In Re People v. Nunez , 2021 CO 31 ( 2021 )

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 31Supreme Court Case No. 20SA324
Original Proceeding Pursuant to C.A.R. 21
Arapahoe County District Court Case No. 19CR1088
Honorable Michael J. Spear, Judge
In Re
Plaintiff:
The People of the State of Colorado,
v.
Defendant:
Alexander Carlos Nunez.
Rule Made Absolute
en banc
May 17, 2021
Attorneys for Plaintiff:
John Kellner, District Attorney, Eighteenth Judicial District
Susan J. Trout, Senior Deputy District Attorney
Centennial, Colorado
Attorneys for Defendant:
Megan A. Ring, Public Defender
Zack Tennant, Deputy Public Defender
Centennial, Colorado
JUSTICE HART delivered the Opinion of the Court.
¶1 Colorado’s speedy trial statute, § 18-1-405, C.R.S. (2020), requires that a
criminal defendant be brought to trial within six months of entering a plea of not
guilty unless the time for trial is tolled for one of several statutorily specified
reasons. Alexander Nunez was not brought to trial within his speedy trial
timeframe, which expired on June 12, 2020. Instead, about six weeks after that
date, the trial court declared a mistrial in the case and stated that the mistrial was
retroactive to April 30, 2020. The court reasoned that Crim. P. 24(c)(4) would have
permitted it to declare a mistrial at the April 30 pretrial readiness hearing because
of its inability to safely assemble a fair jury pool at that time in light of the COVID-
19 pandemic. Because the speedy trial statute excludes delay caused by a mistrial
from the six-month calculation, the court concluded that Nunez’s speedy trial
deadline had not passed.
¶2 Nunez filed a petition to show cause under C.A.R. 21, arguing that the trial
court lacked jurisdiction over his case after the speedy trial deadline passed on
June 12 and that it could not declare a retroactive mistrial to reassert jurisdiction.
We granted Nunez’s petition, and we now make the rule absolute. The charges
against Nunez must be dismissed with prejudice.
I. Facts and Procedural History
¶3 On August 19, 2019, Nunez entered not guilty pleas to charges of possession
with intent to distribute a controlled substance, attempted possession with intent
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to distribute, and obstruction of a peace officer. His original speedy trial deadline
was February 7, 2020, but on December 13, 2019, Nunez requested a continuance,
which reset his speedy trial deadline to June 12, 2020. A pretrial readiness
conference was set for April 30, 2020, with a trial date of May 4, 2020.
¶4 In the intervening months, COVID-19 descended on the world, causing
major disruptions to, among many other things, the justice system in Colorado.
On March 24, 2020, the Chief Judge in the Eighteenth Judicial District issued an
Order providing that the public health concerns created by COVID-19 required
that no jury trials be scheduled between then and May 15, 2020. That Order was
extended on May 17 to preclude calling a jury until July 6, 2020. On April 7, the
Colorado Rules of Criminal Procedure were amended to permit a court to “declare
a mistrial . . . on the ground that a fair jury pool cannot be safely assembled . . . due
to a public health crisis.” Crim. P. 24(c)(4).
¶5 At the April 30 hearing, although the trial court had issued a writ for his
appearance, Nunez did not appear in person, apparently because the Arapahoe
County Sheriff’s Office was not executing writs in light of the Chief Judge’s Order.
At that hearing, the People moved for a continuance pursuant to
section 18-1-405(6)(g), which permits a court to continue a trial without running
afoul of the speedy trial requirements based on the prosecution’s inability to
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prepare. The trial court did not rule on this motion. Rather, referencing the recent
amendment to the Rules of Criminal Procedure, the trial court stated:
Frankly, due to the rule changes that have occurred over the course
of the last 30 days permitting the [c]ourt to find a mistrial, and a public
health crisis exists such as to make it unsafe for jurors to report to the
courthouse, I can obviously make that particular finding at this
time. . . . So I’m going to go ahead and vacate the trial for Monday,
recognizing . . . the futility of proceeding . . . and that vacating is
based primarily upon the [c]ourt’s ability to declare mistrials in these
types of situations as currently exist in our community.
The court vacated the May 4 trial setting and rescheduled the trial for June 1, 2020,
which, the court noted, was the only trial date available before Nunez’s speedy
trial deadline on June 12, 2020.
¶6 At a pretrial readiness hearing on May 28, the People moved for a mistrial
based on the public health crisis, which would have tolled the speedy trial
deadline for up to three months under section 18-1-405(6)(e). Defense counsel
noted that Nunez, who was again not present because the Arapahoe County
Sheriff’s Office was not transporting defendants to the courthouse, was not willing
to consent to any waiver of his speedy trial right. The court asked the parties
whether they agreed that the speedy trial deadline as of that time was June 12,
2020. Both the People and defense counsel agreed.
¶7 The court did not expressly rule on the People’s motion for a mistrial.
