People v. Bell, 82SA255

• Decision Date: 26 September 1983
• Docket Number: No. 82SA255,82SA255
• Citation: 669 P.2d 1381
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Earl Lee BELL, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1381

669 P.2d 1381

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Earl Lee BELL, Defendant-Appellee.

No. 82SA255.

Supreme Court of Colorado En Banc.

Sept. 26, 1983.

Robert R. Gallagher, Jr., Dist. Atty., Catherine DiSante, Deputy Dist. Atty., Littleton, for plaintiff-appellant.

David F. Vela, State Public Defender, Denver, Linda Hotes, Deputy State Public Defender, Brighton, for defendant-appellee.

ROVIRA, Justice.

In this appeal the People challenge the trial court's dismissal of criminal charges against Earl Lee Bell, defendant. The trial court ruled that he was not brought to trial within the six-month speedy-trial period mandated by section 18-1-405(1), C.R.S.1973 (1978 Repl.Vol. 8). We affirm the trial court's dismissal.

I.

The defendant was charged with aggravated robbery, third-degree assault, and theft after an incident on July 11, 1980, in which Bell and an accomplice allegedly robbed an undercover police officer in Aurora. ¹ Following a preliminary hearing on August 15, 1980, the defendant entered a plea of not guilty, and trial was set for January 5, 1981. On that date, trial was continued to March 16 to accommodate another trial in progress. The defendant signed a written waiver of speedy trial as part of this initial continuance. On March 16, Bell moved to continue the trial a second time when he discovered that the undercover police officer had been hypnotized prior to a photographic identification. The defendant again signed a written waiver of speedy trial and trial was reset for July 6, 1981.

On July 6, the parties stipulated to a third continuance of the trial. Bell did not sign a written waiver of speedy trial for this continuance, but the stipulation brought into play the rule authorizing extensions in section 18-1-405(3), C.R.S.1973 (1978 Repl.Vol. 8). As a result, the speedy-trial deadline was extended an additional six months to January 6, 1982. Bell's trial was then reset for November 16, 1981.

On November 16, the defendant accepted a plea bargain offered by the district attorney. Bell agreed to plead guilty to third-degree assault and to an added count of conspiracy to possess marijuana. In exchange, the district attorney agreed to dismiss the remaining charges. A problem arose, however, when Bell denied his guilt and attempted to enter a qualified guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In that case, the United States Supreme Court held that a court may accept a guilty plea, even though the defendant proclaims his innocence, if the court is satisfied that the record sufficiently indicates guilt. The trial court in this case decided not to accept Bell's Alford plea without testimony in the record bearing on the defendant's guilt. It scheduled the matter for a hearing on December 7, 1981.

On December 7, however, another trial was in progress, and the hearing on Bell's Alford plea was continued by minute order until February 16, 1982. The trial court later disclosed that it reset the hearing based "on an indication to the Court that a waiver of speedy trial would be forwarded to the Defendant to be executed by him." It appears that the defendant had already gone home when the district attorney asked defense counsel to submit the waiver referred to by the trial court. Defense counsel agreed to send a waiver form to the defendant, but Bell never signed or returned the document to the court.

On February 16, due to its congested docket, the trial court was still unable to conduct the hearing on Bell's Alford plea. The matter was continued to April 12, 1982, but before that date the defendant moved to dismiss the charges against him, claiming that the speedy-trial period had expired on January 6, 1982. The trial court agreed and dismissed the charges after noting that "[i]t is the responsibility of the Court to observe the speedy trial rule."

II.

The speedy-trial statute, section 18-1-405, C.R.S.1973 (1978 Repl.Vol. 8 and 1982 Supp.), was intended to complement and render more effective the speedy-trial guarantees in U.S.Const. amend. VI and Colo. Const. art. II, sec. 16. Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978). It provides that a defendant must be brought to trial within six months from the date a plea of not guilty is entered. If the six-month period expires, and no extensions or exclusions can be shown, the pending charges against the defendant must be dismissed. Section 18-1-405(1).

