COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Chaf in and Senior Ju dge Clements Argued at Richmond, Virginia

ALAN L. LEWIS, S/K/A ALAN LEON LEWIS v. Record No. 0632-17-2
COMMONWEALTH OF VIRGINIA MEMORA NDUM OPINION * BY JUDGE JEAN HARRISON CLEMENTS ALAN L. LEWIS, S/K/A OCTOBER 2, 2018 ALAN LEON LEWIS v. Record No. 1173-17-2
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Phillip L. Hairston, Judge Samantha Offutt Thames, Assist ant Public Defender, for appell ant. Liam A. Curry, Assistant Attorn ey General (Mark R. Herring, Attorney General, on brief), for appellee.

In these consolidated appeals, a ppellant challenges his convic tion for possession of a firearm by a violent felon (R ecord No. 0632-17-2), and the revo cation of the suspended sentence previously imposed on his conviction for petit larceny, third o r subsequent offense (Record No. 1173-17-2). With respect to his fi rearm offense, appellant arg ues that his statutory and constitutional speedy trial ri ghts were violated. He contends that the trial court improperly considered the firearm offense in revoking his suspended senten ce and imposing all of the remaining time. Finding no error, w e affirm the rulings of the trial court.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - SPEEDY TRIAL Background At the preliminary hearing on September 16, 2015, the General District Court for the City of Richmond found probable cause that appellant had committed t he offense of possession of a firearm by a violent felon. The gr and jury formally indicted a ppellant, and a jury trial was set for January 19, 2016. The trial was continued to February 9, 2016, on the Commonwealth’s motion. On February 9, 2016, the court co ntinued the trial to May 20, 2 016, on appellant’s motion and granted appellant’s motion f or bond. Appellant moved for anoth er continuance on May 12, 2016, and the court continued t he case to June 6, 2016, to be r eset for trial. There is no order in the record showing what ma y have transpired on June 6, 2016. T he court issued a capias on June 16, 2016, for appellant’s arrest for failure to comply with pre trial supervision. On June 29, 2016, the court continued the case t o be set at the July docket call. A jury trial was set for October 20, 2016. On October 12, 201 6, appellant’s case was removed from the docket at the r equest of an assistant Commonwe alth’s attorney who was scheduled to try another case on the same date. Appellant’s co unsel did not learn of the change until October 17, 2016, when she communicated with the prosecut or assigned to the case about jury instructions. Appellant’s cas e was set for the November d ocket call on November 7, 2016. The parties agreed at docket c all to a trial date on March 27, 2017. A bond hearing was held on November 17, 2016, and the trial court set a $5,000 personal recognizance bond for appellant. Appellant’s counsel told the court at the hearing that appellant had not agreed to removing the cas e from the docket and objecte d to the continuance. Counsel also said that the bond hearing w as the first opportunity for a ppellant to object. The prosecutor told the court that the trial date had been set by agreement, a nd the order from the hearing noted- 3 - that the parties had “previousl y set” the case for a jury trial on March 27, 2017. The order made no reference to appellant’s objec tion to continui ng the case. On March 17, 2017, appellant moved to dismiss the charge agains t him on statutory and constitutional speedy trial gr ounds. The court heard argument on the motion on March 27, 2017, before the trial began. The partie s stipulated that the period between September 16, 2015, and February 9, 2016, was attributed to the Commonwealth, and the trial court found that the period between February 9, 2016, and the sch eduled trial date, October 20, 2016, counted against appellant. Appellant’s counsel argued that the case had been c ontinued without her knowledge, but she conceded that she had not objected to the continuance u ntil November 17, 2016, even though she had learned of the continuance on October 17, 2016, and had agreed on November 7, 2016, to the March 27, 2017 trial date . The trial court denied the motion to dismiss, finding that appellant could have filed a wri tten objection to continuing th e case before the bond hearing was held and had agreed to the M arch 27, 2017 trial date before obj ecting to the continuance. The court concluded that appellant ha d agreed to the trial date bec ause counsel had so stated in her