     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  May 9, 2019

                                2019COA70

No. 18CA0186, People in Interest of J.V.D. — Juvenile Court —
Delinquency — Waiver of Right to Counsel; Constitutional Law
— Sixth Amendment — Right to Counsel

     A division of the court of appeals considers the requirements

of a juvenile’s valid waiver of the constitutional right to counsel.

The division concludes that a juvenile court has an expanded duty

of careful inquiry into a juvenile’s understanding of his or her right

to counsel before the court can find that a waiver is voluntary,

knowing, and intelligent. A juvenile must benefit not only from the

constitutional standards that apply to adults — (1) presumptions

against a waiver; (2) advisement regarding the many risks of self-

representation; and (3) inquiry into his or her understanding of

those risks and the reasons for the requested waiver — but also

from the statutory requirements of section 19-2-706(2)(c), C.R.S
2018 — (4) an inquiry into the juvenile’s maturity; (5) an inquiry

into the juvenile’s understanding that counsel will be provided

regardless of a parent’s or guardian’s ability or willingness to do so;

and (6) findings on the record.

     Relying on People v. Janis, 2018 CO 89, the division also

concludes that in cases such as this one, where the challenge relies

solely on the facts in the record, an appellate court can address

waiver on direct appeal.

     Because the juvenile court did not fulfill its constitutional or

statutory duties to secure an effective waiver, the division concludes

that the juvenile’s right to counsel was violated. The division

reverses the juvenile’s delinquency adjudication and remands for a

new trial.
COLORADO COURT OF APPEALS                                        2019COA70


Court of Appeals No. 18CA0186
Gunnison County District Court No. 17JD8
Honorable J. Steven Patrick, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.V.D.,

Juvenile-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division VI
                          Opinion by JUDGE RICHMAN
                         Navarro and Welling, JJ., concur

                             Announced May 9, 2019


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-
Appellant
¶1    The juvenile, J.V.D., appeals his delinquency adjudication on

 a charge of first degree criminal trespass. Because we agree with

 him that his right to counsel was violated when he proceeded

 without representation despite no valid waiver of that right, we

 reverse the adjudication.

                             I. Background

¶2    According to the prosecution’s evidence, J.V.D., then sixteen

 years old, opened the window of his neighbor’s trailer, but left after

 the neighbor’s face appeared in the window.

¶3    Nearly six months later, J.V.D. received a notice to appear

 concerning an allegation of second degree criminal trespass — a

 class 3 misdemeanor. He appeared at the hearing with his mother.

 There, the juvenile court advised them, as relevant here, (1) of the

 allegation of second degree trespass; (2) that if he pleaded guilty or

 was found guilty at trial, he could be sentenced to the Department

 of Youth Corrections; and (3) that he had the right to be

 represented by counsel and that a public defender would be

 appointed if he was financially qualified. J.V.D. asked the court if

 he could represent himself. After cautioning him that the

 proceedings could be complicated and that he might get bad advice


                                    1
 from a nonlawyer, it responded that he had the right to represent

 himself.

¶4    J.V.D. proceeded to debate his Sixth Amendment right to a

 jury trial with the juvenile court, and it advised him repeatedly that

 he was “getting bad advice.” The court offered to appoint a

 guardian ad litem (GAL), and J.V.D. declined. As the court

 attempted to conclude the proceedings, J.V.D. asked whether the

 case was a civil or criminal action. The court briefly explained that

 a juvenile delinquency case was neither civil nor criminal but was

 analogous to a criminal case, and it repeated its caution against

 getting legal advice from nonlawyers.

¶5    A week later, the prosecution filed a delinquency petition

 charging first degree criminal trespass, a class 5 felony, not the

 second degree trespass about which J.V.D. had been advised. A

 copy of the petition was mailed to J.V.D.’s mother, but the envelope

 was returned unclaimed.

¶6    At the plea hearing, J.V.D. stated that he did not wish to enter

 a plea until some of his questions were answered. He asked for

 information on the nature and cause of the action, whether the

 action was civil or criminal, and “for the rule-book — the


                                   2
 regulations, the rules, the codes, the statutes — in order for me to

 intelligently defend myself.”

¶7    The juvenile court suggested that perhaps he should have an

 attorney, but J.V.D. said that he was not looking for legal advice.

 The prosecutor asked for a GAL to be appointed. J.V.D. objected,

 and his mother agreed that a GAL was not necessary. The court did

 not appoint a GAL.

