v. Brothers , 2021 COA 109 ( 2021 )

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 12, 2021
2021COA109
No. 21CA0282, People v. Brothers — Criminal Law —
Preliminary Hearing or Waiver; Criminal Procedure —
Indictment and Information — Preliminary Hearing
A division of the court of appeals considers whether, under
section 16-5-301(1)(b)(II), C.R.S. 2020, and Crim. P. 7(h)(1), a
defendant who (1) bonds out the day after his court appearance on
the filing of charges; (2) is rearrested months later for failing to
appear at a hearing; and (3) requests a preliminary hearing while in
custody is entitled to a preliminary hearing. The division answers
yes.
Extending the Colorado Supreme Court’s reasoning in
People v. Rowell, 2019 CO 104, to a new factual situation, the
division concludes that Rule 7(h)(1)’s seven-day deadline for
requesting a hearing did not control the defendant’s situation
because he was on bond — and, thus, “could not have meritoriously
requested a preliminary hearing” — for almost all of the seven days
following his court appearance on the filing of charges. Id. at ¶ 19.
Instead, under section 16-5-301(1)(b)(II), the defendant was entitled
to demand and receive a preliminary hearing “within a reasonable
time” after he was rearrested and placed in custody for failing to
appear. Id. at ¶ 17. And it did not matter why the defendant was
detained or whether other reasons existed for his custody status
because the defendant was “in custody for the offense[s] for which
the preliminary hearing [wa]s requested,” § 16-5-301(1)(b)(II).
Thus, because the People presented no evidence of probable
cause at the preliminary hearing, the division affirms the district
court’s order dismissing the defendant’s felony charges and
habitual criminal sentence enhancers.
COLORADO COURT OF APPEALS 2021COA109
Court of Appeals No. 21CA0282
Huerfano County District Court No. 19CR282
Honorable Leslie J. Gerbracht, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Chad W. Brothers,
Defendant-Appellee.
ORDER AFFIRMED
Division I
Opinion by JUDGE YUN
Dailey and Freyre, JJ., concur
Announced August 12, 2021
Henry L. Solano, District Attorney, Rex Delmas, Assistant District Attorney,
Walsenberg, Colorado, for Plaintiff-Appellant
Matthew Ragland, Alternate Defense Counsel, Trinidad, Colorado, for
Defendant-Appellee
¶1 Pursuant to C.A.R. 4(b)(3), the People appeal the district
court’s order dismissing Chad W, Brothers’s felony charges and
habitual criminal sentence enhancers following a preliminary
hearing. They argue that because Brothers was released from
custody after appearing in court following the filing of charges, he
was not entitled to demand a preliminary hearing under
Crim. P. 7(h)(1) and section 16-5-301(1)(b)(II), C.R.S. 2020.
¶2 Extending our supreme court’s reasoning in People v. Rowell,
2019 CO 104, to a new factual situation, we conclude that Rule
7(h)(1)’s seven-day deadline for requesting a hearing did not control
Brothers’s situation because he was on bond — and, thus, “could
not have meritoriously requested a preliminary hearing” — for
almost all of the seven days following his court appearance on the
filing of charges. Id. at ¶ 19. Instead, under section
16-5-301(1)(b)(II), Brothers was entitled to demand and receive a
preliminary hearing “within a reasonable time” after he was
rearrested and placed in custody for failing to appear at a hearing.
Id. at ¶ 17. Further, because Brothers was “in custody for the
offense[s] for which the preliminary hearing [wa]s requested,”
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§ 16-5-301(1)(b)(II), it did not matter why Brothers was detained or
whether other reasons existed for his custody status.
¶3 Accordingly, we affirm the district court’s order.
I. Background
¶4 Just after midnight on October 26, 2019, a Huerfano County
Sheriff’s Office deputy stopped Brothers for a traffic violation and
searched his car. During the search, the deputy seized
methamphetamine, marijuana, drug paraphernalia, driver’s licenses
belonging to other people, and counterfeit money. The deputy
arrested Brothers without a warrant.
¶5 Two days later, on October 28, Brothers appeared in custody,
and the court set his bond at $3,000 cash or surety. The public
defender withdrew due to a conflict, so the court appointed
alternate defense counsel.
