Harvey v. Commonwealth

• Decision Date: 21 February 2017
• Docket Number: Record No. 1460-15-3
• Citation: 67 Va.App. 336,796 S.E.2d 428
• Parties: Raymond Louis HARVEY, Jr. v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

67 Va.App. 336

796 S.E.2d 428

Raymond Louis HARVEY, Jr.

v.COMMONWEALTH of Virginia

Record No. 1460-15-3

Court of Appeals of Virginia, Lexington.

FEBRUARY 21, 2017

Suzanne Moushegian (Moushegian Law, P.L.L.C., on briefs), for appellant.

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Humphreys and Alston

OPINION BY JUDGE ROSSIE D. ALSTON, JR.

Raymond Louis Harvey, Jr. (appellant) appeals his convictions for attempted murder in violation of Code §§ 18.2-32 and 18.2-26, use of a firearm in the commission of attempted murder in violation of Code § 18.2-53.1, aggravated malicious wounding in violation of Code § 18.2-51.2, and use of a firearm in the commission of aggravated malicious wounding in violation of Code § 18.2-53.1. Appellant argues that the trial court erred in denying his motion to dismiss the indictments based on speedy trial violations. We agree and reverse the decision of the trial court.

BACKGROUND

On October 14, 2014, appellant was arrested on a felony charge for malicious wounding. Appellant was directly indicted on November 3, 2014 for attempted murder pursuant to Code §§ 18.2-32 and 18.2-26, aggravated malicious wounding pursuant to Code § 18.2-51.2, and two counts of use of a firearm in the commission of a felony pursuant to Code § 18.2-53.1. Appellant was served with the indictments on November 5, 2014.

On February 23, 2015, both parties jointly moved for a continuance of the trial date, which was granted. The parties signed the continuance order reasoning that "[b]oth parties need[ed] additional time to review [forensic work] and continue the negotiation process."

Again, on April 23, 2015, within twenty-four hours of the scheduled jury trial, which was scheduled within speedy trial, the Commonwealth orally moved for a continuance due to the absence of a subpoenaed witness, to which appellant strenuously objected. Appellant argued that the Commonwealth had not shown good cause and relied on McElroy v. Commonwealth , 153 Va. 877, 149 S.E. 481 (1929), in arguing that when no affidavits are filed, the trial court may readily deny a continuance motion. Nevertheless, the trial court granted the motion and placed the matter on the docket for rescheduling the following morning.

On April 24, 2015, the case continued on the docket for appellant's motion for bond and further consideration and argument on the Commonwealth's motion to continue, which was granted the day prior. After denying appellant's objection once again, appellant requested, and the trial court found it reasonable, to include within the continuance order that appellant was not waiving his speedy trial rights. The remainder of the hearing focused on appellant's motion for bond, during which the context of an exchange between the Assistant Commonwealth's Attorney, the court, and intermittently appellant's counsel ensued.² While discussing the procedural posture of the case, and the appellant's unequivocal entreaty to have the record appropriately reflect his distinct speedy trial concerns, the Commonwealth interjected, and the following conversation ensued:

[Commonwealth]: Your Honor before we get to[o] far away[,] I appreciate everything that [appellant's counsel] has just said and I don't really ... I may disturb a little bit but that stands to reason that we have picked a trial date I believe June 12th.

[Appellant]: Yes.

[Commonwealth]: [Counsel] and I both have done the math and that is still within the

[Appellant]: Yes.

[Commonwealth]: The time frame set.

[Appellant]: Yes, yes.

[Commonwealth]: We both agree that that is within the Commonwealth's statutory limit of speedy trial. And that is as the Court has stated there may be need for a further continuance on this case.

The order entered by the trial court on April 24, 2015 read, in pertinent part:

These matters were originally set for a jury trial [on April 24, 2015], and for all of the reasons that were placed on the record at a hearing on April 23, 2015, today's trial was continued at the request of the Commonwealth, and objected to by [appellant] for all of the reasons as stated on the record.

....

Whereupon ... the Commonwealth stated the jury trial date is June 12, 2015 at 9:00 a.m.

Whereupon [appellant's counsel] stated that because the continuance is granted at the Commonwealth's request, she is not waiving any of the allowable time under the statute, and requested the [trial c]ourt to include in this Order that [appellant] is not waiving his speedy trial rights with this continuance. The [trial c]ourt stated this will be included in the Order.

