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Herrington v. Commonwealth

Supreme Court of Virginia

February 12, 2016

DONALD ARTHUR HERRINGTON
v.
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA.

James J. Ilijevich for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Roush, JJ., and Russell, S.J. OPINION BY JUSTICE ELIZABETH A. McCLANAHAN.

OPINION

Page 562

ELIZABETH A. McCLANAHAN, JUSTICE.

Donald Arthur Herrington appeals his conviction of possession with intent to sell or distribute a Schedule I or II controlled substance. He contends that the indictment was improper, and that his right to a speedy trial was violated. He also contends that the circuit court denied him the right to represent himself and that it erred in granting a continuance to the Commonwealth. We will affirm the judgment of the Court of Appeals upholding his conviction.

I.

A jury convicted Herrington of possession of a Schedule I or II controlled substance with the intent to sell or distribute in violation of Code § 18.2-248. Herrington appealed his conviction to the Court of Appeals, which affirmed the conviction in an unpublished opinion. Herrington v. Commonwealth, Record No. 1083-13-4, (Nov. 12, 2014). Herrington filed a petition for rehearing en banc, which was denied. Herrington v. Commonwealth, Record No. 1083-13-4 (Dec. 16, 2014).

A. Herrington's Motion to Quash the Indictment

Herrington was charged by warrant of arrest with possession of a Schedule I or II controlled substance with the intent to sell or distribute in violation of Code § 18.2-248. On August 28, 2012, the district court held a preliminary hearing in which it found no probable cause to support the element of intent to sell or distribute. The district court

Page 563

reduced the charge to possession of a Schedule I or II controlled substance in violation of Code § 18.2-250 and certified that charge to the grand jury. On October 1, 2012, the grand jury indicted Herrington on the charge of possession with intent to sell or distribute a controlled substance under Code § 18.2-248.

Prior to Herrington's arraignment, he moved the circuit court to quash the indictment or amend it to reflect a charge of simple possession in violation of Code ยง 18.2-250. Herrington argued that in " disregarding the General District Court's order, and instead of seeking a direct indictment as authorized by the Code of Virginia and applicable legal precedent, the Commonwealth chose to lay before the grand jury an indictment that had not been certified." Herrington asserted the indictment was " improper" because it " was the product of a certified preliminary hearing, and as such [the] indictment is not the charge as certified and not a direct indictment." Ruling that the Commonwealth " was within its ...


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