¶8    J.V.D. pressed the court regarding his questions. The court

 told him that he had been informed of the nature of the proceeding,

 directed him to go to the library to find the relevant information,

 deemed his actions to be a denial of the petition, and set the matter

 for trial. 1 J.V.D. repeatedly objected to the involuntary entry of a

 plea. The matter was set for trial six weeks later.

¶9    At the outset of trial, J.V.D. “totally object[ed] to the

 proceeding” because he did not “know the full nature and cause,”

 and he had been unprepared to enter a plea. The juvenile court




 1 The court later directed J.V.D. to title 19, the Juvenile Rules, and
 section 18-4-502, C.R.S. 2018 (the first degree criminal trespass
 statute).

                                     3
  took a few moments to explain jurisdiction and then proceeded with

  the trial.

¶ 10    J.V.D. acted pro se at trial, though he was also represented by

  his mother.2 He was not invited to give an opening statement, and

  he did not testify or call any witnesses, though he claimed that he

  had an alibi. His mother made some objections, asked some

  questions on cross-examination, and made closing arguments.

  Both J.V.D. and his mother made clear that they had not accessed

  any of the exhibits or the police report before trial. 3

¶ 11    The juvenile court adjudicated J.V.D. delinquent. Due in part

  to two prior adjudications for possession/consumption of

  marijuana and misdemeanor criminal mischief — each of which


  2 We have not found Colorado authority granting juveniles the right
  to be represented by their parents in a delinquency adjudication.
  Generally, only a licensed attorney may represent a client in court
  proceedings. See Cikraji v. Snowberger, 2015 COA 66, ¶ 14 (where
  the plaintiff was not a licensed attorney in Colorado, he could not
  represent his son in court proceedings without an attorney). And
  parents do not have a personal right to participate. See People in
  Interest of J.P.L, 214 P.3d 1072, 1077 (Colo. App. 2009). (Even
  “parents named as parties in a juvenile delinquency proceeding do
  not have a due process right to participate in the adjudicative
  proceedings.”)
  3 A copy of the endorsement of witnesses and exhibits was mailed to

  J.V.D., care of his mother, but the envelope was returned as not
  deliverable.

                                      4
  had resulted in a plea agreement — the court sentenced him to one

  to two years in the custody of the Department of Youth Corrections.

¶ 12   J.V.D. is represented by counsel on appeal. He contends that

  he did not effectively waive his right to counsel at trial. 4 We agree.

                            II. Applicable Law

¶ 13   The Fourteenth Amendment and the Bill of Rights are not for

  adults alone; however, not all of their protections extend to

  juveniles. In re Gault, 387 U.S. 1, 13-14 (1967). Though a juvenile

  facing delinquency proceedings is not afforded constitutional rights

  coextensive with those afforded adults in criminal proceedings, a

  juvenile enjoys the right to counsel because “[t]he juvenile needs the

  assistance of counsel to cope with problems of law, to make skilled

  inquiry into the facts, to insist upon regularity of the proceedings,

  and to ascertain whether he has a defense and to prepare and

  submit it.” Id. at 36 (footnote omitted); see L.O.W. v. Dist. Court,

  623 P.2d 1253, 1256 (Colo. 1981) (“Rights provided to adult

  defendants [are not] uniformly available to juveniles because the



  4In his opening brief, J.V.D. contended that his indeterminate
  sentence was illegal. He withdrew that contention in his reply brief,
  so we do not address it.

                                     5
  protective purposes of juvenile proceedings preponderate over their

  punitive function.”).

¶ 14   While the juvenile court in this case apparently recognized it, a

  juvenile in Colorado may not enjoy a corollary constitutional right to

  self-representation. Faretta v. California, 422 U.S. 806, 819-20

  (1975), holds that the Sixth Amendment implies the right to self-

  representation, but neither the Supreme Court nor the State of

  Colorado has expressly extended the right of self-representation to

  juveniles. Indeed, section 19-2-706(2)(a), C.R.S. 2018, seems to

  suggest that a juvenile in Colorado does not have that right, as it

  authorizes the court to appoint counsel “on its own motion, [if it]

  determines that counsel is necessary to protect the interests of the

  juvenile or other parties.”5


  5 Other states approach this right in one of three ways. Some
  states recognize the juvenile’s right. See L.D.S.J. v. State, 14 So. 3d
  289, 290 (Fla. Dist. Ct. App. 2009) (a juvenile’s knowing and
  intelligent waiver of counsel requires, as relevant here, a
  determination that no unusual circumstances preclude the
  juvenile’s exercise of the right of self-representation). Some afford
  the right to a juvenile’s parents. See In Interest of R.D.B., 575
  N.W.2d 420 (N.D. 1998) (a juvenile may waive the right to counsel if
  the juvenile is represented by his parents). And some statutorily
  exclude the right of self-representation from the panoply of due
  process rights afforded to juveniles in delinquency proceedings. See
  N.C. Gen. Stat. § 7B-2405(6) (2018) (The court shall protect “[a]ll

