People v. Moody

• Decision Date: 30 January 1984
• Docket Number: No. 81SA259,81SA259
• Citation: 676 P.2d 691
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross-Appellee, v. Cecil R. MOODY, Defendant-Appellee, Cross-Appellant.
• Court: Colorado Supreme Court

Page 691

676 P.2d 691

The PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross-Appellee, v. Cecil R. MOODY, Defendant-Appellee, Cross-Appellant.

No. 81SA259.

Supreme Court of Colorado,

En Banc.

Jan. 30, 1984.

Rehearing Denied Feb. 27, 1984.

Norman S. Early, Jr., Dist. Atty., O. Otto Moore, Asst. Dist. Atty., William P. Buckley, Chief Deputy Dist. Atty., Brook Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant, cross-appellee.

J. Gregory Walta, Colorado State Public Defender, Michael Heher, Deputy State Public Defender, Denver, for defendant-appellee, cross-appellant.

ROVIRA, Justice.

The People appeal ¹ an order of the Denver District Court dismissing charges against the defendant, Cecil R. Moody. The district court held that defendant's speedy trial rights under the Interstate Agreement on Detainers Act (IAD), section 24-60-501 et seq., C.R.S.1973 (1982 Repl.Vol. 10), had been violated. Defendant's cross-appeal urges that even if the district court's IAD speedy trial ruling is incorrect, he is still entitled to have the charges dismissed because his notice and advisement rights under the IAD were violated, his rights to a speedy trial under Crim.P. 48(b) and section 18-1-405, C.R.S.1973 (1978 Repl.Vol. 8), were denied, and he did not receive effective assistance of trial counsel. We hold that the district court's ruling is incorrect. We reject the arguments presented in defendant's cross-appeal. Therefore, we reverse and remand to the district court with instructions to reinstate the charges, the judgment of conviction, and the sentence imposed on December 2, 1977.

I. Facts

On February 13, 1975, the Lakewood, Colorado, Department of Public Safety placed a detainer ² on the defendant while he was being held in the Alameda, California, County Jail. On May 21, 1975, while defendant was in the same jail, the Denver police placed a second detainer on the defendant. Pursuant to a sentence agreement reached in California on June 24, 1975, defendant was sentenced to a term of five years to life for aggravated robbery, the term to be served outside of California, preferably in Colorado. Defendant sent an Agreement on Detainers--Form 2 and a letter to the Lakewood Department of Public Safety on September 30, 1975, requesting a speedy disposition of the charges filed against him in Lakewood. However, the request was received by the Denver District Attorney's Office. ³

After receiving the request, the Denver District Attorney took steps to obtain temporary custody of the defendant. In October of 1975, Lakewood officials also initiated procedures designed to obtain temporary custody. On November 20, 1975, an Assistant District Attorney from Lakewood wrote to the Records Officer of the California Department of Corrections. He stated that since Denver officials had arranged for the return of defendant to Colorado, it was unnecessary for officials from Lakewood to be involved in the transfer because they would proceed against defendant through a writ of habeas corpus after his arrival in Colorado. The record does not reveal whether defendant has ever been brought to trial on the charges filed against him in Lakewood.

Defendant was transferred to the custody of the Denver Sheriff on November 25, 1975. On January 7, 1976, a preliminary hearing was held in Denver County Court. Defendant was bound over on charges of aggravated robbery and conspiracy to commit aggravated robbery stemming from an incident that occurred in a Denver pizza parlor on January 5, 1975.

After obtaining a continuance, defendant was arraigned on January 20, 1976. He entered a plea of not guilty, and trial was set for February 17. On that date, defendant waived speedy trial, withdrew his plea of not guilty, entered a plea of not guilty by reason of insanity, and raised the issue of his competency to stand trial. After examination, doctors at the Colorado State Hospital found the defendant incompetent to proceed. The district attorney moved for a competency hearing, which was set for May 13, 1976. At that time, the court made a preliminary finding of defendant's incompetency and granted the district attorney's motion for a continuance. The competency hearing was eventually set by agreement for July 30. On that date, the district attorney confessed defendant's incompetence, and the defendant was sent to the Colorado State Hospital.

