     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 14, 2020

                                2020COA79

No. 17CA2273, Peo v Taylor — Criminal Law — Rights of
Defendant — Speedy Trial


     A division of the court of appeals considers whether a district

court may extend a defendant’s speedy trial deadline under section

18‑1‑405(3.5), C.R.S. 2019, which refers to failure to appear on the

“trial date,” when the defendant fails to appear at a pretrial

readiness conference conducted on the day before trial. The

division concludes it may not because the date of a pretrial hearing

is not the “trial date.”
COLORADO COURT OF APPEALS                                          2020COA79


Court of Appeals No. 17CA2273
El Paso County District Court No. 16CR1475
Honorable Larry E. Schwartz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul Anthony Taylor,

Defendant-Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                         Fox and Berger, JJ., concur

                           Announced May 14, 2020


Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    The Colorado speedy trial statute, section 18-1-405(1), C.R.S.

 2019, requires that a person accused of a crime be “brought to

 trial” within six months of his or her not guilty plea. Section

 18-1-405(3.5) provides that the six-month period is extended if the

 defendant fails to appear on the “trial date.”

¶2    In this case, the district court held that the failure of

 defendant, Paul Anthony Taylor, to appear for a pretrial hearing

 extended the six-month speedy trial period. But the date of a

 pretrial hearing is not the “trial date.” As a consequence of this

 misreading of the speedy trial statute, the district court set Taylor’s

 trial for a date more than six months after his not guilty plea.

¶3    Because the district court violated Taylor’s statutory right to a

 speedy trial, we grant Taylor the only remedy the law permits for a

 speedy trial violation. We vacate the judgment of conviction and

 remand to the district court with instructions to dismiss the

 charges filed against Taylor with prejudice.

                           I.    Background

¶4    A Colorado Springs police officer pulled Taylor over for turning

 into a parking lot without signaling. Through a check on the

 vehicle’s license plate number, the officer discovered that the car


                                    1
 had been stolen. A second officer placed Taylor in handcuffs, while

 the first officer inventoried Taylor’s car. During the inventory, the

 officer found marijuana, an open container of alcohol, a

 methamphetamine pipe, and a baggie containing

 methamphetamine.

¶5    Taylor was charged with aggravated motor vehicle theft,

 possession of a controlled substance, possession with intent to

 manufacture or distribute marijuana or marijuana concentrate,

 driving under restraint, failure to signal for a turn, and illegal

 possession or consumption of alcohol in a motor vehicle. Taylor

 pleaded not guilty to the charges on August 29, 2016.

¶6    The district court set a pretrial readiness conference for 9:00

 a.m. on January 23, 2017, and set his jury trial for the same time

 on January 24, 2017.

¶7    Although Taylor failed to appear for the pretrial readiness

 conference at 9 a.m. on January 23, 2017, his defense counsel was

 present. The district court agreed to recall the case at 1:30 p.m. so

 that defense counsel could attempt to contact Taylor. When the

 case was recalled, Taylor was not present, and his counsel informed




                                     2
  the court that he had been unable to reach Taylor. The court

  issued a warrant for Taylor’s arrest.

¶8     The clerk then asked the court, “Waiver of speedy trial as of

  today?” and the court answered, “Yes.” Defense counsel inquired, “I

  assume vacate tomorrow’s trial date?” and the court responded,

  “Yes.”

¶9     At 4:45 p.m. that same day, Taylor arrived at the court

  without counsel. The court again recalled the case. Taylor asked if

  he could explain “what happened.” The court replied, “I don’t want

  you to make any statements that might come back to haunt you”

  and refused to let Taylor make a statement outside the presence of

  his attorney.

¶ 10   Taylor and his attorney did not appear in court for a trial on

  January 24 because the court had vacated the trial date the

  previous day.

¶ 11   On February 6, 2017, Taylor appeared before the court with

  counsel, who requested that Taylor’s trial be set within the speedy

  trial period. The court asked, “[W]hen was the last waiver of speedy

  trial?” and defense counsel responded that there “[s]hould have

  been no previous waivers.” He explained that he and Taylor had


                                    3
  appeared at a pretrial readiness conference on December 19, 2016,

  at which the prosecution had moved to continue the trial. The

  court had granted the continuance over the defense’s objection.

  Counsel continued,

            As we stated Mr. Taylor appeared six hours
            tardy for readiness on [January] 23. He was
            taken into custody. So obviously [he] would
            have been available for trial on [January] 24.

            I note that there was no finding of speedy —
            waiver of speedy made at any time when Mr.
            Taylor was represented by counsel.

¶ 12   The clerk clarified that Taylor’s failure to appear was “deemed

  waiver of speedy trial on January 23.” The court stated:

            He was not here on the date that I made the
            trial call. Then the question is whether or not
            that constitutes a waiver as opposed to the
            next day. When we are normally set.