On June 5, 2015, appellant filed a motion to dismiss the indictments arguing that he had been denied his right to a speedy trial guaranteed under the Sixth Amendment to the United States Constitution, Article I, Section 8 of the Constitution of the Commonwealth of Virginia, and appellant's statutory right pursuant to Code § 19.2-243. At a hearing on June 9, 2015, before a judge designate³ of the trial court, the Commonwealth argued that appellant cannot approbate and reprobate, and alternatively, that appellant invited any error because during the April 24, 2015 hearing he took the position that his speedy trial rights were not violated. The Commonwealth further argued that the time between December 1, 2014 and February 24, 2015 was excludable because appellant did not object to setting a new trial on February 24, 2015. The Commonwealth also stated that the period between November 3, 2014 and November 20, 2014 was waived as to speedy trial because during that time appellant requested a court-appointed attorney, the court appointed one for him, and then continued the case to December 1, 2014 for docket call.

Appellant responded that the Commonwealth was using an incorrect assessment of law and that speedy trial began to run as soon as probable cause was found. Thus, according to appellant, "when [appellant] was found with probable cause on [November 3, 2014] it was set over to [December 1, 2014] which is the Court's docket calendar day at which point it was set over to [February 24, 2015] all of [which was] within the statutory period." Further, appellant argued that he does not bear the burden of objecting and invoking his right to speedy trial every time the court sets a trial date.

The trial court replayed the recording from the April 24, 2015 hearing and despite the clear recitations in the order to the contrary, believed that both the Commonwealth and appellant agreed that the new trial date of June 12, 2015 was within speedy trial. Appellant argued that the trial court was taking the discussion out of context, that appellant was simply acknowledging that counsel was available on that date, and reiterated that appellant objected to the continuance, invoking his right to speedy trial as evidenced by the clear language in the order. Appellant's counsel stated that she

was responding yes while [the Commonwealth] was talking. Because when he [was] talking and he is trying to make his motion, I am saying yes, yes we have agreed to [June 12, 2015]. That is what I am responding [to]. ... [Appellant] is in no way obligated to make sure that he is tried within his speedy trial rights. That's the [obligation of the] government.

Appellant went on to state that it would be wrong to say that solely because appellant agreed to a specific date and that date turned out to be outside of speedy trial, that he waived his constitutional right. The trial court took the matter under advisement.

On June 10, 2015, the trial court⁴ issued an order stating that appellant waived any right to assert that the trial scheduled for June 12, 2015 was barred by Code § 19.2-243. The trial court stated that appellant had expressed consent or affirmation, and concurred in setting the new date. The trial court ruled: "No one, not even a criminal defendant, is permitted to approbate and reprobate. The court therefore need not determine whether [appellant] accurately asserts that his statutory speedy trial clock had run out." As such, the trial court denied appellant's motion to dismiss the indictments. Thereafter, appellant filed a motion to nullify the order entered on June 10, 2015 and dismiss the indictments. On June 11, 2015, the trial court issued a memorandum opinion and order denying appellant's motion.

At the conclusion of the jury trial on June 12, 2015, the trial court found appellant guilty of attempted murder, aggravated malicious wounding, and two counts of use of a firearm in the commission of a felony. On August 13, 2015, the trial court imposed the jury's recommended sentence and entered an order, sentencing appellant to forty-five years of incarceration for aggravated malicious wounding, ten years for attempted murder, three years for use of a firearm in the commission of attempted murder, and five years for use of a firearm in the commission of aggravated malicious wounding. This appeal followed.

ANALYSIS

Appellant argues that the trial court erred when it denied his motion to dismiss the indictments against him based on a speedy trial violation holding that

[b]y the express consent or affirmation of counsel on the record in open court, [appellant] concurred in the setting of these cases on [June 12, 2015], and will not be heard to say otherwise. No one, not even a criminal defendant is permitted to approbate and reprobate. The [trial] court therefore need not determine whether [appellant] correctly assert[ed] that his statutory speedy trial clock had run out.

Specifically, appellant argues that he did not agree to the continuance on April 24, 2015, setting the trial on June 12, 2015, and that this objection was noted on the record and in the order dated April 24, 2015. Thus, appellant argues that speedy trial had not tolled from April 24, 2015 to June 12, 2015 and, as a result, when the case went to trial it was outside the five-month speedy trial period. We agree.

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