COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Russell and Malveaux Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No . 0540-19-2 JUDGE MAR Y GRACE O’BRIEN AUGUST 27, 2019 AMIR FAREED SULUKI

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge A. Anne Lloyd, Assistant Attor ney General (Mark R. Herring, Attorney General, on briefs), for appellant. Lauren Whitley, Deputy Public Defender, for appellee.
The Commonwealth appeals the dismissal of felony charges agains t Amir Fareed Suluki based on a violation of the speed y trial statute, Code § 19.2-2 43. The Commonwealth asserts the following assignments of error:
1. The circuit court erred in holdi ng that Suluki’s failure to obj ect to continuances did not toll the sp eedy trial period and in granti ng the motion to dismiss.
2. The circuit court erred in holding that a continuance to which Suluki was not adverse tolled t he speedy trial period only to t he docket call date and in granting the motion to dismiss. For the following reasons, we re verse the court’s decision.
BACKGROUND Suluki was charged with robbery, in violation of Code § 18.2-5 8, use of a firearm in the commission of robbery, in viola tion of Code § 18.2-53.1, and po ssession of a weapon by a violent

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.UNPUBLISHED- 2 - felon, in violation of Code § 18.2-308.2. Initially, he was he ld without bail. Following a preliminary hearing on August 7, 2017, the General District Cou rt for the City of Richmond certified the charges to the grand jury, which returned a true bill for each charge. The case was set for a jury trial on December 1 8, 2017. Suluki filed a motion to suppress evidence, and at his request , the circuit court heard his motion on December 18, 2017, instead of pr oceeding with the jur y trial. The court granted the motion and set a January 22, 2018 status h earing at the Commonw ealth’s request. On December 21, 2017 , the Commonwealth noted its appeal of the order suppressing evidence. At the January 22, 20 18 hearing, the court released Suluki on bond an d continued the status hearing to March 29, 2018 w ithout objection. The court subsequently continued the status hearing to May 7 , 2018, again without objection. In a June 5, 2018 memorandum opi nion, this Court reversed the trial court’s order suppressing evidence. We also iss ued a mandate th at day, reman ding the case to the trial court for further proceedings. At docket c all on July 2, 2018, the court set the case for a jury trial on November 29, 2018 , without objection. On November 20, 2018, th e court entered an agreed order removing the jury trial on Novem ber 29, 2018, and scheduling a hearing for that date instead on motions that Suluki filed. Sulu ki moved to continue the Novemb er 29 date, and the court scheduled the motions hearing for January 2 4, 2019. The parties agreed t o wait until that date to schedule a jury trial. Following the January 24, 2019 hearing, the court granted Sulu ki’s motions in part and denied them in part. The Commonwealth moved to continue the ca se to the February 4, 2019 docket call to be set. Suluki di d not object to continuing the case. The record does not reflect any action taken on February 4, 20 19. On February 22, 2019, the Commonwealth email ed defense counsel and the judge’s chambe rs to obtain a trial date.- 3 - Because the prosecutor and Sulu ki’s counsel could not agree on a date, the case was scheduled for March 6, 2019, to be set for tri al. On March 5, 2019, Suluki f iled a motion to dismiss on speedy trial grounds. The court heard the motion to di smiss on March 19, 2019 and se t a trial date of March 28, 2019, over Suluki’s objection. A fter considering counsel’s ora l arguments, as wel l as their written briefs, the court held that speed y trial ran on M arch 7, 2019, and it granted the mo tion to dismiss. This appeal followed.
