     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
                                                            January 10, 2019

                                 2019COA4

No. 17CA1678, People in Interest of G.S.S. — Children’s Code
— Juvenile Court — Delinquency — Bail — Speedy Trial

     In this juvenile delinquency case, a division of the court of

appeals concludes that under section 19-2-509(4)(b), C.R.S. 2018, a

court is required to bring a juvenile to trial within sixty days of a

no-bond order. If the court fails to do so, it violates the juvenile’s

speedy trial rights. The division further concludes that the remedy

for this type of speedy trial violation is dismissal of the charges.
COLORADO COURT OF APPEALS                                          2019COA4


Court of Appeals No. 17CA1678
La Plata County District Court No. 17JD15
Honorable Todd P. Norvell, Judge


The People of the State of Colorado,

Petitioner-Appellant,

In the Interest of G.S.S.,

Juvenile-Appellee.


                                 ORDER AFFIRMED

                                     Division VII
                              Opinion by JUDGE ASHBY
                                 Harris, J., concurs
                                J. Jones, J., dissents

                             Announced January 10, 2019


Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellant

Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy
State Public Defender, Denver, Colorado, for Juvenile-Appellee
¶1       The prosecution appeals from the district court’s order

 dismissing its case against G.S.S. for violating his statutory speedy

 trial rights. The prosecution argues that the sixty-day statutory

 speedy trial period was waived or extended by G.S.S.’s requests for

 continuances, and that if there was a speedy trial violation,

 dismissal is not the proper remedy under section 19-2-509(4)(b),

 C.R.S. 2018. We reject both contentions and affirm.

                              I. Background

¶2       G.S.S. was arrested and charged with two delinquent acts for

 threatening to shoot students at his middle school. He was placed

 in secure detention.

¶3       At the initial detention hearing on May 2, 2017, the court

 ordered that G.S.S. be held without bond, pending psychological

 and risk-assessment evaluations and the establishment of a release

 plan.

¶4       Numerous hearings were held over the next several months

 regarding the status of G.S.S.’s release from detention. Then, on

 August 9, 2017, G.S.S.’s counsel requested a hearing to “determine

 and comply with” G.S.S.’s speedy trial rights under section 19-2-

 509(4)(b). According to that statute, juveniles are to be brought to


                                     1
 trial within sixty days of the entry of a no-bond order. Defense

 counsel then moved to dismiss the case for violation of G.S.S.’s

 statutory speedy trial rights.

¶5    After a hearing, the court granted the motion and dismissed

 the case against G.S.S. with prejudice.

                              II. Discussion

¶6    Our first task in deciding whether G.S.S. waived or otherwise

 extended his right to a speedy trial is to identify those statutory

 provisions that define G.S.S.’s statutory speedy trial rights. We

 must then construe and apply those statutes, reviewing the district

 court’s interpretation de novo. See Mosley v. People, 2017 CO 20,

 ¶ 15; People v. Walker, 252 P.3d 551, 552 (Colo. App. 2011).

¶7    When construing a statute, our primary goal is to ascertain

 and give effect to the legislative intent. See People in Interest of T.A.,

 91 P.3d 473, 474 (Colo. App. 2004). “In determining legislative

 intent, a reviewing court should look to the language of the statute,

 giving effect to words and phrases according to their plain and

 ordinary meaning.” Id. If the language is clear and unambiguous,

 we apply it as written. Id. If, however, the language is reasonably

 susceptible to more than one interpretation, it is ambiguous and we


                                     2
 may look to intrinsic and extrinsic aids to guide our interpretation.

 See In re People in Interest of A.A., 2013 CO 65, ¶ 10.

            A. A Juvenile’s Statutory Speedy Trial Rights

¶8    There are several statutes in the Children’s Code that cross-

 reference one another and are relevant to resolving the issue of

 whether G.S.S.’s right to a speedy trial was violated. We first

 describe how these statutes work together.

