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ADVANCE SHEET HEADNOTE April 13, 2020

No. 19SA252, In re People v. DeGreat—Criminal Trials—Speedy Trial—When Delay Is Attributable to Defendant.

In a previous case, the supreme court affirmed the court of appeals’ reversal

of a criminal defendant’s convictions and remanded the case for a new trial. See

People v. DeGreat,

,

.

Here, in this original proceeding, defendant now contends that respondents

failed to pursue retrial within the statutory speedy trial deadline set forth in

section 18-1-405(2), C.R.S. (2019). The remedy for this speedy trial violation,

argues defendant, is dismissal of his charges with prejudice. Respondents counter

that because all parties failed to comply with a court-issued scheduling order, the

delay in this case is at least partially attributable to the defendant such that,

pursuant to section 18-4-405(6)(f), the speedy trial period was tolled.

The supreme court now reaffirms the well-established principle that a

defendant has no duty to bring himself to trial. Rather, the duty to pursue trial

within the speedy trial deadline rests with the People and the district court. Because this duty went unmet here, the supreme court makes the rule absolute.

Defendant’s charges must be dismissed with prejudice. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 19SA252 Original Proceeding Pursuant to C.A.R. 21 Arapahoe County District Court Case No. 08CR1289 Honorable Andrew Baum, Judge

In Re Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Edward Kevin DeGreat.

Rule Made Absolute en banc April 13, 2020

Attorneys for Plaintiff: George H. Brauchler, District Attorney, Eighteenth Judicial District Erika K. Reuer, Deputy District Attorney Centennial, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender Jason C. Middleton, Chief Appellate Deputy Alaina Almond, Deputy Public Defender Sean Irwin, Deputy Public Defender Denver, Colorado Attorneys for the Honorable Andrew Baum: Philip J. Weiser, Attorney General Grant T. Sullivan, Assistant Solicitor General Denver, Colorado

JUSTICE HART delivered the Opinion of the Court. 2 ¶1 For nearly a year and a half, Edward Kevin DeGreat has been in prison

awaiting a new trial after his earlier convictions were reversed. Colorado’s speedy

trial statute, however, requires that a retrial after reversal take place within six

months of the trial court’s receipt of the mandate after appeal. This six-month

period can be tolled when the delay is attributable to the defendant; here,

respondents argue that the delay is properly attributable to DeGreat because

defense counsel did not reach out to schedule a status conference. But our law

reflects the long-standing principle that a defendant has no duty to bring himself

to trial. That responsibility, rather, rests with the prosecution and the trial court.

And in the instant case, that responsibility was unmet. Accordingly, we granted

DeGreat’s petition to show cause under C.A.R. 21, and we now make the rule

absolute. The charges against DeGreat must be dismissed with prejudice.

I. Facts and Procedural History

¶2 In October 2018, we affirmed the court of appeals’ decision reversing

DeGreat’s conviction for aggravated robbery and the attendant crime-of-violence

sentence enhancer, concluding that DeGreat was entitled to a new trial in which

he could introduce evidence that he had acted in self-defense. See People v. DeGreat,

,

. On November 6, 2018, the court of appeals issued its

mandate returning jurisdiction over the case to the Arapahoe County District

Court so that DeGreat could be retried.

3 ¶3 On December 3, 2018, the district court issued a written scheduling order

directing counsel for both DeGreat and the People to contact chambers to set the

case for a status conference at “the soonest available date.” The public defender’s

office filed an entry of appearance on DeGreat’s behalf three days later. After this

filing, however, progress on the case ground to a halt. Neither defense counsel

nor the People sought to schedule the status conference as ordered, and the district

court made no further effort to obtain compliance from the parties.

¶4 On June 4, 2019—six months and twenty-nine days after the court of

appeals’ mandate issued—DeGreat filed a motion to dismiss, asserting that the

failure to commence trial within six months of the issuance of the mandate violated

his statutory right to a speedy trial. For another four months, however, neither the

district court nor the People responded in any way to the motion to dismiss.

Indeed, DeGreat filed two separate requests for a ruling on his motion—first on

July 19, 2019, and again on August 30, 2019—and still received no response.

¶5 On October 16, 2019—a full eleven months and ten days after the court of

appeals’ mandate issued—the district court denied DeGreat’s motion to dismiss.

