People v. Harris, 93CA0964

• Decision Date: 29 June 1995
• Docket Number: No. 93CA0964,93CA0964
• Citation: 914 P.2d 425
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew G. HARRIS, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 425

914 P.2d 425

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew G. HARRIS, Defendant-Appellant.

No. 93CA0964.

Colorado Court of Appeals,

Div. IV.

June 29, 1995.

Rehearing Denied Aug. 3, 1995.

Certiorari Denied April 8, 1996.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Frances S. Brown, Chief Appellate Deputy State Public Defender, David M. Furman, James Grimaldi, Deputy State Public Defenders, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Andrew G. Harris, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of second degree kidnapping. He also challenges the court's denial of presentence confinement credit on his sentence. We affirm.

Defendant was charged with second degree kidnapping and aggravated robbery. According to the victim, late one night, defendant entered the victim's vehicle without permission and forced him at knifepoint to drive without headlights until a police officer noticed the lack of headlights and began pursuit. The victim then drove off the street onto a lawn and exited the vehicle. Defendant was apprehended shortly thereafter.

At trial, defendant testified that he and the victim had been involved in a drug transaction earlier that night which ended in a stabbing. He then testified that the victim had agreed to drive defendant out of the vicinity of the stabbing.

I.

Defendant's first argument on appeal is that his statutory and constitutional speedy trial rights were violated. We do not agree.

A.

On November 22, 1991, defendant was found incompetent to stand trial as to all of six criminal cases pending before the trial court and was ordered confined to the Colorado State Hospital in Pueblo until his competency was restored. In February 1992, the State Hospital filed a report with the trial court which indicated that defendant was competent.

On March 27, 1992, the court made a determination in three of the six cases that defendant had been restored to competency. The other cases, including this one, were not brought to the court's attention and thus were not included in that determination. A judicial determination of competency as to this case ultimately was entered on August 27, 1992.

1.

Defendant now contends that the trial court erred by excluding the time between the March 27, 1992, competency determination in the unrelated cases and the August 27, 1992, ruling on the competency issue in this case for purposes of calculating the relevant period under the speedy trial statute. We disagree.

According to § 16-8-113, C.R.S. (1986 Repl.Vol. 8A), once a defendant has been found incompetent, "[t]he court shall order a hearing if the head of an institution to which the defendant is committed files a report that the defendant is mentally competent to proceed or if a physician who has been treating the defendant files a report certifying that the defendant is mentally competent to proceed," and "[a]t the hearing, the court shall determine whether the defendant is restored to competency."

"Any period during which the defendant is incompetent to stand trial" is excluded from the speedy trial computation. Section 18-1-405(6)(a), C.R.S. (1986 Repl.Vol. 8B); see Coolbroth v. District Court, 766 P.2d 670 (Colo.1988).

Accordingly, the period excluded from the speedy trial computation under § 18-1-405(6)(a) does not end upon the filing of a report that a defendant is competent to proceed, but rather when the court makes a determination that the defendant is restored to competency. Here, that period did not end until such determination was entered by the trial court on August 27, 1992, well within the speedy trial period.

People v. Deason, 670 P.2d 792 (Colo.1983) and People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977), upon which defendant relies, are inapplicable to the situation here. Both cases involve sanity examinations, and for purposes of speedy trial calculations, periods in which sanity examinations are being conducted are not governed by the same statutory language as periods during which a defendant is incompetent.

Under § 18-1-405(6)(a), as then in effect, the period during which a defendant "is under observation or examination pursuant to a plea of not guilty by reason of insanity" is excluded. This period of observation or examination ends at the time the psychiatric report is filed and the court in Deason and Renfrow held accordingly.

In contrast, in its present form, § 18-1-405(6)(a), by its plain terms, excludes any period during which the defendant is incompetent. And, under § 16-8-113, the period of incompetency does not end until a judicial determination is made that defendant has been restored to competency.