¶9    Section 19-2-108(2)(d), C.R.S. 2018 (the juvenile speedy trial

 statute), sets forth the timelines within which certain hearings or

 events in a delinquency case must occur and requires that section

 18-1-405, C.R.S. 2018 (the adult speedy trial statute applicable to

 adults), and Crim. P. 48(b) govern a juvenile’s speedy trial rights.

 Specifically, for an adjudicatory trial, section 19-2-108(2)(d)

 incorporates the speedy trial period set forth in section 19-2-708(1),

 C.R.S. 2018, the statute that governs the entry of a plea in a

 delinquency case. Together these two statutes require that a

 juvenile be tried within sixty days of the entry of a not guilty plea

 unless a jury trial has been requested under section 19-2-107,




                                    3
  C.R.S. 2018, or the juvenile has explicitly or implicitly waived or

  extended the speedy trial period.1 But when a juvenile is held in

  detention due to a no-bond hold order, these generally applicable

  speedy trial statutes are modified.

¶ 10   Section 19-2-508, C.R.S. 2018, describes how and when the

  court should determine if a juvenile may be released from or placed

  in detention. And, consistent with sections 19-2-108 and -708,

  discussed above, it requires that any juvenile who is detained

  without bail must be tried within sixty days unless a jury trial has

  been requested. See § 19-2-508(3)(a)(IV)(D). If we looked no

  further, we might conclude that unless a jury trial has been

  requested, a juvenile ordered to be held without bond must be tried

  within sixty days of entering a not guilty plea. But we cannot

  ignore section 19-2-509. See A.S. v. People, 2013 CO 63, ¶ 10

  (“When construing a statute, we ascertain and give effect to the

  General Assembly’s intent, reading applicable statutory provisions

  as a whole in order to accord consistent, harmonious, and sensible


  1G.S.S. never requested a jury trial. We discuss the prosecution’s
  waiver argument below.



                                     4
  effect to all their parts.”). In essence, section 19-2-508 reaffirms the

  sixty-day speedy trial period applicable to all non-jury adjudicatory

  trials. Section 19-2-509(4)(b) (the juvenile bail statute) then

  describes that for those juveniles held without bond, the running of

  the speedy trial clock is triggered by entry of a not guilty plea or a

  no-bond hold order, “whichever date is earlier.”

¶ 11   Because section 19-2-508 references the general speedy trial

  statutes triggered by the entry of a plea of not guilty, and section

  19-2-509 specifically addresses how the speedy trial clock is

  triggered by either a not guilty plea or a no-bond hold order, the

  statutes seemingly conflict. However, to the extent that the two

  statutes conflict, we should attempt to harmonize them to effectuate

  the legislative intent. See T.A., 91 P.3d at 474. And, generally, the

  more specific statute governs over the more general. § 2-4-205,

  C.R.S. 2018; accord Gessler v. Doty, 2012 COA 4, ¶ 13. Hence,

  because it is the more specific statute, section 19-2-509 governs

  over section 19-2-508.

¶ 12   Section 19-2-509 does not otherwise modify provisions of the

  generally applicable juvenile speedy trial statutes; therefore, the

  other provisions of those statutes apply. And because section 18-1-


                                     5
  405’s provisions are not inconsistent with the juvenile speedy trial

  statutes, both the tolling and enforcement provisions of the criminal

  speedy trial statute, including whether the speedy trial period has

  been tolled or waived, are applicable. See People in Interest of

  J.M.N., 39 P.3d 1261, 1263 (Colo. App. 2001) (holding that the

  criminal speedy trial statute and related law apply when

  considering whether a juvenile’s right to speedy trial has been

  violated); People in Interest of G.W.R., 943 P.2d 466, 467 (Colo. App.

  1997). With this background, we now turn to the prosecution’s

  arguments that G.S.S.’s or his counsel’s actions extended the

  speedy trial period beyond sixty days.

