.2d 582, 586 (2010) (quoting Sink v.

Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)).

                   The appellate inquiry is not made merely to determine in a vacuum
                   delay attributable to one party or the other and then to debit or
                   credit the appropriate party for that delay. The inquiry is made to
                   determine that delay which caused the failure to commence the
                   trial within the specified period and which is not contemplated
                   within the statutory time limitations. Accordingly, the proper
                   assessment and determination of the merits of a Code § 19.2-243
                   claim involve a review of the whole record and a consideration of
                   the trial court orders in the context of the record that comes before
                   us.

Baity v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d 891, 894-95 (1993) (en banc).


         1
          See Code § 1-210(A) (“When an act of the General Assembly or rule of court requires
that an act be performed within a prescribed amount of time after any event or judgment, the day
on which the event or judgment occurred shall not be counted against the time allowed.”). See
also Robinson v. Commonwealth, 28 Va. App. 148, 152, 502 S.E.2d 704, 706 (1998) (the speedy
trial period “begins to run on the day after the preliminary hearing at which probable cause is
found.”).
         2
             Appellant’s bond was revoked and reinstated at various times after indictment and before
trial.
                                                    -4-
                                               C. Analysis

        Appellant argues that the trial date of January 22, 2015 was nine days beyond the 274 days

allowed by statute.3 He acknowledges that the original trial date of April 3, 2014 was within the

speedy trial provisions and concedes that both the continuances from April until July and July until

October were attributable to motions he filed for forensic testing. However, appellant asserts that

his speedy trial rights were violated because the continuance between October 2, 2014 and January

22, 2015 was not a delay attributable to him despite his failure to object to the court setting the

January 22 trial date at the October hearing. Appellant contends that he had “no requirement to

object in setting a trial date if the date is beyond the speedy trial cutoff.” In support of his

proposition he cites a number of cases, all of which were decided before 1995.

        Code § 19.2-243, the speedy trial statute, sets out a number of exceptions. In 1995, the

General Assembly amended one of the exceptions, Code § 19.2-243(4). In the amendment, the

General Assembly inserted the following italicized language:

                        The provisions of this section shall not apply to such period
                of time as the failure to try the accused was caused: . . .

                        4. By 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.

        Appellant argues that the amended statute only grants an exception when the

Commonwealth moves for a continuance and the defendant fails to object. The Supreme Court of

Virginia addressed this precise issue in the case of Commonwealth v. Hutchins, 260 Va. 293, 533


        3
      The nine-month speedy trial limitation “‘translates to’ at least 273 days.” McCray v.
Commonwealth, 44 Va. App. 334, 342, 605 S.E.2d 291, 294 (2004).
                                           -5-
S.E.2d 622 (2000). In Hutchins, the defendant, who was incarcerated, was indicted on two felony

offenses on February 10, 1997. Id. at 295, 533 S.E.2d at 623. On February 25, 1997, the circuit

court set a trial date of June 6, 1997. Id. In acquiescing to the trial date, defense counsel said “that’s

fine,” and the defendant and his counsel signed a form requesting a jury trial which stated that the

trial was set for June 6, 1997. Id.

        Defendant subsequently filed a motion to dismiss the charges on grounds of a speedy trial

violation. Id. He contended that he did not waive his speedy trial rights by remaining silent and

failing to request that the trial court set the case within the five-month provision of the statute. Id.

The Supreme Court affirmed the trial court’s denial of the motion to dismiss, holding: “we can only

conclude that the defendant’s actions in acquiescing with and agreeing to the order dated February

25, 1997, signed by the defendant and his counsel . . . constituted a continuance of the trial date

within the intendment of Code § 19.2-243(4).” Id. at 297-98, 533 S.E.2d at 625. The Court noted

that not only did the defendant not object to the court setting the trial date, but he affirmatively

agreed to it, thereby stopping the speedy trial “clock” until the trial date. Id. See also Heath v.

Commonwealth, 261 Va. 389, 394, 541 S.E.2d 906, 909 (2001) (“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)”).

        In interpreting the speedy trial provisions of Code § 19.2-243(4), this Court has held that

“acquiescence in the entry of any order that continues a case – whether at the request of the

Commonwealth or on the court’s own motion – even where the new date is within the speedy trial

limit, effectively tolls the running of the speedy trial statute.” Howard v. Commonwealth, 55

Va. App. 417, 424, 686 S.E.2d 537, 541 (2009).

        In the present case, the “continuance order” setting the final trial date was entered at the

hearing on October 2, 2014. During the colloquy with the court about the January dates, neither

                                                   -6-
counsel objected to the date the court set and defense counsel stated “[i]f that’s the earliest dates,

then we can just go ahead and set it for that.” Therefore, the record is clear that both appellant and

the Commonwealth agreed to continue the case from October 2, 2014 to January 22, 2015, and the

speedy trial provisions of Code § 19.2-243 were tolled during that time.4 Accordingly, because

speedy trial was tolled from October 2 until the trial date, appellant was tried within the nine-month

speedy trial period.

                                             III. Conclusion

        Accordingly, the judgment of the trial court is affirmed.

                                                                                               Affirmed.




        4
         Because we find that appellant did not object to the setting of the trial date beyond the
speedy trial time period, we do not address his remaining argument that he was not responsible
for delays that occurred due to the order for forensic testing.
                                                -7-