¶6 Then, late in the evening of November 3, the People filed a
complaint and information charging Brothers with
 possessing a controlled substance (methamphetamine) in
violation of section 18-18-403.5(1), (2)(a), C.R.S. 2020, a
level 4 drug felony;
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 possessing more than twelve ounces of marijuana in
violation of section 18-18-406(4)(a), C.R.S. 2019, a level 4
drug felony;
 possessing a forged instrument (three counterfeit $100
bills) in violation of section 18-5-105, C.R.S. 2020, a
class 6 felony;
 displaying a false identification card in violation of
section 42-4-309(1)(a), C.R.S. 2020, a class 3
misdemeanor;
 possessing drug paraphernalia in violation of section
18-18-428(1), C.R.S. 2020, a drug petty offense; and
 illegally using, consuming, or possessing an open
container of marijuana in a motor vehicle in violation of
section 42-4-1305.5, C.R.S. 2020, a class A traffic
infraction.
¶7 The next morning, Brothers appeared in custody with defense
counsel for an advisement on the filing of charges. The court
modified his bond to a personal recognizance bond, and Brothers
was released. Though Brothers was initially supposed to return for
a plea hearing on December 11, 2019, his case was continued
3
numerous times. The People eventually filed an amended complaint
adding four habitual criminal counts.
¶8 Then, on September 1, 2020, Brothers failed to appear for a
hearing, and the court issued a warrant for his arrest with a
no-bond hold. Approximately four weeks later, Brothers was
arrested on the warrant in Prowers County. Because of difficulties
in obtaining a writ to return him to Huerfano County, Brothers
appeared in custody remotely from Pueblo County on November 23,
2020. At that time, the court appointed new alternate defense
counsel and set Brothers’s case for an appearance of counsel and a
bond hearing on December 1.
¶9 On December 1, defense counsel appeared without Brothers.
The court set a new bond of $10,000 cash or surety and reset the
case for another hearing on December 8. Immediately following the
hearing, defense counsel filed an entry of appearance in which he
requested a preliminary hearing under Rule 7 and section
16-5-301. Then, on December 8, Brothers appeared in custody
with counsel and again requested a preliminary hearing, waiving
his right to have that hearing within thirty-five days. The court set
a preliminary hearing for February 2, 2021.
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¶ 10 On January 28, 2021, the People moved to vacate the
preliminary hearing. They argued that, though Brothers had been
eligible to demand a preliminary hearing under section
16-5-301(1)(b)(II) and Rule 7(h) on November 4, 2019, when he
appeared in court following the filing of charges, he lost that right
when he was released on a personal recognizance bond later that
day. Brothers filed a written objection to the People’s motion, and
the district court denied the motion on February 1, 2021.
¶ 11 At the preliminary hearing, the People stated that they were
unable to proceed. The prosecutor explained that “it is our position
Mr. Brothers is ineligible for [a] preliminary hearing . . . based on
his custody status at the time the charges were filed.” When the
court asked why the People were not able to move forward, the
prosecutor explained, “Due to our chronic under funding and
staffing we have to extremely prioritize our timely cases and we
don’t frankly have the sufficient resources or staffing to prepare on
a case on which a defendant is ineligible for preliminary hearing.”
Defense counsel then asked the court to rule that the People had
failed to establish probable cause for the level 4 drug felonies and
5
the class 6 felony and asked the court to dismiss those charges, as
well as the four habitual criminal sentence enhancers.
¶ 12 Three days later, the court issued a written order granting
Brothers’s motion to dismiss the felony counts and sentence
enhancers. The court construed our supreme court’s decision in
Rowell to “require[] the trial court to make a finding as to whether
the request for [a preliminary hearing] is made within a reasonable
time.” The court concluded that, because Brothers had asked for a
preliminary hearing “immediately upon the appointment of
counsel,” he had done so within a reasonable time and, therefore,
was eligible for a preliminary hearing. The court also noted that the
People had not asked for a continuance based on their inability to
move forward with the hearing; “[t]hey simply refused to proceed.”
And because the People had put forth no evidence, the court
concluded that they lacked probable cause to pursue the felony
counts. It therefore dismissed those counts and the habitual
criminal sentence enhancers, leaving only a misdemeanor, a drug
petty offense, and a traffic infraction.
¶ 13 The People then brought this interlocutory appeal.
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II. Analysis
¶ 14 The People contend that because Brothers was released from
custody on a personal recognizance bond after appearing in court
following the filing of charges, he was thereafter precluded from
demanding a preliminary hearing under section 16-3-501(1)(b)(II)
and Rule 7(h)(1).1 We disagree.