Instead, the court stated that “I have some concerns about the declaration of a
mistrial pursuant to our Amended Rule 24, trial jurors being summoned during
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the public health crisis, so I would like to have Mr. Nunez present.” The court
then vacated the trial set for June 1 and set a date of June 19 for a hearing on “what
would be the operative date for the declaration of the mistrial pursuant to the
statute, . . . whether it’s 90 days from today’s date plus the potential for 13, 14 days,
whatever, and then also whether or not it should start on the date we can actually
get Mr. Nunez here.”
¶8 Defense counsel noted that, although he was available for a hearing on June
19, he was preserving his right to argue that setting a hearing on this issue after
June 12 would run afoul of Nunez’s speedy trial right. On June 15, Nunez filed a
motion to dismiss, arguing that his speedy trial deadline had passed and his case
must be dismissed.
¶9 The court ultimately held a hearing on this motion on July 29, 2020. At that
hearing, the court denied the motion to dismiss, explaining that “the [c]ourt
obviously was a little reluctant to act without the defendant being present and
hearing from the [c]ourt the problems, but frankly the April 30th pretrial readiness
conference would have been the date by which the Court would have declared a
mistrial due to the fact that I wasn’t able to call jurors into the building under any
scenario.”
¶10 Having declared a mistrial retroactive to April 30, the court noted that the
following day—July 30—was the new speedy trial deadline under
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section 18-1-405(6)(e), which permits exclusion of three months from the speedy
trial calculation due to a mistrial. The court then declared a second mistrial
because of its continuing inability to assemble a fair jury pursuant to Crim P.
24(c)(4).
¶11 Nunez filed this petition pursuant to C.A.R. 21, and we granted the petition.
II. Jurisdiction
¶12 The exercise of this court’s original jurisdiction under C.A.R. 21 is entirely
discretionary. People v. Lucy, 2020 CO 68, ¶ 11, 467 P.3d 332, 335; C.A.R. 21(a)(1).
Relief pursuant to Rule 21 is “an extraordinary remedy that is limited in both
purpose and availability.” People in Int. of T.T., 2019 CO 54, ¶ 16, 442 P.3d 851,
855–56 (quotation omitted). In the past, we have exercised jurisdiction “when an
appellate remedy would be inadequate, when a party may otherwise suffer
irreparable harm, [or] when a petition raises issues of significant public
importance that we have not yet considered.” People v. Kilgore, 2020 CO 6, ¶ 8,
455 P.3d 746, 748 (citations and quotation omitted). Further, we have opted to
grant relief when “a trial court acts in excess of its jurisdiction or without
jurisdiction.” Chessin v. Off. of Att’y Regul. Couns., 2020 CO 9, ¶ 8, 458 P.3d 888, 890
(quotation omitted).
¶13 In view of these principles, relief under C.A.R. 21 is appropriate here for at
least two reasons. First, as we have previously recognized, “[r]elief in the nature
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of prohibition under C.A.R. 21 is an appropriate remedy when a district court is
proceeding without jurisdiction to try a defendant in violation of his right to a
speedy trial.” Marquez v. Dist. Ct., 613 P.2d 1302, 1304 (Colo. 1980). In this case,
the trial court acted without jurisdiction when it set a trial date for Nunez after the
time limit under Colorado’s speedy trial statute, § 18-1-405, had passed. See
Hampton v. Dist. Ct., 605 P.2d 54, 56 (Colo. 1980).
¶14 And second, if we declined to exercise our original jurisdiction, Nunez
would be without any adequate remedy. Section 18-1-405(1) requires dismissal
with prejudice if a defendant’s statutory speedy trial right is violated. Nunez has
a right not to be tried in this case, so even a successful appeal in his case would
require him to first be subjected to the very trial he is entitled by statute to avoid.
¶15 Based on the foregoing, we conclude that our exercise of jurisdiction over
this case pursuant to C.A.R. 21 is warranted.
III. Analysis
¶16 Colorado’s speedy trial statute is intended to safeguard a defendant’s
constitutional right to a speedy trial. Mosley v. People, 2017 CO 20, ¶ 17, 392 P.3d
1198, 1202. Whether a defendant’s statutory speedy trial right has been violated is
a matter of statutory interpretation and is therefore reviewed de novo. Id. at ¶ 15,
392 P.3d at 1202.
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¶17 Colorado’s speedy trial statute provides that a defendant must be brought
to trial “within six months from the date of the entry of a plea of not guilty” or the
“pending charges shall be dismissed, and the defendant shall not again be
indicted, informed against, or committed for the same offense.” § 18-1-405(1). The
language of the speedy trial statute is mandatory—it leaves no discretion for the
trial court to make exceptions to the six-month rule beyond those specifically
enumerated in section 18-1-405(6). People v. DeGreat, 2020 CO 25, ¶ 13, 461 P.3d 11,
15; People v. Gallegos, 946 P.2d 946, 949 (Colo. 1997); People v. Byrne, 762 P.2d 674,
676 (Colo. 1988).
