Ali v. Commonwealth, 0434-21-4

Case DateMay 31, 2022
CourtCourt of Appeals of Virginia


No. 0434-21-4

Court of Appeals of Virginia

May 31, 2022

Argued by videoconference


(Thomas F. Koerner, Jr., on brief), for appellant. Appellant submitting on brief.

Timothy J. Huffstutter, Assistant Attorney General (Mark R. Herring, [1] Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Ortiz and Causey



Jovan Anthony Ali was tried by a jury and convicted of unlawful wounding in violation of Code § 18.2-51. On appeal, he contends that the conviction violated his statutory and constitutional speedy trial rights. We hold that the record supports the trial court's rulings on these issues, resulting in part from the judicial emergency orders entered by the Supreme Court of Virginia in response to the COVID-19 pandemic. Accordingly, we affirm the conviction.


The appellant was charged with malicious wounding following his stabbing of an acquaintance in July 2019. About two months later, in October 2019, the appellant was arrested on the warrant for malicious wounding and denied bail.


The preliminary hearing was set but continued several times. In March 2020, the district court found probable cause to certify the charge to the grand jury, and the grand jury issued an indictment for aggravated malicious wounding on March 16, 2020.

Also on March 16, 2020, the Supreme Court of Virginia issued its first judicial emergency order in response to the COVID-19 pandemic, restricting trials and non-emergency proceedings as a result. See In re: Order Declaring a Judicial Emergency in Response to COVID-19 Emergency 1-2 (Va. Mar. 16, 2020).[3] In the months that followed, the Supreme Court issued additional emergency orders that suspended jury trials entirely for a period of about eight weeks. See EDO of May 6, at 5 ¶ 12; EDO of June 22 (6th Order), at 5 ¶¶ 15-16; EDO of July 8, at 1 ¶ 2. The Court then directed that jury trials could be resumed by each judicial circuit that received approval of a written plan detailing how that circuit would conduct such trials safely in light of the pandemic. See EDO of June 22 (6th Order), at 5-6 ¶¶ 15-16; EDO of July 8, at 1 ¶ 2.

With regard to the appellant's case, on March 19, 2020, three days after he was indicted and the Supreme Court issued its first judicial emergency order, the appellant's attorney sought to withdraw as counsel. The trial court permitted the withdrawal and appointed new counsel. On April 23, 2020, before the Supreme Court suspended all jury trials for an indefinite period as of May 6, the trial court held a status hearing and set the appellant's jury trial for August 2020. See EDO of May 6, at 5 ¶ 12. The order entered at the April 23 status hearing reflected that the appellant agreed that "speedy trial [was] tolled" from March 19 to April 23, 2020. The order also noted that he "object[ed] on speedy trial [grounds] from [that day] forward."


In July 2020, over the appellant's objection, the court continued his August trial due to COVID-19 and rescheduled it for October 2020. In September 2020, Fairfax County received approval for its plan to resume jury trials and expected to begin conducting such trials again in early November, after altering the courthouse to comply with the plan. Consequently, shortly before the appellant's scheduled October trial date, the court entered an additional order continuing the trial to November 9, 2020.

Later in October 2020, the appellant made a motion to dismiss the charges against him on constitutional and statutory speedy trial grounds. The judge denied the motion.

The appellant's jury trial, the very first one held in the circuit following implementation of its approved pandemic protocols, took place from November 9 to 17, 2020. After the presentation of the Commonwealth's case and the trial court's denial of the appellant's motion to strike the aggravated malicious wounding charge, the appellant testified in his own behalf. He admitted stabbing the victim but claimed that he acted in self-defense. The jury convicted the appellant of the lesser-included offense of unlawful wounding and recommended a sentence of five years.

After trial, the appellant renewed his speedy trial challenges. The court again denied the motion and sentenced him to five years in prison in conformity with the jury's recommendation.


The appellant contends that the denial of his motion to dismiss was error because his right to a speedy trial under both Code § 19.2-243 and the United States and Virginia Constitutions was violated. He suggests that his conviction should be reversed and the indictment dismissed as a result.


A. Statutory Speedy Trial Claim

The appellant challenges the trial court's conclusion that the period of time between his preliminary hearing and trial did not violate his right to a speedy trial under Code § 19.2-243.

