v. Yakas , 2019 COA 117 ( 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
August 1, 2019
2019COA117
No. 17CA0959, People v. Yakas — Criminal Law — Uniform
Mandatory Disposition of Detainers Act — Waiver
A division of the court of appeals, interpreting section 16-14-
104(2), C.R.S. 2018, of the Uniform Mandatory Disposition of
Detainers Act (UMDDA), holds, as a matter of first impression, that
UMDDA rights are not personal and may be waived by counsel. The
division further holds that the statutory advisement may be waived
by counsel. While the division disagrees with the trial court that
the UMDDA issue is moot, it affirms the court’s decision on
alternate grounds.
COLORADO COURT OF APPEALS 2019COA117
Court of Appeals No. 17CA0959
Arapahoe County District Court No. 15CR3031
Honorable Natalie T. Chase, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joshua Theodore Yakas,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Fox and Welling, JJ., concur
Announced August 1, 2019
Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Tara N. Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for
Defendant-Appellant
¶1 In this statutory interpretation case, we are asked to decide
whether the right to a speedy disposition guaranteed by the
Uniform Mandatory Disposition of Detainers Act (UMDDA), §§ 16-
14-101 to -108, C.R.S. 2018, can be waived by counsel or whether a
defendant must personally waive this right. We hold that this
statutory right may be waived by counsel and that counsel may also
waive the required statutory advisement of rights. We further hold
that when the defendant is present for counsel’s waiver and does
not voice an objection to it, he cannot later complain that his
UMDDA rights were violated.
¶2 Defendant, Joshua Theodore Yakas, appeals the trial court’s
order denying his motion to dismiss his criminal case for violation
of the UMDDA. We affirm.
I. Background
¶3 In October 2015, the police arrested Mr. Yakas for violating
parole in an unrelated case. While incarcerated, the state charged
him, on November 3, 2015, with three counts of enticement of a
child, three counts of attempted inducement of child prostitution,
three counts of attempted sexual assault on a child, three counts of
indecent exposure – (third or subsequent offense), and habitual
1
criminality. Mr. Yakas appeared with court-appointed counsel at
his first appearance on November 9, 2015. After waiving his right
to a speedy preliminary hearing twice, Mr. Yakas proceeded to a
preliminary hearing on January 13, 2016. The court found
probable cause and bound the case over for arraignment on
February 19, 2016. On February 19, the parties agreed to continue
arraignment to April 29, 2016.
¶4 On February 29, 2016, Mr. Yakas filed a pro se “Petition for
Speedy Disposition Under [the UMDDA].” As relevant here,
paragraph four of the pro se petition states:
4. The defendant, does not waive any rights of
limits set forth under or in this act. If, at any
time, the defendant chooses to waive any of
these, it shall be himself, not through council
[sic], by explicitly stating, in writing for the
court or in open court, that he, knowingly,
intentionally, and voluntarily waives his right
under this act.
¶5 Upon receiving the petition, the court rescheduled
arraignment for March 25, 2016. As well, on March 17, 2016,
counsel for Mr. Yakas sent the following email to the court and the
district attorney:
I just wanted to let everyone know that Mr.
Yakas is going to be withdrawing the detainer
2
and we will be asking that the April 29
arraignment date remain. We’re fine with Mr.
Yakas being brought in on 3/25 to do that on
the record. Additionally, Mr. Yakas has been
held at the Arapahoe County Jail, so unless he
is going to be moved, we do not need a writ
prepared.
¶6 When Mr. Yakas refused to appear on March 25, defense
counsel explained that Mr. Yakas was “confused about the court
date” and asked that the matter be reset for March 31, 2016,
“because he’s going to withdraw that detainer [sic].”
¶7 Mr. Yakas appeared with counsel on March 31. The trial court
asked whether “[defendant] was going to withdraw th[e] request [for
speedy disposition] and . . . wanted to keep the arraignment date
that we currently had set of April 29th.” Counsel responded, “That
is correct.” The court then asked, “Do you wish any further
advisement on the record with respect to Mr. Yakas’s withdrawal of
request for speedy detainer?” Both defense counsel and the district
attorney responded, “No.” Mr. Yakas remained silent. The trial
court then found that the request for speedy disposition had been
withdrawn and continued the matter to the April arraignment date.
