     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
                                                               August 1, 2019

                               2019COA117

No. 17CA0959, People v. Yakas — Criminal Law — Uniform
Mandatory Disposition of Detainers Act — Waiver

     A division of the court of appeals, interpreting section 16-14-

104(2), C.R.S. 2018, of the Uniform Mandatory Disposition of

Detainers Act (UMDDA), holds, as a matter of first impression, that

UMDDA rights are not personal and may be waived by counsel. The

division further holds that the statutory advisement may be waived

by counsel. While the division disagrees with the trial court that

the UMDDA issue is moot, it affirms the court’s decision on

alternate grounds.
COLORADO COURT OF APPEALS                                       2019COA117


Court of Appeals No. 17CA0959
Arapahoe County District Court No. 15CR3031
Honorable Natalie T. Chase, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Theodore Yakas,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division VI
                         Opinion by JUDGE FREYRE
                         Fox and Welling, JJ., concur

                          Announced August 1, 2019


Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tara N. Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for
Defendant-Appellant
¶1    In this statutory interpretation case, we are asked to decide

 whether the right to a speedy disposition guaranteed by the

 Uniform Mandatory Disposition of Detainers Act (UMDDA), §§ 16-

 14-101 to -108, C.R.S. 2018, can be waived by counsel or whether a

 defendant must personally waive this right. We hold that this

 statutory right may be waived by counsel and that counsel may also

 waive the required statutory advisement of rights. We further hold

 that when the defendant is present for counsel’s waiver and does

 not voice an objection to it, he cannot later complain that his

 UMDDA rights were violated.

¶2    Defendant, Joshua Theodore Yakas, appeals the trial court’s

 order denying his motion to dismiss his criminal case for violation

 of the UMDDA. We affirm.

                           I.   Background

¶3    In October 2015, the police arrested Mr. Yakas for violating

 parole in an unrelated case. While incarcerated, the state charged

 him, on November 3, 2015, with three counts of enticement of a

 child, three counts of attempted inducement of child prostitution,

 three counts of attempted sexual assault on a child, three counts of

 indecent exposure – (third or subsequent offense), and habitual


                                   1
 criminality. Mr. Yakas appeared with court-appointed counsel at

 his first appearance on November 9, 2015. After waiving his right

 to a speedy preliminary hearing twice, Mr. Yakas proceeded to a

 preliminary hearing on January 13, 2016. The court found

 probable cause and bound the case over for arraignment on

 February 19, 2016. On February 19, the parties agreed to continue

 arraignment to April 29, 2016.

¶4    On February 29, 2016, Mr. Yakas filed a pro se “Petition for

 Speedy Disposition Under [the UMDDA].” As relevant here,

 paragraph four of the pro se petition states:

            4. The defendant, does not waive any rights of
            limits set forth under or in this act. If, at any
            time, the defendant chooses to waive any of
            these, it shall be himself, not through council
            [sic], by explicitly stating, in writing for the
            court or in open court, that he, knowingly,
            intentionally, and voluntarily waives his right
            under this act.

¶5    Upon receiving the petition, the court rescheduled

 arraignment for March 25, 2016. As well, on March 17, 2016,

 counsel for Mr. Yakas sent the following email to the court and the

 district attorney:

            I just wanted to let everyone know that Mr.
            Yakas is going to be withdrawing the detainer


                                    2
           and we will be asking that the April 29
           arraignment date remain. We’re fine with Mr.
           Yakas being brought in on 3/25 to do that on
           the record. Additionally, Mr. Yakas has been
           held at the Arapahoe County Jail, so unless he
           is going to be moved, we do not need a writ
           prepared.

¶6    When Mr. Yakas refused to appear on March 25, defense

 counsel explained that Mr. Yakas was “confused about the court

 date” and asked that the matter be reset for March 31, 2016,

 “because he’s going to withdraw that detainer [sic].”

¶7    Mr. Yakas appeared with counsel on March 31. The trial court

 asked whether “[defendant] was going to withdraw th[e] request [for

 speedy disposition] and . . . wanted to keep the arraignment date

 that we currently had set of April 29th.” Counsel responded, “That

 is correct.” The court then asked, “Do you wish any further

 advisement on the record with respect to Mr. Yakas’s withdrawal of

 request for speedy detainer?” Both defense counsel and the district

 attorney responded, “No.” Mr. Yakas remained silent. The trial

 court then found that the request for speedy disposition had been

 withdrawn and continued the matter to the April arraignment date.