¶ 13   The court entered a no-bond hold order at G.S.S.’s initial

  detention hearing on May 2, 2017. Thus, according to the plain

  language of the bail statute, G.S.S. was entitled to a trial within

  sixty days of that date, or July 1, 2017. The court did not hold a

  trial within that sixty-day limit. In fact, at no point did the court

  even set a trial date. But is that attributable to actions taken by

  G.S.S. that extended his speedy trial period? Our answer is “no.”

¶ 14   The prosecution makes several arguments regarding why

  G.S.S. is at fault for his trial not occurring before his speedy trial


                                      6
  period ran. First, it argues that a request for a jury trial was

  required to trigger the running of G.S.S.’s speedy trial clock. But

  even when entitled to one, a juvenile is not required to request a

  jury trial. See § 19-2-107 (providing that a juvenile or the district

  attorney may demand a jury trial under certain circumstances, but

  failure to demand a jury trial constitutes a waiver of any such

  right). And a failure to request a jury trial has no bearing on the

  applicable speedy trial period for a non-jury trial. Further, section

  19-2-509, by its explicit terms, does not require that a jury trial be

  requested.

¶ 15   Second, the prosecution argues that when the tolling

  provisions of section 18-1-405 are applied, the sixty-day speedy

  trial period was either extended or waived when G.S.S.’s counsel

  requested continuances of the various court hearings. But not all

  defense actions that result in a continuance of a hearing date waive,

  toll, or extend a speedy trial period. See Tongish v. Arapahoe Cty.

  Court, 775 P.2d 63 (Colo. App. 1989) (holding that only delays that

  impede the statutory goal of bringing a defendant to trial within the

  statutory speedy trial period are excludable from computation of the

  speedy trial deadline; and procedural interruptions, such as a


                                     7
  continued pretrial conference, that do not delay a trial beyond the

  applicable speedy trial period are not automatically excludable

  without the defendant’s express waiver of speedy trial rights).

  When we consider the circumstances of each hearing at which

  G.S.S.’s counsel requested a continuance and apply the tolling and

  waiver provisions of section 18-1-405, we agree with the district

  court that G.S.S. did nothing to delay the setting or occurrence of a

  trial within the sixty-day speedy trial period. The failure to timely

  hold the trial was simply the result of the prosecution’s and the

  court’s failure to hear the speedy trial clock ticking.

¶ 16   G.S.S.’s counsel sought his release from detention at the

  initial detention hearing and every hearing thereafter. Although a

  release plan had been devised by staff from the pretrial release

  program, the pretrial staff, the court, and the prosecution were

  unwilling to implement the plan until a risk assessment and safety

  evaluation of G.S.S. had been completed. The continuances

  requested at each hearing between the initial May 2nd detention

  hearing and July 11, 2017, the date of the first hearing after the

  sixty-day speedy trial period had run, focused on the delays in the

  completion of the risk and mental health assessment and


                                     8
  evaluation that would facilitate G.S.S.’s release from detention. As

  of that July 11th date when the evaluation was completed, the

  court had consistently held to its position that until the assessment

  and evaluation were completed and reviewed, it would not

  reconsider G.S.S.’s repeated requests for release from detention.2

¶ 17   It is true that while waiting for the risk assessment to be

  completed, the court asked whether plea negotiations were

  occurring and suggested that the pending evaluation might be

  helpful in that regard. G.S.S.’s counsel acknowledged that any

  assessment or evaluation would likely also assist with plea

  negotiations. But counsel was not the driving force behind and did

  not acquiesce in the delays. Instead, she continually focused on the



  2 The prosecution argues that the risk and safety assessment that
  the prosecution, pretrial services staff, and the court required in
  order to consider G.S.S.’s release from detention was effectively a
  competency evaluation and the delay in receiving it was therefore
  chargeable to G.S.S. under section 18-1-405(6)(a), C.R.S. 2018.
  But none of the language of that statutory subsection applies here.
  See id. (excluding “[a]ny period during which the defendant is
  incompetent to stand trial, or is unable to appear by reason of
  illness or physical disability, or is under observation or examination
  at any time after the issue of the defendant’s mental condition,
  insanity, incompetency, or impaired mental condition is raised”).