                                    6
¶ 15   In Colorado, the juvenile court must appoint counsel for a

  juvenile in most circumstances. However, the court may not

  appoint counsel if (1) the juvenile has retained his own counsel; or

  (2) the juvenile has made a knowing, intelligent, and voluntary

  waiver of his right to counsel. § 19-2-706(2)(a); see also

  § 19-2-508(2.5), C.R.S. 2018. While the right to counsel in a

  juvenile delinquency proceeding may be waived, the court is

  required to follow appropriate procedure to determine the validity of

  the waiver and to ensure that the waiver is voluntary, knowing, and

  intelligent. See § 19-2-706(2)(c).

¶ 16   An adult’s waiver of the right to counsel may be effective if the

  record shows that, under the totality of the circumstances, the

  defendant’s conduct demonstrates an unequivocal knowing,

  intelligent, and voluntary intent to relinquish the right to

  representation. People v. Alengi, 148 P.3d 154, 159 (Colo. 2006). A

  waiver is knowing and intelligent only when “the record clearly

  shows that the defendant understands the nature of the charges,

  the statutory offenses included within them, the range of allowable



  rights afforded adult offenders except the right to bail, the right of
  self-representation, and the right of trial by jury.”).

                                       7
  punishments thereunder, possible defenses to the charges and

  circumstances in mitigation thereof, and all other facts essential to

  a broad understanding of the whole matter.” People v. Arguello, 772

  P.2d 87, 94 (Colo. 1989). Because there is a strong presumption

  against finding a waiver of a constitutional right, a court has the

  duty of careful inquiry into the reasons given for not having counsel

  and the defendant’s understanding of the many risks of self-

  representation. Alengi, 148 P.3d at 159.

¶ 17   Because “juveniles are presumed to have less capacity than

  adults to understand their rights and privileges,” a court

  considering whether a juvenile’s waiver of constitutional rights is

  effective must also consider, while applying a totality of the

  circumstances test, factors such as “the juvenile’s age, previous

  court experience, education, background, intelligence, and capacity

  to understand the nature of his or her rights and the consequences

  of waiving those rights.” People v. Simpson, 51 P.3d 1022, 1025,

  1027 (Colo. App. 2001) (considering juvenile rights at a providency

  hearing), rev’d on other grounds, 63 P.3d 79 (Colo. 2003).

¶ 18   Although no Colorado decision expressly addresses a juvenile’s

  waiver of counsel, we conclude that the protections afforded to a


                                     8
  juvenile must, at a minimum, be equivalent to those afforded to an

  adult defendant. Thus, failure to properly advise a juvenile and to

  inquire on the record into whether the juvenile demonstrates, under

  the totality of the circumstances, an unequivocal knowing,

  intelligent, and voluntary intent to relinquish the right to

  representation results in an invalid waiver of counsel. We do not

  require a showing of prejudice to reverse a delinquency adjudication

  when a juvenile’s waiver of the right to counsel is ineffective. See

  Arguello, 772 P.2d at 97 (a deprivation of the right to counsel

  “undoubtedly taint[s] the whole trial”).

¶ 19   The General Assembly further protected a juvenile’s right to

  counsel through “An Act Concerning the Provision of Defense

  Counsel to Juvenile Offenders . . . ,” which took effect in 2014. Ch.

  247, 2014 Colo. Sess. Laws 948. Among many other statutory

  changes, section 19-2-706(1)(e) was added to specify that the failure

  of a juvenile’s parent to apply for court-appointed counsel may not

  be construed as a waiver of the juvenile’s right to counsel. Id. at

  952. In section 19-2-706(2)(a)(II), the General Assembly restated

  the constitutional requirement that any waiver of counsel by a

  juvenile must be knowing, intelligent, and voluntary, and in section


                                     9
  19-2-706(2)(c), it supplemented the constitutional requirement by

  requiring a trial court to make particular findings before accepting a

  juvenile’s waiver. Id. at 952-53; see Valley Forge Christian Coll. v.

  Ams. United for Separation of Church & State, 454 U.S. 464, 492

  (1982) (“[B]y legislation[,] the Congress[] may impart a new, and on

  occasion unique, meaning to [certain terms] in particular statutory

  or constitutional contexts.”).