            I conclude there was a waiver of speedy trial.
            That is our trial call time. The fact that we
            could not have a jury present does not change
            my opinion on that. Nor the fact that he was
            in custody the next day.

            So we will reset it within six months of the
            date he failed to appear.

¶ 13   The following day, the court issued supplemental findings to

  support its finding of a waiver of speedy trial. In the supplemental

  findings, the court stated that on “January 24, the date set to begin

                                    4
  jury selection, neither the defendant nor his attorney was present.”

  The court concluded that “by failing to appear at trial call on

  January 23 and failing to be present to demand trial on January

  24, the defendant waived his right to a speedy trial.”

¶ 14   During a subsequent pretrial hearing, Taylor moved to dismiss

  the charges against him on speedy trial grounds. The court denied

  his motion. After the prosecution was granted a second

  continuance over Taylor’s objections, Taylor’s trial was eventually

  held on June 20-21, 2017, nearly ten months after Taylor entered

  his not guilty plea. A jury found Taylor guilty of aggravated motor

  vehicle theft, possession of a controlled substance, possession of

  marijuana, failure to signal for a turn, and illegal possession or

  consumption of alcohol in a motor vehicle.

¶ 15   On appeal, Taylor argues that (1) the district court violated his

  statutory right to a speedy trial; (2) the district court violated his

  constitutional rights when it prevented his counsel from raising an

  affirmative defense of recreational marijuana; (3) there was

  insufficient evidence to sustain his convictions for aggravated motor

  vehicle theft and possession of a controlled substance; (4) the

  district court erred by admitting hearsay testimony that the vehicle


                                      5
  he was driving had been reported as stolen; (5) the district court

  erred by denying his request to appoint substitute counsel; and (6)

  the cumulative effect of the district court’s errors requires reversal.

               II.   The Statutory Right to a Speedy Trial

                         A.        Standard of Review

¶ 16   When a district court denies “a defendant’s motion to dismiss

  based on its application of a speedy trial statute to undisputed

  facts, our review is de novo.” People v. Desantiago, 2014 COA 66M,

  ¶ 12, 409 P.3d 389, 391. “We also review de novo an issue of

  statutory interpretation.” Id.

                              B.    Applicable Law

¶ 17   Section 18-1-405(1) is clear: a person accused of a crime must

  be “brought to trial” within six months of the date on which he or

  she pleaded not guilty. See also Crim. P. 48(b)(1). However, “[i]f a

  trial date has been fixed by the court and the defendant fails to

  make an appearance in person on the trial date, the period within

  which the trial shall be had is extended for an additional six-month

  period from the date of the defendant’s next appearance.”

  § 18-1-405(3.5) (emphasis added).




                                         6
¶ 18     The duty to pursue trial within the speedy trial deadline rests

  with the People and the district court. People v. DeGreat, 2020 CO

  25, ¶ 11, ___ P.3d ___, ___. The remedy for a speedy trial violation

  is dismissal of charges with prejudice. Id.

       III.   The District Court Violated Taylor’s Statutory Right to a
                                    Speedy Trial

¶ 19     Taylor contends that his judgment of conviction must be

  vacated because the district court violated his right to a speedy

  trial. He argues that he did not waive his right to a speedy trial

  under section 18-1-405(3.5) when he appeared six hours late to the

  pretrial readiness conference on January 23, 2017. We agree.

¶ 20     The People first argue that the district court did not err by

  denying Taylor’s motion to dismiss because, under People v. Peltz,

  697 P.2d 766 (Colo. App. 1984), aff’d, 728 P.2d 1271 (Colo. 1986),

  the pretrial readiness conference on January 23, 2017, fits within

  the meaning of “brought to trial,” and that Taylor’s failure to appear

  at the conference was adequate grounds to restart the speedy trial

  period. But this argument misreads the statute.

¶ 21     Section 18-1-405(3.5) does not extend the speedy trial period if

  the defendant fails to appear in person on the date he or she is



                                       7
  “brought to trial.” It states that the speedy trial period is extended

  for an additional six months if “the defendant fails to make an

  appearance in person on the trial date.” § 18-1-405(3.5) (emphasis

  added). (The language “brought to trial” appears in the definition of

  the conclusion of the speedy trial period. See § 18-1-405(1)

  (requiring that a defendant’s charges be dismissed with prejudice if

  the defendant is “not brought to trial on the issues raised by the

  complaint, information, or indictment within six months from the

  date of the entry of a plea of not guilty”) (emphasis added). Thus,

  the question before us is not whether a pretrial readiness

  conference falls within the meaning of “brought to trial.”)

