NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-171

COMMONWEALTH

vs.

BRYAN J. CORLEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant's trial before a judge of the District Court 

was held on August 20, 2021, 921 days after he was arraigned on 

various charges including assault and battery on a police 

officer, operating a motor vehicle while under the influence,

third offense, and negligent operation of a motor vehicle. The 

defendant was convicted of operating a motor vehicle while under 

the influence of alcohol, third offense, and acquitted of the 

remaining charges.1 His sole claim of error on appeal concerns 

an alleged violation of his right to a speedy trial under Mass. 

R. Crim. P. 36 (b), 378 Mass. 909 (1979) (rule 36).2 Because we 

1 Two additional charges of operating a motor vehicle with a 

suspended license and resisting arrest were dismissed at the 

request of the Commonwealth.

2 The defendant does not claim a violation of his rights to a 

speedy trial under the United States and Massachusetts 

Constitutions. We therefore confine our analysis to rule 36.
2

conclude that the Commonwealth can justify the delays in excess 

of the one-year limit prescribed by the rule, we affirm the 

judgment of conviction.

Background. The underlying facts are not relevant to the 

issue presented on appeal.3 It suffices to note that on the 

evening of February 10, 2019, an officer of the Westford police 

department stopped the defendant's vehicle after observing the 

defendant driving erratically. The defendant appeared to be 

under the influence of alcohol. He stumbled, his eyes were 

bloodshot, an odor of alcohol was noticeable, and he admitted 

that he had consumed four beers. The defendant was arrested 

and, as previously noted, he was charged with various offenses 

and arraigned the following day on February 11, 2019.

On June 3, 2020, the defendant filed a motion entitled 

"Motion to Dismiss For Failure To Prosecute" in which he claimed 

a violation of his right to a speedy trial under rule 36. On

July 29, 2020, the "motion to dismiss under R 36 [was] denied."

Discussion. Rule 36 is a "[case] management tool, designed 

to assist the trial courts in administering their dockets. It

also 'creates a means through which [criminal] defendants who

desire a speedy trial can secure one.' Under rule 36, 'a

criminal defendant who is not brought to trial within one year

3 There is no transcript of the trial. We have summarized the 

facts as stated by the parties in their briefs.
3

of the date of arraignment is presumptively entitled to

dismissal of the charges unless the Commonwealth justifies the

delay. Dismissal under rule 36 is with prejudice" (citations 

omitted). Commonwealth v. Dirico, 480 Mass. 491, 497 (2018).

Here, the defendant has established a prima facie violation 

of rule 36, because 921 days elapsed between his arraignment and 

the date on which his trial commenced. The burden therefore 

shifts to the Commonwealth to justify the delay. Dirico, 480 

Mass. at 497. "The delay may be excused by a showing that it 

falls within one of the '[e]xcluded [p]eriods', provided in rule 

36 (b) (2), or by a showing that the defendant acquiesced in,

was responsible for, or benefitted from the delay."

Commonwealth v. Davis, 91 Mass. App. Ct. 631, 631-632 (2017),

quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). 

"A failure to object to a continuance or other delay constitutes 

acquiescence." Davis, supra at 632, quoting Commonwealth v. 

Tanner, 417 Mass. 1, 3 (1994).

The defendant concedes that the twenty-one-day period 

between July 25, 2019, and August 15, 2019, should be excluded 

based on his request for a continuance. He also concedes that 

the 526-day period between March 13, 2020, and August 20, 2021,

is excluded pursuant to the Supreme Judicial Court's order 
4

suspending all jury trials due to the COVID-19 pandemic.4 Thus,

according to the defendant's calculation, 374 nonexcludable days 

remain, thereby requiring the Commonwealth to justify a delay of 

nine days.

The Commonwealth argues that an additional seventy-eight

days are properly excluded from the rule 36 calculation. The 

Commonwealth first points to a fifteen-day period of delay from 

August 15, 2019, to August 30, 2019, which resulted from its

request to continue a hearing on the defendant's motion to 

dismiss for failure to issue a citation and claims that this 

period is excludable because the defendant did not object. 

Next, the Commonwealth claims that the sixty-three-day period

between January 10, 2020, and March 12, 2020, is excludable due 

to the defendant's filing of a motion to suppress and the 

subsequent waiving of an objection under rule 36 by the trial 

judge. Lastly, the Commonwealth argues that the thirty-day

period between October 10, 2019, and November 8, 2019, is

excludable because the trial judge had taken the defendant's 

motion to dismiss for failure to issue a citation under 

advisement.5 For the reasons discussed below, we agree with the 

4 See Fifth Updated Order Regarding Court Operations Under the

Exigent Circumstances Created By the COVID-19 (Coronavirus) 

Pandemic, No. OE-144 (Mar. 1, 2021). 5 Commendably, the prosecutor withdrew this claim at oral 

argument.
5

Commonwealth that the fifteen-day period of delay between August 

15, 2019, and August 30, 2019, is properly excluded under rule 

36. Given our conclusion, we need not address the 

Commonwealth's additional arguments.

The defendant filed a motion to dismiss on July 31, 2019. 

A hearing on the motion was held on August 15, 2019. At the 

hearing, the Commonwealth asked for a continuance, which was 

granted, and the hearing was rescheduled to September 13, 2019,

with no objection. Thereafter, the parties appeared in court on 

August 30, 2019, at which time the Commonwealth requested an 

additional continuance to October 10, 2019. The defendant 

objected to this additional delay and now argues that his 

objection should be applied retroactively to August 15, 2019,

the day the Commonwealth first requested a continuance. We are 

not persuaded. "A defendant cannot sit by passively, but must 

make sure that an objection to a specific continuance is timely 

noted." Commonwealth v. Fling, 67 Mass. App. Ct. 232, 236 

(2006). Here, the defendant failed to object at the hearing 

held on August 15. This failure constituted acquiescence for 

which the defendant is accountable. We need not go any further. 

The Commonwealth is required to justify a delay of nine days,

and because we conclude that fifteen days are properly excluded
6

from the rule 36 analysis, the defendant's rule 36 motion to 

dismiss was properly denied.

Judgment affirmed.

By the Court (Vuono, Singh & 

Englander, JJ.6),

Clerk.

Entered: November 3, 2023.

6 The panelists are listed in order of seniority.