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ADVANCE SHEET HEADNOTE December 9, 2019

No. 19SA180, In Re People v. Rowell—Preliminary Hearing Demand Following Bond Revocation—“Within a Reasonable Time.”

In this original proceeding brought pursuant to C.A.R. 21, the supreme court

holds that the district court erred in denying the defendant’s request for a

preliminary hearing without first determining whether the request was advanced

within a reasonable time after the bonds in his cases were revoked and he was

taken into custody. The relevant charges are class 4, 5, and 6 felonies that do not

carry mandatory sentencing, are not crimes of violence pursuant to section

18-1.3-406, C.R.S. (2019), and are not sexual offenses. It is undisputed that while

the defendant was on bond, he was not eligible to receive a preliminary hearing

on those charges. But the court rules that when his bonds were later revoked, he

was entitled to demand and receive a preliminary hearing within a reasonable

time. Accordingly, the court reverses the district court’s ruling. The case is

remanded so that the district court may determine whether the defendant’s

demand was made within a reasonable time after he became eligible to advance it. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 19SA180 Original Proceeding Pursuant to C.A.R. 21 Larimer County District Court Case Nos. 18CR1611 & 19CR15 Honorable Gregory M. Lammons, Judge ________________________________________________________________________ In Re

Plaintiff:

The People of the State of Colorado,

v.

Defendant:

James Rowell. ________________________________________________________________________ Rule Made Absolute en banc December 9, 2019 ________________________________________________________________________

Attorneys for Plaintiff: Clifford E. Riedel, District Attorney, Eighth Judicial District Joshua D. Ritter, Deputy District Attorney Fort Collins, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender Erin Crowgey, Deputy Public Defender Fort Collins, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court. ¶1 In this original proceeding brought pursuant to C.A.R. 21, we must

determine whether the district court erred in denying James Rowell’s request for

a preliminary hearing on one of the two felony charges in case number 18CR1611

and on all five felony charges in case number 19CR15 (collectively, “the relevant

charges”). The relevant charges are class 4, 5, and 6 felonies that do not carry

mandatory sentencing, are not crimes of violence pursuant to section 18-1.3-406,

C.R.S. (2019), and are not sexual offenses. It is undisputed that Rowell was initially

ineligible to receive a preliminary hearing on the relevant charges because he

posted bond in both cases. The issue we confront is whether Rowell was entitled

to demand and receive a preliminary hearing on the relevant charges when he

later found himself in custody in both cases because his bonds were revoked. The

district court ruled that he was not, and we subsequently granted his petition for

a rule to show cause. We now make the rule absolute.

¶2 Because Rowell was taken into custody on the relevant charges when his

bonds were revoked, he was entitled to demand a preliminary hearing on those

charges “within a reasonable time.” The question that naturally flows from this

determination is: What does “within a reasonable time” mean? The legislature

asked this court to establish, through rule, the precise timeframe within which a

demand for a preliminary hearing must be made. See § 16-5-301(1)(a), C.R.S.

(2019). Although Crim. P. 7(h)(1) requires that a preliminary hearing request in

2 district court be made “within 7 days after the defendant is brought before the

court for or following the filing of the information,” it does not address Rowell’s

situation—Rowell did not become eligible to demand a preliminary hearing on the

relevant charges until months after he was brought before the court for the filing

of the information. Inasmuch as Rule 7(h)(1) is silent on the timeframe within

which Rowell was required to demand a preliminary hearing on the relevant

charges after his bonds were revoked, we remand the case to the district court to

determine whether his demand was made “within a reasonable time” after he

became statutorily eligible to advance it.

I. Facts and Procedural History

¶3 In June 2018, Rowell was charged in Larimer County case number 18CR1611

with multiple crimes, including two felonies: count one, second degree assault

(peace officer), a class 4 felony; and count two, second degree assault (serious

bodily injury), a class 4 felony. Rowell posted bond and was released the next

day—before the information was filed and prior to any court appearance for the

filing of the information.

¶4 Approximately six months later, on January 1, 2019, Rowell was accused of

committing additional crimes in Larimer County case number 19CR15. He was

charged in that case with a misdemeanor and the following five felonies: three

counts of second degree assault (peace officer), all class 4 felonies; one count of

3 attempted second degree assault (peace officer), a class 5 felony; and one count of

violation of bail bond conditions, a class 6 felony. Again, Rowell posted bond

before the information was filed and prior to any court appearance for the filing

of the information.