A. Standard of Review
¶ 15 Whether Brothers was entitled to a preliminary hearing is a
question of statutory and rule interpretation that we review de novo.
See People v. Subjack, 2021 CO 10, ¶ 14. “In construing a statute,
our goal is to ascertain and effectuate the legislature’s intent.”
Rowell, ¶ 16. We start by giving the statute’s words their plain and
ordinary meanings. Id. We may not add to, subtract from, or
change the words in the statute. Id. “Instead, we must read the
words as written, in context, and in accordance with the rules of
grammar and common usage.” Id.1The People do not dispute that, if Brothers was entitled to a
preliminary hearing, then “dismissal was appropriate as no
evidence related to probable cause was introduced.” Nor do the
People dispute that — without the felony charges — the habitual
criminal sentence enhancers were properly dismissed.
7
¶ 16 “Similarly, when construing our rules of criminal procedure,
‘[w]e employ the same interpretive rules applicable to statutory
construction.’” Subjack, ¶ 14 (quoting People v. Steen, 2014 CO 9,
¶ 10). To that end, we “read the language of the rule consistent
with its plain and ordinary meaning, and, if it is unambiguous, we
apply the rule as written.” Steen, ¶ 10. Further, the rules of
criminal procedure “shall be construed to secure simplicity in
procedure, fairness in administration, and the elimination of
unjustifiable expense and delay.” Id. (quoting Crim. P. 2).
B. Law
¶ 17 The purpose of a preliminary hearing “is to screen out cases in
which prosecution is unwarranted by allowing an impartial judge to
determine whether there is probable cause to believe that the crime
charged may have been committed by the defendant.” People v.
Brothers, 2013 CO 31, ¶ 16 (quoting Rex v. Sullivan, 194 Colo. 568,
571, 575 P.2d 408, 410 (1978)). In district court, preliminary
hearings are governed by section 16-3-501 and Rule 7(h). See also
§ 18-1-404, C.R.S. 2020 (containing virtually identical provisions);
Crim. P. 5(a)(4) (describing similar procedures for preliminary
hearings in county court).
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¶ 18 As pertinent here, “a person charged with a class 4, 5, or 6
felony is not automatically entitled to a preliminary hearing unless
the felony charged requires mandatory sentencing, is a crime of
violence, or is a sexual offense.” Subjack, ¶ 15 (citing
§ 16-5-301(1)(a), (1)(b)(I); § 18-1-404(1), (2)(a)). The parties agree
that Brothers was charged with a class 6 felony (possessing a forged
instrument) and two level 4 drug felonies (possessing more than
twelve ounces of marijuana and possessing methamphetamine), so
he was not statutorily entitled to a preliminary hearing. But section
16-5-301(1)(b)(II) provides, in pertinent part,
[a]ny defendant accused of a class 4, 5, or 6
felony or level 3 or level 4 drug felony who is
not otherwise entitled to a preliminary hearing
pursuant to subparagraph (I) of this paragraph
(b), may demand and shall receive a
preliminary hearing within a reasonable
time . . . , if the defendant is in custody for the
offense for which the preliminary hearing is
requested; except that, upon motion of either
party, the court shall vacate the preliminary
hearing if there is a reasonable showing that
the defendant has been released from custody
prior to the preliminary hearing.
¶ 19 Rule 7(h), in turn, establishes the procedure for demanding a
preliminary hearing in district court. See § 16-5-301(1)(a) (“The
procedure to be followed in asserting the right to a preliminary
9
hearing and the time within which demand therefor must be made,
as well as the time within which the hearing, if demanded, shall be
had, shall be as provided by applicable rule of the supreme court of
Colorado.”). Rule 7(h)(1), like section 16-3-501(1)(b)(II), provides
that
any defendant accused of a class 4, 5, or 6
felony or a level 3 or 4 drug felony who is not
otherwise entitled to a preliminary hearing
may request a preliminary hearing if the
defendant is in custody for the offense for
which the preliminary hearing is requested;
except that, upon motion of either party, the
court shall vacate the preliminary hearing if
there is a reasonable showing that the
defendant has been released from custody
prior to the preliminary hearing.
But unlike section 16-3-501(1)(b)(II), which requires a defendant to
demand a preliminary hearing “within a reasonable time,” Rule
7(h)(1) provides that, “[e]xcept upon a finding of good cause, the
request for a preliminary hearing must be made within 7 days after
the defendant is brought before the court for or following the filing
of the information in that court and prior to a plea.”
