People v. Roberts

• Citation: 321 P.3d 581
• Decision Date: 11 April 2013
• Docket Number: Court of Appeals No. 07CA1878
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Howell Franklin ROBERTS, III, Defendant–Appellant.
• Court: Court of Appeals of Colorado

321 P.3d 581

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Howell Franklin ROBERTS, III, Defendant–Appellant.

Court of Appeals No. 07CA1878

Colorado Court of Appeals, Div. III.

Announced April 11, 2013

City and County of Denver District Court No. 05CR2931, Honorable Robert L. McGahey, Jr., Judge.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Alison Ruttenberg, Boulder, Colorado, for Defendant–Appellant.

Opinion by JUDGE DAILEY

¶ 1 Defendant, Howell Franklin Roberts, III, appeals the judgments of conviction entered upon jury verdicts finding him guilty of violating the Colorado Organized Crime Control Act (COCCA), §§ 18–17–101 to –109, C.R.S.2012, conspiracy to commit computer crime (two counts), conspiracy to commit theft, conspiracy to commit forgery, computer crime (two counts), theft (four counts), forgery (17 counts), and possession of a forged instrument (2 counts). Because we reject his contentions, including that he was tried in violation of the speedy trial provisions of the applicable version of the Uniform Mandatory Disposition of Detainers Act (UMDDA), §§ 16–14–101 to –108, C.R.S.2012, we affirm.

I. Background

¶ 2 Defendant ran an operation to pass counterfeit payroll checks. He would obtain legitimate payroll checks from a variety of sources, copy them, scan them into his computer, and give the copies to his associates to cash at various grocery stores. In a search of his hotel room, police found hundreds of pieces of paper, check stubs, and payroll checks, along with computer equipment and software designed to make checks, check making supplies, drug paraphernalia, and handwritten lists identifying his accomplices.

¶ 3 Defendant was on parole when he was arrested in this case. On July 1, 2005, a grand jury returned an indictment accusing him of having committed sixty-one crimes, and his parole was revoked. On July 14, 2005, counsel was appointed to represent him.

¶ 4 On August 29, 2005, defendant filed pro se a document which contained, among other things, a reference to an earlier written request that he be tried within the 180–day period prescribed by the then applicable version of the UMDDA. Ch. 340, sec. 1, § 16–14–104(1), 2004 Colo. Sess. Laws 1377; cf. § 16–14–401(1), C.R.S.2012 (182 days, effective July 1, 2012).

¶ 5 On November 10, 2005, defendant entered a not guilty plea, and trial was set for April 3, 2006. When defendant noted that the trial date was beyond his calculated UMDDA period, both the court and the prosecutor responded that they had not received a UMDDA request. (They apparently had received defendant's August 29, 2005 document, but were either unaware of it, or of the UMDDA reference in it.) The court further noted that (1) it would not, in any event, consider defendant's pro se request because, at the time it was filed, he was represented by counsel; and (2) “[e]ven assuming [defendant's] oral assertion ... [at the November 10 hearing met] the requirement of the [UMDDA],” the April 3 trial date fell within the required UMDDA period.

¶ 6 The April 3, 2006, trial date was continued twice, until, ultimately, November 27, 2006. Each continuance was granted over defendant's objection but at the request of his counsel, as follows.

¶ 7 On March 17, 2006, counsel moved to continue the April 3, 2006, trial date because he “would not be prepared and able to be effective in [his] representation” due to “the complex nature of plea bargains and the huge number of witnesses.” Although objecting to the continuance, defendant stated that he “absolutely” did not want to represent himself at trial. The court continued the trial until July 31, 2006, reasoning:

[T]here's no question the number of counts involved in this case, the number of witnesses, that this is a very serious and significant case. It is one which will require considerable preparation. If the Court were to deny the request for the continuance, I believe we would be setting up the record for an automatic appeal and a waste of time doing the trial in any event.

¶ 8 In May and early June 2006, defendant filed three pro se motions in which he alleged that the court had “violated [his] [UMDDA] rights and permanently lost jurisdiction of [the case] as of February ... 2006.” At a June 9, 2006, hearing, defense counsel moved for another continuance of the motions hearing and trial because, he said, he needed to withdraw from the case. In support of this assertion, he stated:

[A]s the court is aware and [the prosecutor] is aware and [defendant] is aware, [I have] had to reduce my caseload through A[lternative] D[efense] C [ounsel] and I'm going to have to get off this case. They're going to be attempting to find a new attorney ... to represent [defendant]. And I think it would be prudent to not proceed to motions if new counsel is going to be on the case.

