Hills v. Westminster Municipal Court ( 2009 )

Opinion by

Judge J. JONES.

Following the refusal of the Westminster Municipal Court to dismiss criminal charges against him, petitioner, Corey Hills, initiated this C.R.C.P. 106 proceeding in the district court. The district court ordered the municipal court to dismiss the charges, finding that the municipal court had violated Hills' right to a speedy trial. Because we conclude that defense counsel's rejection of a new trial date within the speedy trial time period extended the speedy trial deadline, we reverse the district court's order and remand for further proceedings.

I. Background

On January 20, 2007, the City of Westminster charged Hills with one count of battery and one count of criminal mischief, both violations of the Westminster Municipal Code, arising out of an alleged domestic violence incident. The Westminster Municipal Court advised Hills of the charges two days later, and the City added a charge of false imprisonment the same day. The court set the case for a trial to the court on February 27, 2007.

On January 26, 2007, Hills requested a jury trial. The court therefore vacated the February 27 trial date and set a jury trial for March 9, 2007. On February 5, 2007, Hills requested a new trial date, stating that he would not be available on March 9, but that he would be available during the week of March 12. The court denied that motion because the clerk had cleared the March 9 trial date with Hills.

On March 7, 2007, the day of the pretrial conference, an attorney entered an appearance on Hills' behalf, The court reset the trial for March 23, 2007. At the pretrial conference on March 21, 2007, a dispute arose as to whether the City had provided all requested discovery materials. As a result, the court reset the trial for April 13, 2007.

On April 3, 2007, the City filed a motion to disqualify Hills' counsel, alleging that Hills counsel had a conflict of interest because he had given legal advice in the matter to both Hills and the alleged victim. On April 11, 2007, two days before the scheduled trial, Hills' counsel stipulated to the City's motion, and indicated that Hills had retained a new attorney. Hills' former counsel indicated that Hills' new counsel could not be ready to try the case on April 18. Hills then waived his speedy trial right in order to allow the case to be set for trial beyond the original ninety-day speedy trial deadline. The court offered to set the trial for April 27, May 4, May 11, May 18, or May 25 (apparently the Westminster Municipal Court conducts jury trials only on Fridays). The City did not object to any of those dates, but Hills' former counsel (who had Hills new counsel's calendar) declined all those dates on behalf of Hills new counsel. Hills former counsel indicated that Hills new counsel could be available on June 1, 8, 15, or 22. Though the City initially indicated that June 1 was acceptable, the City subsequently indicated that the vietim could not be available on June 1. The court therefore scheduled the trial for June 8, 2007.

On June 8, Hills new counsel moved to dismiss the case, claiming that Hills' right to a speedy trial was violated by the June setting. The court found that because new counsel had entered his appearance on April 11, the speedy trial period began on that date, and thus would expire on July 10, ninety days later.

Though both the City and Hills were prepared to try the case on June 8, the court, on its own motion, continued the case because it had two other cases going to trial that day. Knowing that the speedy trial period would expire on July 10, the court offered July 6, the next trial date available on its calendar, as a potential trial date. Hills' counsel rejected that date because he could not be available, but stated, "I can do the 18th, the 27th [of July]." Hills' counsel did not make a record that he could be available on any earlier date. The court said that the next available date after July 6 was August 8. Although Hills' counsel accepted that date, he stated he was preserving his speedy trial objection. He did not elaborate, however, on whether the objection related to his previous motion to dismiss or was based on the new trial date being after July 10.

Hills then filed a C.R.C.P. 106 petition in Adams County District Court on July 5, claiming that the Westminster Municipal Court violated his speedy trial right by setting the trial outside the speedy trial period that ended on July 10, 2007, and thus, erred in denying his motion to dismiss. Defendant also filed a motion to stay the municipal court proceedings, which the district court granted. In ruling on the Rule 106 petition, the district court found that (1) Hills counsel's rejection of dates in April and May did not toll the speedy trial period because counsel was prepared to try the case on June 8; and (2) the municipal court's continuance on June 8 was the reason the trial date was pushed outside the speedy trial period. Therefore, the court concluded that, because delays caused by a trial court's docket congestion are not excludable from the speedy trial calculation, the municipal court violated Hills speedy trial right, and remanded the case to the municipal court for dismissal of the charges against Hills.

