COMMONWEALTH vs. JOHN J. FARRIS.

LIACOS, J. The defendant filed a motion to dismiss his indictments on June 16, 1982, claiming that he had not been brought to trial within the time required by Mass. R. Crim. P. 36, 378 Mass. 909 (1979). A hearing commenced twenty days later on July 6, 1982, and was continued to the following day. On July 7, 1982, a judge in the Superior Court allowed the motion and dismissed the indictments under Mass. R. Crim. P. 36 (b) (1) (D). The Commonwealth filed a timely notice of appeal, and we granted its application for direct appellate review. We vacate the order dismissing the

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indictments and remand the case to the Superior Court for trial.

The facts relevant to this appeal may be stated briefly. On September 12, 1980, a grand jury returned three indictments charging the defendant with (1) assault and battery by means of certain dangerous weapons, (2) assault by means of a dangerous weapon, and (3) armed assault with intent to murder. Two indictments were also returned against a codefendant, Joel T. Durham.

On September 29, 1980, Farris and Durham were arraigned, and a pretrial conference report was ordered to be filed on October 20, 1980. The report was filed on October 20, and Farris filed various pretrial motions. Farris's case was "continued to January 19, 1981 by agreement for trial. No further continuances." Durham's case was "[c]ontinued to November 3, 1980 for hearing on motions." On October 27, 1980, Durham filed several pretrial motions, and Farris filed affidavits in support of his motions for severance and for a change of venue.

On November 3, 1980, after a hearing, a judge allowed several of Durham's motions. Durham filed additional pretrial motions on November 28, 1980, January 5 and 9, 1981. A hearing was held on January 26, 1981, on a motion to dismiss, which was taken under advisement and later denied on February 3, 1981. On February 10, 1981, Durham's case was "[c]ontinued to March 9, 1981 by agreement."

During this period, Farris's case progressed as follows. On January 9, 1981, he filed a "motion to file motion to suppress late." On February 3, 1981, a hearing was held on Farris's motion for a change of venue. The motion was taken under advisement and denied on February 11, 1981.

The dockets indicate that on December 22, 1981, the cases of both defendants were "[r]eturned to First Session for further action by the Court, i.e. trial status." On January 28, 1982, Durham entered a guilty plea which was accepted. Farris's case was again "[c]ontinued, by agreement, to April 5, 1982 for trial." A transcript of the proceedings of January 28, 1982, indicates that defense counsel

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requested a deferral of the trial. The assistant district attorney stated that he had "no objection," but noted that "we are getting close to the limits of Rule 36." He therefore inquired whether the defendant would "waive his Rule 36 rights." Defense counsel stated that he would, and agreed to a trial date of April 5, 1982.

The dockets contain no entries for April 5, 1982. A transcript of the proceedings of the first criminal session on April 5 indicates that both parties answered ready for trial, and that Farris's case was sent to the assistant clerk magistrate for assignment of a trial date. On April 26, 1982, an entry on the dockets indicates that the parties appeared before a Superior Court judge who, "not being able to reach this matter within a week and counsel requesting a June date -- . . . refer[red] this matter back to the First Session for reassignment." On the same day, the docket indicates that the parties appeared before a magistrate and agreed to continue the case to June 15, 1982, for trial. The magistrate also entered an order which ruled that, on the court's own motion, the case was being continued, in the interest of justice, under Mass. R. Crim. P. 36 (b) (2) (F), because of "congestion of the session."

On June 16, 1982, Farris filed his motion to dismiss under rule 36. Over his objection, the case was set for trial on June 21, 1982. [Note 1] The docket entries for June 21 indicate that the case was "[h]eld for trial subject to session availability." On the next day, the case was set for trial on July 8, over the defendant's objection. On July 1, action on the motion to dismiss was deferred to permit the Commonwealth to assemble a record. [Note 2] On July 6, a hearing commenced on the motion to dismiss. The hearing continued the next day.

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The judge allowed the motion and dismissed the indictments. The judge found that, without consideration of any excluded periods under Mass. R. Crim. P. 36 (b) (2), Farris should have been tried on or before March 29, 1982. He then found that thirty-two days were excludable on the ground that motions of either Farris or Durham were being heard and were taken under advisement. Thus, the date within which Farris was to be tried was extended to April 30, 1982. He found no other excludable periods. He ruled that, while Farris validly waived his rights under the rule on January 28, 1982, the waiver was a nullity, since the date set for trial was within the limits of the rule. He ruled that no period of time between April 5 and April 26, 1982, was to be excluded. He also ruled that the period between April 26 and June 15, 1982, was not be excluded because the continuance was granted by an assistant clerk magistrate who lacked authority to make findings and grant continuances under the rule. He also rejected claims that the time spent on sending the case from one session to another session should be excluded, that overlapping days should be counted more than once, and that Farris acquiesced in certain delays.