¶ 20 Against this backdrop, the supreme court addressed a
situation similar to Brothers’s in Rowell. In that case, the
defendant, James Rowell, was initially arrested and charged, as
10
pertinent here, with a class 4 felony. Rowell, ¶ 3. He “posted bond
and was released the next day — before the information was filed
and prior to any court appearance for the filing of the information.”
Id. About six months later, Rowell was charged in a separate case
with three more class 4 felonies, a class 5 felony, and a class 6
felony. Id. at ¶ 4. He again posted bond before the information was
filed and before any court appearance on the filing of the
information. Id. The following month, Rowell requested a
preliminary hearing on these six felonies. Id. at ¶ 5. The district
court denied his request, “reasoning that Rowell was on bond and
those charges do not require mandatory sentencing, are not crimes
of violence, and are not sexual offenses.” Id.
¶ 21 Three months after that, Rowell was charged in a third case
with an additional class 4 felony and two more class 6 felonies. Id.
at ¶ 6. The district court increased Rowell’s bonds in the two older
cases, and because he could not post the new bonds, he was taken
into custody. Id. About two months later — seventy-three days
after his bonds had been revoked in the two older cases but before
entering a plea in either case — Rowell again requested a
preliminary hearing. Id. at ¶ 7. The district court again denied the
11
request, ruling that Rowell was not entitled to a preliminary hearing
under section 16-5-301(1)(b)(II) and that “when a defendant ‘violates
[his] bond . . . [and] get[s] remanded into custody,’” the right to a
preliminary hearing “‘does not come back’ because ‘[o]nce it is gone,
it is gone.’” Id. (alterations in original).
¶ 22 Exercising its original jurisdiction pursuant to C.A.R. 21, the
supreme court concluded that the district court had erred. Id. at
¶¶ 9-10, 26. Construing section 16-5-301(1)(b)(II) according to its
plain and ordinary meaning, the court held that “when a defendant
is in custody for the offenses for which a preliminary hearing is
requested and those offenses fit the criteria specified in subsection
(1)(b)(II), he may demand and must receive a preliminary hearing
within a reasonable time.” Id. at ¶ 17. In doing so, the court
refused to “engraft” the People’s proposed restriction that section
16-5-301(1)(b)(II) “does not contemplate preliminary hearings ‘at a
time other than the outset of a criminal prosecution.’” Id.
¶ 23 The court also concluded that Rule 7(h)(1)’s seven-day
deadline for requesting a preliminary hearing did not control
Rowell’s situation because he “became eligible for a preliminary
hearing on the relevant charges months after the seven-day
12
deadline in Rule 7(h)(1) expired.” Id. at ¶ 19. The court explained
that because Rowell “was on bond . . . during the entirety of the
seven-day timeframe, he could not have meritoriously requested a
preliminary hearing on the relevant charges in a timely fashion.”
Id. “To attempt to apply the deadline” in his situation, the court
said, “would be to attempt to fit a square peg into a round hole.” Id.
C. Discussion
¶ 24 The People attempt to distinguish Rowell on three grounds.
First, the People point to the clause in section 16-5-301(1)(b)(II) and
Rule 7(h)(1) that, “upon motion of either party, the court shall
vacate the preliminary hearing if there is a reasonable showing that
the defendant has been released from custody prior to the
preliminary hearing.” They argue that, because Brothers, unlike
Rowell, bonded out after appearing in court on the filing of charges,
section 16-5-301(1)(b)(II) and Rule 7(h)(1) required the court to
vacate his preliminary hearing because he was released from
custody in November 2019 — before the preliminary hearing in
February 2021. Second, the People argue that, because Brothers
requested a preliminary hearing while in custody for failing to
appear, he was not “in custody for the offense[s] for which the
13
preliminary hearing [wa]s requested” pursuant to section
16-5-301(1)(b)(II) and Rule 7(h)(1). And third, the People argue that,
because Brothers appeared “before the court for or following the
filing of the information and prior to a plea,” Rule 7(h)(1) required
him to show good cause for not requesting a preliminary hearing
within seven days of that appearance. We are not persuaded.