¶ 22   The meaning of “trial date” is clear in the context of section

  18-1-405(3.5) and is distinct from the meaning of “pretrial

  readiness conference.” See Town of Telluride v. Lot Thirty-Four

  Venture, L.L.C., 3 P.3d 30, 35 (Colo. 2000) (“When construing the

  meaning of a statute, reviewing courts should first consider the

  statutory language and give the words their plain and ordinary

  meaning.”); see also Desantiago, ¶ 13, 409 P.3d at 391 (“As long as

  the meaning of such words is unambiguous, we need not rely on

  interpretive rules of statutory construction.”). Logically, a trial


                                     8
  judge would not order parties to appear for a “pretrial readiness

  conference” by directing them to show up on the “trial date”

  because a pretrial conference is not a trial. Thus, we cannot

  support the People’s overbroad reading of “trial date.”

¶ 23   Taylor failed to appear for a pretrial readiness conference.

  Because it is clear that the pretrial readiness conference was not

  Taylor’s trial date, his failure to appear in court at 9:00 a.m. and

  again at 1:30 p.m. on January 23, 2017, did not authorize the

  district court to rely on section 18-1-405(3.5) to extend his speedy

  trial period an additional six months. See People ex rel. Gallagher v.

  Dist. Court, 933 P.2d 583, 589-90 (Colo. 1997) (holding that a delay

  caused by a defendant’s failure to appear at a pretrial hearing “does

  not constitute a waiver of speedy trial under section 18-1-405(3)

  such that a new six month period begins to run”).

¶ 24   The speedy trial statute provides a remedy for a delay caused

  by the defendant’s voluntary absence from a pretrial hearing. See

  People ex rel. Gallagher, 933 P.2d 583 at 589-90; see also

  § 18-1-405(6)(d). The trial court may add a period of time that is

  reasonably attributable to the “delay resulting from the voluntary

  absence or unavailability of the defendant” to the end of defendant’s


                                     9
  original six-month speedy trial period. § 18-1-405(6)(d); see People

  ex rel. Gallagher, 933 P.2d at 588 (“[T]he time period ‘resulting from’

  a defendant’s unavailability or absence includes a reasonable period

  in which to reschedule and prepare for trial a case that has been

  postponed.”). However, the district court did not find, and the

  People do not argue, that the delay caused by Taylor’s failure to

  appear reasonably warranted the addition of four months at the end

  of Taylor’s speedy trial period under 18-1-405(6)(d). For this

  reason, we do not consider this argument.

¶ 25   The People further argue that, even if Taylor’s trial date was

  January 24, 2017, the district court properly restarted his speedy

  trial period under section 18-1-405(3.5) because he failed to appear

  on that date. This argument is unpersuasive because the district

  court struck the January 24 trial date on January 23. Defendants

  are not required to appear in court on vacated trial dates.

¶ 26   Section 18-1-405(3.5) resets the speedy trial period “[i]f a trial

  date has been fixed by the court and the defendant fails to make an

  appearance in person on the trial date.” Although the court fixed

  Taylor’s trial date when it set the case for trial on January 24,




                                    10
  2017, the district court “unfixed” the trial date by vacating Taylor’s

  trial on the afternoon of January 23, 2017.

¶ 27   As a result, when Taylor failed to appear in court on January

  24, 2017, he was not in violation of section 18-1-405(3.5) because

  the trial date was no longer “fixed by the court.” He did not have a

  trial date. For this reason, Taylor’s speedy trial period was not reset

  when he failed to appear in court on January 24, 2017. (Taylor also

  argues that he did not fail to appear on January 24, 2017, because

  he was in custody on that date — as a result of failing to appear the

  previous day — and was, therefore, available to be transported to

  court. We do not consider whether the fact that a defendant was in

  custody and available to be transported to court is sufficient to

  establish that he appeared in court on his trial date because we

  conclude that Taylor no longer had a trial date.)

¶ 28   Nearly ten months elapsed between August 29, 2016, when

  Taylor entered his not guilty plea, and June 20, 2017, when his

  trial began, because the court misconstrued section 18-1-405(3.5).

  This time period exceeded the six-month statutory speedy trial

  period. Thus, we conclude that Taylor’s statutory right to a speedy

  trial was violated.


                                    11
                 IV.   Remaining Contentions on Appeal

¶ 29   Because we conclude that the district court violated Taylor’s

  statutory right to speedy trial, we do not consider Taylor’s other

  arguments.

                            V.    Conclusion

¶ 30   Taylor’s judgment of conviction is vacated. The case is

  remanded to the district court with instructions to dismiss the

  charges against Taylor with prejudice.

       JUDGE FOX and JUDGE BERGER concur.




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