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

C OMMONWEALTH

vs .
B RYAN J. C ORLEY

. MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant ' s trial before a j udge of the District Court
was held on August 20 , 2021 , 92 1 days after he was arraigned on

various charge s 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 mo tor vehicle while under
the influence o f al cohol , 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 (19 79 ) ( r ule 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 con fine our analysis to r ule 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 appe al. 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 , h is eyes were

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

that he ha d consumed four beers

. The defendant was arrested

and , as previously noted , he was charged with various offenses
and arraigned the following day o n February 11 , 2019.

On June 3 , 202 0 , the defendant filed a motion entitled

" Motion to Dismiss For F ailure T o P rosecute " in which he claimed
a violation of his right to a speedy trial under r ule 36

. On
July 29 , 2020 , the " motion to dismiss under R 36 [wa s] 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 wh o
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 p rejudice " (citations
omitted). Commonwealth v. Dirico , 480 Mass. 491 , 497 (2018)

.
Here , the defendant has established a prima facie violation

of r ule 36 , because 92 1 days elapsed between his arraignment and

the date on which his trial commenced. The burden therefore

shifts to the Commonwealth to justify the delay. Di rico , 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 r ule

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 Commonwe a lth v.

Tanner , 417 Mass. 1 , 3 (1994)

. The defendant concede s that the twenty

- one
- day period
between July 25 , 2019 , and August 15 , 2019 , s hould be excluded based on his request for a continuance. He also concede s that

the 526

- day period between March 13 , 2020 , and August 2 0 , 2021 , is excluded pursuant to the Supreme Judicial Court ' s order4 suspending all jury trials due to the COVID

- 19 pandemic

. 4 Th us , 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 fr om the r ule 36 calculation. The Commonwealth first points to a fifteen

- day period of delay from
August 1 5 , 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 th is
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 r ule 36 by the trial
judg e . 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

1 5 , 2019 , and August 30 , 2019 , is properly excluded under r ule

36

. Given our conclusion , we need not address the

Commonwealth ' s additional argument s . 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 C ommonwealth 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 continua nce to October 10 , 2019. The defendant objected to th is 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 can not sit by passively , but must make sure that an objection to a specific continuance is timely

noted. " C ommonwealth 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.

T he Commonwealth i s required to justify a delay of nine days , and because we conc lude that fifteen days are properly excluded6 from the r ule 36 analysis , the defendant ' s r ule 36 motion to
dismiss was properly denied.
Judgment affirmed

. By the Court (Vuono , Singh & Englander , JJ. 6 ) ,

Clerk

.

Entered: Novem ber 3, 2023.

6 The panelists are listed in order of seniority.