¶ 20   Pursuant to these sections, a court must make specific

  inquiries and findings on the record before accepting a juvenile’s

  waiver of the right to counsel. The court may accept a juvenile’s

  waiver

             only after finding on the record, based on a
             dialogue conducted with the juvenile, that:

             (I) The juvenile is of a sufficient maturity level
             to make a voluntary, knowing, and intelligent
             waiver of the right to counsel;

             (II) The juvenile understands the sentencing
             options that are available to the court in the
             event of an adjudication or conviction of the
             offense with which the juvenile is charged;

             (III) The juvenile has not been coerced by any
             other party, including but not limited to the
             juvenile’s parent, guardian, or legal custodian,
             into making the waiver;



                                     10
            (IV) The juvenile understands that the court
            will provide counsel for the juvenile if the
            juvenile’s parent, guardian, or legal custodian
            is unable or unwilling to obtain counsel for the
            juvenile; and

            (V) The juvenile understands the possible
            consequences that may result from an
            adjudication or conviction of the offense with
            which the juvenile is charged, which
            consequences may occur in addition to the
            actual adjudication or conviction itself.

  § 19-2-706(2)(c) (emphasis added). 6

¶ 21   The statute does not specify the remedy if the juvenile court

  fails to make specific inquiries and requisite findings on the record,

  but Arguello is instructive. Even for adults, Colorado “require[s]

  that the trial court conduct a specific inquiry on the record to

  ensure that the defendant is voluntarily, knowingly and intelligently

  waiving the right to counsel.” Arguello, 772 P.2d at 95. The court

  further noted that failure to substantially comply with this

  requirement “does not automatically render the waiver invalid, but




  6We note that the Juvenile Delinquency Benchbook, although last
  updated prior to the addition of section 19-2-706(2)(c), C.R.S. 2018,
  contains questions that the juvenile court should ask before
  accepting waivers from a juvenile. William Alexander, Juvenile
  Delinquency Benchbook (updated Sept. 2013),
  https://perma.cc/CKF8-558X.

                                    11
  is an exception which should rarely be invoked.” Id. at 96. And it

  specified that “before a reviewing court can find a valid implied

  waiver based on conduct, there must be ample, unequivocal

  evidence in the record that the defendant was advised properly in

  advance of the consequences of his actions.” Id. at 97. When there

  is insufficient record evidence of a valid waiver of the right to

  counsel, the error is structural and requires reversal. Id.

                  III. Standards of and Basis for Review

¶ 22   The People argue that we should not review this case because

  J.V.D. may only challenge his waiver of the right to counsel in a

  postconviction proceeding. See Moore v. People, 2014 CO 8, ¶ 3.

  Alternatively, the People argue that we should review only for plain

  error, because J.V.D. did not argue that his waiver was ineffective

  or that he had been inadequately advised at trial.

¶ 23   J.V.D. argues that we should review an ineffective waiver as a

  denial of his constitutional right to counsel — a structural error

  requiring reversal. We agree with J.V.D.

¶ 24   Though Moore (waived right to testify) and People v. Walker,

  2014 CO 6 (waived right to a jury trial), might support an argument

  that a juvenile may not contest the validity of his waiver of the right


                                     12
  to counsel on direct appeal, we do not agree that those cases

  preclude our review. In those cases, the supreme court relegated

  the defendants’ waiver challenges to postconviction proceedings

  because the challenges would likely require an inquiry “into facts

  that the defendant brings forward that are not contained in the

  direct appeal record.” Moore, ¶ 17. Here, the juvenile court record

  fully demonstrates that J.V.D.’s waiver was ineffective because of

  the absence of advisement and express findings in the record. And

  when a challenge relies solely on the facts in the record, we can

  address waiver on direct appeal. See People v. Janis, 2018 CO 89,

  ¶ 27.

¶ 25      The requirement of a contemporaneous objection and

  application of plain error review to a juvenile’s failure to effectively

  waive his own right to counsel and lack of advisement is illogical.

  See Moore, ¶ 18. The very premise of an ineffective waiver is that

  the juvenile may not understand the nature of the right or the

  consequences of waiving it, so to require the juvenile to object on

  this basis at trial makes little sense. See id.

¶ 26      We agree with J.V.D. that an invalid waiver of the right to

  counsel constitutes structural error. See Arguello, 772 P.2d at 97


                                      13
  (an invalid waiver of the right to counsel amounted to a Sixth

  Amendment violation that tainted the whole trial, could never be

  considered harmless, and rendered the conviction invalid).

  Accordingly, we do not agree with the People that the record

  requires a showing of prejudice.