¶5 In February 2019, Rowell requested a preliminary hearing in each case. The

district court granted the request as to count two in 18CR1611, finding that second

degree assault (serious bodily injury) requires mandatory sentencing and is also a

crime of violence pursuant to section 18-1.3-406 (“crime of violence”).1 See

§ 16-5-301(1)(b)(I) (“No person accused of a class 4, 5, or 6 felony . . . except those

which require mandatory sentencing or which are crimes of violence . . . or which

are sexual offenses . . . shall have the right to demand or receive a preliminary

hearing.”). But it denied the request as to the relevant charges—i.e., the remaining

felony charge in 18CR1611 and all five felony charges in 19CR15—reasoning that

Rowell was on bond and those charges do not require mandatory sentencing, are

not crimes of violence, and are not sexual offenses.2 See § 16-5-301(1)(b)(II) (“Any

1Whether Rowell’s request for a preliminary hearing on count two in 18CR1611 was timely made in February 2019 is not an issue before us. 2Neither party contests the district court’s conclusion that the relevant charges do not require mandatory sentencing and are not crimes of violence or sexual offenses. And we have not been asked to review that determination. Therefore, we assume, without deciding, that it was correct.

4 defendant accused of a class 4, 5, or 6 felony . . . who is not otherwise entitled to a

preliminary hearing . . . may demand and shall receive a preliminary hearing

within a reasonable time . . . if the defendant is in custody for the offense for which

the preliminary hearing is requested.”). Following a preliminary hearing on count

two in 18CR1611 in March, the court found that probable cause existed to believe

that Rowell committed that crime.

¶6 On May 2, 2019, Rowell was charged in a third case, Larimer County case

number 19CR1086, with three additional felonies: second degree assault

(strangulation), a class 4 felony; and two counts of violation of bail bond

conditions, both class 6 felonies. Less than two weeks later, the district court

granted the People’s request to increase the bond amounts in 18CR1611 and

19CR15. Rowell posted the bond in the most recent case, 19CR1086, but could not

post the increased bonds in the two older cases. Consequently, he was taken into

custody in 18CR1611 and 19CR15 on May 13.

¶7 On July 25, seventy-three days after his bonds were revoked in 18CR1611

and 19CR15, Rowell demanded a preliminary hearing on the relevant charges. He

did so before entering a plea in either case. The district court denied the request,

ruling that a defendant charged with class 4, 5, and 6 felonies, which do not require

mandatory sentencing and are not crimes of violence or sexual offenses, “does not

have a right to a preliminary hearing if [he is] out of custody.” Moreover,

5 continued the court, when a defendant “violates [his] bond . . . [and] get[s]

remanded into custody, that right does not come back” because “[o]nce it is gone,

it is gone.”

¶8 Rowell then filed a petition for a rule to show cause. And we granted his

petition.

II. Jurisdiction

¶9 The exercise of original jurisdiction under C.A.R. 21 rests solely within our

discretion. People v. Tafoya,

,

. We have made

clear, however, that relief under C.A.R. 21 is “an extraordinary remedy that is

limited in both purpose and availability.” People in Interest of T.T.,

,

, 855–56 (quoting Villas at Highland Park Homeowners Ass’n v.

Villas at Highland Park, LLC,

,

). Our

jurisprudence reflects that we have exercised our jurisdiction pursuant to

C.A.R. 21 when an appellate remedy would be inadequate, Fognani v. Young,

(Colo. 2005), when a party may otherwise suffer irreparable

harm, Hoffman v. Brookfield Republic, Inc.,

(Colo. 2004), or when a

petition raises “issues of significant public importance that we have not yet

considered,” Wesp v. Everson,

(Colo. 2001).

¶10 Here, in invoking our original jurisdiction, Rowell argues that there is no

other adequate remedy available, that he will suffer irreparable harm if we do not

6 intervene, and that his petition presents an issue of significant public importance

we have not yet addressed. We agree with him on all three fronts.

¶11 First, the district court’s alleged error implicates Rowell’s right to a

preliminary hearing, and that right will be rendered moot after trial. Tafoya, ¶ 15,

. A preliminary hearing is a pretrial screening device. Hunter v.