¶ 25 First, in our view, the plain language of section
16-5-301(1)(b)(II) and Rule 7(h)(1) — “the court shall vacate the
preliminary hearing if there is a reasonable showing that the
defendant has been released from custody prior to the preliminary
hearing” — does not mean that a defendant who is released from
custody forever loses the right to request a preliminary hearing on
his charges. Instead, when read in context with the entire statute
and rule, it means only that a defendant who is no longer in
custody at the time of the hearing lacks the right to a preliminary
hearing pursuant to section 16-5-301(1)(b)(II) and Rule 7(h)(1).
Because Brothers was in custody from the time he requested a
preliminary hearing through the date of the hearing, section
16-5-301(1)(b)(II) and Rule 7(h)(1) did not require the district court
to vacate the hearing.
14
¶ 26 Second, while it is true that Brothers was rearrested in
November 2020 because of his failure to appear at the hearing in
September, the reason he remained in custody (and the reason his
bond was increased to $10,000) was to face the charges for which
he requested a preliminary hearing. More importantly, the supreme
court has refused to “import a ‘primary basis’ qualifier” into the
custody requirement in section 16-5-301(1)(b)(II). See Subjack,
¶ 20. Thus, as long as the defendant is “in custody for the offense
for which the preliminary hearing is requested,” § 16-5-301(1)(b)(II),
it does not matter how he got there or whether other reasons exist
for his custody status. Cf. Subjack, ¶ 27 (concluding that two
prison inmates charged with possession of contraband were “in
custody” for purposes of section 16-5-301(1)(b)(II) and Rule 7(h)(1)
“because they ha[d] not posted bond on those charges”).
¶ 27 Third, Brothers was in custody for less than one of the seven
days following his court appearance on the filing of charges. For
the rest of Rule 7(h)(1)’s timeframe, he, like Rowell, was on bond
and “could not have meritoriously requested a preliminary hearing.”
Rowell, ¶ 19. In our view, Rule 7(h)(1)’s seven-day timeframe
applies only to defendants who stay in custody for at least seven
15
days following their appearance on the filing of charges. Not only
does this interpretation harmonize the seven-day timeframe with
the requirement that the court vacate the preliminary hearing of a
defendant who is no longer in custody, it also makes practical
sense. At the advisement hearing, defendants like Brothers should
not be forced to choose — as the People argue they should —
between (1) staying in jail and requiring the government to establish
probable cause and (2) being released on bond and potentially
losing the right to request a preliminary hearing forever. We decline
to conclude that, in creating the timeframe in Rule 7(h)(1), the
supreme court intended such a result. See Crim. P. 2 (“These Rules
are intended to provide for the just determination of criminal
proceedings.”).
¶ 28 We are also unpersuaded by the People’s contention that our
ruling today leads to an “absurd” result whereby “defendants who
bond out after advisement on the complaint and comply with their
obligations don’t get a preliminary hearing while those who
disregard theirs do.” This argument misses the point. Section
16-5-301(1)(b)(II) and Rule 7(h)(1) ensure that defendants held in
custody on certain low-level felony charges are swiftly released from
16
custody if no probable cause exists to detain them. People v.
Taylor, 104 P.3d 269, 271 (Colo. App. 2004), overruled on other
grounds by Subjack, ¶ 24. Thus, it is because these defendants are
in custody — a significant restraint on their liberty — that it is
important to allow them a preliminary hearing to ensure that
probable cause exists. See Subjack, ¶ 22 (“[A] preliminary hearing
may relieve a defendant of an unwarranted restriction of personal
liberty.”); Rowell, ¶ 12 (“[A] preliminary hearing seeks to ‘protect[]
the accused’ by ensuring ‘that the prosecution can at least sustain
the burden of proving probable cause.’” (quoting Hunter v. Dist. Ct.,
190 Colo. 48, 51, 543 P.2d 1265, 1267 (1975))).
¶ 29 Nor does our ruling open “the floodgates” to dilatory tactics by
defendants seeking to delay their trials. For one thing, section
16-5-301(1)(b)(II) requires that a request for a preliminary hearing
be made “within a reasonable time” — a finding that the district
court made in this case and that the People do not challenge on
appeal. For another thing, Rule 7(h)(5) prohibits the district court
from “entertain[ing] successive requests for [a] preliminary hearing,”
so defendants cannot, as the People suggest, game the system by
requesting a preliminary hearing, bonding out and vacating the
17
hearing, and then getting rearrested and requesting another
preliminary hearing.
III. Conclusion
¶ 30 For these reasons, we affirm the district court’s order.
JUDGE DAILEY and JUDGE FREYRE concur.
18