People ex rel. Gallagher In and For Eighteenth Judicial Dist. v. District Court In and For County of Arapahoe
| Decision Date | 24 February 1997 |
| Docket Number | No. 96SA294,96SA294 |
| Citation | 933 P.2d 583 |
| Parties | 21 Colorado Journal 284 The PEOPLE of the State of Colorado ex rel. Robert R. GALLAGHER, Jr., District Attorney In and For the EIGHTEENTH JUDICIAL DISTRICT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, State of Colorado, and the Honorable Jack F. Smith, One of the Judges Thereof, Respondents. |
| Court | Colorado Supreme Court |
Robert R. Gallagher, Jr., District Attorney, Eighteenth Judicial District, John Jordan, Senior Chief Deputy District Attorney, William Hood, Deputy District Attorney, Englewood, for Petitioner.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, for Respondents.
The People filed this original proceeding pursuant to C.A.R. 21 seeking an order directing the district court to try the case of People v. Jesus Martinez, Arapahoe County Criminal Action No. 96CR2425, before expiration of the defendant's speedy trial time as required by section 18-1-405, 8B C.R.S. (1986 & 1996 Supp.), and Crim. P. 48(b)(1). Approximately two months before the speedy trial time was to run, the district court was informed by the defendant's original attorney, the Office of the Public Defender (Public Defender), that it could not continue to represent the defendant because of a conflict of interest. Subsequently, the court appointed a new defense counsel, Paul Origlio, who indicated that, although he was willing to accept the appointment, he could not proceed to trial before the speedy trial deadline. Without requiring the defendant to waive his speedy trial right, and over the objections of both the defendant and the People, the district court set a trial date thirty-eight days after the speedy trial deadline.
We issued a rule to show cause why the relief requested by the People should not be granted, and now we make that rule absolute. Under the facts of this case, the delay was not properly charged to the defendant. The district court exceeded its jurisdiction when it set the trial to begin after the expiration of the defendant's speedy trial time.
The defendant, Jesus Martinez (Martinez), is charged with child abuse resulting in serious bodily injury under section 18-6-401(7)(a)(III), 8B C.R.S. (1986), a class three felony. The charges stemmed from an incident where the six-year-old victim suffered two broken wrist bones. Initially represented by the Public Defender, Martinez entered a plea of not guilty on March 20, 1996, and the matter was set for a jury trial to commence on August 19, 1996. A hearing on pending motions was set for July 18, 1996, and Martinez was ordered to return on that date. On July 18, 1996, Martinez failed to appear, and the court issued a bench warrant for his arrest.
Martinez appeared at court the next day, July 19, 1996, and was arrested pursuant to the issued bench warrant. On July 22, 1996, the district court was informed by the Public Defender that its office would no longer be able to represent Martinez due to an irreconcilable conflict of interest. 1 The district court found that an irreconcilable conflict did exist and allowed the Public Defender to withdraw from representing Martinez.
On July 24, 1996, the district court held a hearing and requested that Paul Origlio (Origlio) accept appointment as Martinez's new counsel. At that hearing, Origlio informed the district court that he could not accept the previously set trial date of August 19, 1996, and that he would be unable to schedule a new trial within the speedy trial date of September 20, 1996. 2 Origlio stated that the earliest he could proceed to trial would be October 28, 1996, which was thirty-eight days beyond the speedy trial date of September 20, 1996. Origlio also stated that Martinez was unlikely to waive his speedy trial rights. At that time, both Origlio and the People suggested that an attempt should be made to find other representation more able to meet the speedy trial deadline.
While acknowledging the objections of counsel on both sides, the district court nevertheless appointed Origlio to represent Martinez and set the date for trial thirty-eight days beyond the speedy trial deadline. In response to the suggestion that other conflict-free counsel be appointed, the court stated that any new counsel would not have adequate time to prepare which would engender a claim of inadequate representation. The court likewise rejected the People's suggestion that Martinez proceed pro se because of the court's concern that Martinez would subsequently claim that he was denied counsel.