Dist. Court,

(Colo. 1975). Therefore, forcing Rowell to wait to

advance his claim until his direct appeal (in the event of a conviction) is not an

adequate remedy. And we are aware of no other suitable remedy.

¶12 Second, the district court’s denial of Rowell’s request for a preliminary

hearing on the relevant charges, if incorrect, deprives him of a statutory right and

may require him to improperly remain in custody until trial. As we explained in

Hunter, a preliminary hearing seeks to “protect[] the accused” by ensuring “that

the prosecution can at least sustain the burden of proving probable cause.” Id.; see

also Tafoya, ¶ 14,

(“A preliminary hearing is designed to provide

a judicial determination as to whether probable cause exists to believe that the

charged offense was committed by the defendant.”). Thus, absent relief under

C.A.R. 21, Rowell may suffer irreparable harm.

¶13 Finally, Rowell’s petition raises an issue of first impression that has

significant public importance. We have never been called upon to decide whether

a defendant in Rowell’s situation is entitled to demand a preliminary hearing and,

7 if so, what deadline applies to such a demand. Yet, we are convinced that this is a

situation that comes up with some frequency in our trial courts. Hence, we feel

compelled to shed light on the matter.

III. Standard of Review ¶14 Whether Rowell is entitled to a preliminary hearing on the relevant charges

is a question of law. Indeed, the district court’s ruling was grounded in its

interpretation of section 16-5-301(1)(b)(II). We review de novo questions of law

generally, People v. Chavez-Torres,

,

, and

questions of statutory interpretation specifically, McCoy v. People,

,

.

IV. Analysis

¶15 Section 16-5-301 governs preliminary hearings.3 It provides in pertinent

part that no defendant charged with “a class 4, 5, or 6 felony . . . except those which

require mandatory sentencing or which are crimes of violence . . . or which are

sexual offenses . . . shall have the right to demand or receive a preliminary

hearing.” § 16-5-301(1)(b)(I). Because neither party asserts that the relevant

3 Section 18-1-404, C.R.S. (2019), is similar to section 16-5-301. Both are titled “Preliminary hearing or waiver—dispositional hearing.” Because any differences are not material to our resolution of this appeal, we limit our discussion to section 16-5-301.

8 charges require mandatory sentencing or are crimes of violence or sexual offenses,

Rowell is clearly not entitled to request or receive a preliminary hearing on the

relevant charges under section 16-5-301(1)(b)(I). But the statute doesn’t end at

subsection (1)(b)(I). In the very next subsection, subsection (1)(b)(II), it provides

that a defendant charged with “a class 4, 5, or 6 felony . . . who is not otherwise

entitled to a preliminary hearing pursuant to subparagraph (I) of this

paragraph (b), may demand and shall receive a preliminary hearing within a

reasonable time” if he is in custody for the offense for which he requests a

preliminary hearing. § 16-5-301(1)(b)(II). We must interpret this provision to

resolve Rowell’s appeal.

¶16 In construing a statute, our goal is to ascertain and effectuate the

legislature’s intent. McCoy, ¶ 37, 442 P.3d at 389. Our jumping off point in this

process is to give the statute’s words their plain and ordinary meaning. Id. We

may not add, subtract, or change the words in the statute. See id. Instead, we must

read the words as written, in context, and in accordance with the rules of grammar

and common usage. Id.

¶17 Consistent with the district court’s ruling, the People contend that

subsection (1)(b)(II) does not contemplate preliminary hearings “at a time other

than the outset of a criminal prosecution.” However, subsection (1)(b)(II) does not

contain such a limitation. Nowhere does it say that a preliminary hearing may

9 only be requested and held at “the outset of a criminal prosecution.” And it would

be improper for us to engraft such a restriction onto subsection (1)(b)(II). Instead,

giving the statutory words their plain and ordinary meaning, and construing them

in context and in line with the rules of grammar and common usage, we conclude

that when a defendant is in custody for the offenses for which a preliminary

hearing is requested and those offenses fit the criteria specified in subsection

(1)(b)(II), he may demand and must receive a preliminary hearing within a

reasonable time.

¶18 But what specifically does “within a reasonable time” mean? In section

16-5-301(1)(a), the legislature asked this court to establish, through its rules, “the

time within which demand” for a preliminary hearing must be made. See

§ 16-5-301(1)(a). Rule 7(h) sets forth district court procedures related to

preliminary hearings.4 It provides that, “[e]xcept upon a finding of good cause,

the request for a preliminary hearing must be made within 7 days after the

defendant is brought before the court for or following the filing of the information

in that court and prior to a plea.” Crim. P. 7(h)(1).