                                    9
primary goal of obtaining G.S.S.’s release from detention and did

not request any delay in setting a trial date or holding a trial. After

reviewing the record, the district court acknowledged in its

dismissal order that its prior recollection as to why the hearings

were continued was in error. It found that the delays were for the

purpose of getting an assessment and an evaluation to allow G.S.S.

to be released and that there was no reason why the trial could not

have been set to occur while the completion of these tasks was

pending:

         “It was a little bit different situation than I had originally

           thought, where your attorney was attempting to help you

           get released. And [the District Attorney], I’m sure she’s

           accurate when she says it was designed also to

           potentially help you get a more favorable plea agreement.

           But you didn’t do anything to delay your trial.”

           (Emphasis added.)

         “[A]nd similarly, under 18-1-405, I have to find that you

           delayed or did something else that caused the trial to go

           beyond the 60 days. I can’t make that finding. You

           didn’t do anything to delay your trial.”

                                   10
¶ 18   The prosecution appears to argue that as long as anyone

  referenced the possibility of a negotiated plea, there was no

  obligation to set a trial date. But, as in Tongish, there was no

  impediment to engaging in plea negotiations while the trial date was

  pending. See 775 P.2d at 65. The setting of a trial date is not

  dependent on the parties concluding that resolution of the case

  without a trial is unlikely. And the dispositional hearings set by the

  court and the continued detention hearings are precisely the type of

  “procedural interruptions” that should not be excluded from the

  speedy trial calculation.

¶ 19   The district court therefore correctly found, with record

  support, that none of the delay in setting a trial date or holding a

  trial within the sixty-day speedy trial deadline was attributable to

  G.S.S. under the provisions of section 18-1-405. The court

  specifically found that counsel’s actions on behalf of G.S.S. were

  designed to get G.S.S. released, not to delay a trial date. Thus,

  G.S.S.’s requested continuances of the detention and dispositional

  hearings did not toll, waive, or extend the speedy trial clock. See

  Tongish, 775 P.2d at 65.




                                    11
¶ 20      Finally, the prosecution argues that defense counsel was likely

  aware of the speedy trial issue and had an obligation to alert the

  court and the prosecution to it. We cannot infer from the record

  before us that counsel was aware of the applicable speedy trial

  period before it ran. But, even if true, the obligation to bring G.S.S.

  to trial within the speedy trial period did not fall on counsel for

  G.S.S. It bears repeating that it is the court’s and the prosecutor’s

  duty, not a defendant’s, to ensure that the speedy trial provisions

  are met. See People v. Rogers, 706 P.2d 1288, 1290 (Colo. App.

  1985); cf. G.W.R., 943 P.2d at 467 (holding no violation of speedy

  trial rights where defense counsel affirmatively accepted a trial date

  beyond the speedy trial deadline).

¶ 21      Accordingly, we conclude that by not holding the adjudicatory

  trial within sixty days of the entry of the no-bond hold order, the

  court violated G.S.S.’s statutory speedy trial rights.

       B. Remedy for a Violation of a Juvenile’s Right to a Speedy Trial
                       Under Section 19-2-509(4)(b)

¶ 22      Having determined that G.S.S.’s speedy trial rights were

  violated, we must now address whether the remedy is dismissal of

  the charges or release from detention. We conclude G.S.S. is



                                      12
  entitled to dismissal. See, e.g., Watson v. People, 700 P.2d 544, 549

  (Colo. 1985); People v. Wolfe, 9 P.3d 1137, 1141 (Colo. App. 1999);

  see also § 18-1-405(1); § 19-2-108.

