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                                                    ADVANCE SHEET HEADNOTE
                                                                  June 29, 2020

                                     2020 CO 68

No. 20SA120, In re Lucy & Meresa—§ 18-1-405(6)(g)(I), C.R.S. (2019)—Speedy
Trial—Tolling—Contested Continuance Due to “Unavailability of Evidence
Material to the State’s Case”—Public Health Crisis.

      In this original proceeding, the supreme court considers whether a trial

court may grant the prosecution’s contested request for a continuance with a

tolling of the statutory speedy trial period based on a public health crisis like the

COVID-19 pandemic.        The supreme court holds that, absent the defendant’s

consent, section 18-1-405(6)(g)(I), C.R.S. (2019), authorizes a trial court to grant the

prosecution a continuance with a tolling of the speedy trial period for up to six

months if the prosecution establishes that: (a) as a result of a public health crisis,

evidence material to its case is unavailable; (b) it has exercised due diligence to

obtain that evidence; and (c) there are reasonable grounds to believe that the

unavailable evidence will be available on the new trial date. Because the county

court erred, the supreme court makes the rule to show cause absolute and remands

for further proceedings consistent with this opinion.
               The Supreme Court of the State of Colorado
               2 East 14th Avenue • Denver, Colorado 80203

                                2020 CO 68

                      Supreme Court Case No. 20SA120
                   Original Proceeding Pursuant to C.A.R. 21
              Gilpin County Court Case Nos. 19M137 & 19M456
                      Honorable David C. Taylor, Judge
________________________________________________________________________
                                     In Re

                                 Plaintiff:

                    The People of the State of Colorado,

                                     v.

                                Defendant:

                         Maurice Leviticus Lucy,

                                    and

                                 Plaintiff:

                    The People of the State of Colorado,

                                     v.

                                Defendant:

                           Desta Adane Meresa.
________________________________________________________________________

                           Rule Made Absolute
                                 en banc
                              June 29, 2020
_______________________________________________________________________
Attorneys for Plaintiff:
Philip J. Weiser, Attorney General
L. Andrew Cooper, Deputy Attorney General
Joseph G. Michaels, Senior Assistant Attorney General
      Denver, Colorado

Peter A. Weir, District Attorney, First Judicial District
Colleen R. Lamb, Appellate Deputy District Attorney
      Golden, Colorado

Attorneys for Defendants:
Megan A. Ring, Public Defender
Mitchell Ahnstedt, Deputy Public Defender
Cody Hill, Deputy Public Defender
      Golden, Colorado

Attorneys for Amicus Curiae Gard Law Firm, LLC:
Jeffrey S. Gard
Austin Q. Hiatt
       Boulder, Colorado




JUSTICE SAMOUR delivered the Opinion of the Court.




                                          2
¶1    COVID-19, the highly contagious and potentially deadly illness caused by

the novel coronavirus, has triggered a global pandemic the likes of which we

haven’t experienced in over a century. Unsurprisingly, it has wreaked havoc on

just about every aspect of our lives. The criminal justice system has not been

spared from the ravages of this malady. In particular, trial courts have struggled

with effectuating a defendant’s statutory right to speedy trial amid this

unparalleled public health crisis.

¶2    We issued a rule to show cause in these two cases out of Gilpin County,

hoping to provide guidance on whether a trial court may grant the prosecution’s

contested request for a continuance with a tolling of the statutory speedy trial

period based on a public health crisis like the COVID-19 pandemic. We hold that,

absent the defendant’s consent, section 18-1-405(6)(g)(I), C.R.S. (2019), authorizes

a trial court to grant the prosecution a continuance with a tolling of the speedy

trial period for up to six months if the prosecution establishes that: (a) as a result

of a public health crisis, evidence material to its case is unavailable; (b) it has

exercised due diligence to obtain that evidence; and (c) there are reasonable

grounds to believe that the unavailable evidence will be available on the new trial




                                          3
date.1 Because the county court erred in the two cases before us, we make the rule

to show cause absolute and remand for further proceedings consistent with this

opinion.

                             I. Procedural History
¶3    People v. Lucy and People v. Meresa are unrelated cases from Gilpin County,

which is part of the First Judicial District. Both cases are pending in front of the

same county court judge.

¶4    In Lucy, the prosecution has charged Maurice Leviticus Lucy with criminal

mischief, a class 2 misdemeanor. Lucy pled not guilty on June 12, 2019, but

subsequently requested a continuance of his trial on October 9, 2019. As a result,

his six-month speedy trial period was set to expire on April 9, 2020. The county

court scheduled his jury trial to commence on March 17, 2020, within the speedy

trial deadline.