"[A] statutory speedy trial challenge presents a mixed question of law and fact." Young v. Commonwealth, 297 Va. 443, 450 (2019). The appellate court gives deference to the trial court's factual findings but reviews legal issues de novo, including questions regarding the proper construction of a statute. Id.; see Smith v. Commonwealth, 282 Va. 449, 454 (2011); Jacks v. Commonwealth, __Va. App.__, __(May 17, 2022) (en banc) (applying the de novo standard to the interpretation of statutes and the Virginia Supreme Court's pandemic emergency orders).

Legislative intent is determined "from the words used in [a] statute, applying the plain meaning of the words unless they are ambiguous or [doing so] would lead to an absurd result." Wright v. Commonwealth, 278 Va. 754, 759 (2009). Additionally, the Code of Virginia constitutes a single "body of . . . laws." Amonett v. Commonwealth, 70 Va.App. 1, 10 (2019) (quoting Lucy v. Cnty. of Albemarle, 258 Va. 118, 129-30 (1999)). Consequently, "a common canon of statutory construction [provides] that when the legislature uses the same term in separate statutes, that term has the same meaning in each unless the General Assembly indicates to the contrary." Ricks v. Commonwealth, 290 Va. 470, 478 n.1 (2015) (quoting Commonwealth v. Jackson, 276 Va. 184, 194 (2008)). We review the appellant's statutory speedy trial challenge under these well-established principles.

Virginia's speedy trial statute, Code § 19.2-243, provides that if an adult defendant "is held continuously in custody" following a district court's finding of "probable cause to believe that [he] has committed a felony, the accused . . . shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date" of


that finding. The five-month period, however, is "not absolute." Young, 297 Va. at 451. The statute provides for tolling the period based on a continuance granted upon request of the defendant or his counsel. Id. at 451-52; see Code § 19.2-243(4). It similarly provides for tolling if the defendant joins in or fails to object to a continuance motion made by the Commonwealth or "initiated by the court . . . 'sua sponte.'" Young, 297 Va. at 451-52 (quoting Howard v. Commonwealth, 281 Va. 455, 461 (2011)). The statute also expressly directs that its provisions do not apply to any period of time during which "failure to try the accused was caused . . . [b]y a natural disaster." Code § 19.2-243(7); see EDO of May 1, at 1.

A related statute, Code § 17.1-330, provides Virginia's Chief Justice with the power to declare a "judicial emergency" in the event of "a disaster, as defined in Code § 44-146.16," when that disaster "substantially endangers or impedes" certain specified "operation[s] of a court." Code § 17.1-330(A); see EDO of Aug. 7, 299 Va. 99, 99 (2020) (discussing "substantial" endangerment and impedance). The Chief Justice may declare a judicial emergency "for the Supreme Court sua sponte" or "for any court upon the request of the Governor." Code § 17.1-330(A)(i)-(ii). The judicial emergency statute further provides that a judicial emergency order may "suspend" or "toll" various "deadlines" or "time schedules" imposed by "otherwise applicable statutes, rules, or court orders in any court processes and proceedings." Code § 17.1-330(D); see EDO of Mar. 27, at 1; EDO of May 1, at 1-2.

"Disaster" as used in the judicial emergency statute includes various "natural disaster[s]" such as "any communicable disease [that presents a] public health threat." Code § 44-146.16; see Code § 17.1-330(A); EDO of Aug. 7, 299 Va. at 99. A communicable disease that presents a public health threat is, in part, "an illness of public health significance, as determined by the State Health Commissioner," that "is known to be readily transmitted . . . from one individual to


another and has been found to create a risk of death or significant injury or impairment." Code § 44-146.16.

Finally, the judicial emergency statute imposes a limit of twenty-one days on each emergency order. Code § 17.1-330(E). Nevertheless, the Court may extend the emergency for additional twenty-one-day periods upon a majority vote. Id. The statute expressly provides that "[i]n the event of a communicable disease [that presents a] public health threat, as defined in § 44-146.16, a majority of the justices . . . may extend such order for the duration of the threat." Id. (emphasis added).

In light of this statutory framework, coupled with the Supreme Court's emergency orders covering the relevant time frame, the record in this case entirely supports the trial court's determination that the appellant's statutory speedy trial rights were not violated. The state health commissioner declared COVID-19 a communicable disease that presents a public health threat in February 2020. See M. Norman Oliver, State Health...

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