motion to dismiss on speedy trial grounds. Analysis Determining the merits of a st atutory speedy trial claim under Code § 19.2-243 “‘involve[s] a review of the w hole record and a consideration o f the trial court orders in the context of the record that come s before’ the court.” Brown v. Commonwealth, 57 Va. App. 381, 389-90, 702 S.E.2d 582, 586 (2010) (quoting Baity v. Commonweal th, 16 Va. App. 497, 503, 431 S.E.2d 891, 895 (1993) ( en banc )). “In its review, this Court will give deference to the tria l court’s findings of fact, but revie w the trial court’s ‘statuto ry interpretations and legal conclusions de novo .’” Id. at 390, 702 S.E.2d at 586 ( quoting Sink v. Commonwealth, 28- 4 - Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)). Constitutional arguments are reviewed de

novo . See Turner v. Commonwealth, 63 Va. App. 401, 407, 758 S.E.2d 82, 84 (2014). The Commonwealth must demonstr ate that a delay in commencing tr ial is excused under the statute. See Brown, 57 V a. App. at 389-90, 702 S.E.2d at 5 86. Because appellant was not continuously held in custody betw een his preliminary hearing an d his trial, the Commonwealth was required to commence his tr ial within nine months of his pr eliminary hearing. See Code § 19.2-243. Case law from this Court has interpreted the nine- month requirement as “at least 273 days.” McCray v. Commonwealth, 44 Va. App. 334, 342, 605 S.E.2d 291, 2 94 (2004). Appellant contends that the appl icable time period was exceeded by 39 days, calculated as follows: 146 days from September 16, 2015 to February 9, 20 16, plus 166 days from October 13, 2016 (the day after the case wa s continued without notice t o appellant) to March 27, 2017, equals 312 days counted against the Commonwealth, minus 273 day s. Using a starting date of October 21, 2016, based on the trial court’s ruling that the ca se had been continued to October 20, 2016, 304 days elapsed, an excess of 31 days. 1 Calculating from the date appellant first objected to the continuance on November 17, 2016, results in 27 6 elapsed days, three days over the statutory limit. Thus, the r esolution of this case turns o n whether appellant made a timely objection to continuing the case from October 20, 2016, and whe ther appellant waived his speedy trial objection by agree ing to the March 27, 2017 trial date before objecting to the continuance. The trial court found that appe llant’s stated objection to the continuance, made at the bond hearing, was not timely. Code § 19.2-243(4) requires a de fendant to make a specific, timely objection to a motion for a continuance, and his failure to do so waives his speedy trial

1 Although appellant argues that t he continuance on October 12, 2016, triggered the speedy trial calculations, he ha s not assigned error to the tri al court’s determination that the operative date was October 20, 2016.- 5 - rights. See Howard v. Commonwealth, 281 Va. 455, 460-61, 706 S .E.2d 885, 887-88 (2011) (holding that a trial court’s sua sponte continuance of a case was treated no differently from a continuance requested by a party, and “to avoid the tolling pro vision [of Code 19.2-243], the defendant must be adverse to t he granting of the continuance an d must affirmatively express his objection even when a new trial date is set within the speedy trial time limits for the commencement of the trial”). E ven though the case was continue d on October 12, 2016, without notice to appellant, he learned of the continuance on October 1 7, 2016, and could have noted his objection after that date by co mmunicating with the trial court orally or in writing. 2 Appellant was not required to wait until a court hearing could be schedul ed to voice his objection. Further, appellant’s counsel did not obj ect until ten days after counsel had agreed to a new trial date at docket call on November 7, 2016. We find that because appellan t did not make a timely objection, no statutory spee dy trial violation occurred. 3 See Heath v. Commonwealth, 261 Va. 389, 394, 541 S.E.2d 906, 909 (2001) (“failure to object to the court’s action in fixing the trial

2 By noting that appellant could have filed a written objec tion when he first became aware of the ex parte continuance obtained by the Co mmonwealth, we do not hold that such action was necessarily required. The failure of appellant to o bject prior to agreeing to the new trial date rendered his ultimate objection untimely. According ly, we need not address whether appellant was required to object in advance of the docket call.

