in Interest of G.S.S , 2019 COA 4 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 10, 2019
2019COA4
No. 17CA1678, People in Interest of G.S.S. — Children’s Code
— Juvenile Court — Delinquency — Bail — Speedy Trial
In this juvenile delinquency case, a division of the court of
appeals concludes that under section 19-2-509(4)(b), C.R.S. 2018, a
court is required to bring a juvenile to trial within sixty days of a
no-bond order. If the court fails to do so, it violates the juvenile’s
speedy trial rights. The division further concludes that the remedy
for this type of speedy trial violation is dismissal of the charges.
COLORADO COURT OF APPEALS 2019COA4
Court of Appeals No. 17CA1678
La Plata County District Court No. 17JD15
Honorable Todd P. Norvell, Judge
The People of the State of Colorado,
Petitioner-Appellant,
In the Interest of G.S.S.,
Juvenile-Appellee.
ORDER AFFIRMED
Division VII
Opinion by JUDGE ASHBY
Harris, J., concurs
J. Jones, J., dissents
Announced January 10, 2019
Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellant
Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy
State Public Defender, Denver, Colorado, for Juvenile-Appellee
¶1 The prosecution appeals from the district court’s order
dismissing its case against G.S.S. for violating his statutory speedy
trial rights. The prosecution argues that the sixty-day statutory
speedy trial period was waived or extended by G.S.S.’s requests for
continuances, and that if there was a speedy trial violation,
dismissal is not the proper remedy under section 19-2-509(4)(b),
C.R.S. 2018. We reject both contentions and affirm.
I. Background
¶2 G.S.S. was arrested and charged with two delinquent acts for
threatening to shoot students at his middle school. He was placed
in secure detention.
¶3 At the initial detention hearing on May 2, 2017, the court
ordered that G.S.S. be held without bond, pending psychological
and risk-assessment evaluations and the establishment of a release
plan.
¶4 Numerous hearings were held over the next several months
regarding the status of G.S.S.’s release from detention. Then, on
August 9, 2017, G.S.S.’s counsel requested a hearing to “determine
and comply with” G.S.S.’s speedy trial rights under section 19-2-
509(4)(b). According to that statute, juveniles are to be brought to
1
trial within sixty days of the entry of a no-bond order. Defense
counsel then moved to dismiss the case for violation of G.S.S.’s
statutory speedy trial rights.
¶5 After a hearing, the court granted the motion and dismissed
the case against G.S.S. with prejudice.
II. Discussion
¶6 Our first task in deciding whether G.S.S. waived or otherwise
extended his right to a speedy trial is to identify those statutory
provisions that define G.S.S.’s statutory speedy trial rights. We
must then construe and apply those statutes, reviewing the district
court’s interpretation de novo. See Mosley v. People, 2017 CO 20,
¶ 15; People v. Walker, 252 P.3d 551, 552 (Colo. App. 2011).
¶7 When construing a statute, our primary goal is to ascertain
and give effect to the legislative intent. See People in Interest of T.A.,
91 P.3d 473, 474 (Colo. App. 2004). “In determining legislative
intent, a reviewing court should look to the language of the statute,
giving effect to words and phrases according to their plain and
ordinary meaning.” Id. If the language is clear and unambiguous,
we apply it as written. Id. If, however, the language is reasonably
susceptible to more than one interpretation, it is ambiguous and we
2
may look to intrinsic and extrinsic aids to guide our interpretation.
See In re People in Interest of A.A., 2013 CO 65, ¶ 10.
A. A Juvenile’s Statutory Speedy Trial Rights
¶8 There are several statutes in the Children’s Code that cross-
reference one another and are relevant to resolving the issue of
whether G.S.S.’s right to a speedy trial was violated. We first
describe how these statutes work together.
¶9 Section 19-2-108(2)(d), C.R.S. 2018 (the juvenile speedy trial
statute), sets forth the timelines within which certain hearings or
events in a delinquency case must occur and requires that section
18-1-405, C.R.S. 2018 (the adult speedy trial statute applicable to
adults), and Crim. P. 48(b) govern a juvenile’s speedy trial rights.