¶ 27   We review de novo whether a waiver of counsel was effective as

  a mixed question of law and fact. Alengi, 148 P.3d at 159.

                              IV. Discussion

¶ 28   Because juveniles “often lack the experience, perspective, and

  judgment to recognize and avoid choices that could be detrimental

  to them,” J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011)

  (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)), a court has an

  expanded duty of careful inquiry into a juvenile’s understanding of

  his or her right to counsel before the court can find that a waiver is

  voluntary, knowing, and intelligent. A juvenile must benefit not

  only from the constitutional standards that apply to adults — (1)

  presumptions against a waiver; (2) advisement regarding the many

  risks of self-representation; and (3) inquiry into his or her

  understanding of those risks and the reasons for the requested

  waiver — but also from the statutory requirements of section


                                     14
  19-2-706(2)(c) — (4) an inquiry into the juvenile’s maturity; (5) an

  inquiry into the juvenile’s understanding that counsel will be

  provided regardless of a parent’s or guardian’s ability or willingness

  to do so; and (6) findings on the record. Findings on the record are

  also strongly suggested by Arguello. See Arguello, 772 P.2d at 95-

  96.

¶ 29    Substantial information in the record supports a finding that

  J.V.D.’s waiver was voluntary. J.V.D. asked to represent himself,

  never asked for an attorney, declined offers of a GAL appointment,

  and submitted letters to the court affirming that position. But we

  conclude that his waiver was not knowing and intelligent. See id. at

  94 (“[E]ven if the choice to proceed pro se is ‘voluntary,’ the waiver

  is not valid until the court ensures that the waiver is made

  knowingly and intelligently.”).

¶ 30    To be sure, J.V.D. was defiant and discourteous in court. He

  interrupted the court, the prosecutor, and his mother. He

  demanded answers to legal questions that were out of place in the

  proceedings. He attempted to testify and to make arguments

  during objections and cross-examination. We further note that he

  had prior experience with the juvenile system, and he gave the


                                     15
  court the impression that he was simply trying to prevent or delay

  the proceedings. We commend the juvenile court for its efforts in

  attempting to control the proceeding while respecting the rights of

  this obstreperous juvenile.

¶ 31   Nonetheless, we must conclude that J.V.D. was insufficiently

  advised. First, we see no evidence in the record that he was advised

  that the prosecution had entered a petition with felony charges.

  See id. The court did not explain the range of allowable

  punishments or the collateral consequences of a felony

  adjudication. See id.; see also § 19-2-706(2)(c)(II). It did not

  explain the risks of self-representation, beyond possibly receiving

  “bad advice.” See Alengi, 148 P.3d at 159. And J.V.D. was not

  advised that counsel would be appointed regardless of his mother’s

  ability or willingness to pay. See § 19-2-706(2)(c)(IV).

¶ 32   Moreover, the court did not assess J.V.D.’s education,

  background, or maturity before accepting his waiver of counsel.

  See Simpson, 51 P.3d at 1027; see also § 19-2-706(1)-(2). And it did

  not inquire into the reasons J.V.D. did not want counsel. Alengi,

  148 P.3d at 159.




                                     16
¶ 33    The People concede that the juvenile court did not make the

  inquiries and findings required by section 19-2-706(2). Indeed, the

  court’s inquiry as it applies to the right to counsel was limited to

  that recounted above, and it did not make any findings on the

  record as to whether the juvenile’s waiver of his right to counsel

  was voluntary, knowing, and intelligent. It did not assess the

  juvenile’s maturity level, his understanding of the length of the

  possible sentence or the collateral consequences emanating from a

  felony juvenile adjudication, and it did not inquire whether he had

  been coerced in any way, all required by statute.

¶ 34    We cannot assume that the court made implicit findings that

  comport with the statute and render J.V.D.’s waiver constitutionally

  effective.

¶ 35    Considering the totality of circumstances, we conclude that

  J.V.D.’s waiver was invalid. It was not knowing and intelligent

  because he was insufficiently advised and did not appear to

  understand the nature of the proceedings or the risks of self-

  representation. Moreover, his waiver was ineffective because the

  juvenile court did not inquire into his maturity or make findings on

  the record.


                                    17
                             V. Conclusion

¶ 36   J.V.D.’s right to counsel for juvenile delinquency proceedings

  was violated when he was allowed to proceed in the absence of a

  knowing and intelligent waiver of that right. Accordingly, we

  reverse his delinquency adjudication and remand for a new trial.

       JUDGE NAVARRO and JUDGE WELLING concur.




                                   18