¶8 After several continued arraignments, made at the defense’s
request, Mr. Yakas entered a not guilty plea on August 1, 2016.
3
But the parties eventually reached a disposition, and on December
15, 2016, Mr. Yakas pleaded guilty to several counts in exchange
for the dismissal of the remaining counts and a stipulated sentence
of twenty years in the custody of the Department of Corrections
(DOC). The court accepted Mr. Yakas’s guilty pleas and sentenced
him accordingly.
¶9 Around the time he pleaded guilty, Mr. Yakas filed a pro se
motion to dismiss his case for violation of the UMDDA. The motion
asserted, in part, that counsel’s withdrawal of the UMDDA petition
on March 31 was “against his request” and constituted an invalid
waiver of his rights, thereby depriving the court of jurisdiction to
accept his guilty pleas. Mr. Yakas did not mention this pro se
motion at the providency hearing, and nothing in the record shows
that the court or counsel knew of its existence when Mr. Yakas
pleaded guilty.
¶ 10 Following the providency hearing on December 15, the trial
court issued an order requesting clarification concerning whether
the motion to dismiss should be ruled on in light of the guilty pleas.
After receiving no response, the trial court denied the motion to
dismiss as moot, on December 21, 2016.
4
II. Counsel’s Withdrawal of the UMDDA Petition Constituted a
Valid Waiver
A. Standard of Review and Law
¶ 11 The UMDDA, which governs the disposition of intrastate
detainers, People v. Slusher, 43 P.3d 647, 649 (Colo. App. 2001),
provides that “[a]ny person who is in the custody of the [DOC] . . .
may request final disposition of any untried indictment,
information, or criminal complaint pending against him in this
state,” § 16-14-102(1), C.R.S. 2018. A parolee in county jail on a
parole violation is in DOC custody for purposes of the UMDDA. See
People v. Gess, 250 P.3d 734, 736 (Colo. App. 2010); Slusher, 43
P.3d at 648-50. The UMDDA’s purpose is to provide a mechanism
for prisoners to timely resolve untried charges that are the subject
of a detainer so that they may proceed with or complete
rehabilitative programs. People v. Higinbotham, 712 P.2d 993, 997
(Colo. 1986).
¶ 12 Once a prisoner requests final disposition, the untried
indictment, information, or criminal complaint must be brought to
trial “[w]ithin one hundred eighty-two days after the receipt of the
request by the court and the prosecuting official . . . .” § 16-14-
5
104(1), C.R.S. 2018. If the matter is not brought to trial within 182
days, “no court of this state shall any longer have jurisdiction
thereof, nor shall the untried indictment, information, or criminal
complaint be of any further force or effect, and the court shall
dismiss it with prejudice.” Id.
¶ 13 A defendant may waive the right to final disposition of an
untried matter within the 182-day period if the waiver is express,
on the record, and made after full advisement by the court. § 16-
14-104(2).
¶ 14 Statutory interpretation of the UMDDA is a question of law
that we review de novo. People v. Adolf, 2012 COA 60, ¶ 9.
Whether a defendant has waived a right is also a question of law
that we review de novo. Stackhouse v. People, 2015 CO 48, ¶ 4.
¶ 15 Finally, where the facts are undisputed, a trial court’s denial
of a motion to dismiss for violation of the UMDDA is reviewed de
novo. People v. Glasser, 293 P.3d 68, 76 (Colo. App. 2011). When
the facts are disputed, we review the court’s decision for an abuse
of discretion. Id.
6
B. Analysis
¶ 16 Mr. Yakas challenges the court’s denial of his motion to
dismiss on two grounds. First, he contends that the
superintendent of the institution where he was confined failed to
comply with the UMDDA’s statutory requirements and that this
failure required the dismissal of the charges against him. Second,
he contends that his purported waiver was invalid and, therefore,
the court lacked jurisdiction on December 15, 2016, to accept his
guilty pleas. We address and reject each of his contentions.
