People v. Allen, 86SA150

• Decision Date: 13 October 1987
• Docket Number: No. 86SA150,86SA150
• Citation: 744 P.2d 73
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gordon H. ALLEN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 73

744 P.2d 73

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gordon H. ALLEN, Defendant-Appellee.

No. 86SA150.

Supreme Court of Colorado En Banc.

Oct. 13, 1987.

David J. Thomas, Dist. Atty., E. Ronald Beeks, Donna Skinner Reed, Deputy Dist. Attys., Golden, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Judy Fried, Deputy State Public Defender, Denver, for defendant-appellee.

MULLARKEY, Justice.

This case involves the defendant's speedy trial rights under the Interstate Agreement on Detainers (IAD), section 24-60-501, 10 C.R.S. (1982). The district court dismissed four criminal charges against the defendant, Gordon H. Allen, because of the People's failure to bring the defendant to trial within 120 days of his arrival in Colorado as required by IAD Article IV(c). The People filed a motion for reconsideration, which was denied. The People now appeal ^{1 1} from the order denying reconsideration. We affirm.

I.

A brief explanation of the IAD speedy trial requirements is necessary to put this case in context. After a detainer is filed, the IAD permits both the prisoner and the prosecuting authority which filed the detainer to initiate proceedings to bring the prisoner to trial. Different speedy trial periods apply to the two types of proceedings. If the prosecuting authority initiates the proceedings, trial must be held within 120 days after the prisoner arrives in the jurisdiction seeking to try him. IAD, Art. IV(c). If the prisoner requests final disposition of the charges, he must be tried within 180 days after the prosecution and the appropriate court are notified of his request. IAD, Art. III(a). In either instance, the court may grant a reasonable or necessary continuance for good cause shown. IAD, Arts. III(a) and IV(c).

In the present case, on January 5, 1985, the Jefferson County district attorney lodged a detainer against the defendant, who was incarcerated in a federal penitentiary in Wisconsin. Two days later, the defendant was notified that a detainer had been lodged against him. On May 10, 1985, the district attorney initiated proceedings to have the defendant returned to Colorado by sending the warden of the federal penitentiary a request for temporary custody of the defendant pursuant to IAD Article IV(a).

On June 18, 1985, after having been notified of the district attorney's request for temporary custody, the defendant requested final disposition of the charges underlying the detainer pursuant to IAD Article III(a). On the same day, the federal authorities notified the district attorney and the court of the defendant's request and informed the district attorney that his request for temporary custody had been approved. The federal authorities offered to deliver temporary custody of the defendant to an appropriate authority in Colorado and the defendant arrived in Colorado on July 12, 1985. He appeared in county court on July 15, 1985, and an attorney was appointed to represent him. On August 26, 1985, the defendant, his attorney, and the district attorney appeared in district court for arraignment. The judge suggested a trial date of January 28, 1986. Both attorneys said that January 28 would be "fine." No mention was made of the detainer, the defendant's request for disposition of charges, the district attorney's request for temporary custody, or the time requirements under the IAD. January 28 was well beyond both the 180-day time limit of Article III and the 120-day time limit of Article IV.

On September 9, 1985, the district judge informed the district attorney that there was a detainer problem. The district attorney discussed the matter with defense counsel, but neither attorney made any effort to reset the trial. On November 4, 1985, the district judge set the case for hearing on her own motion. The judge's expressed purpose was to set a trial date within the speedy trial limit of the IAD. She set the trial for November 26, 1985, and, in response to a question from the defendant's attorney, stated that all motions should be filed by November 12. The defendant's attorney ² and the prosecutor both agreed to this schedule, which was within the 180-day period of Article III but beyond the 120-day period of Article IV.

On November 12, 1985, 120 days after his arrival in Colorado, and the last day on which he was allowed to file motions, the defendant filed, inter alia, a motion to dismiss based on the prosecution's failure to bring him to trial within the 120-day period of IAD Article IV. After a hearing, the judge found that the time limits of Article IV applied to this action. She rejected the People's primary argument, that defense counsel's question about the motions date at the November 4, 1985, hearing had been a request for a continuance. Concluding that the prosecution had failed to meet its burden of assuring compliance with the IAD, she orally dismissed the charges against the defendant. A written order dismissing the charges was entered on November 25.