On November 4, 1976, the hospital filed a report with the trial judge indicating that defendant was competent to stand trial. The restoration of competency hearing was continued by agreement to January 14, 1977. At that hearing the trial court found that defendant had been restored to competency. Defendant was again arraigned and entered a plea of not guilty by reason of insanity, and the trial court committed him to the state hospital for a sanity evaluation, which was filed with the trial court on February 15. Defendant's motion for an additional psychiatric examination was granted. A sanity trial was set for May 9, and trial on the merits for May 31. The defendant obtained two continuances of his sanity trial and waived his speedy trial rights. The trial court found defendant sane on June 3, 1977.

Trial on the merits was set for June 27 and "trailed" until June 28. On that date, the People's motion for a continuance was granted, ⁴ and the trial was set for September 6. On September 9, the jury found defendant guilty of aggravated robbery. A hearing on his motion for a new trial or sentencing was set for October 20, but was continued by agreement three times until December 2. On that date, defendant's new trial motion was denied, and he was sentenced to a term of twenty to thirty-five years, to run consecutively with his California sentence of five years to life.

Defendant's trial attorney withdrew in 1978, and a public defender was appointed to represent him. A number of post-conviction motions were filed. We affirmed defendant's conviction in People v. Moody, 630 P.2d 74 (Colo.1981), but while that decision was pending, defendant filed a Crim.P. 35(c)(2) motion alleging: (1) that his speedy trial rights under the IAD had been violated; (2) he had been denied his constitutional and statutory rights to a speedy trial; and (3) that his constitutional right to effective assistance of counsel had been denied.

After a hearing, the district court ⁵ held that the defendant was not denied effective assistance of trial counsel; he was not denied his right to speedy trial under the federal and state constitutions, the state speedy trial statute, section 18-1-405, C.R.S.1973 (1978 Repl.Vol. 8), or Crim.P. 48; and he had no basis to claim a violation of his rights under Article III of the IAD. However, the court held that the defendant's speedy trial rights under Article IV of the IAD had been violated and the aggravated robbery charges should have been dismissed despite the fact that no motion requesting dismissal had been filed prior to or at the time of trial. The court vacated the judgment of conviction and sentence and dismissed the case. This ruling forms the basis of the People's appeal and the defendant's cross-appeal.

II. Waiver

The People argue that defendant waived his rights under the IAD when he failed to assert them prior to or during trial. Defendant contends that an IAD violation is jurisdictional and can be raised at any time. We agree with the People's position.

People v. Jacobs, 198 Colo. 75, 596 P.2d 1187 (1979), states that compliance with the IAD is a jurisdictional prerequisite to the state's ability to try a defendant on the charges against him, and that noncompliance may be raised for the first time on appeal. ⁶ Subsequent to that decision, the United States Supreme Court in Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), established that federal law governs the interpretation of the IAD. Although the IAD does not explicitly address waiver, several federal courts have held that IAD rights are nonjurisdictional and can be waived. We agree with that conclusion. E.g., Brown v. Wolff, 706 F.2d 902 (9th Cir.1983); Kowalak v. United States, 645 F.2d 534 (6th Cir.1981); Gray v. Benson, 608 F.2d 825 (10th Cir.1979). IAD rights are not constitutionally based; waiver of them must be voluntary, but need not be knowing and intelligent. United States v. Black, 609 F.2d 1330 (9th Cir.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); Webb v. State, 437 N.E.2d 1330 (Ind.1982) (applying federal law).

Moreover, to discourage piecemeal litigation and to promote the finality of judgments, prisoner rights under the IAD are waived if they are not asserted prior to or during trial. Mars v. United States, 615 F.2d 704 (6th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980); United States v. Boggs, 612 F.2d 991 (5th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980); United States v. Eaddy, 595 F.2d 341 (6th Cir.1979); see Black, 609 F.2d at 1334; see United States v. Scallion, 548 F.2d 1168 (1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978); see Kowalak, 645 F.2d at 536 (defendant's guilty plea, entered prior to raising any question of a violation of the IAD, waived his rights under that agreement). We conclude that defendant waived his IAD rights since he did not raise them until after his trial had ended. Therefore, the district court was incorrect when it dismissed the charges against the defendant based on a violation of Article IV of the IAD.

III. Effective Representation of Counsel

Defendant's cross-appeal urges that his constitutional right to effective assistance of counsel was denied. We disagree.

A defendant is entitled to receive "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." United States v. DeCoster, 487 F.2d 1197, 1202 (D.C.Cir.1973); Stroup v. People, 656 P.2d 680, 683-84 (Colo.1982); Jacobs, 198 Colo. at 79,...