1. Superintendent’s UMDDA Requirements
¶ 17 Section 16-14-103, C.R.S. 2018, provides that
(1) Any request made pursuant to section 16-
14-102 shall be delivered to the
superintendent where the prisoner is confined
who shall forthwith:
(a) Certify the term of commitment under
which the prisoner is being held, the time
already served on the sentence, the time
remaining to be served, the earned time
earned, the time of parole eligibility of the
prisoner, and any decisions of the state board
of parole relating to the prisoner; and
(b) Send, by registered mail, a copy of the
request made by the prisoner and a copy of the
information certified under paragraph (a) of
this subsection (1) to both the court having
jurisdiction of the untried offense and to the
7
prosecuting official charged with the duty of
prosecuting the offense.
¶ 18 Mr. Yakas claims that, upon learning of his UMDDA rights, he
immediately filed a petition invoking those rights “with the Court,
Prosecuting Official, and Superintendent of Parole.” He argues that
the superintendent failed to comply with the statutory requirements
of section 16-14-103(1) that were triggered upon receipt of this
petition and that this violation requires dismissal of the charges
against him. 1
¶ 19 The record does not reflect whether Mr. Yakas sent his
UMDDA petition to the correct person or, if so, whether that person
complied with his or her statutory duties.
¶ 20 Even assuming, without deciding that Mr. Yakas correctly
delivered his petition to the superintendent of the facility where he
was confined and that the superintendent did not perform the
statutory duties required by the UMDDA, we are not persuaded that
dismissal of the charges is an appropriate remedy. See Martin v.
1Mr. Yakas also asserted in his motion to dismiss that the
superintendent violated the notice provision in section 16-14-
102(2), C.R.S. 2018. However, he does not reassert this claim on
appeal, so we do not address it. Cf. People v. Brooks, 250 P.3d 771,
772 (Colo. App. 2010).
8
People, 738 P.2d 789, 793 (Colo. 1987) (“Dismissal is not required
unless the evidence fails to establish that the defendant was not
prejudiced, in view of the purposes of the [UMDDA], by the
superintendent’s failure to send ‘forthwith’ a copy of the defendant’s
request for disposition to the trial court.”); Higinbotham, 712 P.2d at
998-1001; Slusher, 43 P.3d at 650-51.
¶ 21 Our supreme court has determined that a prisoner may invoke
his or her UMDDA rights through either strict or substantial
compliance with the statute. See People v. McKimmy, 2014 CO 76,
¶¶ 20, 23-24.
¶ 22 Strict compliance requires the prisoner to address his or her
requests for speedy disposition to the prosecutor and the court, but
also to send those requests to the superintendent of the facility
where the prisoner is confined. Id. at ¶ 23; see also §§ 16-14-
102(1), 16-14-103(1). The superintendent must then comply with
the requirements of section 16-14-103(1). McKimmy, ¶ 23.
¶ 23 Substantial compliance occurs when, notwithstanding the
superintendent’s involvement, a prisoner substantially complies
with the UMDDA’s requirements and the prosecution receives
actual notice of the request for speedy disposition. Id. at ¶ 24.
9
¶ 24 Mr. Yakas admits, and the certificate of service reveals, that he
sent his petition invoking his UMDDA rights to the court and the
prosecutor. Further, the record contains an email from the
prosecutor’s office acknowledging receipt of Mr. Yakas’s petition and
asking the court to reschedule the arraignment date to align with
the UMDDA’s time requirements.
¶ 25 Thus, even assuming that the superintendent failed to comply
with section 16-14-103(1), we discern no prejudice from the
violation since Mr. Yakas invoked his UMDDA rights by
substantially complying with the statute. See Martin, 738 P.2d at
793; Higinbotham, 712 P.2d at 998-1001; Slusher, 43 P.3d at 650-
51.
2. Counsel’s Waiver of UMDDA Rights Was Valid
¶ 26 We begin by agreeing with Mr. Yakas that the court erred in
finding his motion to dismiss was moot based on his guilty plea.
The failure to bring a case to trial within the UMDDA’s required
182-day timeframe automatically divests a trial court of jurisdiction
over the matter, see § 16-14-104(1); therefore, such an issue is not
mooted by the entry of a guilty plea, see Gess, 250 P.3d at 736.
Nevertheless, we may affirm the judgment on any ground supported
10
by the record. See People v. Garcia, 2012 COA 79, ¶ 62. So, we
address his contention that counsel’s withdrawal of his UMDDA
petition on March 31, 2016, was not a valid waiver of his rights.