The Westminster Municipal Court and the Honorable Paul D. Basso of that court appeal the district court's order.

II. Discussion

C.R.C.P. 106(a)(d) authorizes district court review "[where ... any lower judicial body exercising judicial ... functions has exceeded its jurisdiction or abused its disceretion, and there is no plain, speedy and adequate remedy otherwise provided by law." C.R.C.P. 106(a)(4); see Droste v. Board of County Comm'rs, 85 P.8d 585, 590 (Colo.App. 2008). A complaint pursuant to Rule 106(a)(4) is appropriate to protect certain rights that would be significantly undermined if a party were required to proceed to trial prior to obtaining review. Kane v. County Court, 192 P.3d 448, 444 (Colo.App.2008).

In a Rule 106 proceeding, we review the decision of the governmental body itself rather than the district court's determination regarding the governmental body's decision. Bd. of County Comm'rs v. O'Dell, 920 P.2d 48, 50 (Colo.1996). Accordingly, we engage in the same type of record review as did the district court, and we are not bound by any determination made by the district court. City & County of Denver v. County Court, 37 P.3d 458, 455-56 (Colo. App.2001).

Here, because Hills was charged with crimes in Westminster Municipal Court, C.M.C.R. 248(b) establishes the speedy trial deadline. That rule provides, in relevant part:

If the trial of a defendant is delayed more than ninety days after the arraignment of the defendant, or unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the case and the defendant shall not thereafter be tried for the same offense....

The exception in C.M.C.R. 248(b) for speedy trial violations based on an action or request of the defendant is similar to exceptions listed in Crim. P. 48(b) and section 18-1-405, C.R.S.2008. Therefore, cases interpreting those two provisions are equally applicable to the municipal court provision. See Bachicha v. Municipal Court, 41 Colo. App. 198, 199, 581 P.2d 746, 747 (1978) (C.M.C.R. 248(b) and state statutes are in pari materia, and should be reconciled if possible).

As a threshold matter, we note that although Hills initially moved to dismiss the charges against him based on a violation of his right to a speedy trial with respect to the delay from April until June, his Rule 106 petition focuses instead on the court's continuance from June until August (as does the district court's order). Thus, we will address defendant's speedy trial right only with respect to the last continuance.

The issue here, then, is whether the delay from June 8 to a date beyond the speedy trial deadline was due to an "action or request of the defendant." We conclude that it was.

The purpose of the speedy trial rules is "to prevent dillydallying on the part of the [prosecuting] attorney or the court in a criminal proceeding." People v. Bates, 155 Colo. 277, 280-81, 894 P.2d 134, 136 (1964). Thus, continuances because of docket congestion are generally not attributable to a defendant and do not relieve the prosecution and the court of their responsibility to bring a defendant to trial in a timely manner. See People v. Bell, 669 P.2d 1381, 1385-86 (Colo. 1983); Carr v. Dist. Court, 190 Colo. 125, 126-27, 548 P.2d 1253, 1254 (1975). However, where (1) there is a continuance before the expiration of the speedy trial period, (2) the court offers a new trial date within the speedy trial period, (8) the defendant rejects that date, and (4) because of the defendant's rejection of the earlier date, the court then sets the trial date outside the speedy trial period, the delay is attributable to the defendant. See Bates, 155 Colo. at 279-81, 894 P.2d at 185-37 (following a mistrial occasioned by the improper testimony of a prosecution witness, where court offered a trial date within the speedy trial period but the defendant's counsel requested a later date outside the speedy trial period, delay was attributable to the defendant); People v. Wilson, 972 P.2d 701, 705 (Colo.App.1998) (court twice rescheduled case because of crowded docket, and when court set a third date before expiration of speedy trial, defense counsel was unavailable; trial court did not err in treating subsequent motion to dismiss as a request for a continuance outside the speedy trial period); People v. Chaves, 650 P.2d 1310, 1310-11 (Colo.App.1982) (where defense counsel was not available to try the case on the scheduled trial date, and was not available until after the expiration of the speedy trial period, the delay was attributable to the defendant because rejection of potential trial dates was tantamount to a request for a continuance); see also People v. Fetty, 650 P.2d 541, 544 (Colo.1982) (where a trial date was set at the request of the defendant's attorney to accommodate his schedule, the defendant waived any speedy trial claim as to that trial date); People v. Colantonio, 196 Colo. 242, 248-44, 583 P.2d 919, 921 (1978) (citing Bates for the proposition that where a trial court proposes a date within the prescribed period, but defense counsel requests a later date, delay is attributable to the defendant).