The court found that dismissal was unwarranted “[g]iven the failure of all counsel

to comply” with the court’s scheduling order of December 3, 2018. The district

court reasoned further that “[a]ny delay in the instant case is attributable to both

the People and Defendant and thus tolls speedy trial.” The court set a status

4 conference for November 25, 2019, to discuss how DeGreat’s retrial would

proceed.

¶6 DeGreat then initiated this original proceeding, arguing that the district

court’s failure to abide by the statutory six-month deadline for the retrial stripped

that court of jurisdiction to proceed with DeGreat’s pending charges. We issued a

rule to show cause and, for the reasons set forth below, we now make the rule

absolute.

II. Jurisdiction

¶7 The exercise of this court’s original jurisdiction under C.A.R. 21 is entirely

discretionary, and any relief pursuant thereto is “an extraordinary remedy that is

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

,

, 855–56 (quotation omitted). In the past, we have seen fit to

exercise jurisdiction “when an appellate remedy would be inadequate, when a

party may otherwise suffer irreparable harm, [or] when a petition raises issues of

significant public importance that we have not yet considered.” People v. Kilgore,

,

(internal citations and quotations omitted).

Further, we have opted to grant relief when “a trial court acts in excess of its

jurisdiction or without jurisdiction.” Chessin v. Office of Att’y Reg. Counsel,

,

(quotation omitted).

5 ¶8 In view of these principles, relief under C.A.R. 21 is appropriate for at least

two reasons. First, as we have previously recognized, “[r]elief in the nature of

prohibition under C.A.R. 21 is an appropriate remedy when a district court is

proceeding without jurisdiction to try a defendant in violation of his right to a

speedy trial.” Marquez v. Dist. Court,

, 1304 (Colo. 1980). In this case,

the district court would be proceeding without jurisdiction if it were to try DeGreat

in violation of his rights under Colorado’s speedy trial statute, § 18-1-405, C.R.S.

(2019), and the rules of this court, Crim. P. 48. See Hampton v. Dist. Court,

, 56 (Colo. 1980).

¶9 And second, in the absence of our exercise of original jurisdiction, DeGreat

would be entirely without an adequate appellate remedy. Section 18-1-405

requires dismissal with prejudice if a defendant’s statutory speedy trial right is

violated. Thus, even a successful appeal in DeGreat’s case would be a pyrrhic

victory because DeGreat would first be subjected to the very trial he is entitled by

statute to avoid. This statutory right not to be tried all but requires DeGreat to

avail himself of an “extraordinary remedy” outside of the normal appellate

process.

¶10 Based on the foregoing, we conclude that our exercise of jurisdiction over

this case pursuant to C.A.R. 21 is warranted.

6 III. Analysis

¶11 We begin by setting forth the speedy trial law applicable to this dispute.

Next, we turn to the question of whether delay in this case was caused by or

attributable to DeGreat. Ultimately, we answer this question in the negative. Even

granting that DeGreat did not comply with the district court’s scheduling order,

his inaction was not consent to a delay in the retrial. A defendant has no duty to

bring himself to trial. Rather, that responsibility rests with the prosecution and

the trial court. Because respondents in this case failed to pursue retrial within the

statutory speedy trial period, the remedy is dismissal with prejudice.

A. Applicable Law

¶12 Colorado’s speedy trial statute is intended to safeguard a defendant’s

constitutional right to a speedy trial and to prevent unnecessary prosecutorial and

judicial delays in the prosecution of a criminal case. Mosley v. People,

,

; People v. Runningbear,

(Colo. 1988).

Whether a defendant’s statutory speedy trial right has been violated is a matter of

statutory interpretation and is therefore reviewed de novo. Mosley, ¶ 15,

.

¶13 Relevant here, our speedy trial statute provides that “[i]f trial results in

conviction which is reversed on appeal, any new trial must be commenced within

six months after the date of the receipt by the trial court of the mandate from the

7 appellate court.” § 18-1-405(2); see also Crim. P. 48(b)(2) (containing identical

language). As we have explained previously, this statutory language “requir[es]

dismissal of the case whenever the defendant is not tried within the six month

period and the delay does not qualify for one of the express exclusionary

categories set out in the statute.” People v. Deason,

(Colo. 1983).

Further, we have clarified that the language of the speedy trial statute is

mandatory—it leaves no discretion for the trial court to make exceptions to the six-

month rule beyond those specifically enumerated in section 18-1-405(6). People v.

Gallegos,

(Colo. 1997); People v. Byrne,

(Colo.

1988).