¶ 27 We requested supplemental briefing related to this issue.2 The
parties agree that waiver and withdrawal are synonymous, and that
counsel’s actions at the March 31 hearing should be treated as an
express or attempted waiver of Mr. Yakas’s UMDDA rights.
Because the March 31 hearing transcript shows that counsel
expressly waived Mr. Yakas’s UMDDA rights on the record, we must
decide (1) whether UMDDA rights can be waived by counsel or must
be personally waived by the defendant; and (2) whether counsel can
waive section 16-14-104(2)’s advisement requirement.
¶ 28 We first conclude that a defendant’s UMDDA rights can be
waived either by the defendant or by counsel. See People v. Bryant,
2013 COA 28, ¶ 12 (recognizing that either the defendant or
counsel may waive UMDDA rights); see also People v. Newton, 764
2 We asked three questions: (1) whether there is a difference
between withdrawing a UMDDA petition and waiving UMDDA
rights; (2) if there is a difference, whether counsel withdrew the
petition or waived Mr. Yakas’s rights on March 31; and (3) what
effect, if any, Mr. Yakas’s presence and silence had on counsel’s
withdrawal or waiver.
11
P.2d 1182, 1187-88 (Colo. 1988) (recognizing, under the Interstate
Agreement on Detainers Act (IAD), that either the defendant or his
attorney may waive a defendant’s right to speedy trial); Sweaney v.
Dist. Court, 713 P.2d 914, 918 (Colo. 1986) (noting that the policies
underlying the UMDDA and the IAD are the same). Therefore, we
reject Mr. Yakas’s assertion that UMDDA rights can only be waived
by a defendant personally.
¶ 29 A criminal defendant is guaranteed certain constitutional
rights that “are so inherently personal and basic that fundamental
fairness of a criminal trial is called into question if they are
surrendered by anyone other than the accused.” People v. Curtis,
681 P.2d 504, 511 (Colo. 1984); see also New York v. Hill, 528 U.S.
110, 114 (2000) (“For certain fundamental rights, the defendant
must personally make an informed waiver.”); United States v. Olano,
507 U.S. 725, 733 (1993) (“Whether a particular right is waivable;
whether the defendant must participate personally in the waiver;
whether certain procedures are required for waiver; and whether
the defendant’s choice must be particularly informed or voluntary,
all depend on the right at stake.”). “For other rights, however,
waiver may be effected by action of counsel.” Hill, 528 U.S. at 114.
12
¶ 30 While the intent of the UMDDA is to render the constitutional
guarantee of a speedy trial more effective, the rights afforded under
the UMDDA are not fundamental constitutional rights requiring
personal waiver by a defendant. See People v. Anderson, 649 P.2d
720, 722-23 (Colo. App. 1982) (An extension of the UMDDA’s
deadline did not require the defendant’s personal consent because
“[t]his case does not involve the question of whether defense
counsel may waive his client’s constitutional right to a speedy trial
without his client’s consent.”); State v. Hinojosa, 798 N.W.2d 634,
637 (N.D. 2011) (“The [UMDDA] creates ‘a conditional procedural
statutory right’ and ‘is not the equivalent of a fundamental
constitutional right requiring the personal waiver or consent of the
defendant to be effective.’” (quoting State v. Carlson, 258 N.W.2d
253, 258 (N.D. 1977))).
¶ 31 Instead, “waiver of rights under the [UMDDA] is to be governed
by the words of the statute.” Anderson, 649 P.2d at 723. Section
16-14-104(2) contains no language requiring a defendant to
personally waive his or her rights. And we may not add such
language. See Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007).
13
¶ 32 Furthermore, because “[t]he UMDDA’s counterpart governing
interstate detainers, the Interstate Agreement on Detainers [IAD],
embodies similar policies to those in the UMDDA,” “the principles
applicable to the IAD may be applied to the UMDDA.” Slusher, 43
P.3d at 649. As relevant here, courts have held that counsel can
waive a defendant’s rights under the IAD. See Hill, 528 U.S. at 114-
15; Newton, 764 P.2d at 1187-88.