¶8    After several continued arraignments, made at the defense’s

 request, Mr. Yakas entered a not guilty plea on August 1, 2016.


                                   3
  But the parties eventually reached a disposition, and on December

  15, 2016, Mr. Yakas pleaded guilty to several counts in exchange

  for the dismissal of the remaining counts and a stipulated sentence

  of twenty years in the custody of the Department of Corrections

  (DOC). The court accepted Mr. Yakas’s guilty pleas and sentenced

  him accordingly.

¶9     Around the time he pleaded guilty, Mr. Yakas filed a pro se

  motion to dismiss his case for violation of the UMDDA. The motion

  asserted, in part, that counsel’s withdrawal of the UMDDA petition

  on March 31 was “against his request” and constituted an invalid

  waiver of his rights, thereby depriving the court of jurisdiction to

  accept his guilty pleas. Mr. Yakas did not mention this pro se

  motion at the providency hearing, and nothing in the record shows

  that the court or counsel knew of its existence when Mr. Yakas

  pleaded guilty.

¶ 10   Following the providency hearing on December 15, the trial

  court issued an order requesting clarification concerning whether

  the motion to dismiss should be ruled on in light of the guilty pleas.

  After receiving no response, the trial court denied the motion to

  dismiss as moot, on December 21, 2016.


                                     4
       II.    Counsel’s Withdrawal of the UMDDA Petition Constituted a
                                    Valid Waiver

                         A.   Standard of Review and Law

¶ 11         The UMDDA, which governs the disposition of intrastate

  detainers, People v. Slusher, 43 P.3d 647, 649 (Colo. App. 2001),

  provides that “[a]ny person who is in the custody of the [DOC] . . .

  may request final disposition of any untried indictment,

  information, or criminal complaint pending against him in this

  state,” § 16-14-102(1), C.R.S. 2018. A parolee in county jail on a

  parole violation is in DOC custody for purposes of the UMDDA. See

  People v. Gess, 250 P.3d 734, 736 (Colo. App. 2010); Slusher, 43

  P.3d at 648-50. The UMDDA’s purpose is to provide a mechanism

  for prisoners to timely resolve untried charges that are the subject

  of a detainer so that they may proceed with or complete

  rehabilitative programs. People v. Higinbotham, 712 P.2d 993, 997

  (Colo. 1986).

¶ 12         Once a prisoner requests final disposition, the untried

  indictment, information, or criminal complaint must be brought to

  trial “[w]ithin one hundred eighty-two days after the receipt of the

  request by the court and the prosecuting official . . . .” § 16-14-



                                         5
  104(1), C.R.S. 2018. If the matter is not brought to trial within 182

  days, “no court of this state shall any longer have jurisdiction

  thereof, nor shall the untried indictment, information, or criminal

  complaint be of any further force or effect, and the court shall

  dismiss it with prejudice.” Id.

¶ 13   A defendant may waive the right to final disposition of an

  untried matter within the 182-day period if the waiver is express,

  on the record, and made after full advisement by the court. § 16-

  14-104(2).

¶ 14   Statutory interpretation of the UMDDA is a question of law

  that we review de novo. People v. Adolf, 2012 COA 60, ¶ 9.

  Whether a defendant has waived a right is also a question of law

  that we review de novo. Stackhouse v. People, 2015 CO 48, ¶ 4.

¶ 15   Finally, where the facts are undisputed, a trial court’s denial

  of a motion to dismiss for violation of the UMDDA is reviewed de

  novo. People v. Glasser, 293 P.3d 68, 76 (Colo. App. 2011). When

  the facts are disputed, we review the court’s decision for an abuse

  of discretion. Id.




                                    6
                             B.   Analysis

¶ 16   Mr. Yakas challenges the court’s denial of his motion to

  dismiss on two grounds. First, he contends that the

  superintendent of the institution where he was confined failed to

  comply with the UMDDA’s statutory requirements and that this

  failure required the dismissal of the charges against him. Second,

  he contends that his purported waiver was invalid and, therefore,

  the court lacked jurisdiction on December 15, 2016, to accept his

  guilty pleas. We address and reject each of his contentions.

