People v. Fleming

Decision Date19 June 1995
Docket NumberNo. 93SC633,93SC633
Citation900 P.2d 19
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Edward FLEMING, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., Mary E. Ricketson, Sp. Asst. Atty. Gen., Laurie A Booras, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for petitioner.

Richard O'Brien Moore, Denver, for respondent.

Justice SCOTT delivered the Opinion of the Court.

In People v. Fleming, 867 P.2d 119 (Colo.App.1993), the court of appeals reversed a judgment of conviction, holding that the state did not bring the defendant to trial within the ninety day time period required by the Uniform Mandatory Disposition of Detainers Act, sections 16-14-101 to -108, 8A C.R.S. (1986 & 1994 Supp.) (UMDDA). The petitioner, the People of the State of Colorado, challenges the court of appeals' ruling, claiming that good cause was shown for the trial court to continue the trial date. We granted certiorari to determine "whether the court of appeals erred in holding that the [defendant] was denied a speedy trial pursuant to the Uniform Mandatory Disposition of Detainers Act." Because we find that a defendant should not profit from a delay for which he or she was responsible, we reverse the judgment of the court of appeals and remand this matter with directions.

I

On March 20, 1991, respondent, Edward Fleming, was charged with second degree burglary 1 and misdemeanor theft. 2 On March 15, 1991, Fleming made an unauthorized entry into a Sears repair shop and took two appliances, a small television and a VCR. Fleming was apprehended while walking away from the shop with the appliances by a Denver police officer responding to a silent alarm call. The value of the property was less than three hundred dollars. Fleming had previously pleaded guilty to second degree forgery, robbery, and second degree burglary, and was on parole when the 1991 burglary was committed.

On April 4, 1991, while being held in the Denver County Jail, Fleming mailed a pro se Motion for Disposition of Untried Complaint requesting a speedy disposition of the complaint against him pursuant to the UMDDA. 3 Fleming's motion stated that under the UMDDA, the People must prosecute the Untried Complaint within ninety days after the court received his UMDDA request.

On April 11, 1991, at his preliminary hearing before the Denver County Court, Fleming objected to proceeding with his appointed counsel, stating "I don't think he has my best interests at hand." The county court judge, Hon. Larry Bohning, offered to continue the preliminary hearing to give Fleming an opportunity to retain private counsel, provided that Fleming would waive his right to have a preliminary hearing within 30 days. Fleming responded, "I don't want to waive any right that I have. All I want is another attorney. I do not want to proceed with this one." Judge Bohning then indicated Fleming was entitled to a preliminary hearing but that due to a conflict over the next several days in the schedule of the prosecution's police witness, Fleming would either have to proceed with his current counsel or "waive the 30-day rule" and allow the preliminary hearing to be set the following week. The following colloquy then occurred:

FLEMING: If I waive the 30-day rule, does that pertain just to--to preliminary hearing?

THE COURT: Yes, sir.

FLEMING: It has nothing--nothing to do with the speedy trial rules or anything like that, right?

THE COURT: Absolutely not.

FLEMING: Okay, I just--

THE COURT: So you want to waive your right to have it heard within 30 days?

FLEMING: Yeah.

At that time, Fleming never mentioned that he had requested disposition of the case pursuant to the UMDDA. The preliminary hearing was continued for 28 days to permit Fleming to retain new counsel and was set for May 9, 1991.

On May 9, Fleming, who was in the custody of the Department of Corrections (DOC), did not appear for the preliminary hearing. As a result, he was granted a continuance until May 30. However, during the period of April 11 to May 30, Fleming did not retain private counsel. On May 30, 1991, appearing without counsel, Fleming waived his right to a preliminary hearing. 4

On June 24, Fleming's appointed counsel appeared before the district court, Hon. Richard T. Spriggs, to enter a plea and set a trial date. Because Fleming, who was in the custody of the DOC, did not appear, the hearing was continued by Judge Spriggs until July 8, 1991--the final day for bringing Fleming to trial under the UMDDA.

On July 8, 1991, Fleming personally appeared before Judge Spriggs without his counsel. He was accompanied, however, by two attorneys from the public defender's office who attended the hearing to enter a not guilty plea on Fleming's behalf. At that time, Fleming's counsel of record, Michael Linge, was on vacation, and the public defenders appearing with Fleming for Linge were not familiar with the case. After the plea was entered, the trial court set motions to be heard on August 27, 1991, after Linge was expected to return from vacation. When the motions date was announced, Fleming told the court and counsel that "I've already filed a motion for speedy detainer act, and the ninety days is up already." While he referred to "speedy trial" during his county court appearance on April 11, this was the first occasion Fleming specifically referred to the "detainer act" or to its ninety day provision.