Specifically, for an adjudicatory trial, section 19-2-108(2)(d)
incorporates the speedy trial period set forth in section 19-2-708(1),
C.R.S. 2018, the statute that governs the entry of a plea in a
delinquency case. Together these two statutes require that a
juvenile be tried within sixty days of the entry of a not guilty plea
unless a jury trial has been requested under section 19-2-107,
3
C.R.S. 2018, or the juvenile has explicitly or implicitly waived or
extended the speedy trial period.1 But when a juvenile is held in
detention due to a no-bond hold order, these generally applicable
speedy trial statutes are modified.
¶ 10 Section 19-2-508, C.R.S. 2018, describes how and when the
court should determine if a juvenile may be released from or placed
in detention. And, consistent with sections 19-2-108 and -708,
discussed above, it requires that any juvenile who is detained
without bail must be tried within sixty days unless a jury trial has
been requested. See § 19-2-508(3)(a)(IV)(D). If we looked no
further, we might conclude that unless a jury trial has been
requested, a juvenile ordered to be held without bond must be tried
within sixty days of entering a not guilty plea. But we cannot
ignore section 19-2-509. See A.S. v. People, 2013 CO 63, ¶ 10
(“When construing a statute, we ascertain and give effect to the
General Assembly’s intent, reading applicable statutory provisions
as a whole in order to accord consistent, harmonious, and sensible
1G.S.S. never requested a jury trial. We discuss the prosecution’s
waiver argument below.
4
effect to all their parts.”). In essence, section 19-2-508 reaffirms the
sixty-day speedy trial period applicable to all non-jury adjudicatory
trials. Section 19-2-509(4)(b) (the juvenile bail statute) then
describes that for those juveniles held without bond, the running of
the speedy trial clock is triggered by entry of a not guilty plea or a
no-bond hold order, “whichever date is earlier.”
¶ 11 Because section 19-2-508 references the general speedy trial
statutes triggered by the entry of a plea of not guilty, and section
19-2-509 specifically addresses how the speedy trial clock is
triggered by either a not guilty plea or a no-bond hold order, the
statutes seemingly conflict. However, to the extent that the two
statutes conflict, we should attempt to harmonize them to effectuate
the legislative intent. See T.A., 91 P.3d at 474. And, generally, the
more specific statute governs over the more general. § 2-4-205,
C.R.S. 2018; accord Gessler v. Doty, 2012 COA 4, ¶ 13. Hence,
because it is the more specific statute, section 19-2-509 governs
over section 19-2-508.
¶ 12 Section 19-2-509 does not otherwise modify provisions of the
generally applicable juvenile speedy trial statutes; therefore, the
other provisions of those statutes apply. And because section 18-1-
5
405’s provisions are not inconsistent with the juvenile speedy trial
statutes, both the tolling and enforcement provisions of the criminal
speedy trial statute, including whether the speedy trial period has
been tolled or waived, are applicable. See People in Interest of
J.M.N., 39 P.3d 1261, 1263 (Colo. App. 2001) (holding that the
criminal speedy trial statute and related law apply when
considering whether a juvenile’s right to speedy trial has been
violated); People in Interest of G.W.R., 943 P.2d 466, 467 (Colo. App.
1997). With this background, we now turn to the prosecution’s
arguments that G.S.S.’s or his counsel’s actions extended the
speedy trial period beyond sixty days.
¶ 13 The court entered a no-bond hold order at G.S.S.’s initial
detention hearing on May 2, 2017. Thus, according to the plain
language of the bail statute, G.S.S. was entitled to a trial within
sixty days of that date, or July 1, 2017. The court did not hold a
trial within that sixty-day limit. In fact, at no point did the court
even set a trial date. But is that attributable to actions taken by
G.S.S. that extended his speedy trial period? Our answer is “no.”