Here, though the trial court continued the case on June 8 due to docket congestion, it offered a new trial date within the speedy trial period. The prosecution did not object to that date. Defendant's counsel, however, objected to that date and proposed only dates outside the speedy trial period. Though defense counsel (acting through pri- or defense counsel) had indicated on April 11 that he would be available on June 15 or 22, he did not indicate on June 8 that those dates were still acceptable, or that any date prior to July 11, 2007 was acceptable. And although defense counsel indicated he was offering dates after July 10 but preserving a speedy trial objection, that does not affect our analysis. Assuming the speedy trial objection to which defense counsel was referring pertained to the delay beyond July 10, and not the delay from April to June (a matter which the record does not make clear), the fact remains that the court offered a date within the speedy trial period to which defense counsel objected. The delay caused by that objection was attributable to Hills' action. See Wilson, 972 P.2d at 705.

Wilson, 972 P.2d 701, is directly on point. There, trial was continued because of docket congestion, and the court reset the trial for a date one day before the expiration of the speedy trial period. Defense counsel, a public defender, said that he would be on vacation on that date, to which the court responded that counsel should find another public defender who could try the case on that date. Instead, before the expiration of the speedy trial period, defense counsel filed a motion to dismiss on speedy trial grounds, asserting that no attorney in his office was available on the date set for trial. Id. at 704.

A division of this court held that the delay caused by the inability of the defendant's counsel to appear on the final date set for trial was a delay attributable to the defendant, and that the motion to dismiss "was equivalent to a request for a continuance which extended the speedy trial period...." Id. at 704-05.

We agree with the division in Wilson that where, following a continuance that is not attributable to the defendant, the court sets a trial date within the speedy trial period but defense counsel objects to that date because of his or her own scheduling conflict, the latter delay is attributable to the defendant. Because a delay "occasioned by the action" of the defendant is attributable to the defendant, we need not also decide whether Hills' motion to dismiss was tantamount to a motion for a continuance.

Tasset v. Yeager, 195 Colo. 190, 576 P.2d 558 (1978), on which both Hills and the dissent rely, is clearly distinguishable. In Tas-set, following a continuance requested by the prosecution, the judge to whom the case had been assigned determined that he did not have any date available for trial within the speedy trial period, and therefore transferred the case to another judge. The substitute judge, over the defendant's objection, set the trial for a date outside the speedy trial period. Id. at 191, 576 P.2d at 559. In contrast to this case, therefore, there is no indication in Tasset that the defendant was offered any date within the speedy trial period following the last continuance. It was indeed docket congestion that caused the final delay in Tasset.

The court's statement (in dictum) in Tasset that a previous delay caused by the defendant's counsel's rejection of proposed trial dates "is not the type of delay [attributable to the defendant] contemplated by the speedy trial statute or the rule," id. at 192, 576 P.2d at 559, must be read in context. The fact that an initial delay is attributable to a defendant does not mean that a later delay caused by docket congestion is also attributable to the defendant. The converse, however, is also true: the fact that an earlier delay was caused by docket congestion does not mean that a later delay occasioned by the defendant's rejection of a date within the speedy trial period is also caused by docket congestion.

Accordingly, we reverse the district court's order and remand this case to that court to return it to the municipal court to reinstate the charges against Hills. Because the filing of the Rule 106 petition and the subsequent appeal of the district court's order tolled the speedy trial period, on remand, the municipal court shall have a reasonable period of time to reschedule the case for trial, and such time is excluded from the statutory speedy trial time. See People v. Daley, 97 P.3d 295, 299 (Colo.App.2004); People v. Fears, 962 P.2d 272, 277 (Colo.App.1997).

The order is reversed and the case is remanded with directions.

Judge MARQUEZ concurs. Judge GABRIEL dissents.