Fleming's statement caused the court to examine its file wherein Judge Spriggs discovered a letter from Fleming to Judge Bohning, Fleming's motion under the UMDDA, and a certificate of mailing dated April 4, 1991. The court noted that the envelope addressed to Judge Bohning was postmarked April 5, 1991, but there was no date stamp indicating the arrival of the documents in the county court. Reviewing the court files, Judge Spriggs determined that the request was received on April 8, 1991, thereby making July 8, 1991, the final day within the UMDDA's ninety day speedy trial rule. 5 Although the court acknowledged having received a copy of Fleming's motion, the district attorney and the public defenders office, including Mr. Linge and the attorneys accompanying Fleming, were unaware of Fleming's UMDDA motion.

After making a motion to amend the information to add three habitual criminal counts, the district attorney announced that he was ready to try the case on that day. However, Mr. Linge was not available and Mr. Cole, one of the public defenders accompanying Fleming in court, stated

[Fleming is] not going to be represented by anybody from the Public Defender's Office at a trial that commences today. I can advise the Court that there's no way that anybody in our office is going to try this case today because we cannot effectively represent him. We don't know the facts of the case.

Nonetheless, Fleming was unwilling either to proceed without counsel or to waive his UMDDA rights by requesting a continuance. Refusing to require Fleming to proceed without counsel or with unprepared counsel when he was facing possible life imprisonment, the court then set the trial for July 29, 1991.

On July 30, Fleming entered a plea of guilty to the second degree burglary charge, in return for which all other charges against him would be dismissed, including the habitual criminal charges. During the course of the July 30 providency hearing, Fleming specifically waived his right to a speedy trial under the UMDDA as part of a plea bargain. He was then sentenced to the DOC for a term of eight years.

II

Fleming subsequently filed a pro se Crim.P. 35(c) motion, alleging that his UMDDA rights had been violated. Following a hearing, the trial court denied Fleming's motion, finding that (1) Fleming's refusal to proceed to preliminary hearing with Mr. Linge on April 11, and his agreement to a continuance for the purpose of obtaining new counsel, constituted good cause shown to continue the hearing under the UMDDA; (2) Fleming's inability to proceed to trial without Mr. Linge on July 8, the last day of the period, constituted good cause shown to continue the hearing under the UMDDA; and (3) Fleming had waived his right to a speedy trial as part of the July 30 plea agreement.

With one judge dissenting, the court of appeals reversed the judgment of conviction. People v. Fleming, 867 P.2d 119 (Colo.App.1993). The majority of the court of appeals held that the trial court abused its discretion by requiring Fleming to either proceed to trial or to waive his rights under the UMDDA, and that the remaining reasons which the trial court articulated for continuing the trial date beyond the UMDDA ninety day period were not tenable. Id.

Judge Pierce dissented, finding that "good cause" was shown for granting a continuance on April 11, when Fleming requested new counsel, and again on July 8, when Fleming and his counsel were not prepared to proceed with trial on the last allowable day. Id. at 122 (Pierce, J., dissenting). The dissent acknowledged that the trial court should have conferred with all counsel concerning the necessity for an earlier trial date. Judge Pierce pointed out, however, that Fleming never told his counsel that he had filed the motion, and was therefore also responsible for his counsel's inability to proceed on the last day of the statutory period. Judge Pierce urged that Fleming should not be allowed to profit from a situation that he was at least partially responsible for creating. Id.

We are now called upon to determine whether Fleming was in fact denied a speedy trial pursuant to the UMDDA. Because we find that any delays in the prosecution of Fleming's case were the direct result of Fleming's actions, we conclude that Fleming was not denied a speedy trial. 6 Accordingly, we reverse the...

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14 cases
  • People v. Marsh
    • United States
    • Colorado Court of Appeals
    • December 22, 2011
    ...continue, the trial court must consider the peculiar circumstances of each case and balance the equities on both sides. People v. Fleming, 900 P.2d 19, 23 (Colo.1995). It must also consider the "prejudice to the moving party if the continuance is denied and whether that prejudice could be c......
  • People v. Smith
    • United States
    • Colorado Court of Appeals
    • January 6, 2011
    ...continue, “the trial court must consider the peculiar circumstances of each case and balance the equities on both sides.” People v. Fleming, 900 P.2d 19, 23 (Colo.1995). As relevant here, the trial court must consider the “prejudice to the moving party if the continuance is denied and wheth......
  • People v. Hines
    • United States
    • Colorado Court of Appeals
    • April 8, 2021
    ...568, but we review for an abuse of discretion the district court's decision to grant a continuance for good cause, see People v. Fleming , 900 P.2d 19, 23 (Colo. 1995).B. Discussion ¶ 18 To determine whether the district court correctly denied a motion to dismiss for failure to comply with ......
  • People v. Duncan
    • United States
    • Colorado Court of Appeals
    • March 16, 2000
    ...were caused by the defendant. In those cases, the delay was, therefore, properly chargeable to the defendant. See, e.g., People v. Fleming, 900 P.2d 19 (Colo.1995); People v. Scales, supra (late substitution of counsel was caused by the defendant); People v. Runningbear, supra (defendant's ......
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