¶ 14 The prosecution makes several arguments regarding why
G.S.S. is at fault for his trial not occurring before his speedy trial
6
period ran. First, it argues that a request for a jury trial was
required to trigger the running of G.S.S.’s speedy trial clock. But
even when entitled to one, a juvenile is not required to request a
jury trial. See § 19-2-107 (providing that a juvenile or the district
attorney may demand a jury trial under certain circumstances, but
failure to demand a jury trial constitutes a waiver of any such
right). And a failure to request a jury trial has no bearing on the
applicable speedy trial period for a non-jury trial. Further, section
19-2-509, by its explicit terms, does not require that a jury trial be
requested.
¶ 15 Second, the prosecution argues that when the tolling
provisions of section 18-1-405 are applied, the sixty-day speedy
trial period was either extended or waived when G.S.S.’s counsel
requested continuances of the various court hearings. But not all
defense actions that result in a continuance of a hearing date waive,
toll, or extend a speedy trial period. See Tongish v. Arapahoe Cty.
Court, 775 P.2d 63 (Colo. App. 1989) (holding that only delays that
impede the statutory goal of bringing a defendant to trial within the
statutory speedy trial period are excludable from computation of the
speedy trial deadline; and procedural interruptions, such as a
7
continued pretrial conference, that do not delay a trial beyond the
applicable speedy trial period are not automatically excludable
without the defendant’s express waiver of speedy trial rights).
When we consider the circumstances of each hearing at which
G.S.S.’s counsel requested a continuance and apply the tolling and
waiver provisions of section 18-1-405, we agree with the district
court that G.S.S. did nothing to delay the setting or occurrence of a
trial within the sixty-day speedy trial period. The failure to timely
hold the trial was simply the result of the prosecution’s and the
court’s failure to hear the speedy trial clock ticking.
¶ 16 G.S.S.’s counsel sought his release from detention at the
initial detention hearing and every hearing thereafter. Although a
release plan had been devised by staff from the pretrial release
program, the pretrial staff, the court, and the prosecution were
unwilling to implement the plan until a risk assessment and safety
evaluation of G.S.S. had been completed. The continuances
requested at each hearing between the initial May 2nd detention
hearing and July 11, 2017, the date of the first hearing after the
sixty-day speedy trial period had run, focused on the delays in the
completion of the risk and mental health assessment and
8
evaluation that would facilitate G.S.S.’s release from detention. As
of that July 11th date when the evaluation was completed, the
court had consistently held to its position that until the assessment
and evaluation were completed and reviewed, it would not
reconsider G.S.S.’s repeated requests for release from detention.2
¶ 17 It is true that while waiting for the risk assessment to be
completed, the court asked whether plea negotiations were
occurring and suggested that the pending evaluation might be
helpful in that regard. G.S.S.’s counsel acknowledged that any
assessment or evaluation would likely also assist with plea
negotiations. But counsel was not the driving force behind and did
not acquiesce in the delays. Instead, she continually focused on the
2 The prosecution argues that the risk and safety assessment that
the prosecution, pretrial services staff, and the court required in
order to consider G.S.S.’s release from detention was effectively a
competency evaluation and the delay in receiving it was therefore
chargeable to G.S.S. under section 18-1-405(6)(a), C.R.S. 2018.
But none of the language of that statutory subsection applies here.
See id. (excluding “[a]ny period during which the defendant is
incompetent to stand trial, or is unable to appear by reason of
illness or physical disability, or is under observation or examination
at any time after the issue of the defendant’s mental condition,
insanity, incompetency, or impaired mental condition is raised”).
9
primary goal of obtaining G.S.S.’s release from detention and did
not request any delay in setting a trial date or holding a trial. After
reviewing the record, the district court acknowledged in its
dismissal order that its prior recollection as to why the hearings
were continued was in error. It found that the delays were for the
purpose of getting an assessment and an evaluation to allow G.S.S.
to be released and that there was no reason why the trial could not
have been set to occur while the completion of these tasks was
pending:
 “It was a little bit different situation than I had originally
thought, where your attorney was attempting to help you
get released. And [the District Attorney], I’m sure she’s
accurate when she says it was designed also to
potentially help you get a more favorable plea agreement.
But you didn’t do anything to delay your trial.”
(Emphasis added.)