             1.   Superintendent’s UMDDA Requirements

¶ 17   Section 16-14-103, C.R.S. 2018, provides that

            (1) Any request made pursuant to section 16-
            14-102 shall be delivered to the
            superintendent where the prisoner is confined
            who shall forthwith:

            (a) Certify the term of commitment under
            which the prisoner is being held, the time
            already served on the sentence, the time
            remaining to be served, the earned time
            earned, the time of parole eligibility of the
            prisoner, and any decisions of the state board
            of parole relating to the prisoner; and

            (b) Send, by registered mail, a copy of the
            request made by the prisoner and a copy of the
            information certified under paragraph (a) of
            this subsection (1) to both the court having
            jurisdiction of the untried offense and to the

                                   7
             prosecuting official charged with the duty of
             prosecuting the offense.

¶ 18   Mr. Yakas claims that, upon learning of his UMDDA rights, he

  immediately filed a petition invoking those rights “with the Court,

  Prosecuting Official, and Superintendent of Parole.” He argues that

  the superintendent failed to comply with the statutory requirements

  of section 16-14-103(1) that were triggered upon receipt of this

  petition and that this violation requires dismissal of the charges

  against him. 1

¶ 19   The record does not reflect whether Mr. Yakas sent his

  UMDDA petition to the correct person or, if so, whether that person

  complied with his or her statutory duties.

¶ 20   Even assuming, without deciding that Mr. Yakas correctly

  delivered his petition to the superintendent of the facility where he

  was confined and that the superintendent did not perform the

  statutory duties required by the UMDDA, we are not persuaded that

  dismissal of the charges is an appropriate remedy. See Martin v.


  1Mr. Yakas also asserted in his motion to dismiss that the
  superintendent violated the notice provision in section 16-14-
  102(2), C.R.S. 2018. However, he does not reassert this claim on
  appeal, so we do not address it. Cf. People v. Brooks, 250 P.3d 771,
  772 (Colo. App. 2010).

                                    8
  People, 738 P.2d 789, 793 (Colo. 1987) (“Dismissal is not required

  unless the evidence fails to establish that the defendant was not

  prejudiced, in view of the purposes of the [UMDDA], by the

  superintendent’s failure to send ‘forthwith’ a copy of the defendant’s

  request for disposition to the trial court.”); Higinbotham, 712 P.2d at

  998-1001; Slusher, 43 P.3d at 650-51.

¶ 21   Our supreme court has determined that a prisoner may invoke

  his or her UMDDA rights through either strict or substantial

  compliance with the statute. See People v. McKimmy, 2014 CO 76,

  ¶¶ 20, 23-24.

¶ 22   Strict compliance requires the prisoner to address his or her

  requests for speedy disposition to the prosecutor and the court, but

  also to send those requests to the superintendent of the facility

  where the prisoner is confined. Id. at ¶ 23; see also §§ 16-14-

  102(1), 16-14-103(1). The superintendent must then comply with

  the requirements of section 16-14-103(1). McKimmy, ¶ 23.

¶ 23   Substantial compliance occurs when, notwithstanding the

  superintendent’s involvement, a prisoner substantially complies

  with the UMDDA’s requirements and the prosecution receives

  actual notice of the request for speedy disposition. Id. at ¶ 24.


                                    9
¶ 24    Mr. Yakas admits, and the certificate of service reveals, that he

  sent his petition invoking his UMDDA rights to the court and the

  prosecutor. Further, the record contains an email from the

  prosecutor’s office acknowledging receipt of Mr. Yakas’s petition and

  asking the court to reschedule the arraignment date to align with

  the UMDDA’s time requirements.

¶ 25    Thus, even assuming that the superintendent failed to comply

  with section 16-14-103(1), we discern no prejudice from the

  violation since Mr. Yakas invoked his UMDDA rights by

  substantially complying with the statute. See Martin, 738 P.2d at

  793; Higinbotham, 712 P.2d at 998-1001; Slusher, 43 P.3d at 650-

  51.

           2.   Counsel’s Waiver of UMDDA Rights Was Valid

¶ 26    We begin by agreeing with Mr. Yakas that the court erred in

  finding his motion to dismiss was moot based on his guilty plea.

  The failure to bring a case to trial within the UMDDA’s required

  182-day timeframe automatically divests a trial court of jurisdiction

  over the matter, see § 16-14-104(1); therefore, such an issue is not

  mooted by the entry of a guilty plea, see Gess, 250 P.3d at 736.