¶5    In Meresa, the prosecution has charged Desta Adane Meresa with violation

of a criminal protection order and unlawful sexual contact, both class 1

misdemeanors. Meresa pled not guilty on October 9, 2019, which meant that his

six-month speedy trial period was set to expire on April 9, 2020, the same day




1 Crim. P. 48(b)(6)(VII)(A) mirrors section 18-1-405(6)(g)(I). For the sake of
convenience, we limit our discussion in this opinion to the statute.


                                         4
Lucy’s speedy trial period was set to expire. The county court scheduled Meresa’s

jury trial to commence on March 17, the same day Lucy’s case was scheduled for

trial.

¶6       On March 16, 2020, the day before both cases were scheduled for trial, the

Chief Judge of the First Judicial District (“the Chief Judge”) issued an

administrative order requiring that all jury trials set in the district through

May 1, 2020, be vacated unless there were exigent circumstances present or speedy

trial constraints. The administrative order explained that this drastic measure was

necessitated by the COVID-19 pandemic. In response to the Chief Judge’s order,

the county court vacated the trials in the two cases at issue. The prosecution

immediately filed a motion to continue and requested a tolling of the speedy trial

period in each case. It relied on section 18-1-405(6)(g)(I), which requires the tolling

of the speedy trial period for up to six months under certain circumstances when

the court grants a continuance at the prosecution’s request without the defendant’s

consent.     In each motion, the prosecution requested specific factual findings

related to the tolling provision in subsection (6)(g)(I). Without resolving the

motions, the court continued both cases until May 13, more than a month past the

April 9 speedy trial deadline.

¶7       On March 25, the Chief Judge issued another administrative order, this one

cancelling all jury summonses and requiring that all jury trials set in the district



                                          5
through May 15 be vacated.        The next day, the prosecution moved for an

emergency hearing in Lucy and Meresa, reiterating that the May 13 date scheduled

in each case was past the April 9 speedy trial deadline. The prosecution again

requested findings with respect to its invocation of the tolling provision in

subsection (6)(g)(I).

¶8    On April 3, the county court responded by noting that it had reviewed the

prosecution’s motions and that, “[g]iven [the COVID-19 related] developments,”

it had “made the decision to vacate the trial” in each matter. The court pointed

out that jurors would be in “extremely close proximity” to each other if required

to appear for trial. It added that proceeding to trial in these and other cases during

a pandemic would prompt jurors to question the justice system’s dedication to the

public’s well-being. Though declining to issue a final ruling on either of the

prosecution’s motions, the court made a preliminary finding in each case that a

continuance was necessary. It then gave Lucy and Meresa leave to challenge this

preliminary finding at the May 13 hearing.         The court did not address the

prosecution’s request to toll the speedy trial period. Nor did it make findings

regarding speedy trial, as the prosecution had asked.

¶9    Three days later, on April 6, the prosecution submitted forthwith motions

seeking clarification. In response, the court confirmed in each case that its finding

that a continuance was necessary was preliminary and that the final ruling on the



                                          6
prosecution’s motion would have to be delayed until the May 13 hearing because

there was no way to safely hold an earlier hearing that would permit an objection

to be lodged in person. In the meantime, the court assured the prosecution that

both requests to toll speedy trial had been preserved.

¶10   The prosecution then filed a combined petition invoking our original

jurisdiction under C.A.R. 21. After reviewing the petition, we issued a rule to

show cause.

                            II. Original Jurisdiction

¶11   It is within our sole discretion to exercise our original jurisdiction pursuant

to Rule 21. C.A.R. 21(a)(1) (“Relief under this rule . . . is a matter wholly within

the discretion of the supreme court.”).      In exercising our discretion, we are

cognizant that Rule 21 provides “an extraordinary remedy that is limited in both

purpose and availability.” People v. Rosas, 2020 CO 22, ¶ 19, 459 P.3d 540, 545

(quoting Villas at Highland Park Homeowners Ass’n v. Villas at Highland Park, LLC,

2017 CO 53, ¶ 22, 394 P.3d 1144, 1151); accord C.A.R. 21(a)(1) (“Relief under this

rule is extraordinary in nature . . . .”). Consistent with the narrow scope of Rule

21(a)(1), we have exercised our original jurisdiction in limited circumstances,

including “when an appellate remedy would be inadequate, when a party may

otherwise suffer irreparable harm, or when a petition raises issues of significant




                                         7
public importance that we have not yet considered.” Rosas, ¶ 19, 459 P.3d at 545

(quoting People v. Rowell, 2019 CO 104, ¶ 9, 453 P.3d 1156, 1159).