¶14 One exception to the six-month rule, contained in section 18-1-405(6)(f),

provides that “[i]n computing the time within which a defendant shall be brought

to trial,” the court must exclude “[t]he period of any delay caused at the instance

of the defendant.” In other cases in which the interpretation of section

18-1-405(6)(f) was at issue, we have emphasized that “[t]he key . . . is to determine

whether the defendant caused the delay. If the delay is caused by, agreed to, or

created at the instance of the defendant, it will be excluded from the speedy-trial

calculation made by the court.” People v. Bell,

(Colo. 1983). A

defendant causes the delay whenever he demonstrates “express consent to the

delay or other affirmative conduct” evincing a clear intent to waive the right to

8 speedy trial.

at 1385 (quoting Harrington v. Dist. Court,

(Colo.

1977)). In assessing whether a delay is chargeable to the defendant under section

18-1-405(6)(f), we look to see whether the defendant was the “moving force”

behind the delay, id. at 1386, and whether his actions “could be construed as

‘tantamount to a request for a continuance,’” id. at 1384 (quoting People v. Chavez,

(Colo. App. 1982)).

B. The Delay in This Case Was Not Attributable to DeGreat.

¶15 Respondents argue that because both the People and DeGreat failed to

comply with the district court’s scheduling order, the resultant trial delay was at

least in part attributable to DeGreat. For two reasons, we cannot agree.

¶16 First, nothing in DeGreat’s inaction was the kind of affirmative conduct or

express consent to delay that section 18-1-405(6)(f) requires in order to toll the

speedy trial period. True, DeGreat’s counsel failed to respond to the district

court’s scheduling order by arranging for a status conference. But this simple

inaction did not make DeGreat the “moving force” behind the delay, nor could it

reasonably be construed as “tantamount to a request for a continuance.” See Bell,

. Indeed, in the speedy trial context, “the only affirmative

action required on the part of the defendant [is] that he move for a dismissal prior

to trial.” Harrington,

. DeGreat did take that step, and the district

9 court should have granted his motion. To suggest that it was incumbent upon

DeGreat to do more to safeguard his rights under the statute flies in the face of our

speedy trial jurisprudence.

¶17 That brings us to our second point. It is well-settled law that the burden of

compliance with the speedy trial requirement rests with the prosecution and the

trial court. As the United States Supreme Court has said in discussing the

constitutional right to a speedy trial:

[a] defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, . . . society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.

Barker v. Wingo,

(1972). For that reason, this court has repeatedly

explained that “[t]he trial court and prosecuting attorney are responsible for

ensuring that a case is brought within statutory speedy trial time limits.” Hills v.

Westminster Mun. Court,

(Colo. 2011); see also People v. Roberts,

(Colo. 2006) (“The burden of compliance with the speedy trial

statute is on the district attorney and the trial court.”); People v. Colantonio,

(Colo. 1978) (“It was the responsibility of the district attorney and the trial

court to cause the case to be brought to trial within the time limits set out in Crim.

P. 48(b) and section 18-1-405.”). In view of this well-established principle that the

obligation to pursue trial in a timely fashion falls on the prosecution and the trial

10 court, respondents’ suggestion that DeGreat was responsible for the delay in this

case falls flat. It was not DeGreat’s responsibility to pursue his own trial.

¶18 Moreover, even if we were to accept respondents’ argument that DeGreat’s

failure to comply with the December 3, 2018, order to schedule a status conference

made any delay attributable to him, his statutory rights would still have been

violated. The court of appeals issued its mandate in this case on November 6, 2018.

The district court issued its scheduling conference order twenty-seven days later.

After hearing nothing more from either the People or the district court for well

over six months, DeGreat filed his motion to dismiss for a violation of speedy trial

on June 4, 2019. The district court waited more than four months to rule on

DeGreat’s motion to dismiss, and it set the first status conference in the case for

November 25, 2019—174 days after DeGreat filed the motion to dismiss. Thus,

even excluding the time from the court’s scheduling order of December 3, 2018, to

the filing of DeGreat’s motion to dismiss on June 4, 2019, the first scheduled hearing

in this case would have been set for 201 days after the mandate issued—well

outside of the statutory six-month speedy trial period.

IV. Conclusion

¶19 Because DeGreat was not brought to trial within the six-month period set

forth in section 18-1-405 and the delay was not properly attributable to DeGreat,

11 the charges against him must be dismissed with prejudice. Accordingly, we now

make the rule absolute.

12