In re J.V.D.

• Decision Date: 09 May 2019
• Docket Number: Court of Appeals No. 18CA0186
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF J.V.D., Juvenile-Appellant.
• Court: Colorado Court of Appeals

442 P.3d 1030

The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF J.V.D., Juvenile-Appellant.

Court of Appeals No. 18CA0186

Colorado Court of Appeals, Division VI.

Announced May 9, 2019

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-Appellant

Opinion by JUDGE RICHMAN

¶ 1 The juvenile, J.V.D., appeals his delinquency adjudication on a charge of first degree criminal trespass. Because we agree with him that his right to counsel was violated when he proceeded without representation despite no valid waiver of that right, we reverse the adjudication.

I. Background

¶ 2 According to the prosecution's evidence, J.V.D., then sixteen years old, opened the window of his neighbor's trailer, but left after the neighbor's face appeared in the window.

¶ 3 Nearly six months later, J.V.D. received a notice to appear concerning an allegation of second degree criminal trespass—a class 3 misdemeanor. He appeared at the hearing with his mother. There, the juvenile court advised them, as relevant here, (1) of the allegation of second degree trespass; (2) that if he pleaded guilty or was found guilty at trial, he could be sentenced to the Department of Youth Corrections; and (3) that he had the right to be represented by counsel and that a public defender would be appointed if he was financially qualified. J.V.D. asked the court if he could represent himself. After cautioning him that the proceedings could be complicated and that he might get bad advice from a nonlawyer, it responded that he had the right to represent himself.

¶ 4 J.V.D. proceeded to debate his Sixth Amendment right to a jury trial with the juvenile court, and it advised him repeatedly that he was "getting bad advice." The court offered to appoint a guardian ad litem (GAL), and J.V.D. declined. As the court attempted to conclude the proceedings, J.V.D. asked whether the case was a civil or criminal action. The court briefly explained that a juvenile delinquency case was neither civil nor criminal but was analogous to a criminal case, and it repeated its caution against getting legal advice from nonlawyers.

¶ 5 A week later, the prosecution filed a delinquency petition charging first degree criminal trespass, a class 5 felony, not the second degree trespass about which J.V.D. had been advised. A copy of the petition was mailed to J.V.D.'s mother, but the envelope was returned unclaimed.

¶ 6 At the plea hearing, J.V.D. stated that he did not wish to enter a plea until some of his questions were answered. He asked for information on the nature and cause of the action, whether the action was civil or criminal, and "for the rule-book—the regulations, the rules, the codes, the statutes—in order for me to intelligently defend myself."

¶ 7 The juvenile court suggested that perhaps he should have an attorney, but J.V.D. said that he was not looking for legal advice. The prosecutor asked for a GAL to be appointed. J.V.D. objected, and his mother agreed that a GAL was not necessary. The court did not appoint a GAL.

¶ 8 J.V.D. pressed the court regarding his questions. The court told him that he had been informed of the nature of the proceeding, directed him to go to the library to find the relevant information, deemed his actions to be a denial of the petition, and set the matter for trial.¹ J.V.D. repeatedly objected to the involuntary entry of a plea. The matter was set for trial six weeks later.

¶ 9 At the outset of trial, J.V.D. "totally object[ed] to the proceeding" because he did not "know the full nature and cause," and he had been unprepared to enter a plea. The juvenile court took a few moments to explain jurisdiction and then proceeded with the trial.

¶ 10 J.V.D. acted pro se at trial, though he was also represented by his mother.² He was not invited to give an opening statement, and he did not testify or call any witnesses, though he claimed that he had an alibi. His mother made some objections, asked some questions on cross-examination, and made closing arguments. Both J.V.D. and his mother made clear that they had not accessed any of the exhibits or the police report before trial.³

¶ 11 The juvenile court adjudicated J.V.D. delinquent. Due in part to two prior adjudications for possession/consumption of marijuana and misdemeanor criminal mischief—each of which had resulted in a plea agreement—the court sentenced him to one to two years in the custody of the Department of Youth Corrections.

¶ 12 J.V.D. is represented by counsel on appeal. He contends that he did not effectively waive his right to counsel at trial.⁴ We agree.