¶12   In asking us to exercise our original jurisdiction, the prosecution contends

that a Rule 21 proceeding is the only available appellate remedy it has and that

these cases present issues of first impression that are of significant public

importance. We agree on both fronts.

¶13   Requiring the prosecution to wait to raise its claims until it can file direct

appeals would be inappropriate. Notwithstanding the use of a preliminary label

to characterize the actions it took, the county court continued both trials. Its

actions had the same effect as if it had issued final orders continuing the cases.

Yet, the court did not address the question of speedy trial in either case, even

though the new hearing date set was past the speedy trial deadline. Nor did it

resolve the prosecution’s requests to toll speedy trial pursuant to section

18-1-405(6)(g)(I) and to make findings related to speedy trial.

¶14   We understand that the court’s postponement of the trials was precipitated

by the Chief Judge’s first order. But that order did not sanction speedy trial

violations; to the contrary, it made an exception for cases in which the speedy trial

deadline was imminent. Here, the court continued both cases past the speedy trial

deadline without giving the prosecution an adequate opportunity to be heard and

without making any findings or issuing final rulings. Under these circumstances,



                                         8
if the prosecution were precluded from obtaining relief now, it would likely be left

with no remedy.

¶15   Lucy and Meresa nevertheless rely on C.R.C.P. 106(a)(4) in urging us to

decline to exercise our original jurisdiction.2 Even assuming, without deciding,

that the prosecution could have sought relief through a Rule 106(a)(4) proceeding

in district court, we still would choose to exercise our original jurisdiction. Review

under Rule 106(a)(4) would have been problematic because the county court judge

postponed the trials based on the Chief Judge’s first order, and the district court

judge presiding over the Rule 106(a)(4) complaint would have been subject to the

same order. The Rule 106(a)(4) proceeding also may have placed that district court

judge in the uncomfortable position of having to interpret and pass judgment on

the Chief Judge’s first order.

¶16   More importantly, regardless of the availability of relief pursuant to a Rule

106(a)(4) proceeding, the prosecution’s Rule 21 petition raises an issue of first

impression that has statewide importance.        We have never had occasion to

consider whether an unprecedented public health crisis like COVID-19 may justify




2As pertinent here, in an action brought pursuant to C.R.C.P. 106(a)(4), the district
court must determine whether the county court “exceeded its jurisdiction or
abused its discretion.” C.R.C.P. 106(a)(4)(I).


                                          9
a speedy trial tolling continuance under section 18-1-405(6)(g)(I). We have been

fortunate. That is, until now. The urgency to have our court resolve the question

today cannot be overstated.

¶17   In short, we conclude that these are appropriate cases in which to exercise

our original jurisdiction. We therefore do so.

                              III. Standard of Review

¶18   Having determined to exercise our original jurisdiction, we must analyze

the merits of the legal issue raised by the prosecution. We pause only long enough

to identify the applicable standard of review.

¶19   Our resolution of the question before us turns on our interpretation of

section 18-1-405. The interpretation of a statute involves “a question of law, which

we review de novo.” Rosas, ¶ 21, 459 P.3d at 545 (quoting People v. Steen, 2014 CO

9, ¶ 9, 318 P.3d 487, 490).

                                     IV. Analysis
¶20   Our starting block is section 18-1-405, Colorado’s speedy trial statute.

Section 18-1-405 guarantees defendants in criminal cases “the right to a speedy

trial.” People v. McMurtry, 122 P.3d 237, 240 (Colo. 2005). Subsection (1) of that

statute provides, in pertinent part, that when a defendant “is not brought to

trial . . . within six months from the date of the entry of a plea of not guilty, . . . the

pending charges shall be dismissed, and the defendant shall not again” be charged



                                            10
“for the same offense, or for another offense based upon the same act or series of

acts arising out of the same criminal episode.” § 18-1-405(1). The protective cloak

of this statutory provision “is meant to give effect to the constitutional right to a

speedy trial.” McMurtry, 122 P.3d at 240. Hence, the statute doesn’t actually create

any rights; it simply functions as a vessel for securing the constitutional right to a

speedy trial. Id. at 241.

¶21   The burden of compliance with section 18-1-405(1) lies with the trial court

and the prosecution. People v. DeGreat, 2020 CO 25, ¶ 17, 461 P.3d 11, 15. To satisfy

its burden, the trial court must make “a record sufficient for an appellate court to

determine statutory compliance.” Marquez v. Dist. Court, 613 P.2d 1302, 1303–04

(Colo. 1980).