 “[A]nd similarly, under 18-1-405, I have to find that you
delayed or did something else that caused the trial to go
beyond the 60 days. I can’t make that finding. You
didn’t do anything to delay your trial.”
10
¶ 18 The prosecution appears to argue that as long as anyone
referenced the possibility of a negotiated plea, there was no
obligation to set a trial date. But, as in Tongish, there was no
impediment to engaging in plea negotiations while the trial date was
pending. See 775 P.2d at 65. The setting of a trial date is not
dependent on the parties concluding that resolution of the case
without a trial is unlikely. And the dispositional hearings set by the
court and the continued detention hearings are precisely the type of
“procedural interruptions” that should not be excluded from the
speedy trial calculation.
¶ 19 The district court therefore correctly found, with record
support, that none of the delay in setting a trial date or holding a
trial within the sixty-day speedy trial deadline was attributable to
G.S.S. under the provisions of section 18-1-405. The court
specifically found that counsel’s actions on behalf of G.S.S. were
designed to get G.S.S. released, not to delay a trial date. Thus,
G.S.S.’s requested continuances of the detention and dispositional
hearings did not toll, waive, or extend the speedy trial clock. See
Tongish, 775 P.2d at 65.
11
¶ 20 Finally, the prosecution argues that defense counsel was likely
aware of the speedy trial issue and had an obligation to alert the
court and the prosecution to it. We cannot infer from the record
before us that counsel was aware of the applicable speedy trial
period before it ran. But, even if true, the obligation to bring G.S.S.
to trial within the speedy trial period did not fall on counsel for
G.S.S. It bears repeating that it is the court’s and the prosecutor’s
duty, not a defendant’s, to ensure that the speedy trial provisions
are met. See People v. Rogers, 706 P.2d 1288, 1290 (Colo. App.
1985); cf. G.W.R., 943 P.2d at 467 (holding no violation of speedy
trial rights where defense counsel affirmatively accepted a trial date
beyond the speedy trial deadline).
¶ 21 Accordingly, we conclude that by not holding the adjudicatory
trial within sixty days of the entry of the no-bond hold order, the
court violated G.S.S.’s statutory speedy trial rights.
B. Remedy for a Violation of a Juvenile’s Right to a Speedy Trial
Under Section 19-2-509(4)(b)
¶ 22 Having determined that G.S.S.’s speedy trial rights were
violated, we must now address whether the remedy is dismissal of
the charges or release from detention. We conclude G.S.S. is
12
entitled to dismissal. See, e.g., Watson v. People, 700 P.2d 544, 549
(Colo. 1985); People v. Wolfe, 9 P.3d 1137, 1141 (Colo. App. 1999);
see also § 18-1-405(1); § 19-2-108.
¶ 23 We have concluded that section 19-2-509, with its sixty-day
limit from the date of the no-bond hold or entry of a not guilty plea,
whichever is earlier, is the governing statute for the timeframe
within which a juvenile must be tried. But no specific remedy is
provided in sections 19-2-508 or 19-2-509. To resolve the question
of the proper remedy for a speedy trial violation in these
circumstances, it is necessary to understand the broader policies
and procedures related to juvenile detention and delinquency
adjudicatory trials.
¶ 24 We outlined in Part II.A above how the juvenile speedy trial
and bail statutes relate to one another and to section 18-1-405.
The prosecution now argues that even though it advocated that we
should apply all of the waiver and tolling provisions of the criminal
speedy trial statute to G.S.S., we should not apply the remedy of
dismissal for the violation of his speedy trial rights provided in that
same statute because G.S.S.’s speedy trial period was not triggered
by his entering a not guilty plea. Further, it contends, because
13
section 19-2-509 is entitled “Bail,” we should base the remedy for
violating the juvenile bail statute on the criminal bail statute rather
than the criminal speedy trial statute. G.S.S.’s remedy, it argues, is
to have a hearing and have the juvenile court set bail. We see no
legal basis for denying the dismissal remedy to G.S.S.