The record before us consists of the judge's findings of fact, rulings of law and order on the defendant's motion to dismiss; a transcript of the hearings held on July 6 and 7, 1982; a partial transcript of the proceedings of the first criminal sessions of January 28, 1982, and April 5, 1982; the dockets in the cases of Farris and Durham; copies of the indictments, various motions and court papers; two Superior Court trial progress reports dated April 5, 1982, and June 15, 1982; and an order of a clerk magistrate granting a continuance in the interest of justice because of court congestion pursuant to Mass. R. Crim. P. 36 (b) (2) (F).

As we said in Barry v. Commonwealth, ante 285, 289 (1983), "we are in as good a position as the judge below to decide whether the time limits imposed by the rule have run." This is so because "[w]hen a claim is raised under rule 36, the docket and minutes of the clerk are prima facie

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evidence of the facts recorded therein." [Note 3] Id. The other portions of the record are also documents which we can evaluate as well as the judge below. "In these circumstances, while we will give deference to the determination made by the judge below, we may reach our own conclusions." Id. at 289-290.

This appeal can be disposed of by application of the principles enunciated today in Barry v. Commonwealth, supra. The "return day" was September 29, 1980, the day Farris was first before the court to answer to the charges against him. [Note 4] See Mass. R. Crim. P. 2 (b) (15), 378 Mass. 844 (1979). Since this date fell within the second twelve-month period after the effective date of the Rules of Criminal Procedure (July 1, 1979), Farris was to be tried within eighteen months. Mass. R. Crim. P. 36 (b) (1) (B), 378 Mass. 909 (1979). The eighteen-month period expired on March 29, 1982, and a prima facie showing of delay is established by the docket. The Commonwealth, therefore, is required to show that the delay was justified.

Delay can be justified by showing that certain periods should "be excluded in computing the time within which

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the trial of any offense must commence." Mass. R. Crim. P. 36 (b) (2). In Barry v. Commonwealth, supra at 295, we affirmed our statement in Commonwealth v. Look, 379 Mass. 893, 898 n.2, cert. denied, 449 U.S. 827 (1980), and agreed with the statement of the Reporters' Notes that periods of delay, "in which a defendant acquiesces, for which he is responsible, or from which he benefits should be treated as excluded periods and 'are not to be included in the calculation of the time limits of this rule.'" Reporters' Notes to Mass. R. Crim. P. 36, supra at 527.

We reasoned in Barry that "because the opportunity conferred by the rule is not a fundamental constitutional right, or even a right created by statute, the application of 'traditional indicia of waiver of rights' is appropriate. [Note 5] Commonwealth v. Carr, 3 Mass. App. Ct. 654, 656 (1975). See Commonwealth v. Davis, 367 Mass. 422, 423-424 (1975)." Commonwealth v. Barry, supra at 296. Thus, "[w]hen a defendant has agreed to a continuance, or has not entered an objection to delay, he will be held to have acquiesced in the delay. See Commonwealth v. Daggett, 369 Mass. 790, 793 (1976); Commonwealth v. Loftis, [ 361 Mass. 545, 549-550 (1972)]; Commonwealth v. Campbell, 5 Mass. App. Ct. 571, 577-578 (1977), limited on other grounds, Commonwealth v. Look, 379 Mass. 893, 901 (1980); Commonwealth v. Ambers, 4 Mass. App. Ct. 647, 652-653 (1976); Commonwealth v. Carr, supra at 657." Barry v. Commonwealth, supra at 298.

We now apply these principles to the case at bar. The docket indicates that Farris acquiesced in, and was responsible for, delay on several occasions. Specifically, the dockets indicate that the case was continued by agreement for trial on three separate occasions. On the first occasion, October 19, 1981, the case was continued for trial until January 19, 1981. The defendant entered no objection on

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January 19, 1981, when the trial did not commence. Indeed, ten days before, he had filed a motion to file a suppression motion late. On the second occasion, January 28, 1982, the case was set to commence, and Farris requested a delay. He specifically waived his rights under the rule and agreed to a continuance until April 5, 1982. On the third occasion, April 26, 1982, the minutes indicate that the parties appeared before a judge in the Superior Court and requested a June trial date. The judge sent the case back to first session for reassignment. The parties appeared before an assistant clerk magistrate and agreed to continue the case for trial until June 15, 1982. [Note 6] Not until June 22, 1982, did Farris enter an objection when the trial did not commence, and July 8 was designated as the trial date.

In these circumstances, the periods from the date of the continuance until the date set for trial, or the date the defendant objects to the failure of the trial to commence, whichever is later, are not to be included in the calculation of the time limits of this rule. The fact that such a continuance did not extend beyond the time limits imposed by the rule is irrelevant. See Commonwealth v. Loftis, supra at 549-550; Commonwealth v. Jones, 6 Mass. App. Ct. 750, 752-753 (1978). These periods exceed the number of days which the Commonwealth had to justify. We hold that the judge erred in granting the motion to dismiss. [Note 7] We need not go further.

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The order dismissing the indictments is vacated, and the case is remanded to the Superior Court.

So ordered.