¶18 The People argue that three of the enumerated statutory tolling provisions
could be applicable to this case. First, they note that the court could have declared
a mistrial because of the public health emergency and that up to three months can
be excluded from calculation of the speedy trial deadline for any mistrial. See
Crim. P. 24(c)(4); § 18-1-405(6)(e). Second, they argue that the defendant was not
available because the Arapahoe County Sheriff’s Office was not transporting
prisoners to court for hearings during the relevant time period. See
§ 18-1-405(6)(d). And, finally, they argue that the speedy trial deadline could have
been tolled because the prosecution could not obtain necessary evidence, despite
its due diligence. See § 18-1-405(6)(g)(I).
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¶19 As we have previously noted, COVID-19 “has wreaked havoc on just about
every aspect of our lives. The criminal justice system has not been spared from the
ravages of this malady. In particular, trial courts have struggled with effectuating
a defendant’s statutory right to speedy trial amid this unparalleled public health
crisis.” Lucy, ¶ 1, 467 P.3d at 334. This case presents a textbook example of this
struggle. Nunez was set to appear at a pretrial readiness conference in the first
months of the emergency. At the time of the April 30 hearing, the Chief Judge in
the Eighteenth Judicial District had declared that no juries would be impaneled,
and the Arapahoe County Sheriff’s Office was not transporting detainees to court
for in-person proceedings. The parties and the court were confronted with the
extremely difficult question of how to proceed under the circumstances without
violating Nunez’s speedy trial right.
¶20 One possibility would have been for the trial court to declare a mistrial in
light of the recent amendment to Crim P. 24(c), giving the courts authority to
declare a mistrial if a public health emergency made it impossible to impanel a fair
jury. In fact, the People argue that the district court effectively declared a mistrial
at the April 30 hearing. But their argument suffers from three flaws. First, the
court cannot “effectively” declare a mistrial; it must explicitly do so. Second, the
circumstances of the May 28 hearing demonstrated that no mistrial had been
declared: The People moved for a mistrial at that hearing, and the judge and both
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parties agreed that the speedy trial deadline at that point was still June 12, which
it would not have been if a mistrial had been declared on April 30. Finally, when
the court actually declared a mistrial on July 29, it explained that “the April 30th
pretrial readiness conference would have been the date by which the [c]ourt would
have declared a mistrial due to the fact that I wasn’t able to call jurors into the
building under any scenario.” (Emphasis added.) The court further stated that “if
everybody had appeared in an appropriate fashion at the pretrial readiness
conference, I would have declared a mistrial at that time, but I was just reluctant in
doing so because of the absence of Mr. Nunez.”1 (Emphasis added.) While it
seems entirely possible that the court could have declared a mistrial on April 30,
these facts demonstrate that it did not. A court may not declare a retroactive
mistrial in order to get around the mandatory deadlines set by Colorado’s speedy
trial statute.
1While the court did not explicitly say so, its concern about Nunez’s absence was
presumably derived from a defendant’s constitutional right to be present at all
critical stages of a trial. See United States v. Gagnon, 470 U.S. 522, 526 (1985). We
have never held that the declaration of a mistrial is a critical stage of the proceeding
at which the defendant has a right to be present. Assuming, however, that it is,
the right to be present is not absolute. See Luu v. People, 841 P.2d 271, 274 (Colo.
1992) (noting that allegations of a denial of the right to be present are scrutinized
under the harmless error standard). Moreover, Crim. P. 43 had been amended by
the time of these hearings to permit a consenting defendant to appear by
“interactive audiovisual device” at any proceeding not involving a jury. Crim. P.
43(f).
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¶21 The People next argue that certain days should have been excluded from the
calculation of Nunez’s speedy trial deadline because the Arapahoe County
Sheriff’s Office was not at the time responding to writs to deliver defendants to
the courts because of the Chief Judge’s Order prohibiting in-person hearings.
They note that section 18-1-405(6)(d) provides for the exclusion of “[t]he period of
delay resulting from the . . . unavailability of the defendant.” While this statutory
provision might have provided an avenue for extending Nunez’s speedy trial
deadline, the People did not present this argument to the district court, and the
court did not make any findings with regard to this issue. For this reason, we do
not consider this argument.
¶22 Finally, the People argue that Nunez’s speedy trial period should have been
extended because section 18-1-405(6)(g)(I) permits the prosecution to request a
continuance and exclude the resulting time from the calculation of the speedy trial
deadline when “[t]he continuance is granted because of the unavailability of
evidence material to the state’s case, when the prosecuting attorney has exercised
due diligence to obtain such evidence and there are reasonable grounds to believe
that this evidence will be available at the later date.” Here, again, it is possible that
the court could have granted a continuance on these grounds. But the prosecution
moved for such a continuance on April 30, and the trial court did not rule on the
motion. The record contains no suggestion that any further motion for a
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continuance under section 18-1-405(6)(g)(I) was presented to the court. Moreover,
at the July 29 hearing, the court explicitly stated that its denial of the motion to
dismiss was premised on its declaration of a mistrial retroactive to April 30.
IV. Conclusion
¶23 Because the trial court could not declare a retroactive mistrial after the
speedy trial deadline had passed, the charges against Nunez must be dismissed
with prejudice. Accordingly, we now make the rule absolute.
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