On December 6, 1985, the People moved for reconsideration, arguing that the defendant had known that the judge was setting the trial beyond the speedy trial period of IAD Article IV and had not said anything. The People contended that this amounted to "gamesmanship," waiver, and "trial by ambush." On March 7, 1986, the district court held a hearing on the People's motion for reconsideration. The judge found that at the November 4, 1985, hearing, the defendant's attorney had not known about the district attorney's Article IV request for temporary custody. Accordingly, the judge concluded that the defendant's attorney had not deceived the trial court, and she denied the motion for reconsideration. The People appeal from the denial of the motion for reconsideration. ³

II.

As a threshold issue, the trial court considered whether the speedy trial limit of Article III or Article IV controlled this case. The district attorney conceded that this was an Article IV case and the trial court agreed, relying on United States v. Mauro, 436 U.S. 340, 356 n. 24, 98 S.Ct. 1834, 1845 n. 24, 56 L.Ed.2d 329 (1978). The district attorney did not appeal this issue and it is not before us. We are asked to decide only whether the defendant waived his procedural right to be tried within 120 days of his arrival in Colorado.

III.

The protections of the IAD are designed to "facilitate a defendant's rehabilitation in prison and to avoid disruptions caused when charges are outstanding against the prisoner in another jurisdiction." UNITED STATES V. BLACK, 609 F.2D 1330, 1334 (9TH CIR.1979)⁴, cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); see also Mauro, 436 U.S. at 359, 98 S.Ct. at 1846 (IAD enacted to prevent disruption to rehabilitation). Since the rights created by the IAD are statutory, rather than constitutional, waiver of those rights "must be voluntary, but need not be knowing and intelligent." People v. Moody, 676 P.2d 691, 695 (Colo.1984); see also People v. Sevigny, 679 P.2d 1070, 1075 (Colo.1984); United States v. Odom, 674 F.2d 228, 230 (4th Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982); Black, 609 F.2d at 1334.

Even under the less stringent "voluntariness" standard applicable to statutory rights, it is clear that mere silence by the defendant and his attorney when the trial date is set does not amount to waiver. See Sevigny, 679 P.2d at 1075; cf. Harrington v. District Court, 192 Colo. 351, 354, 559 P.2d 225, 228 (1977) (waiver of right to speedy trial under Title 18). Instead, "a defendant must either expressly waive his statutory right to a speedy trial or else affirmative conduct evidencing such a waiver must be shown." People v. Abeyta, 195 Colo. 338, 340, 578 P.2d 645, 646 (1978) (waiver of speedy trial rights under Crim.P. 48(b)).

For example, a defendant can waive his IAD rights by failing to assert them prior to or during trial. See Moody, 676 P.2d at 695; United States v. Eaddy, 595 F.2d 341, 346 (6th Cir.1979). An affirmative request by defense counsel for a trial date beyond the speedy trial period can be sufficient to waive the defendant's statutory rights. See People v. Mascarenas, 666 P.2d 101, 106 (Colo.1983) (defendant had actively participated in delay and had requested four continuances); People v. Fetty, 650 P.2d 541 (Colo.1982). Other affirmative requests for treatment inconsistent with the IAD can also result in waiver. Compare Gray v. Benson, 608 F.2d 825, 827 (10th Cir.1979) (by requesting a transfer after entering his plea, defendant waived anti-shuttling provision) with Eaddy, 595 F.2d at 344-45 (failure to state preference as to where defendant should be held pending trial did not waive anti-shuttling provisions).

The district attorney contends that in the case now before us the defendant waived his IAD speedy trial rights by participating in two trial settings which resulted in trial dates beyond the 120-day limitation. ⁵ We recently reiterated that a defendant may waive his speedy trial rights under the Uniform Mandatory Disposition of Detainers Act (Uniform Act) ⁶ "by freely acquiescing in a trial date beyond the ninety-day speedy trial period imposed by section 16-14-104[, 8A C.R.S. (1986) ]." Martin v. People, 738 P.2d 789, 792 (Colo.1987) (footnote omitted). We explained that "[t]his waiver concept, however, is based on the fact that a defendant's participation in selecting a trial date would contribute directly to any violation of the ninety-day provision. In that circumstance, the defendant has an opportunity to cure the statutory defect by promptly raising the issue." Id.

Here, we cannot say that the defendant's acquiescence in the two trial dates directly contributed to the speedy trial violation. Instead, as in Sevigny, the trial was set beyond the time allowed by statute because the "prosecution was unaware of the precise character of the defendant's speedy trial rights and failed to comply with its...