¶ 25 Section 18-1-405(1) provides that,
[e]xcept as otherwise provided in this section,
if a defendant is not brought to trial on the
issues raised by the complaint, information, or
indictment within six months from the date of
the entry of a plea of not guilty, he shall be
discharged from custody if he has not been
admitted to bail, and, whether in custody or on
bail, the pending charges shall be dismissed,
and the defendant shall not again be indicted,
informed against, or committed for the same
offense, or for another offense based upon the
same act or series of acts arising out of the
same criminal episode.
Accord Crim. P. 48(b)(1).
¶ 26 The criminal bail statute, section 16-4-101(4), C.R.S. 2018,
provides that
if a person is denied bail under this section,
the trial of the person shall be commenced not
more than ninety-one days after the date on
which bail is denied. If the trial is not
commenced within ninety-one days and the
delay is not attributable to the defense, the
court shall immediately schedule a bail
14
hearing and shall set the amount of the bail for
the person.
¶ 27 Thus, the Code of Criminal Procedure identifies that the
specific remedy for violating a criminal defendant’s rights to trial
when he or she is held without bail is to hold a hearing to
determine release, not dismissal of the charges.
¶ 28 However, in the criminal statutes, the legislature has clearly
separated the triggers and remedies for speedy trial violations for
criminal defendants for whom no bond has been set and for those
defendants who have had bond set but who have not been tried
within the generally applicable speedy trial period. The remedy for
a speedy trial violation for a criminal defendant whose speedy trial
clock is triggered by a not guilty plea is dismissal of the charges.
On the other hand, the remedy for a violation of the shorter no-
bond speedy trial period is to hold a hearing and set bail.
¶ 29 In the applicable juvenile statute, the no-bond speedy trial
clock for a detained juvenile is triggered by either a no-bond order
or a not guilty plea. The legislature could have chosen to model its
juvenile speedy trial statutes in the same way as the adult criminal
procedure statutes, but it did not.
15
¶ 30 And, other than the various related juvenile speedy trial
statutes incorporating the provisions of section 18-1-405, the
juvenile bail statute is silent as to the remedy for violating the
associated rights. Where a statute is silent as to remedy, the
statute may be considered ambiguous on that point. See People v.
Mosley, 397 P.3d 1122, 1126 (Colo. App. 2011) (“A statute may be
ambiguous if it is silent on an issue that would be expected to be
within its scope.” (quoting People v. Carey, 198 P.3d 1223, 1229
(Colo. App. 2008))), aff’d, 2017 CO 20. At that point, we may look
to extrinsic sources to determine the legislature’s intent as to the
appropriate remedy.
¶ 31 To discern the legislative intent related to section 19-2-
509(4)(b), we must honor the legislature’s purpose in structuring a
juvenile delinquency system that is different from the criminal
system. See A.C. v. People, 16 P.3d 240, 241 (Colo. 2001). It is
clear that “a delinquency proceeding is not a criminal prosecution,”
S.G.W. v. People, 752 P.2d 86, 88 (Colo. 1988), and simply using
criminal statutes as proxies for like provisions in the Children’s
Code does not honor the differences intended between the juvenile
delinquency and criminal systems.
16
¶ 32 The Children’s Code’s primary goal is to serve the best
interests of the child and of society. § 19-1-102(1)(a), C.R.S. 2018.
“In service of these goals, the Children’s Code seeks to provide
informal, simple and speedy judicial procedures.” A.C., 16 P.3d at
242; see People in Interest of T.M., 742 P.2d 905, 907 (Colo. 1987)
(“[T]he underlying theme of a delinquency proceeding is to provide
guidance and rehabilitation for the child and protection for society
rather than fixing criminal responsibility, guilt, and punishment.”).
Our supreme court has also noted that, because of the unique
psychological positioning and sensitivity of juveniles, as compared
to adult offenders, we must be particularly cognizant of the harm
caused to children by delays in bringing a juvenile to trial and
prolonged detention. See P.V. v. Dist. Court, 199 Colo. 357, 360-61,
609 P.2d 110, 112 (1980).
¶ 33 With these purposes in mind, we cannot harmonize and give
effect to the applicable juvenile speedy trial statutory provisions by
failing to apply the remedy provided by specifically incorporating
the provisions of the adult criminal speedy trial statute — dismissal
under section 18-1-405. We are not at liberty to choose to
incorporate a statute that we think is a better fit. We discern no
17
legislative intent to limit application of the dismissal remedy for
violating a juvenile’s no-bond speedy trial rights to only those
juveniles who have entered a not guilty plea.