3 Although we do not condone the trial court’s continuing the ca se ex parte , the continuance, by itself, was not r eversible error. See United S tates v. Bourne, 743 F.2d 1026 (4th Cir. 1984). Bourne’s case was c ontinued a few days before tria l on the government’s ex parte motion because an intended witne ss was unexpectedly unavailable to testify. Id. at 1029-30. After the defendant was notifie d of the continuance, he moved t o dismiss on speedy trial grounds, arguing that the conti nuance should not have been gran ted because the witness was not essential. Id. at 1030. The tri al court heard argument and de nied the motion prior to trial. Id. On appeal, the court found that the ex part e action was not “reversib le error simply because defense counsel could not object and try to argue that the witn ess was not essen tial.” Id. at 1031. The court stated that the defe ndant had been “given a full oppo rtunity” at the later hearing to present his objections to the continuance. Id. Here, appellan t had the same opportunity to object to the continuance but did not timely do so.- 6 - date is an acquiescence in the f ixing of the trial date beyond the [nine]-month speedy trial period and constitutes a continuance of the trial date under Code § 19 .2-243(4)”). The trial court also found that appellant had agreed to setting the new trial date. The court relied on appellant’s couns el’s statement in the motion t o dismiss that “[d]efense counsel agreed to the next available date for de fense counsel and the Commonwe alth [for] trial on March 27, 2017.” (Emphasis added). See Co mmonwealth v. Hutchins, 26 0 Va. 293, 296-98, 533 S.E.2d 622, 623-25 (2000) (finding no sta tutory speedy trial vi olation where defendant “acquiesce[ed] with and agree[d] t o” a trial date outside the a pplicable time limit); Commonwealth v. Townes, 234 Va. 307, 323, 362 S.E.2d 650, 659 ( 1987) (finding no speedy trial violation where c ourt’s order stated t hat trial date was set “on motion of both parties by agreement”). Appellant asserts that he did not waive his speedy trial rights by agreeing to a trial date outside the applicable time lim its. However, the cases he reli es on to support his position are inapposite. In Baker v. Commonwealth, 25 Va. App. 19, 24, 486 S.E.2d 111, 114 (1997), Baker’s counsel had “expressly ob jected” to the continuance before providing available dates. In Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984), the Supreme Court held that a defendant who “remain s silent,” rather than demandi ng a trial date in compliance with speedy trial limits, did not waive his right to a speedy trial, but the case was d ecided before Code § 19.2-243(4) was amended in 1995 to r equire that a defendant t imely object to a continuance. Appellant also argues that because there is no court order from the November 7, 2016 docket call, and the represent ations of counsel should not be c onsidered, the record does not support the trial court’s ruli ng. However, the court order ent ered after the bond hearing on November 17, 2016, stated that the ca se was “previously set” fo r trial on March 27, 2017. The- 7 - order makes no reference to appe llant’s having objected to the continuance or the setting of the new trial date. Further, counsel stated in the motion to dismiss that she had “ agreed to the next available date for . . . trial on March 27, 2017.” By signing the motionand filing it with the court, counsel averred that the statements mad e in the motion were correct. S ee Code § 8.01-271.1 (“The signature of an attorney or party [on a pleading o r written mot ion] constitutes a certificate by him that (i) he has read the plead ing, motion, or other paper, [and ] (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact . . . .”); see also Livingston v. Virgini a State Bar, 286 Va. 1, 15, 744 S.E.2 d 220, 227 (2013) (applying Code § 8.01-271.1 in discussing whether an a ssistant Commonwealth’s attorney violate d the rules of professional conduct by signing abrief that quoted an indictme nt charging a defendant with the wrong offense). Accordingly, counsel ’s motion provides valid s upport for the trial court’s ruling that appellant agreed to the da te set for trial. Appellant is