Subsections (3) and (4) of the statute govern extensions. The speedy-trial period is extended an additional six months if the defendant requests and is granted a continuance, or if the defendant expressly agrees to a continuance requested by the prosecution. See Baca v. District Court, 198 Colo. 486, 603 P.2d 940 (1979); People v. Steele, 193 Colo. 87, 563 P.2d 6 (1977); People v. Chavez, 650 P.2d 1310 (Colo.App.1982). Subsection (6), on the other hand, lists certain periods of time which are excluded from the six-month computation. If the delay in bringing a defendant to trial falls within one of the enumerated categories, the speedy-trial period is effectively tolled until the delay ends. See, e.g., People v. Ferguson, 653 P.2d 725 (Colo.1982) (delay in order to file "interlocutory appeal" in the nature of original proceedings); People v. Moye, 635 P.2d 194 (Colo.1981) (delay due to defendant's voluntary unavailability); Sanchez v. District Court, 200 Colo. 33, 612 P.2d 519 (1980) (delay so that defendant could undergo psychiatric examination).

The most problematic exclusion is category (6)(f): "The period of any delay caused at the instance of the defendant." We have held that scheduling delays to accommodate defense counsel are attributable to the defendant. People v. Fetty, 650 P.2d 541, 544 (Colo.1982); People v. Bates, 155 Colo. 277, 394 P.2d 134 (1964). Similarly, delays due to efforts by the defendant to satisfy the conditions of a proposed plea bargain have been charged to the defendant. People v. Luevano, 670 P.2d 1, (Colo. 1983); People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976). The key to interpreting category (6)(f) is to determine whether the defendant caused the delay. If the delay is caused by, agreed to, or created at the instance of the defendant, it will be excluded from the speedy-trial calculation made by the court. Saiz v. District Court, 189 Colo. 555, 542 P.2d 1293 (1975); People v. Murphy, 183 Colo. 106, 515 P.2d 107 (1973).

In this case, the parties stipulated to a continuance on July 6, 1981. The effect of this continuance was to extend the speedy-trial deadline to January 6, 1982. The issue then is whether the trial court's decision to continue the hearing on Bell's Alford plea until February 16, 1982, represented either the granting of a new continuance, or a delay chargeable to the defendant. The first alternative need not detain us. The defendant did not request or consent to a continuance on November 16 or December 7, 1981. On both occasions, he was prepared to enter a qualified guilty plea, but the court wanted to conduct a hearing in keeping with the Alford opinion. The court decided to continue the matter for a hearing on December 7. On December 7, the court decided to postpone the hearing until February 16, 1982. The record reveals no requests by the defendant on either date that could be construed as "tantamount to a request for a continuance." See People v. Chavez, supra. Consequently, in the absence of a delay chargeable to the defendant, the critical date was, as the trial court indicated, January 6, 1982.

III.

We said in Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975), that the language of section 18-1-405 is mandatory unless the period of delay fits within, or can be inferred from, one of the exclusionary provisions in the statute. On appeal, the People advance several theories which attribute the delay in this case to the defendant. First, they argue that Bell waived his right to a speedy trial on December 7, 1981. We disagree. The defendant did not sign a written waiver before leaving the courthouse on December 7. The record indicates that an off-the-record discussion was held about a waiver, but it appears that no firm agreement was reached. At best, defense counsel agreed to send a waiver form to the defendant, but this action in and of itself cannot be interpreted as a waiver of Bell's right to a speedy trial. People v. Gallegos, 192 Colo. 450, 560 P.2d 93 (1977). See also Sweet v. Myers, 200 Colo. 50, 612 P.2d 75 (1980) (every reasonable presumption against a waiver must be indulged).

The People's reliance on People v. Ybarra, supra, is misplaced. In that case, the defendant agreed in open court to submit a written waiver of speedy trial as required by the deferred-prosecution statute. ² When the defendant failed to do so, and then, after failing to meet the conditions of the deferred prosecution, moved to dismiss on speedy-trial grounds, the court refused to allow the lack of a written waiver to "inure to [the defendant's] benefit."

This case is distinguishable from Ybarra, supra, since the defendant never promised to execute a waiver on December 7 and the applicable statute does not require a waiver. The facts here more closely resemble People v. Gallegos, supra, where the trial court mistakenly set a trial date beyond the six-month period and then contacted the defendant and "mentioned" the filing of a waiver. We held that the defendant's failure to respond to this suggestion did not qualify as "express consent to the delay or other affirmative conduct" as required by Harrington v. District Court, 192 Colo. 351, 559 P.2d 225 (1977), for a waiver of speedy trial. See also People v. Abeyta, 195 Colo. 338, 578 P.2d 645 (1978); Rance v. County Court, 193 Colo. 220, 564 P.2d 422 (1977).

Four weeks passed between December 7, 1981, and the January 6, 1982, deadline. The People had the responsibility to determine whether or not Bell...