II. Applicable Law

¶ 13 The Fourteenth Amendment and the Bill of Rights are not for adults alone; however, not all of their protections extend to juveniles. In re Gault , 387 U.S. 1, 13-14, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Though a juvenile facing delinquency proceedings is not afforded constitutional rights coextensive with those afforded adults in criminal proceedings, a juvenile enjoys the right to counsel because "[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." Id. at 36, 87 S.Ct. 1428 (footnote omitted); see L.O.W. v. Dist. Court , 623 P.2d 1253, 1256 (Colo. 1981) ("Rights provided to adult defendants [are not] uniformly available to juveniles because the protective purposes of juvenile proceedings preponderate over their punitive function.").

¶ 14 While the juvenile court in this case apparently recognized it, a juvenile in Colorado may not enjoy a corollary constitutional right to self-representation. Faretta v. California , 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), holds that the Sixth Amendment implies the right to self-representation, but neither the Supreme Court nor the State of Colorado has expressly extended the right of self-representation to juveniles. Indeed, section 19-2-706(2)(a), C.R.S. 2018, seems to suggest that a juvenile in Colorado does not have that right, as it authorizes the court to appoint counsel "on its own motion, [if it] determines that counsel is necessary to protect the interests of the juvenile or other parties."⁵

¶ 15 In Colorado, the juvenile court must appoint counsel for a juvenile in most circumstances. However, the court may not appoint counsel if (1) the juvenile has retained his own counsel; or (2) the juvenile has made a knowing, intelligent, and voluntary waiver of his right to counsel. § 19-2-706(2)(a) ; see also § 19-2-508(2.5), C.R.S. 2018. While the right to counsel in a juvenile delinquency proceeding may be waived, the court is required to follow appropriate procedure to determine the validity of the waiver and to ensure that the waiver is voluntary, knowing, and intelligent. See § 19-2-706(2)(c).

¶ 16 An adult's waiver of the right to counsel may be effective if the record shows that, under the totality of the circumstances, the defendant's conduct demonstrates an unequivocal knowing, intelligent, and voluntary intent to relinquish the right to representation.

People v. Alengi , 148 P.3d 154, 159 (Colo. 2006). A waiver is knowing and intelligent only when "the record clearly shows that the defendant understands the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." People v. Arguello , 772 P.2d 87, 94 (Colo. 1989). Because there is a strong presumption against finding a waiver of a constitutional right, a court has the duty of careful inquiry into the reasons given for not having counsel and the defendant's understanding of the many risks of self-representation. Alengi , 148 P.3d at 159.

¶ 17 Because "juveniles are presumed to have less capacity than adults to understand their rights and privileges," a court considering whether a juvenile's waiver of constitutional rights is effective must also consider, while applying a totality of the circumstances test, factors such as "the juvenile's age, previous court experience, education, background, intelligence, and capacity to understand the nature of his or her rights and the consequences of waiving those rights." People v. Simpson , 51 P.3d 1022, 1025, 1027 (Colo. App. 2001) (considering juvenile rights at a providency hearing), rev'd on other grounds , 69 P.3d 79 (Colo. 2003).

¶ 18 Although no Colorado decision expressly addresses a juvenile's waiver of counsel, we conclude that the protections afforded to a juvenile must, at a minimum, be equivalent to those afforded to an adult defendant. Thus, failure to properly advise a juvenile and to inquire on the record into whether the juvenile demonstrates, under the totality of the circumstances, an unequivocal knowing, intelligent, and voluntary intent to relinquish the right to representation results in an invalid waiver of counsel. We do not require a showing of prejudice to reverse a delinquency adjudication when a juvenile's waiver of the right to counsel is ineffective. See Arguello , 772 P.2d at 97 (a deprivation of the right to counsel "undoubtedly taint[s] the whole trial").

¶ 19 The General Assembly further protected a juvenile's right to counsel through "An Act Concerning the Provision of Defense Counsel to Juvenile Offenders ...," which took effect in 2014. Ch. 247, 2014 Colo. Sess. Laws 948. Among many other statutory changes, section 19-2-706(1)(e) was added to specify that the failure of a juvenile's parent to apply for court-appointed counsel may not be construed as a waiver of the juvenile's right to counsel. Id. at 952. In section 19-2-706(2)(a)(II), the General Assembly restated the constitutional...