¶ 33 Therefore, we conclude that a defendant’s UMDDA rights are
not among the fundamental rights that require personal waiver by
the defendant and that counsel here possessed the authority to
waive Mr. Yakas’s UMDDA rights at the March 31 hearing. See Hill,
528 U.S. at 114; People v. Baird, 66 P.3d 183, 190 (Colo. App. 2002)
(“A statutory right may be waived by counsel’s statements.”).
¶ 34 Having concluded that counsel may waive a defendant’s
UMDDA rights, we must next decide whether counsel can also
waive the advisement requirement of section 16-14-104(2).
Consistent with our supreme court’s holding in Finney v. People,
2014 CO 38, ¶¶ 15-17, we conclude that counsel’s waiver of the
required advisement, in Mr. Yakas’s presence, was permissible and
14
effected a valid waiver of his UMDDA rights. See also Hill, 528 U.S.
at 114; Baird, 66 P.3d at 190.
¶ 35 A defendant who invokes his rights to a speedy disposition of
untried charges is entitled to the procedural safeguards conferred
by the statute. Cf. Finney, ¶ 15. As relevant here, section 16-14-
104(2) provides as follows:
(2) Any prisoner who requests disposition
pursuant to section 16-14-102 may waive the
right to disposition within the time specified
[182 days] in subsection (1) of this section by
express waiver on the record after full
advisement by the court. . . .
(Emphasis added.) And as recognized by a division of this court in
People v. Carr, 205 P.3d 471, 473-74 (Colo. App. 2008), these
safeguards preclude an implied waiver of UMDDA rights — any
waiver must be express and on the record. Nevertheless, counsel
may waive a defendant’s statutory rights and such a waiver must
only be voluntary, not knowing or intelligent. Finney, ¶ 16 (listing
cases finding counsel’s conduct waived a defendant’s statutory
rights).
¶ 36 In Finney, the defendant’s challenge to the revocation of his
deferred judgment was premised on the court’s failure to advise him
15
of the penalties associated with revocation under section 16-11-
206, C.R.S. 2018. Id. at ¶ 15. Similar to the UMDDA, section 16-
11-206(2) contains language stating that “the court shall advise the
probationer of the charges against him and the possible penalties
therefor.” The court held that plea counsel’s waiver of the
advisement, in Finney’s presence, constituted an express and
voluntary waiver of this penalty advisement. Finney, ¶ 17.
¶ 37 Here, the record reflects that counsel advised the court and
the district attorney by email that Mr. Yakas intended to withdraw
his UMDDA petition. At the hearing, the court asked whether this
remained Mr. Yakas’s intent, and counsel responded that it did. At
no time did Mr. Yakas express any disagreement with counsel’s
representation, nor did he voice an objection to the petition’s
withdrawal. See People v. Rodriguez, 209 P.3d 1151, 1160 (Colo.
App. 2008) (“[I]t was incumbent upon [the] defendant to press for a
definitive ruling before being able to claim on appeal that the court
somehow erred.”), aff’d, 238 P.3d 1283 (Colo. 2010); People v.
Anderson, 70 P.3d 485, 487 (Colo. App. 2002) (where defense
counsel asked the court to take action that was contrary to the
defendant’s wishes, any objection thereto may be abandoned by the
16
defendant’s failure to press for a ruling); see also People v.
DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001) (stating that at a
providency hearing, the defendant had the affirmative obligation to
ask for clarification if he did not understand the plea agreement).
¶ 38 We are not persuaded that paragraph 4 of the petition,
precluding a waiver by counsel, requires a different result. Mr.
Yakas cites no authority to support that it does, and, as noted, he
had ample opportunity to bring his intention expressed in the
paragraph to the court’s attention at the hearing. Therefore, as in
Finney, we hold that counsel validly waived section 16-14-104(2)’s
advisement requirement. 3 As well, because Mr. Yakas waived his
UMDDA rights, the trial court had jurisdiction to accept his guilty
pleas.
III. Conclusion
¶ 39 The order is affirmed.
JUDGE FOX and JUDGE WELLING concur.
3 We do not address Mr. Yakas’s argument, raised for the first time
in his reply brief, that any waiver, if valid, was not voluntary. See
People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007).
17