¶ 9 When the court wondered aloud what to do about the July 31 trial date if new counsel were to enter the case, defense counsel responded:

I have to also say, [the prosecutor] has recently ... tendered new witnesses.... I don't have official written information on some of them, but in any event, there are a number of new witnesses that have, well, accepted plea deals, and I believe agreed to testify which is my long way of getting around I don't believe that had I been on this case I would have been able to proceed on July 31st anyway.

¶ 10 Although defendant did not express an objection to counsel's request to withdraw, he said that he was not “waiving [his] speedy trial” and that he did not want to represent himself. At that point, the court informed defendant that if he wanted an attorney to represent him,

? “there's no way [a July 31 trial] can happen if [defense counsel] is getting off the case,” given “the complicated nature of [the charges] and the volume of discovery” with which new counsel would be confronted; and

? even if current defense counsel's “feet [were held] to the fire” and he was made to “stay on this case,” by his own account, he could not “get prepared” by, and would be “ineffective” if forced to go to trial on, July 31.

¶ 11 Unwilling to create a situation where counsel would, in any event, provide ineffective assistance, the court continued the July 31 trial date; granted defense counsel's request to withdraw; and set June 30, 2006 for a status conference and entry of new counsel.¹ On June 30, new counsel appeared on defendant's behalf, and the court set the trial for November 27, 2006, with the seeming agreement of new counsel,² but, again, over defendant's objection.

¶ 12 Defendant, and, ultimately, new defense counsel filed motions to dismiss the case on, among other things, UMDDA grounds. On November 16, 2006, the court ruled that there had been “no violation of the UMDDA”:

[T]he trial ... is set for when it is ... because of issues involving retention of counsel and issue[s] raised by the lawyers representing [defendant].... The actions ... of ... counsel ... acting on [defendant's] behalf ... constitute a waiver of ... [his] UMDDA [rights].

¶ 13 At trial, defendant argued that the witnesses who testified against him, many of whom had admitted to their own criminal activities, were not credible. In addition, he argued that his operation, which he generally categorized as a loose association of petty criminals, would not qualify as an “enterprise” under COCCA. The jury convicted him, as noted above, and upon his adjudication as an habitual criminal, the court sentenced him to an aggregate term of 306 years imprisonment.

II. UMDDA

¶ 14 Defendant contends that his convictions must be vacated because he was not brought to trial within the period allowed by the applicable version of the UMDDA. We disagree.

In People v. Glasser, 293 P.3d 68 (Colo.App.2011), a division of this court noted:

The primary purpose of the UMDDA is to “provide a mechanism for prisoners to insist upon speedy and final disposition of untried charges that are the subjects of detainers so that prison rehabilitation programs initiated for the prisoners' benefit will not be disrupted or precluded by the existence of these untried charges.”

Id. at 76 (quoting People v. Higinbotham, 712 P.2d 993, 997 (Colo.1986)).

¶ 15 Under the applicable version of section 16–14–104(1), a defendant had to be brought to trial within 180 days after the court and the prosecuting official received his or her written request for final disposition of charges, unless that period was waived or extended for good cause or by stipulation. ³ The failure to try the defendant within the time allowed under the UMDDA requires dismissal of the charges with prejudice. Id.

¶ 16 The burden of compliance with the statutory speedy disposition provisions of the UMDDA is on the prosecution and the trial court. People v. Mueller, 851 P.2d 211, 213 (Colo.App.1992).

¶ 17 To determine whether the trial court correctly rejected defendant's motions to dismiss for failure to comply with the UMDDA, we must inquire

? Whether defendant invoked the protections of the UMDDA;

? If defendant invoked the protections of the UMDDA, whether he was brought to trial within the prescribed 180–day period; and

? If he was not brought to trial within the 180–day period, whether that period was properly waived or extended until the November 27, 2006 trial.

A. Whether Defendant Invoked the Protections of the UMDDA

¶ 18 Defendant contends that he invoked the UMDDA by filing on August 29, 2005, a written request to be tried within the time specified in UMDDA. ⁴ We agree that, ultimately, this document served to invoke UMDDA rights, but not, as he contends, on August 29, 2005.

¶ 19 The UMDDA sets forth the procedure for invoking its protections. It requires, in the first instance, a written request for speedy disposition, “addressed to the court ... and to the prosecuting official charged with the duty of prosecuting” the new case, § 16–14–102(1),...