COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Rus sell and Senior Judge Bumgardn er Argued at Norfolk, Virginia

LAVONTA MONTREAL BLAND MEMORANDUM OPINION * BY v. Record No . 0937-16-1 JUDGE RUDOL PH BUMGARDNER, III NOVEMBER 14, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge 1 London C. Crounse (Protogyrou & Rigney, P.L.C., on brief), fo r appellant. Victoria Johnson, Assistant At torney General ( Mark R. Herring , Attorney General, on brief), for appellee.
A jury convicted Lavonta M. Bla nd of first-degree murder, aggr avated malicious wounding, robbery, three counts of us e of a firearm in the comm ission of a felony, and conspiracy to commit robbery. H e was sentenced to ninety-eightyears in prison. The defendant contends he was denied a prelim inary hearing and a speedy trial . We conclude he was not denied those rights, and affirm his convictions. On August 3, 2013, the defendant an d his brother killed one ma n and seriously injured another in the parking lot of a n apartment complex in Norfolk. The defendant was arrested in North Carolina on September 9, 2013. Upon return to Virginia, he was served on October 3,

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Judge Charles E. Poston preside d over the proceedings that are the subject of Bland’s first assignment of error, and J udge Mary Jane Hall presided ov er the proceeding that is the subject of Bland’s seco nd assignment of error.UNPUBLISHED- 2 - 2013 with warrants charging second-d egree murder, malicious wou nding, two counts of use of a firearm in the commission of thos e felonies, and possession of a firearm by a felon. While being held in custody on thos e warrants, a grand jury returned direct indictments October 16, 2013 for first-degree murder, aggravated malicious wounding, robbery, conspiracy to commit robbery, and three count s of use of a firearm in the commission of those felonies (CR13003431-00 – 06). Each charge arose from the August 3, 201 3 incident. The defendant was arrested on the ind ictments October 22, 2013. The defendant filed a motion in circuit court on November 4, 20 13 to have the indictments dismissed, maintai ning he had not received a prelim inary hearing on the charges for which he was originally arreste d. The general district court nolle prosequied the original warrants November 25, 2013. The cir cuit court denied the defen dant’s motion to dismiss the direct indictments November 27, 2013. The defendant’s case was set for trial on January 27, 2014, bu t was continued to March 19, 2014 because the Commonwealth had discovery problems. On M arch 10, 2014, the Commonwealth moved to nolle prosequi the initial set of i ndictments (CR13003431-00 – 06). The trial court granted th at motion on March 19, 2014, over the defendant’s objection. A second set of direct indictments wa s returned April 2, 2014 (CR1400101 3-00 – 06) charging the defendant with the same offenses as the initial set of indictme nts. Whether the defendant was denied a preliminary hearing involves an issue of statutory interpretation, w hich we review de novo . See, e.g., Giles v. Commonwealth, 277 Va. 359, 373, 672 S.E.2d 879, 882 (2009). Code § 19.2-218 provides: “No per son who is arrested on a charge of felony shall be denied apreliminary hearing . . . and no in dictment shall be returned in a court of record against any such pers on prior to such hearing unless such hearing is waived in writing by the accused.” The statute only “applies to a person who has been arrested on a felony charge- 3 - prior to an indictment by a gra nd jury.” Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 28 (1963). Code § 19.2-218 does not apply if t he initial charges are nolle prosequied before direct indictment by a grand jury. See Wright v. Commonwealth, 52 Va. App. 690, 700, 667 S.E.2d 787, 792 (2008) ( en banc ) (holding defendant was not ent itled to a prelim inary hearing after her original charges, which had bee n initiated by arrest warrants, were nolle prosequied and she was directly indicted); Armel v. Commonwealth, 28 Va. App. 407, 410 -11, 505 S.E.2d 378, 379-80 (1998) (holding defendant was notdenied a preliminary hearing where original warrants were terminated by nolle prosequi before defendant was indict ed); Arnold v. Commonwealth, 18 Va. App. 218, 222, 443 S.E.2d 183, 185 (holding that after defe ndant’s arrest warrants were nolle prosequied and she was later indicted, no p reliminary hearing was require d because “the slate was clean,” as though no cha rge had been made), aff’d en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994). In the present case, the defenda nt’s original charges were pla ced by warrant. The defendant was being held in jail on them when the grand jury re turned the first set of indictments. Only after the indi ctments were returned were tho se warrants nolle prosequied