For similar reasons, those cases in which there has been a delay during which a defendant is examined for competency and was found competent, are not germane to the issue here. In such cases, the period between the request for a competency examination and the receipt of psychiatric reports is not covered by § 18-1-405(6)(a). Nonetheless, this period of delay has been excluded as a delay attributable to the defendant under § 18-1-405(6)(f), C.R.S. (1986 Repl.Vol. 8B). See Jones v. People, 711 P.2d 1270 (Colo.1986). Again, this period of delay ends when the examination concludes. See People v. Brown, 44 Colo.App. 397, 622 P.2d 573 (1980); cf. § 18-1-405(6)(a), C.R.S. (1994 Cum.Supp.) (effective July 1, 1994, any period during which a defendant is "under observation or examination at any time after the issue of insanity, incompetency, or impaired mental condition is raised" is specifically excluded from speedy trial computation as well as any period during which the defendant is incompetent).

2.

Because the statutes deal with different subject matters and are not related, defendant contends that the meaning of "incompetent" as used in § 18-1-405(6)(a) is not dependent upon a judicial determination of restoration to competency as required in § 16-8-113. We are not persuaded.

According to §§ 16-8-112 and 16-8-114, C.R.S. (1986 Repl.Vol. 8A), a finding of incompetency results in the abatement of any proceedings requiring the presence and participation of the defendant. See Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972); Rupert v. People, 156 Colo. 277, 398 P.2d 434 (1965); see also § 16-8-110(2)(a), C.R.S. (1986 Repl.Vol. 8A) ("If the judge has reason to believe that the defendant is incompetent to proceed, it is his duty to suspend the proceeding and determine the competency or incompetency of the defendant....").

Trial or sentencing procedures do not resume unless the court has found the defendant has been restored to competency. See §§ 16-8-114(1) & 16-8-114(2), C.R.S. (1986 Repl.Vol. 8A); Leick v. People, 136 Colo. 535, 322 P.2d 674 (1958) (restoration to competency removes the statutory impediment and criminal proceedings take up at the point at which the incompetency arose).

Statutes pertaining to the same subject matter must be read in pari materia in order to insure legislative intent is fulfilled and to avoid inconsistency. Walgreen Co. v. Charnes, 819 P.2d 1039 (Colo.1991). Here, §§ 16-8-112, 16-8-113, and 16-8-114 provide procedures which prevent the continuation of criminal proceedings during a period when a defendant has been found incompetent and is thus unable to attend or to participate meaningfully in his defense. See § 16-8-110(1), C.R.S. (1986 Repl.Vol. 8A) ("no person shall be tried, sentenced, or executed if he is incompetent to proceed at that stage of the proceedings against him").

Section 18-1-405(6), C.R.S. (1986 Repl.Vol. 8B) provides exceptions from the speedy trial computation to accommodate periods when the criminal proceedings are justifiably interrupted or suspended. See § 18-1-405(6)(b), C.R.S. (1986 Repl.Vol. 8B) (period of delay caused by an interlocutory appeal excluded); § 18-1-405(6)(d), C.R.S. (1986 Repl.Vol. 8B) (period of delay caused by the defendant's voluntary absence or unavailability excluded).

Because criminal proceedings are suspended during the entire time a defendant is incompetent and may not resume until a judicial determination is made that the defendant has been restored to competency, we perceive no basis upon which to find that the period in which a defendant is "incompetent" under § 18-1-405(6)(a) ends in any manner other than in accord with the procedures of § 16-8-113.

3.

Defendant argues, however, that because the meaning of the term "incompetent" is unclear, the rule of lenity requires us to interpret this ambiguous term in such a way as to exclude the shortest amount of time from speedy trial computation. We do not agree.

The rule of lenity may be employed only to resolve an unyielding statutory ambiguity, not to create one. See People v. Forgey, 770 P.2d 781 (Colo.1989); Schubert v. People, 698 P.2d 788 (Colo.1985). We perceive no unyielding ambiguity in the use of the term "incompetent" in § 18-1-405(6)(a). Thus, regardless of defendant's proposed alternative interpretation of the statute, the rule of lenity does not apply. See People v. Saucedo, 796 P.2d 11 (Colo.App.1990).

B.

The constitutional right to a speedy trial, derived from the Sixth Amendment and from Colo. Const. art. II, § 16, is distinct from the statutory speedy trial right and the determination as to one does not necessarily dispose of the other. People v. Hogland, 37 Colo.App. 34, 543 P.2d 1298 (1975). Therefore, we must consider whether, although defendant's trial was held within the statutory speedy trial period, his constitutional speedy trial rights were violated by the delay in entering a competency finding in this case.

The defendant bears the burden of establishing that there has been a constitutional speedy trial violation, under an ad...