DISCUSSION Code § 19.2-398(A)(1) allows the Commonwealth to appeal from a circuit court’s order dismissing an indictment for violation of a defendant’s right t o a speedy trial. Code § 19.2-243 governs a defendant’s statutory right to a speedy trial. For a defendant charged with a felony who is not continuously held in custody, the statute requires that the trial must comm ence within nine months of the preliminary hearing or the defendant “shall be fo rever discharged from prosecution.” Code § 19.2-243. This nine-month period “‘ translates’ to at le ast 273 days” and begins to run the day after the preliminary hearin g. McCray v. Commonwealth, 44 Va. App. 334, 34 2 (2004). See also Wallace v. Commonwealth, 6 5 Va. App. 80, 89 (2015) (noting that the speedy trial period “begins to run on the day after the preliminary hearing at whic h cause was found”). Here, the speedy trial period began ru nning on August 8, 2017. However, “[t]he [nine]-month period provided for in Code § 19. 2-243 is not absolute.” Young v. Commonwealth, Va. , (July 3, 2019). The statute enumerates certain events that toll the speedy trial time period, including, in relevant part, a continuance granted on the motion of the accused or his counsel , or by concurrence of the accused or his counsel in such a motion b y the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth.- 4 - Code § 19.2-243(4). “When a defe ndant requests, agrees to, or acquiesces in an order that effectively continues a case, the [nine]-month speedy trial per iod of Code § 19.2-243 is tolled during the time reasonably specifi ed by the court to carry out the terms of its or der.” Heath v. Commonwealth, 261 Va. 389, 393 (2 001). “The statute makes clea r that the actions of either ‘the accused or his counsel ’ may constitute a waiver of the accused’s right to invoke the statute’s time limitations.” McCray, 44 Va. App . at 342 (quoti ng Code § 19.2- 243(4)). “[T]he burden of demonstrating that a delay in commencing tria l is excused under Code § 19.2-243 lies upon the Commonw ealth.” Brown v. Commonwealth, 57 Va. App. 38 1, 389 (2010) (quoting Robinson v. Commonwea lth, 28 Va. App. 1 48, 153 (1998)) . “Proper assessment and determination of the merits of a statutory speedy trial claim ‘ involve a review of the whole record and a consideration of the trial court orders in the context of the record that comes before’ the court.” Id. at 389-90 (quotin g Baity v. Commonwealth, 16 Va. A pp. 497, 503 (1993) ( en banc )). We defer to the trial court’s findings of fact but review its “ statutory interpretations and legal conclusions de novo .” Id. at 390 (quoting Sink v. Commonwealth, 28 V a. App. 655, 658 (1998)). Code § 19.2-243 also addresses speedy trial considerations dur ing an interlocutory appeal. It excludes “the time during the pendency of any appeal in any appellate court ” from running against the nine-month speedy tri al period. Code § 19.2-409 fu rther defines time periods that are exempt from speedy trial calcula tions due to interlocutory appe als. It provides that “[t]he provisions of Code § 19.2-243 shall not app ly to the period of time commen cing when the Commonwealth’s notice of pretrial appeal is file d pursuant to this chapter and ending 60 days after the Court of Appeals or Supreme Court issues its mandate disposing of the pr etrial appeal.” The parties contest two specifi c time periods: August 4, 2018 to November 20, 2018, and February 4, 2019 to March 7, 20 19. The court found that the sp eedy trial provisions were not tolled during either period.- 5 - 1. Time Period between August 4, 2018 and November 20, 2018 On December 21, 2017, the Commonwealth not ed its first interloc utory appeal in this case. We reversed the trial court’s ruling and iss ued a mandate on Ju ne 5, 2018. Under Code § 19.2-409, the sixty-day tolling period from this mandate expired on Augus t 4, 2018. The parties agree that on July 2, 2018, the case was con tinued to November 29, 2018 for t rial, without objection. They also agree that the nine days betwee n November 20, 20 18 and November 29, 2018 were attributable to Suluki due to the agreed order that removed the jury trial and instead scheduled a hearing for November 29 on Su luki’s motions. Suluki argues that he was not re quired to object o n July 2, 201 8, because that date fell within the interlocutory appeal mandate period and therefore, speedy t rial was already tolled pursuant to Code § 19.2-409. He contends that because Code § 19.2-409 spec ifies that the pro visions of Code § 19.2-243 do not