  Nevertheless, we may affirm the judgment on any ground supported


                                    10
  by the record. See People v. Garcia, 2012 COA 79, ¶ 62. So, we

  address his contention that counsel’s withdrawal of his UMDDA

  petition on March 31, 2016, was not a valid waiver of his rights.

¶ 27   We requested supplemental briefing related to this issue.2 The

  parties agree that waiver and withdrawal are synonymous, and that

  counsel’s actions at the March 31 hearing should be treated as an

  express or attempted waiver of Mr. Yakas’s UMDDA rights.

  Because the March 31 hearing transcript shows that counsel

  expressly waived Mr. Yakas’s UMDDA rights on the record, we must

  decide (1) whether UMDDA rights can be waived by counsel or must

  be personally waived by the defendant; and (2) whether counsel can

  waive section 16-14-104(2)’s advisement requirement.

¶ 28   We first conclude that a defendant’s UMDDA rights can be

  waived either by the defendant or by counsel. See People v. Bryant,

  2013 COA 28, ¶ 12 (recognizing that either the defendant or

  counsel may waive UMDDA rights); see also People v. Newton, 764


  2 We asked three questions: (1) whether there is a difference
  between withdrawing a UMDDA petition and waiving UMDDA
  rights; (2) if there is a difference, whether counsel withdrew the
  petition or waived Mr. Yakas’s rights on March 31; and (3) what
  effect, if any, Mr. Yakas’s presence and silence had on counsel’s
  withdrawal or waiver.

                                    11
  P.2d 1182, 1187-88 (Colo. 1988) (recognizing, under the Interstate

  Agreement on Detainers Act (IAD), that either the defendant or his

  attorney may waive a defendant’s right to speedy trial); Sweaney v.

  Dist. Court, 713 P.2d 914, 918 (Colo. 1986) (noting that the policies

  underlying the UMDDA and the IAD are the same). Therefore, we

  reject Mr. Yakas’s assertion that UMDDA rights can only be waived

  by a defendant personally.

¶ 29   A criminal defendant is guaranteed certain constitutional

  rights that “are so inherently personal and basic that fundamental

  fairness of a criminal trial is called into question if they are

  surrendered by anyone other than the accused.” People v. Curtis,

  681 P.2d 504, 511 (Colo. 1984); see also New York v. Hill, 528 U.S.

  110, 114 (2000) (“For certain fundamental rights, the defendant

  must personally make an informed waiver.”); United States v. Olano,

  507 U.S. 725, 733 (1993) (“Whether a particular right is waivable;

  whether the defendant must participate personally in the waiver;

  whether certain procedures are required for waiver; and whether

  the defendant’s choice must be particularly informed or voluntary,

  all depend on the right at stake.”). “For other rights, however,

  waiver may be effected by action of counsel.” Hill, 528 U.S. at 114.


                                     12
¶ 30   While the intent of the UMDDA is to render the constitutional

  guarantee of a speedy trial more effective, the rights afforded under

  the UMDDA are not fundamental constitutional rights requiring

  personal waiver by a defendant. See People v. Anderson, 649 P.2d

  720, 722-23 (Colo. App. 1982) (An extension of the UMDDA’s

  deadline did not require the defendant’s personal consent because

  “[t]his case does not involve the question of whether defense

  counsel may waive his client’s constitutional right to a speedy trial

  without his client’s consent.”); State v. Hinojosa, 798 N.W.2d 634,

  637 (N.D. 2011) (“The [UMDDA] creates ‘a conditional procedural

  statutory right’ and ‘is not the equivalent of a fundamental

  constitutional right requiring the personal waiver or consent of the

  defendant to be effective.’” (quoting State v. Carlson, 258 N.W.2d

  253, 258 (N.D. 1977))).

¶ 31   Instead, “waiver of rights under the [UMDDA] is to be governed

  by the words of the statute.” Anderson, 649 P.2d at 723. Section

  16-14-104(2) contains no language requiring a defendant to

  personally waive his or her rights. And we may not add such

  language. See Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007).




                                    13
¶ 32   Furthermore, because “[t]he UMDDA’s counterpart governing

  interstate detainers, the Interstate Agreement on Detainers [IAD],

  embodies similar policies to those in the UMDDA,” “the principles

  applicable to the IAD may be applied to the UMDDA.” Slusher, 43

  P.3d at 649. As relevant here, courts have held that counsel can

  waive a defendant’s rights under the IAD. See Hill, 528 U.S. at 114-

  15; Newton, 764 P.2d at 1187-88.