¶ 23   We have concluded that section 19-2-509, with its sixty-day

  limit from the date of the no-bond hold or entry of a not guilty plea,

  whichever is earlier, is the governing statute for the timeframe

  within which a juvenile must be tried. But no specific remedy is

  provided in sections 19-2-508 or 19-2-509. To resolve the question

  of the proper remedy for a speedy trial violation in these

  circumstances, it is necessary to understand the broader policies

  and procedures related to juvenile detention and delinquency

  adjudicatory trials.

¶ 24   We outlined in Part II.A above how the juvenile speedy trial

  and bail statutes relate to one another and to section 18-1-405.

  The prosecution now argues that even though it advocated that we

  should apply all of the waiver and tolling provisions of the criminal

  speedy trial statute to G.S.S., we should not apply the remedy of

  dismissal for the violation of his speedy trial rights provided in that

  same statute because G.S.S.’s speedy trial period was not triggered

  by his entering a not guilty plea. Further, it contends, because


                                    13
  section 19-2-509 is entitled “Bail,” we should base the remedy for

  violating the juvenile bail statute on the criminal bail statute rather

  than the criminal speedy trial statute. G.S.S.’s remedy, it argues, is

  to have a hearing and have the juvenile court set bail. We see no

  legal basis for denying the dismissal remedy to G.S.S.

¶ 25   Section 18-1-405(1) provides that,

             [e]xcept as otherwise provided in this section,
             if a 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, he shall be
             discharged from custody if he has not been
             admitted to bail, and, whether in custody or on
             bail, the pending charges shall be dismissed,
             and the defendant shall not again be indicted,
             informed against, or committed for the same
             offense, or for another offense based upon the
             same act or series of acts arising out of the
             same criminal episode.

  Accord Crim. P. 48(b)(1).

¶ 26   The criminal bail statute, section 16-4-101(4), C.R.S. 2018,

  provides that

             if a person is denied bail under this section,
             the trial of the person shall be commenced not
             more than ninety-one days after the date on
             which bail is denied. If the trial is not
             commenced within ninety-one days and the
             delay is not attributable to the defense, the
             court shall immediately schedule a bail


                                    14
             hearing and shall set the amount of the bail for
             the person.

¶ 27   Thus, the Code of Criminal Procedure identifies that the

  specific remedy for violating a criminal defendant’s rights to trial

  when he or she is held without bail is to hold a hearing to

  determine release, not dismissal of the charges.

¶ 28   However, in the criminal statutes, the legislature has clearly

  separated the triggers and remedies for speedy trial violations for

  criminal defendants for whom no bond has been set and for those

  defendants who have had bond set but who have not been tried

  within the generally applicable speedy trial period. The remedy for

  a speedy trial violation for a criminal defendant whose speedy trial

  clock is triggered by a not guilty plea is dismissal of the charges.

  On the other hand, the remedy for a violation of the shorter no-

  bond speedy trial period is to hold a hearing and set bail.

¶ 29   In the applicable juvenile statute, the no-bond speedy trial

  clock for a detained juvenile is triggered by either a no-bond order

  or a not guilty plea. The legislature could have chosen to model its

  juvenile speedy trial statutes in the same way as the adult criminal

  procedure statutes, but it did not.



                                    15
¶ 30   And, other than the various related juvenile speedy trial

  statutes incorporating the provisions of section 18-1-405, the

  juvenile bail statute is silent as to the remedy for violating the

  associated rights. Where a statute is silent as to remedy, the

  statute may be considered ambiguous on that point. See People v.

  Mosley, 397 P.3d 1122, 1126 (Colo. App. 2011) (“A statute may be

  ambiguous if it is silent on an issue that would be expected to be

  within its scope.” (quoting People v. Carey, 198 P.3d 1223, 1229

  (Colo. App. 2008))), aff’d, 2017 CO 20. At that point, we may look

  to extrinsic sources to determine the legislature’s intent as to the

  appropriate remedy.