apply while tim e is tolled unde r Code § 19.2- 409, the require ment in Code § 19.2-243(4) that he object to any continuances also does not apply. We disagree. Both Code § 19.2-243(4) and case law provide that the speedy tr ial time peri od is tolled “[w]hen a defendant requests, a grees to, or acquiesces in an or der that effectively continues a case.” Heath, 261 Va. at 39 3 (citing Code § 19.2-24 3(4); Commonwealth v. Hutchins, 260 Va. 293, 297-98 (2000)). “[T]o avoid the t olling provision [of Code § 1 9.2-243(4)], the defendant must be adverse to the granting of the c ontinuance and must affirmative ly express his objection even when a new trial date is set within the speedy trial ti me limits for t he commencement of the trial.” Howard v. Commonwealth, 281 Va . 455, 460-61 (2011) . See also Young, _ __ Va. at ___ (affirming a defendant’s convictions because although he “did not explicitly concur, agree to, or request a continuance,” he failed to make “an actual affir mative objectio n to the court-ordered continuance”). Further, “[o]nce the initial trial date is set, every continua nce postpones the trial date regardless of the reason for the continuance or the identity of the moving party.” Howard, 281 Va.- 6 - at 460. “This is true whether or not the postponement extends the tri al date beyond the statutorily required date.” Id. (emphasis added). Here, the case was init ially set for a jury trial on December 18, 2017. Subseq uently, Suluki did not object to the July 2, 2 018 continuance of the trial date to November 29, 2018. B y failing to object, Suluki is deemed to h ave acquiesced to the continuance and to that time being chargeable to him. Suluki argues that Code §§ 19.2- 243 and 19.2-40 9 are in confli ct and reading them together “would result in a tolled period on top of a tolled period.” H e contends that “[t]he legislature clearly intended the opposite: that Comm onwealth’s appeals would be tre ated as a separate period of time tolled for purposes of speedy trial.” However, “when a given c ontroversy involves a number of related statutes, they should be read and construed together in order to give full meaning, force, and effect to each.” Ainslie v. Inman, 265 Va. 347, 353 (2003). S ee also Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325 (1 998) (“We accord each statute, i nsofar as possible, a meaning that does not conflict with any other statute.”). We find that for purposes of this case, Code §§ 19.2-243 and 1 9.2-409 can be construed harmoniously. Code § 19.2-409 o nly tolls the speedy trial time period from t he date the Commonwealth files notice of an int erlocutory appeal until sixt y days after the mandate is issued. After the sixty-day period expir es, Code § 19.2-243 controls th e speedy trial clock and dictates whether other exceptions toll the time. While the mandate peri od is in effect, however, a defendant is not relieved of his burden t o object if his trial is schedul ed after expiration of the sixty-day period. Because the trial was set for a date after t he sixty-day mandat e period expired, Code § 19.2-243 applies, and Suluki was require d to object to the November 29, 2018 trial date. His failure to object amounted to acquiescence that the delay in commencing trial wou ld be charged against him.- 7 - 2. Time Period between Februar y 4, 2019 and March 7, 2019 The Commonwealth also contests the court’s ruling that speedy trial began running again on February 4, 2019, requiring the Commonwealth to bring Suluki to trial by March 7, 2019. However, we do not reach this is sue. “In this case, as in all others, we seek to decide cases, ‘on the best and narrowest ground availabl e’ from the reco rd.” Kirby v . Commonwealth, 5 0 Va. App. 691, 698 n.2 (2007) (quoting Miles v. Commonwealth, 274 Va. 1, 2 (20 07) (Kinser, J., concurring)). Subtracting the time period betwe en August 4, 201 8 and November 20, 2018 from the time chargeable to the Commonwealth means that the trial scheduled f or March 28, 201 9 would have been timely regardless of whether this subsequent period is cha rgeable to the Commonwealth. Accordingly, we do no t address the circu it court’s ruling regar ding the time period beginning February 4, 2019.
CONCLUSION Because Suluki did not object on July 2, 2018 to continuing th e trial date, we find that the court erred in charging the time between August 4, 2018 and Nov ember 20, 2018 to the Commonwealth and dismissing the c harges. Accordingly, we rever se and remand for proceedings consistent with this opinion. Reversed and remanded.