not permitted to argue otherwise on appeal. See Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (stating that a party may not take “su ccessive positions in the course o f litigation that are either inconsistent with each other or m utually contradic tory” (quotin g Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006))). The absence of a court order fr om docket call is not dispositiv e because other parts of the record show that appellant agre ed to the delay in the case. Se e Turner v. Commonwealth, 68 Va. App. 72, 80-81, 802 S.E.2d 814, 818-19 (201 7) (stating that the delay in trial must be attributed to the Commonwealth i f there is nothin g “in a court order or elsewhere in the record ” to show appellant’s agreement or concurrence in the delay (emph asis added) (quoting Cantwell v. Commonwealth, 2 Va. App. 606, 611, 347 S.E.2d 523, 526 (1986 ))); see also Bunton v. Commonwealth, 6 Va. App. 557, 560, 370 S.E.2d 470, 472 (1988) ( “While most reasons for- 8 - delay will be documented in records or orders of proceedings pr ior to the speedy trial hearing, other documentation and the explan ation for the delay may becom e a part of the record for the first time at the speedy trial hearing.”). Accordingly, we fin d that appellant waived his speedy trial objection by agreeing to the trial date at docket call, w hich was ten days before he informed the trial court that he objected to the October continuance. Because appellant did not timely object to the continuance and agreed to the new trial date before objecting to the c ontinuance, we find that no statu tory speedy trial violation occurred. Absent a statutory speedy tri al violation, there also was no co nstitutional violation. See Sheard v. Commonwealth, 12 Va. App. 227, 231, 403 S.E.2d 178, 180 (199 1) (holding that “a trial on the merits within the statuto rily described time does not suppo rt a presumption of prejudice”). Even if the constitutional factors are addressed, however, ther e was no violation. Four factors are considered in assess ing a constitutional speedy tri al claim – “length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant.” Howard, 281 Va. at 462, 706 S.E.2d at 889; see Barker v. Wingo, 407 U.S. 514, 530 (1972). With regard to the prejudice factor, thr ee interests are cons idered: “(i) to prev ent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the la st.” Barker, 407 U.S. at 532. The length of the delay is the starting point of the analysis, as it is not necessary to consider the other three factor s if the delay is not presumptiv ely prejudicial. See id. at 530. Here, appellant’s trial began 607 da ys after his arrest on July 28, 2015, but 254 days (February 9, 2016 to October 20, 2016) of the dela y were attributable to app ellant. Further, appellant agreed on November 7, 2016, to a trial date on March 27, 2017, a perio d of 140 days. Subtracting 254 and 140 from 607 leaves 213 days, or approximately seven months . We find that the delay was not presumptively prejudicial, f oreclosing further analysis.- 9 - If the other factor s are considered, howe ver, they do not establish a constitutional speedy trial violation. As noted, muc h of the delay is attributable t o appellant, and thus the reason for the trial delay weighs against him. See Harris v. Commonwealth , 258 Va. 756, 586, 520 S.E.2d 825, 831 (1999); Wallace v. Commonwealth, 65 Va. App. 80, 100, 774 S.E.2d 482, 491 (2015), aff’d by published order, Record No. 151296, 2016 Va. LEXIS 63 (Va. June 2, 2016). Appellant has asserted that he experience d anxiety or concern while await ing trial even though he was on bond for part of that time because he was subject to pre-trial supervision. We disagree that having to comply with the condi tions of his bond was unduly str essful. See Kelley v. Commonwealth, 17 Va. App. 540, 547, 439 S.E.2d 616, 620 (1994) (noting that “anyone who is subject to a criminal prosecuti on will commonly suffer anxiety and concern about the outcome”). Appellant has not claimed that his defense was impaired by the delay. See id. (holding that defendant must “demonstrat[e] actual prejudice, and not its mer e possibility”). Accordingly, we hold that there was no constitutional speedy trial violation.