¶ 31   To discern the legislative intent related to section 19-2-

  509(4)(b), we must honor the legislature’s purpose in structuring a

  juvenile delinquency system that is different from the criminal

  system. See A.C. v. People, 16 P.3d 240, 241 (Colo. 2001). It is

  clear that “a delinquency proceeding is not a criminal prosecution,”

  S.G.W. v. People, 752 P.2d 86, 88 (Colo. 1988), and simply using

  criminal statutes as proxies for like provisions in the Children’s

  Code does not honor the differences intended between the juvenile

  delinquency and criminal systems.


                                     16
¶ 32   The Children’s Code’s primary goal is to serve the best

  interests of the child and of society. § 19-1-102(1)(a), C.R.S. 2018.

  “In service of these goals, the Children’s Code seeks to provide

  informal, simple and speedy judicial procedures.” A.C., 16 P.3d at

  242; see People in Interest of T.M., 742 P.2d 905, 907 (Colo. 1987)

  (“[T]he underlying theme of a delinquency proceeding is to provide

  guidance and rehabilitation for the child and protection for society

  rather than fixing criminal responsibility, guilt, and punishment.”).

  Our supreme court has also noted that, because of the unique

  psychological positioning and sensitivity of juveniles, as compared

  to adult offenders, we must be particularly cognizant of the harm

  caused to children by delays in bringing a juvenile to trial and

  prolonged detention. See P.V. v. Dist. Court, 199 Colo. 357, 360-61,

  609 P.2d 110, 112 (1980).

¶ 33   With these purposes in mind, we cannot harmonize and give

  effect to the applicable juvenile speedy trial statutory provisions by

  failing to apply the remedy provided by specifically incorporating

  the provisions of the adult criminal speedy trial statute — dismissal

  under section 18-1-405. We are not at liberty to choose to

  incorporate a statute that we think is a better fit. We discern no


                                    17
  legislative intent to limit application of the dismissal remedy for

  violating a juvenile’s no-bond speedy trial rights to only those

  juveniles who have entered a not guilty plea.

¶ 34    Further, any ambiguity in the juvenile bail statute must be

  construed in G.S.S.’s favor and in furtherance of the rehabilitative

  purposes of the Children’s Code. See Frazier v. People, 90 P.3d 807,

  811 (Colo. 2004) (“[T]he rule of lenity . . . requires courts to resolve

  ambiguities in a penal code in favor of a defendant’s liberty

  interests.”); People in Interest of D.S.L., 134 P.3d 522, 527 (Colo.

  App. 2006) (“[I]t is particularly appropriate to apply the rule of lenity

  in resolving statutory ambiguities in juvenile delinquency

  proceedings . . . .”).

¶ 35    For these reasons and consistent with the Children’s Code’s

  purpose — to promote rehabilitation and minimize delay and

  prolonged detention — we discern the legislative intent to require

  dismissal when a violation of speedy trial occurs, regardless of

  whether the speedy trial period has been established by a no-bond

  hold order or entry of a not guilty plea. Therefore, we conclude that

  the district court did not err by dismissing G.S.S.’s case based on

  the violation of his speedy trial rights.


                                     18
                            III. Conclusion

¶ 36   The order is affirmed.

       JUDGE HARRIS concurs.

       JUDGE J. JONES dissents.




                                  19
       JUDGE J. JONES, dissenting.

¶ 37   The majority’s decision to affirm the district court’s dismissal

  of the charges against G.S.S. rests on two conclusions. First, the

  majority concludes that the delays caused by defense counsel’s

  multiple requests for continuances to allow time for a mental health

  evaluation of G.S.S. aren’t chargeable to G.S.S. because defense

  counsel was only trying to obtain G.S.S.’s release from detention.