¶ 34 Further, any ambiguity in the juvenile bail statute must be
construed in G.S.S.’s favor and in furtherance of the rehabilitative
purposes of the Children’s Code. See Frazier v. People, 90 P.3d 807,
811 (Colo. 2004) (“[T]he rule of lenity . . . requires courts to resolve
ambiguities in a penal code in favor of a defendant’s liberty
interests.”); People in Interest of D.S.L., 134 P.3d 522, 527 (Colo.
App. 2006) (“[I]t is particularly appropriate to apply the rule of lenity
in resolving statutory ambiguities in juvenile delinquency
proceedings . . . .”).
¶ 35 For these reasons and consistent with the Children’s Code’s
purpose — to promote rehabilitation and minimize delay and
prolonged detention — we discern the legislative intent to require
dismissal when a violation of speedy trial occurs, regardless of
whether the speedy trial period has been established by a no-bond
hold order or entry of a not guilty plea. Therefore, we conclude that
the district court did not err by dismissing G.S.S.’s case based on
the violation of his speedy trial rights.
18
III. Conclusion
¶ 36 The order is affirmed.
JUDGE HARRIS concurs.
JUDGE J. JONES dissents.
19
JUDGE J. JONES, dissenting.
¶ 37 The majority’s decision to affirm the district court’s dismissal
of the charges against G.S.S. rests on two conclusions. First, the
majority concludes that the delays caused by defense counsel’s
multiple requests for continuances to allow time for a mental health
evaluation of G.S.S. aren’t chargeable to G.S.S. because defense
counsel was only trying to obtain G.S.S.’s release from detention.
Second, the majority concludes that the remedy for a failure to try a
juvenile held without bond within sixty days of a no bond order, as
required by section 19-2-509(4)(b), C.R.S. 2018, is dismissal of the
charges under section 18-1-405(1), C.R.S. 2018. For reasons I’ll get
to later, I’m not altogether sold on the majority’s second conclusion.
But the bigger problem for me is that the majority’s first conclusion
is belied by the record and contrary to Colorado Supreme Court
precedent. The record clearly shows, and the district court
expressly found, that while defense counsel was attempting to
obtain G.S.S.’s release from detention, counsel was also seeking to
improve G.S.S.’s plea bargaining position. The supreme court has
held that delays resulting from defense counsel’s efforts to facilitate
20
a plea bargain are chargeable to the defendant. And so I
respectfully dissent.
I. The Delays are Chargeable to G.S.S.
¶ 38 Section 19-2-509(4)(b) provides that a juvenile who remains in
custody or detention without bail
must be tried on the charges on which the bail
is denied . . . within sixty days after the entry
of such order [denying bond] or within sixty
days after the juvenile’s entry of a plea,
whichever date is earlier; except that, if the
juvenile requests a jury trial pursuant to
section 19-2-107, the provisions of section
19-2-107(4) shall apply.
But the statute is silent on whether certain events may toll the
sixty-day period.3 The majority assumes, as I do, that delays
attributable to the defense do so. This is so because it’s
inconceivable that the General Assembly intended to reward —
indeed, create a windfall for — a defendant who causes delay. Cf.
§ 18-1-405(6)(f) (“[t]he period of any delay caused at the instance of
the defendant” doesn’t count toward section 18-1-405(1)’s six-
month speedy trial period).
3G.S.S. has the burden of showing a violation of this provision. See
Saiz v. Dist. Court, 189 Colo. 555, 557, 542 P.2d 1293, 1295 (1975).
21
¶ 39 Of course, this statement begs the question: What sort of
conduct is attributable to a defendant for this purpose? The
supreme court has answered that question; broadly stated, “[i]f the
delay is caused by, agreed to, or created at the instance of the
defendant, it will be excluded from the speedy-trial calculation
made by the court.” People v. Bell, 669 P.2d 1381, 1384 (Colo.