. The defendant was entitled to pr eliminary hearings on the charg es stated in the initial arrest warrants before indictments c ould be returne d on those charges. See Triplett v. Commonwealth, 212 Va. 649, 650-51, 186 S.E.2d 16, 17 (1972). While the defen dant was entitled to a preliminary hearing on the original charges made in the warrant s, those were not the charges for which he was later indicte d and on which he was tried. No indictment was returned that charged the same crime as was c harged in the initial arrest warrants. The warrants charged second-degree murder, ma licious wounding, two counts each of use of a firearm in the c ommission those two felonies, and possession of a firearm by a- 4 - felon. The initial indictments c harged first-degree murder, ag gravated malicious wounding, robbery, three counts each of use of a firearm in the commissio n of those three felonies, and conspiracy to commit robbery. T he defendant was not arrested o n any felony charge for which an indictment was returned wit hout first having been provided a preliminary hearing on the charge. In Waye v. Commonwea lth, 219 Va. 683, 251 S.E.2d 202 (1979), th e defendant was initially charged with first-deg ree murder, which was certifiedto the grand jury after a preliminary hearing. A grand jury then returned a direct indic tment for capital murder on which the Commonwealth tried and convicte d Waye. The Court held Waye had not been denied his right to a preliminary hearing on th e capital murder charge bec ause he had not been arrested on that charge. Id. at 689, 251 S.E.2d at 206. See also Burns v. Commonwealth, 261 Va. 307, 320, 541 S.E.2d 872, 881 (2001). Once the initial warrants were nolle prosequied , those charges ceased to exist. See Arnold, 18 Va. App. at 222, 443 S.E.2d at 185. The defendant w as eventually tried and convicted on charges brought by dir ect indictment. The Commonw ealth may proceed by direct indictment in lieu of an arrest followed by preliminary hearing . See Armel, 28 Va. App. at 409-11, 505 S.E.2d at 379-80; see als o Herrington v. Commonweal th, 291 Va. 181, 185 n.5, 781 S.E.2d 561, 564 n.5 (2016). Thus, the defendant was not denied his right to a preliminary hearing. The defendant also contends he w as denied his statutory and con stitutional rights to a speedy trial. He concedes his ar gument rests on the premise th at the period for measuring the permitted time began when the charges were first initiated eith er by warrant on October 3, 2013 or by the first indictment s on October 16, 2013. However, thos e dates are not the dates that fix- 5 - the time from which his rights t o a speedy trial are measured b ecause both the warrants and the initial indictments were nolle prosequied. The defendant was lat er directly indicted. “A new indictment is a new char ge, distinct from the original c harge or indictment.” Arnold, 18 Va. App. at 221, 443 S.E.2d at 185. “[W]hen an indi ctment is disposed of by nolle prosequi , . . . before the speedy trial s tatute has run and the accused subsequently is re-indicted on the same charge, the speedy t rial statute begins to run anewfrom the time of the second indictment.” Ashby v. Commonwealth, 33 Va. App. 540, 546, 535 S.E.2d 182, 185 (2000). See Herrington, 291 Va. at 186, 781 S.E.2d at 564; Harris v. Common wealth, 258 Va. 576, 585, 520 S.E.2d 825, 830 (1999); Presley v. Commonwealth, 2 Va. App. 348 , 350, 344 S.E.2d 195, 196 (1986). Thus, in determining wheth er a speedy trial violation occurred in the defendant’s case, we are concerned only with the dir ect indictments returned on A pril 2, 2014 (CR14001013-00 – 06). We review this claim de novo . See Brown v. Commonwealth, 57 Va. App. 381, 390, 702 S.E.2d 582, 586 (2010). Code § 19.2-243 provides that an accus ed held in continuous custody “shall be forever discharged f rom prosecution for such offense if no trial is commenced in the circuit court withi n five months from th e date . . . an indictm ent . . . is found against the accused” and he is arrested on the charge d offense. The five-month requ irement equals “152 and a fraction of days.” Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995); see, e.g., Jiron-Garcia v. Commonwealth, 48 Va. App. 638, 645, 633 S.E.2d 744, 747 (2006). The speedy trial time peri od began April 9, 2014, the day after the arrest on the direct indictments, and ran to Septe mber 8, 2014, unless there was exc usable delay. See Robinson v. Commonwealth, 28 Va. App. 148, 152, 502 S.E.2d 704, 706 (1998). The jury trial was set to begin June 26, 2014 but was continued eight times until August 10, 2015. All but one of the continuances were on the defenda nt’s motion or a joint motion t hat tolled the statute. See Code- 6 - § 19.2-243(4). The defendant objecte d when the Commonwealth re quested a continuance of thirty-three days from July 8, 2015 to August 10, 2015. That p eriod, added to the seventy-nine days between April 8, 2014 to J une 26, 2014, is a total of 112 days and is well within the permitted 152 days. 2 The trial that began on August 10 ended in a mistrial, and the retrial did not begin until February 10, 2016. However, the tri al had commenced within the applicable time period, and the ensuing time until the retria l is not considered. See Fish er v. Commonwealth, 26 Va. App. 788, 793, 497 S.E.2d 162, 164 (1998); see also Morgan v. Common wealth, 19 Va. App. 637, 640, 453 S.E.2d 914, 915 (1995) (concluding that Code § 19.2-24 3 “addresses the commencement of trial, not the conclusion of proceedings”). No statutory viol ation occurred. In addition, applying de novo review, we find no constitutional speedy trial violation. Four factors are considered i n assessing a constitutional speed y trial claim – “length of delay, reason for delay, defendant’s a ssertion of his right, and preju dice to the defendant.” Howard v. Commonwealth, 281 Va. 455, 462, 706 S.E.2d 885, 889 (2011); see Barker v. Wingo, 407 U.S. 514, 530 (1972). The length of the de lay is the starting point of the analysis, and it is not necessary to consider the other three factors if the delay is n ot presumptively prejudicial. See Barker, 407 U.S. at 530. Having rejected the contention th at the operative date was Octo ber 3, 2013, the defendant’s claim that his consti tutional right was violated ap plies only to the prosecution of the indictments returned by the grand jury on April 2, 2014. See H arris, 258 Va. at 586, 520 S.E.2d at 831. The defendant’s trial was originally scheduled to begi n within three months of the date of those indictments. The trial began on August 10, 2015, ende d in a mistrial, and was retried

2 During oral argument, the defenda nt conceded that if the time period began from the April 2014 indictments, only 112 da ys of delay could be attribu ted to the Commonwealth.- 7 - February 10, 2016. The total elapsed time between the indictme nts in 2014 and the retrial in 2016 was slightly over twenty-two months. The defendant requested, or agr eed to, all but one of eleven co ntinuances granted in the twenty months between June 2014 and February 2016. The continu ance to which he objected was only for thirty-three days and was necessary because a new prosecutor was assigned to the case. The delay weighs against t he defendant because the recor d fails to establish that “the time it took to bring [the defendant ] to trial” “was occasioned by any factor other than the normal proceedings of the trial court , including [the defendant’s] own . . . pre-trial motions.” Id. The fact that the defendant object ed to only one of the continuance s belies his claim that “he truly desired to be tried,” and further weighs against his speedy tri al claim. Wallace v. Commonwealth, 65 Va. App. 80, 100, 774 S.E.2d 482, 491 (2015) ( quoting Beachem v. Commonwealth, 10 Va. App. 124, 132, 390 S.E.2d 517, 521 (1990)) , aff’d by published order, Record No. 151296, 2016 Va. LEXIS 63 (Va. June 2, 2016). The length of delay is not pres umptively prejudicial, and the d efendant has suggested no other prejudice arising from the delay. Failing to establish a ny prejudice, we conclude the defendant’s constitutional ri ght to a speedy trial was not viol ated. See Harris, 258 Va. at 586-87, 520 S.E.2d at 831. Accordingly, we affirm his convictions. Affirmed.