¶22   Subsections (3), (3.5), (4), and (5.1) of the speedy trial statute set forth

circumstances when the period within which the trial must be held may be

extended. For example, subsection (3) states that where, as in Lucy’s case, the trial

date has been fixed and the defendant thereafter requests and receives a

continuance, “the period within which the trial shall be had is extended for an

additional six-month period from the date upon which the continuance was

granted.” § 18-1-405(3).

¶23   Subsection (6) is a first cousin of subsections (3), (3.5), (4), and (5.1). Whereas

the latter subsections authorize the six-month speedy trial period in subsection (1)



                                          11
to be extended under some circumstances, subsection (6) identifies the “periods of

time” that must be excluded in computing the time within which a defendant must

be brought to trial under subsection (1). § 18-1-405(6). Stated differently, in certain

situations, subsection (6) tolls the six-month speedy trial period. As relevant here,

it reads as follows:

      (6) In computing the time within which a defendant shall be brought
      to trial as provided in subsection (1) of this section, the following
      periods of time shall be excluded:

      ....

      (g) The period of delay not exceeding six months resulting from a
      continuance granted at the request of the prosecuting attorney,
      without the consent of the defendant, if:

      (I) The continuance is granted because of the unavailability of
      evidence material to the state’s case, when the prosecuting attorney
      has exercised due diligence to obtain such evidence and there are
      reasonable grounds to believe that this evidence will be available at
      the later date . . . .

Id.

¶24   But does the type of “continuance” contemplated by subsection (6)(g)(I)

include a continuance justified by a public health crisis such as the COVID-19

pandemic? Today we conclude that it does, so long as the prosecution establishes

that: (a) as a result of the public health crisis, evidence material to its case is

unavailable; (b) it has exercised due diligence to obtain that evidence; and (c) there




                                          12
are reasonable grounds to believe that the unavailable evidence will be available

on the new trial date.3

¶25   The prosecution may satisfy the first of these three requirements through a

variety of proffers. By way of example, it may do so if the presence of witnesses

in general cannot be safely compelled due to a public health crisis. Evidence

material to the prosecution’s case would obviously be unavailable as a result of a

public health crisis in that situation. Similarly, the prosecution may establish the

first requirement if evidence material to its case is to be presented by a particular

witness whose presence cannot be safely compelled due to a public health crisis.

Such a witness could be someone whose age or health condition places her in the

COVID-19 vulnerable population.

¶26   As it relates to the second requirement, the prosecution must show that

material evidence is unavailable despite the exercise of due diligence. If the




3 Motivated by the challenges inherent in the COVID-19 pandemic, we recently
amended two of our rules of criminal procedure, Rules 24 and 43, to address “a
public health crisis.” We amended Rule 24, “Trial Jurors,” by adding paragraph
(c)(4), which allows trial courts to declare a mistrial at any time before trial on the
ground that “a public health crisis” prevents the safe assembly of a fair jury pool.
See Crim. P. 24(c)(4). And we amended Rule 43, “Presence of the Defendant,” by
adding paragraphs (f)(1) and (f)(2), which authorize trial courts, in the event that
“a public health crisis” exists and certain circumstances are present, to hold most
proceedings by contemporaneous audio communication and/or interactive
audiovisual device. See Crim. P. 43(f).


                                          13
prosecution’s lack of due diligence is to blame for the unavailability of evidence

material to its case, subsection (6)(g)(I) cannot toll the speedy trial period. In other

words, the prosecution cannot use a public health crisis as an excuse for its lack of

due diligence.

¶27   Finally, with regard to the third requirement, the prosecution must

demonstrate that there is a reasonable basis to believe that the unavailable material

evidence is only temporarily unavailable and will be available on the next trial

date. This requirement cannot be met if the evidence is permanently unavailable

or if it is unreasonable to think that the evidence will be available on the new trial

date. While there is some guarded optimism that the COVID-19 pandemic will

subside in the not-too-distant future, we recognize that the road to recovery is

laden with uncertainty.       But subsection (6)(g)(I) doesn’t demand infallible

projections or clairvoyant forecasts. It requires “reasonable grounds” to believe

that the evidence will be available on the next trial date.

¶28   The three-pronged showing under subsection (6)(g)(I) and the trial court’s

corresponding determinations must be made on a case-by-case basis. Upon the

filing of a subsection (6)(g)(I) motion, the prosecution must be afforded an

opportunity to make the requisite showing and the trial court must ensure that

there is an adequate record that includes a final ruling supported by findings.