  Second, the majority concludes that the remedy for a failure to try a

  juvenile held without bond within sixty days of a no bond order, as

  required by section 19-2-509(4)(b), C.R.S. 2018, is dismissal of the

  charges under section 18-1-405(1), C.R.S. 2018. For reasons I’ll get

  to later, I’m not altogether sold on the majority’s second conclusion.

  But the bigger problem for me is that the majority’s first conclusion

  is belied by the record and contrary to Colorado Supreme Court

  precedent. The record clearly shows, and the district court

  expressly found, that while defense counsel was attempting to

  obtain G.S.S.’s release from detention, counsel was also seeking to

  improve G.S.S.’s plea bargaining position. The supreme court has

  held that delays resulting from defense counsel’s efforts to facilitate




                                    20
  a plea bargain are chargeable to the defendant. And so I

  respectfully dissent.

                I.   The Delays are Chargeable to G.S.S.

¶ 38   Section 19-2-509(4)(b) provides that a juvenile who remains in

  custody or detention without bail

            must be tried on the charges on which the bail
            is denied . . . within sixty days after the entry
            of such order [denying bond] or within sixty
            days after the juvenile’s entry of a plea,
            whichever date is earlier; except that, if the
            juvenile requests a jury trial pursuant to
            section 19-2-107, the provisions of section
            19-2-107(4) shall apply.

  But the statute is silent on whether certain events may toll the

  sixty-day period.3 The majority assumes, as I do, that delays

  attributable to the defense do so. This is so because it’s

  inconceivable that the General Assembly intended to reward —

  indeed, create a windfall for — a defendant who causes delay. Cf.

  § 18-1-405(6)(f) (“[t]he period of any delay caused at the instance of

  the defendant” doesn’t count toward section 18-1-405(1)’s six-

  month speedy trial period).



  3G.S.S. has the burden of showing a violation of this provision. See
  Saiz v. Dist. Court, 189 Colo. 555, 557, 542 P.2d 1293, 1295 (1975).


                                    21
¶ 39   Of course, this statement begs the question: What sort of

  conduct is attributable to a defendant for this purpose? The

  supreme court has answered that question; broadly stated, “[i]f the

  delay is caused by, agreed to, or created at the instance of the

  defendant, it will be excluded from the speedy-trial calculation

  made by the court.” People v. Bell, 669 P.2d 1381, 1384 (Colo.

  1983); accord Jones v. People, 711 P.2d 1270, 1281 (Colo. 1986);

  Saiz v. Dist. Court, 189 Colo. 555, 558, 542 P.2d 1293, 1295 (1975).

  Put another way, any delay “at the request of or for the benefit of

  the defendant . . . is properly chargeable to the defendant.” People

  v. Luevano, 670 P.2d 1, 3 (Colo. 1983) (quoting People v. Murphy,

  183 Colo. 106, 109, 515 P.2d 107, 109 (1973)).

¶ 40   It’s undisputed that every delay in this case was caused by

  numerous continuances requested by defense counsel. So it would

  seem that those delays are chargeable to G.S.S. under section 19-2-

  509(4)(b), given the supreme court pronouncements just noted. But

  the majority reasons, relying on Tongish v. Arapahoe County Court,

  775 P.2d 63 (Colo. App. 1989), that only continuances affecting the

  trial date count, and that the continuances requested by G.S.S.’s




                                    22
  attorney concerned only counsel’s efforts to get G.S.S. released from

  detention.

¶ 41   This is where I part ways with the majority. For even were I to

  accept the premise of Tongish, I don’t accept the majority’s limited

  characterization of the purpose of the delays requested by G.S.S.’s

  counsel. Nor did the district court. And my understanding of

  counsel’s reasons, and the district court’s understanding as

  reflected in the record, brings into play supreme court authority

  requiring that we charge the delays to G.S.S. for purposes of section

  19-2-509(4)(b).