1983); accord Jones v. People, 711 P.2d 1270, 1281 (Colo. 1986);
Saiz v. Dist. Court, 189 Colo. 555, 558, 542 P.2d 1293, 1295 (1975).
Put another way, any delay “at the request of or for the benefit of
the defendant . . . is properly chargeable to the defendant.” People
v. Luevano, 670 P.2d 1, 3 (Colo. 1983) (quoting People v. Murphy,
183 Colo. 106, 109, 515 P.2d 107, 109 (1973)).
¶ 40 It’s undisputed that every delay in this case was caused by
numerous continuances requested by defense counsel. So it would
seem that those delays are chargeable to G.S.S. under section 19-2-
509(4)(b), given the supreme court pronouncements just noted. But
the majority reasons, relying on Tongish v. Arapahoe County Court,
775 P.2d 63 (Colo. App. 1989), that only continuances affecting the
trial date count, and that the continuances requested by G.S.S.’s
22
attorney concerned only counsel’s efforts to get G.S.S. released from
detention.
¶ 41 This is where I part ways with the majority. For even were I to
accept the premise of Tongish, I don’t accept the majority’s limited
characterization of the purpose of the delays requested by G.S.S.’s
counsel. Nor did the district court. And my understanding of
counsel’s reasons, and the district court’s understanding as
reflected in the record, brings into play supreme court authority
requiring that we charge the delays to G.S.S. for purposes of section
19-2-509(4)(b).
¶ 42 Defense counsel sought (and paid for) a mental health
evaluation for G.S.S. by a licensed professional. After trying
unsuccessfully to arrange evaluations by two professionals (for
which counsel sought additional delay), defense counsel retained
such a professional, but couldn’t arrange an examination right
away due to that person’s schedule. As a result of these efforts,
defense counsel requested a short extension of the detention
hearing, see § 19-2-508(2)(a), C.R.S. 2018, and several extensions
of subsequent dispositional hearings (that is, hearings to determine
23
whether there was probable cause for the charges, § 19-2-705,
C.R.S. 2018).
¶ 43 The majority correctly points out that one of defense counsel’s
goals in obtaining such an evaluation may well have been to assist
in getting G.S.S. released from detention. But that wasn’t the only
goal. Another goal, expressed repeatedly by defense counsel, was to
assist counsel with plea negotiations. Counsel hoped to obtain an
opinion that G.S.S. wasn’t a danger to the community so as to
improve G.S.S.’s plea bargaining position.
¶ 44 Plea bargaining considerations, and all parties’ awareness that
they couldn’t move forward with such discussions, or with a plea,
until defense counsel was able to digest the mental health
professional’s evaluation, were discussed at several hearings both
before and after the sixty-day period would otherwise have expired.
Both the prosecutor and the defense counsel expressly
contemplated reaching a plea agreement following receipt of the
defense-retained professional’s report. And the court monitored the
progress of those efforts toward a disposition, recognizing even that
the evaluation would affect G.S.S.’s entry of a plea and any progress
toward a trial. In ruling on G.S.S.’s motion to dismiss, the district
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court found that the mental health evaluation “was designed also to
potentially help [G.S.S.] get a more favorable plea agreement.”
¶ 45 These facts, in my view, distinguish this case from Tongish, in
which the only continuances were of a pretrial conference. 775
P.2d at 65. The record shows that the continuances in this case
were for the purposes of buttressing G.S.S.’s case for release from
detention, promoting and advancing plea negotiations, enabling
G.S.S. to enter a more informed plea to the charges, and,
inferentially, preparing the defense’s case.
¶ 46 In closely analogous circumstances, the supreme court has
held that delays for such purposes are attributable to the defense.
In Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972), the court
held:
The delay which preceded trial was occasioned,
to a large extent, by the defendant. The
defendant requested and obtained numerous
continuances in an attempt to effectuate a plea
bargain. The prosecution is not chargeable
with delay that has been caused by the
defendant.