¶ 33   Therefore, we conclude that a defendant’s UMDDA rights are

  not among the fundamental rights that require personal waiver by

  the defendant and that counsel here possessed the authority to

  waive Mr. Yakas’s UMDDA rights at the March 31 hearing. See Hill,

  528 U.S. at 114; People v. Baird, 66 P.3d 183, 190 (Colo. App. 2002)

  (“A statutory right may be waived by counsel’s statements.”).

¶ 34   Having concluded that counsel may waive a defendant’s

  UMDDA rights, we must next decide whether counsel can also

  waive the advisement requirement of section 16-14-104(2).

  Consistent with our supreme court’s holding in Finney v. People,

  2014 CO 38, ¶¶ 15-17, we conclude that counsel’s waiver of the

  required advisement, in Mr. Yakas’s presence, was permissible and




                                   14
  effected a valid waiver of his UMDDA rights. See also Hill, 528 U.S.

  at 114; Baird, 66 P.3d at 190.

¶ 35   A defendant who invokes his rights to a speedy disposition of

  untried charges is entitled to the procedural safeguards conferred

  by the statute. Cf. Finney, ¶ 15. As relevant here, section 16-14-

  104(2) provides as follows:

             (2) Any prisoner who requests disposition
             pursuant to section 16-14-102 may waive the
             right to disposition within the time specified
             [182 days] in subsection (1) of this section by
             express waiver on the record after full
             advisement by the court. . . .

  (Emphasis added.) And as recognized by a division of this court in

  People v. Carr, 205 P.3d 471, 473-74 (Colo. App. 2008), these

  safeguards preclude an implied waiver of UMDDA rights — any

  waiver must be express and on the record. Nevertheless, counsel

  may waive a defendant’s statutory rights and such a waiver must

  only be voluntary, not knowing or intelligent. Finney, ¶ 16 (listing

  cases finding counsel’s conduct waived a defendant’s statutory

  rights).

¶ 36   In Finney, the defendant’s challenge to the revocation of his

  deferred judgment was premised on the court’s failure to advise him



                                    15
  of the penalties associated with revocation under section 16-11-

  206, C.R.S. 2018. Id. at ¶ 15. Similar to the UMDDA, section 16-

  11-206(2) contains language stating that “the court shall advise the

  probationer of the charges against him and the possible penalties

  therefor.” The court held that plea counsel’s waiver of the

  advisement, in Finney’s presence, constituted an express and

  voluntary waiver of this penalty advisement. Finney, ¶ 17.

¶ 37   Here, the record reflects that counsel advised the court and

  the district attorney by email that Mr. Yakas intended to withdraw

  his UMDDA petition. At the hearing, the court asked whether this

  remained Mr. Yakas’s intent, and counsel responded that it did. At

  no time did Mr. Yakas express any disagreement with counsel’s

  representation, nor did he voice an objection to the petition’s

  withdrawal. See People v. Rodriguez, 209 P.3d 1151, 1160 (Colo.

  App. 2008) (“[I]t was incumbent upon [the] defendant to press for a

  definitive ruling before being able to claim on appeal that the court

  somehow erred.”), aff’d, 238 P.3d 1283 (Colo. 2010); People v.

  Anderson, 70 P.3d 485, 487 (Colo. App. 2002) (where defense

  counsel asked the court to take action that was contrary to the

  defendant’s wishes, any objection thereto may be abandoned by the


                                    16
  defendant’s failure to press for a ruling); see also People v.

  DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001) (stating that at a

  providency hearing, the defendant had the affirmative obligation to

  ask for clarification if he did not understand the plea agreement).

¶ 38   We are not persuaded that paragraph 4 of the petition,

  precluding a waiver by counsel, requires a different result. Mr.

  Yakas cites no authority to support that it does, and, as noted, he

  had ample opportunity to bring his intention expressed in the

  paragraph to the court’s attention at the hearing. Therefore, as in

  Finney, we hold that counsel validly waived section 16-14-104(2)’s

  advisement requirement. 3 As well, because Mr. Yakas waived his

  UMDDA rights, the trial court had jurisdiction to accept his guilty

  pleas.

                             III.   Conclusion

¶ 39   The order is affirmed.

       JUDGE FOX and JUDGE WELLING concur.




  3 We do not address Mr. Yakas’s argument, raised for the first time
  in his reply brief, that any waiver, if valid, was not voluntary. See
  People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007).

                                     17