REVOCATION

Background Appellant pled guilty to petit la rceny, third or subsequent of fense, and in June 2014, was sentenced to five years in pr ison, with four years and nine mon ths suspended. In July 2015, the trial court found that appellant had violated the terms of the suspension and revoked three months of the suspended time . Appellant’s probation officer su bmitted a major violation report in February 2017, stating that ap pellant twice had failed to re port as instructed and had tested positive for cocaine, opiates, and marijuana on three occasions . The report also noted that appellant was awaiting trial on March 27, 2017, on a new offens e. At the revocation hearin g on June 27, 2017, appellant stipulate d that he was in violation, and the trial court proceeded t o hear argument on the sentence to be imposed. The sentencing- 10 - guidelines for the initial proba tion violations r ecommended a r ange of two to six months of incarceration. The pros ecutor told the cour t that the guidelin es no longer applied because appellant had been convicted of t he firearm offense. The court stated that it recalled the facts of that trial. The prosecutor als o advised the court that appella nt had seven prior felony convictions, and he asked the court to revoke and impose the re mainder of the suspended sentence. Appellant’s counsel noted that the new conviction wa s pending on appeal and asked the court to revoke no more tha n one year of the suspended time and to allow appellant to serve the time concurrently with his sentence on the firearm convicti on. The court revoked all of the rem aining four years and six mont hs, but ordered that the sentence be served “concurrentl y with any other sentences.” Th e court observed that this violation was appellant’s sec ond and that the court had require d appellant to serve only three months on his first violation. The court also considered appel lant’s prior criminal history and his “addiction problem,” but made no r eference to appellant’s new c onviction as a factor in revoking the suspended sentence. Analysis “In revocation appeals, the tri al court’s ‘findings of fact an d judgment will not be reversed unless there is a cle ar showing of abuse of discretion .’” Jacobs v. Commonwealth, 61 Va. App. 529, 535, 738 S.E.2d 519, 521-22 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 687 (1991)). “The evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below.” Id. at 535, 738 S.E.2d at 522. After suspending a sentence, atrial court “may revoke the sus pension of sentence for any cause the court deems sufficient that occurred at any time with in the probation period, or within the period of suspension fixe d by the court.” Code § 19.2-306( A). “When a defendant fails to comply with the terms and conditi ons of a suspended sentence, t he trial court has the power to- 11 - revoke the suspension of the sen tence in whole or in part.” Al sberry v. Commonwealth, 39 Va. App. 314, 320, 572 S.E.2d 522, 525 (2002). Appellant stipulated in the tria l court that he had violated th e terms of his suspended sentence. He argues on appeal tha t the trial court improperly considered his new firearm conviction as grounds for the re vocation and abused its discret ion in sentencing appellant to serve the remainder of his sus pended time. Thus, appellant con tends that the revocation must be reversed and remanded if the fi rearm conviction is reversed on speedy trial grounds. Cf. Resio v. Commonwealth, 29 Va. App. 616, 622, 513 S.E.2d 892, 895 (1999) (holding that where a revocation is based on the “bare f act” of a conviction, reversa l or dismissal of the predicate conviction vitiates the revocation). We find that appellant’s clai ms fail because we have found no s peedy trial violation regarding the firearm conviction. F urther, the record establis hes that the trial court accepted appellant’s stipula tion that he had viola ted probation before any mention was made of appellant’s firearm conviction. T he court stated that it recal led the facts of the firearm conviction, but it did not rel y on the conviction as a basis fo r revoking appellant’s suspended sentence or ordering that appell ant serve all of the remaining time. Before imposing sentence, the court stated that appellant had served minimal time on the initial petit larceny charge, as well as on the first proba tion violation. Upon finding that appellant wa s in violation of his probation, the court was obligated to revoke the suspended sentence and it was then in “full force an d effect.” Code § 19.2-306(C)(ii). The trial court was permitted — but not required — to re-suspen d all or part of the sentence. Id.; Alsberry, 39 Va. App. at 320, 572 S.E.2d at 525. Any mitigatin g factors were subject to whatever weight the court deem ed appropriate. See Keselica v. Commonwealth, 34 Va. App. 31, 36, 537 S.E.2d 611, 613 (2000). The reco rd does not support ap pellant’s asserti on that the trial- 12 - court abused its discretion in re voking appellant’ s entire rema ining suspended sentence. See Du v. Commonwealth, 292 Va. 555, 564-65, 790 S.E.2d 493, 499 (2016 ) (explaining that a trial court acts within its discretion when it imposes a sentence wit hin the statutory range, thus foreclosing further appellate r eview); Scott v. Commonwealth, 5 8 Va. App. 35, 46, 707 S.E.2d 17, 23 (2011) (same).
CONCLUSION In sum, appellant’s statutory and constitutional speedy trial r ights were not violated because appellant did not timely object to continuing the trial from October 20, 2016, and appellant agreed to setti ng the trial date on March 27, 2017, b efore he voiced his objection to the continuance. The trial court did not abuse its discretion in r evoking appellant’s suspended sentence and imposing all the remaining time. We thus affirm the trial court’s rulings. Affirmed.