The district court concluded that finding an attorney who could meet the speedy trial deadline was not reasonable. In response to counsel's request that the court at least make an attempt to find another attorney, the court stated:
It's not possible. He's had one lawyer. That lawyer bailed out because of a conflict of interest which I found did in fact exist, and I don't think the court is required to go to extraordinary measures to find some attorney that will accept a trial date within a date which this court finds is probably not reasonable under the circumstances. You don't get a new lawyer within less than a month of the trial date or less than two months of the trial date, and I am concerned about that.
Further, in response to the People's concern that an appellate court might well ask whether an effort was made to find other conflict-free counsel, the district court stated:
Well, that reasonable effort has been made particularly in light of the fact that this is a conflict case and in view of the fact that the attorney in court was selected within the court's discretion to be somebody who is capable of handling this type of case that has complexities.
In its order appointing Origlio and setting the trial date, the district court concluded that the delay in bringing the defendant to trial before the speedy trial deadline was caused at the instance of the defendant pursuant to section 18-1-405(6)(f), 8B C.R.S. (1986 & 1996 Supp.), because Martinez failed to appear at the motions hearing. The court also found that where newly appointed conflict-free counsel cannot accept a trial date prior to the expiration of the six month speedy trial period, such inability is tantamount to a request for a continuance. The People sought, and we granted, a rule to show cause why the district court should not proceed to trial before the speedy trial deadline. The People argued that the district court abused its discretion and exceeded its jurisdiction in setting the trial beyond the statutorily imposed deadline without obtaining a waiver by the defendant or seeking other conflict-free counsel who could accept a date before that deadline. According to the People, neither the statutory language of section 18-1-405 nor Colorado caselaw supports the district court's conclusions that the delay in this case was properly charged to the defendant.
In her answer to the rule to show cause, the Attorney General, on behalf of the district court, contends that four factors should be considered when deciding whether a delay or continuance can be charged to the defendant for speedy trial purposes: (1) whether actions by the defendant enhanced the need for a continuance; (2) whether failure to order an extension of time would provide the defendant with a claim of inadequate assistance of counsel; (3) whether defense counsel claims that he cannot try the case within the speedy trial time frames; and (4) whether the defendant who is recalcitrant was counseled and appeared to understand the need for a continuance. Based on these four factors, the Attorney General argues that the delay in this case can be charged to Martinez because: (1) Martinez's failure to appear at the motions hearing was an action by the defendant that enhanced the need for a continuance; (2) given the complexity of the case, a failure to extend the trial date would have provided Martinez with a claim for inadequate assistance of counsel; (3) the inability of the substituted counsel to proceed to trial before the speedy trial deadline expired necessitated a continuance that can be charged to the defendant; and, (4) Martinez appeared to understand the need for a continuance by indicating that he might consider a waiver of his speedy trial right. While the factors articulated by the Attorney General represent some of the issues that a court may consider to determine if a delay is properly chargeable to the defendant for speedy trial purposes, we do not agree that the totality of circumstances in this case supports the district court's decision to charge Martinez with the delay.
At the outset, we note that this original proceeding is based on the statutory right to a speedy trial and does not involve the constitutional right to a speedy trial provided for in both the Colorado and federal constitutions. 3 A defendant's statutory right to a speedy trial is protected by section 18-1-405, 8B C.R.S. (1986 & 1996 Supp.), and Crim. P. 48(b)(1). See Mason v. People, 932 P.2d 1377, 1378 (Colo.1997). Section 18-1-405 and Crim. P. 48(b) are considered identical for purposes of analysis of a defendant's right to a speedy trial. See People v. Deason, 670 P.2d 792, 794 n. 2 (Colo.1983). Section 18-1-405(1) provides:
[I]f 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 ... the pending charges shall be dismissed....
§ 18-1-405(1), 8B C.R.S. (1986). Thus, if the People fail to bring a defendant to trial within six months of the date that a plea of not guilty is entered, and there are no applicable exceptions or exclusions, then the charges against the defendant must be dismissed. See ...
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