                                          14
¶29   In our view, the interpretation of subsection (6)(g)(I) we adopt today

effectuates the legislature’s intent by giving the language of the statutory

provision its plain and ordinary meaning. Our primary purpose in construing a

statute “is to ascertain and give effect to the legislature’s intent.” People v. Cali,

2020 CO 20, ¶ 15, 459 P.3d 516, 519. We look first and foremost at “the language

the legislature has actually chosen to express itself.” In re People in Interest of A.A.,

2013 CO 65, ¶ 10, 312 P.3d 1170, 1172. We must give the statutory words and

phrases their plain and ordinary meaning. Cali, ¶ 15, 459 P.3d at 519. And we are

required to read those words and phrases in context and construe them based on

the rules of grammar and common usage. Id.

¶30   We acknowledge that subsection (6)(g)(I) does not mention a continuance

justified by a public health crisis. But it doesn’t exclude such a continuance either.

In fact, it contains no specifics vis-à-vis the reason that evidence material to the

prosecution’s case is unavailable. To rule that subsection (6)(g)(I) prohibits a

continuance triggered by a public health crisis would force us to add words to that

provision or to otherwise change the words in that provision. We may partake in

neither of these acts. Colo. Dep’t of Revenue v. Creager Mercantile Co., 2017 CO 41M,

¶ 25, 395 P.3d 741, 745 (“We will not substitute or add words to statutes.”). Had

the legislature intended to except from subsection (6)(g)(I) continuances based on

a public health crisis, it presumably would have said so.           Instead, what the



                                           15
legislature said is that when the prosecution establishes the “unavailability” of

evidence material to its case—regardless of the reason for such unavailability—it

may be entitled to a continuance with a tolling of the speedy trial period for up to

six months.

¶31    Because the word “unavailability” is not defined in section 18-1-405, we may

discern its plain and ordinary meaning by consulting a recognized dictionary.

Cowen v. People, 2018 CO 96, ¶ 14, 431 P.3d 215, 218–19.          Merriam-Webster

Dictionary defines “unavailable” as “not possible to get or use.” Merriam-Webster

Dictionary, https://www.merriam-webster.com/dictionary/unavailable; [https:

//perma.cc/U7PF-P2QS]. Thus, if the prosecution cannot get or use evidence

material to its case—including, for instance, because a public health crisis prevents

it from safely compelling the presence of witnesses in general or a specific witness

in particular—then that evidence is unavailable for purposes of subsection

(6)(g)(I).

¶32    Here, in each case, the prosecution cited the COVID-19 public health crisis

in moving for a continuance with a tolling of the speedy trial period pursuant to

subsection (6)(g)(I). Without affording the prosecution a suitable opportunity to

be heard and without making an adequate record or issuing a final ruling, the

county court continued each trial beyond the speedy trial deadline. Though we

appreciate the extraordinary situation the county court confronted and fully



                                         16
understand that its actions were sparked by an administrative order from the

Chief Judge, this was nevertheless error.

¶33   On remand, the county court must give the prosecution an opportunity in

each case to make the showing required under subsection (6)(g)(I). The court must

then rule on each motion and make findings with respect to the speedy trial

period. We note that “[t]he period of delay caused by [this] interlocutory appeal”

must be excluded from the computation of time within which Lucy and Meresa

must be brought to trial. § 18-1-405(6)(b); see also Crim. P. 48(b)(6)(II) (indicating

that “[t]he period of delay caused by an interlocutory appeal, . . . or after issuance

of a rule to show cause in an original action” must be excluded from the

computation of time within which a defendant must be brought to trial).

                                  V. Conclusion
¶34   Seemingly overnight, we find ourselves living in an almost unrecognizable

new world—one even Nostradamus couldn’t have foreseen.               The COVID-19

pandemic has turned our lives upside down and made it virtually impossible to

hold jury trials in criminal cases. Yet, defendants continue to have a statutory right

to speedy trial under section 18-1-405(1). This has unfairly placed our trial courts

in a catch-22. Though this opinion is by no means a panacea, we are hopeful that

it will provide helpful direction on when a prosecution’s contested request for a




                                         17
continuance based on a public health crisis like COVID-19 may be granted with a

tolling of the speedy trial period for up to six months.

¶35   The county court erred in Lucy and Meresa. Accordingly, we make the rule

to show cause absolute and remand for further proceedings consistent with this

opinion.




                                         18
