Herrington v. Commonwealth, 291 Va. 181

Background

Herrington was arrested and charged; a district court preliminary hearing found no probable cause for intent-to-sell but certified a lesser charge of simple possession.
The Commonwealth obtained a grand-jury indictment charging possession with intent to sell or distribute (Code § 18.2-248) on October 1, 2012.
Herrington moved in circuit court to quash or amend the indictment, arguing the grand jury’s indictment improperly contradicted the district court certification. The motion was denied.
Herrington moved to dismiss under the speedy-trial statute, asserting the five-month period ran from the preliminary hearing date; the court denied relief because the speedy-trial period ran from the grand-jury indictment date.
Herrington sought to represent himself when prior counsel withdrew; the court appointed new counsel, gave instructions on how to renew a Faretta request, and Herrington ultimately did not proceed pro se at trial.
The Commonwealth obtained a short continuance to allow an FBI analyst to extract phone data; the court granted a two-week continuance over Herrington’s objection, and Herrington was convicted by a jury. The Court of Appeals and the Supreme Court of Virginia affirmed.

Issues

Issue	Herrington's Argument	Commonwealth's Argument	Held
Whether the grand-jury indictment charging intent-to-sell was improper after the district court certified only simple possession	Indictment was improper because the district court certified a different (lesser) offense and the Commonwealth should have sought an indictment only on the certified charge	The Commonwealth properly obtained a grand-jury indictment charging the offense it believed supported by its case; grand jury may indict despite district court’s finding	The indictment was valid; Commonwealth may seek indictment on an offense for which a district court found no probable cause; circuit court did not err
Whether speedy-trial time ran from the preliminary hearing or the grand-jury indictment	Speedy-trial period began at the preliminary hearing date, making trial untimely	Time began to run from the grand-jury indictment date; trial was within five months	Time ran from the indictment date (Oct. 1, 2012); trial on Mar. 11, 2013 was timely
Whether the court denied Herrington his Sixth Amendment right to self-representation	Court prevented him from proceeding pro se by appointing counsel and not allowing immediate waiver	Court provided opportunity to consult new counsel and reserved a hearing to determine a timely, knowing, voluntary Faretta waiver; Herrington later declined to proceed pro se	No denial of right; request was not timely/unequivocal and Herrington did not renew; record shows he did not proceed pro se
Whether the circuit court abused discretion by granting a two-week continuance to allow phone data recovery	Commonwealth lacked diligence in executing warrant and therefore did not show good cause for continuance	Evidence was material and could be recovered in a short, definite period; brief continuance would not prejudice defendant	No abuse of discretion or demonstrable prejudice; continuance proper

Key Cases Cited

Moore v. Commonwealth, 218 Va. 388 (Commonwealth may obtain grand-jury indictment despite district court’s no-probable-cause finding)
Brooks v. Peyton, 210 Va. 318 (second indictment supplants earlier proceedings for speedy-trial calculation)
Miller v. Commonwealth, 217 Va. 929 (same principle regarding when speedy-trial period is measured)
Ashby v. Commonwealth, 33 Va. App. 540 (indictments charging different offenses than certified charges restart speedy-trial clock)
Harris v. Commonwealth, 258 Va. 576 (speedy-trial calculation resets when indictment supplants prior proceedings)
Faretta v. California, 422 U.S. 806 (Sixth Amendment right of self-representation and requirement of knowing and intelligent waiver)
Godinez v. Moran, 509 U.S. 389 (standard for knowing and voluntary waiver of constitutional rights)
Ortiz v. Commonwealth, 276 Va. 705 (standard of review for continuance rulings and prejudice requirement)