Id. at 91, 495 P.2d at 552; see also People v. Howard, 541 P.2d
1252, 1254 (Colo. App. 1975) (not published pursuant to C.A.R.
35(f)). Similarly, the supreme court has held that delays
25
attributable to a defendant’s efforts to meet conditions to qualify for
a deferred judgment are chargeable to the defendant. Luevano, 670
P.2d at 3; see also Alley v. Kal, 44 Colo. App. 561, 562-63, 616 P.2d
191, 192 (1980) (also so holding; the delay was “for the purposes of
achieving a disposition of [the defendant’s] case without going to
trial”). And in Jones, 711 P.2d 1270, the supreme court held that
delays occasioned by defense counsel’s request that the defendant
undergo a competency evaluation were chargeable to the defense
because they were “for the benefit of the defendant.” Id. at 1280-
81.
¶ 47 All of the continuances requested by defense counsel in this
case were for G.S.S.’s benefit. And all of them were for the obvious
purpose of avoiding a trial on the charges. So it follows that the
resulting delays are chargeable to G.S.S., and therefore the district
court erred in deciding to the contrary.4
4 In the district court’s defense, though the prosecutor argued that
the delays were attributable to the defense because defense counsel
was trying to improve G.S.S.’s plea bargaining position, the
prosecutor didn’t provide the court with the legal authority I’ve cited
above.
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II. The Proper Remedy for a Violation of Section 19-2-509(4)(b)
¶ 48 The majority holds that dismissal is the only remedy available
when a court fails to try the case within sixty days of a no-bond
order. In so holding, the majority applies section 18-1-405(1) to
section 19-2-509(4)(b). It’s not clear to me, however, that section
18-1-405(1) applies to this juvenile statute.
¶ 49 The case on which the majority relies, People in Interest of
J.M.N., 39 P.3d 1261 (Colo. App. 2001), concerned speedy trial
provisions of sections 19-2-108(1) and -708(1), C.R.S. 2018. The
division held that the juvenile was required to make a speedy trial
objection before the adjudicatory trial, reasoning that section
19-2-108(1) expressly incorporates a sixty-day deadline from
section 19-2-708(1) and also says that “[t]he juvenile’s right to a
speedy trial shall be governed by section 18-1-405.” 39 P.3d at
1263.
¶ 50 But this case doesn’t involve sections 19-2-108 and -708.
Rather, it involves section 19-2-509, which doesn’t include any
reference to section 18-1-405. Further, section 19-2-509 is a “bail”
statute. The most closely analogous statute in the Code of Criminal
Procedure is section 16-4-101, C.R.S. 2018. Subsection (4) of that
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statute says that if a defendant is denied bail, “the trial of the
person shall be commenced not more than ninety-one days after the
date on which bail is denied.” So that bail statute essentially tracks
the language of the juvenile bail statute, section 19-2-509(4)(b),
substituting ninety-one days for sixty days. But it doesn’t provide
for dismissal of charges; rather, it says that “[i]f the trial is not
commenced within ninety-one days and the delay is not attributable
to the defense, the court shall immediately schedule a bail hearing
and shall set the amount of the bail for the person.” § 16-4-101(4).
¶ 51 The upshot is that in directly analogous circumstances, the
General Assembly has told us that the remedy is to hold a hearing
and set bail, not to dismiss the charges. The majority, however,
reasons that the general purposes of the juvenile system —
particularly the need for swift adjudication — justify the harsher
result of dismissal under section 18-1-405. Maybe. But maybe
not. Perhaps those purposes are adequately accounted for by the
shorter time periods set forth in the juvenile statutes.
¶ 52 In any event, I see an ambiguity in section 19-2-509(4)(b) that
calls for legislative fixing. If the General Assembly decides to take a
look at that ambiguity, it may also wish to consider whether the
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drastic remedy of dismissal is appropriate for all speedy trial
violations even when such violations don’t amount to violations of
the constitutional right to a speedy trial.
III. Conclusion
¶ 53 I would reverse the district court’s dismissal of the charges
against G.S.S. and remand for further proceedings on those
charges.
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