4Crim. P. 5(a)(4) contains similar provisions related to preliminary hearings in county court proceedings. Because Rowell demanded a preliminary hearing in district court, we confine our analysis to Rule 7(h).

10 ¶19 In our view, the seven-day deadline in Rule 7(h)(1) does not control Rowell’s

situation. Rowell became eligible for a preliminary hearing on the relevant

charges months after the seven-day deadline in Rule 7(h)(1) expired. Because he

was on bond in 18CR1611 and 19CR15 during the entirety of the seven-day

timeframe, he could not have meritoriously requested a preliminary hearing on

the relevant charges in a timely fashion. To attempt to apply the deadline in Rule

7(h)(1) here would be to attempt to fit a square peg into a round hole. The deadline

in Rule 7(h)(1) simply does not contemplate the particular scenario before us.

¶20 This is not to say that the seven-day deadline in Rule 7(h)(1) is meaningless.

Rather, the point is that while the deadline governs the timeliness of the vast

majority of preliminary hearing requests, it does not apply to the request on

review.

¶21 The People nevertheless maintain that Rule 7(h)(5) supports their position.

We are not persuaded.

¶22 As relevant here, Rule 7(h)(5) provides that: (1) a request for a preliminary

hearing submitted more than seven days after the information is filed or the

defendant appears in court for the filing of the information “shall not thereafter be

heard by the court”; and (2) the court may not “entertain successive requests for

preliminary hearing.” Crim. P. 7(h)(5). The first of these provisions does not create

a new seven-day deadline. Rather, Rule 7(h)(5) simply references the seven-day

11 deadline that appears in Rule 7(h)(1) and addresses the demands that are governed

by that deadline. When such a demand fails to comply with the seven-day

deadline in Rule 7(h)(1), it is untimely and Rule 7(h)(5) precludes the court from

considering it. Stated differently, Rule 7(h)(5) prohibits the court from

entertaining demands that violate the seven-day deadline in Rule 7(h)(1); it does

not provide a separate seven-day deadline for demands like Rowell’s, which are

not covered by the seven-day deadline in Rule 7(h)(1). Because we have already

determined that Rowell’s demand for a preliminary hearing on the relevant

charges falls outside the ambit of the seven-day deadline in Rule 7(h)(1), we now

conclude that it also necessarily falls outside the scope of the provision at issue in

Rule 7(h)(5).

¶23 The other provision in Rule 7(h)(5) on which the People rely does not alter

our analysis either. Rowell’s demand for a preliminary hearing on the relevant

charges cannot be deemed successive because it is based on a new circumstance:

He is being held in custody on those charges. Indeed, it is this new circumstance

that may entitle Rowell, for the first time, to demand and receive a preliminary

hearing on the relevant charges pursuant to subsection (1)(b)(II). Inasmuch as

Rowell could not have advanced a meritorious demand for a preliminary hearing

on the relevant charges under subsection (1)(b)(II) before his bonds were revoked,

his most recent demand cannot be declared successive.

12 ¶24 Because we conclude that Rule 7(h) does not set a deadline for Rowell’s

demand for a preliminary hearing on the relevant charges, we remand the case to

the district court so that it may determine whether Rowell’s demand was made

“within a reasonable time,” as required by subsection (1)(b)(II). More specifically,

on remand, the court must decide whether Rowell’s demand for a preliminary

hearing on the relevant charges, which was filed seventy-three days after his

bonds were revoked and he was taken into custody, was made within a reasonable

time after he became eligible under subsection (1)(b)(II) to advance that demand.

¶25 In assessing the reasonableness of the timing of Rowell’s demand, the court

may draw guidance from the seven-day deadline in Rule 7(h)(1) and should

consider the reasons for the delay in making the demand and any other

circumstances that affected the timing of the demand. Given that this

determination will be, at least in part, factual in nature, we believe that the district

court is better suited to make it.

V. Conclusion

¶26 We conclude that the district court erred in denying Rowell’s request for a

preliminary hearing on the relevant charges without first determining whether the

request was advanced within a reasonable time after his bonds were revoked and

he was taken into custody. Therefore, we reverse the court’s order and remand

for further proceedings consistent with this opinion.

13