¶ 42   Defense counsel sought (and paid for) a mental health

  evaluation for G.S.S. by a licensed professional. After trying

  unsuccessfully to arrange evaluations by two professionals (for

  which counsel sought additional delay), defense counsel retained

  such a professional, but couldn’t arrange an examination right

  away due to that person’s schedule. As a result of these efforts,

  defense counsel requested a short extension of the detention

  hearing, see § 19-2-508(2)(a), C.R.S. 2018, and several extensions

  of subsequent dispositional hearings (that is, hearings to determine




                                    23
  whether there was probable cause for the charges, § 19-2-705,

  C.R.S. 2018).

¶ 43   The majority correctly points out that one of defense counsel’s

  goals in obtaining such an evaluation may well have been to assist

  in getting G.S.S. released from detention. But that wasn’t the only

  goal. Another goal, expressed repeatedly by defense counsel, was to

  assist counsel with plea negotiations. Counsel hoped to obtain an

  opinion that G.S.S. wasn’t a danger to the community so as to

  improve G.S.S.’s plea bargaining position.

¶ 44   Plea bargaining considerations, and all parties’ awareness that

  they couldn’t move forward with such discussions, or with a plea,

  until defense counsel was able to digest the mental health

  professional’s evaluation, were discussed at several hearings both

  before and after the sixty-day period would otherwise have expired.

  Both the prosecutor and the defense counsel expressly

  contemplated reaching a plea agreement following receipt of the

  defense-retained professional’s report. And the court monitored the

  progress of those efforts toward a disposition, recognizing even that

  the evaluation would affect G.S.S.’s entry of a plea and any progress

  toward a trial. In ruling on G.S.S.’s motion to dismiss, the district


                                    24
  court found that the mental health evaluation “was designed also to

  potentially help [G.S.S.] get a more favorable plea agreement.”

¶ 45      These facts, in my view, distinguish this case from Tongish, in

  which the only continuances were of a pretrial conference. 775

  P.2d at 65. The record shows that the continuances in this case

  were for the purposes of buttressing G.S.S.’s case for release from

  detention, promoting and advancing plea negotiations, enabling

  G.S.S. to enter a more informed plea to the charges, and,

  inferentially, preparing the defense’s case.

¶ 46      In closely analogous circumstances, the supreme court has

  held that delays for such purposes are attributable to the defense.

  In Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972), the court

  held:

               The delay which preceded trial was occasioned,
               to a large extent, by the defendant. The
               defendant requested and obtained numerous
               continuances in an attempt to effectuate a plea
               bargain. The prosecution is not chargeable
               with delay that has been caused by the
               defendant.

  Id. at 91, 495 P.2d at 552; see also People v. Howard, 541 P.2d

  1252, 1254 (Colo. App. 1975) (not published pursuant to C.A.R.

  35(f)). Similarly, the supreme court has held that delays


                                      25
  attributable to a defendant’s efforts to meet conditions to qualify for

  a deferred judgment are chargeable to the defendant. Luevano, 670

  P.2d at 3; see also Alley v. Kal, 44 Colo. App. 561, 562-63, 616 P.2d

  191, 192 (1980) (also so holding; the delay was “for the purposes of

  achieving a disposition of [the defendant’s] case without going to

  trial”). And in Jones, 711 P.2d 1270, the supreme court held that

  delays occasioned by defense counsel’s request that the defendant

  undergo a competency evaluation were chargeable to the defense

  because they were “for the benefit of the defendant.” Id. at 1280-

  81.

¶ 47    All of the continuances requested by defense counsel in this

  case were for G.S.S.’s benefit. And all of them were for the obvious

  purpose of avoiding a trial on the charges. So it follows that the

  resulting delays are chargeable to G.S.S., and therefore the district

  court erred in deciding to the contrary.4




  4 In the district court’s defense, though the prosecutor argued that
  the delays were attributable to the defense because defense counsel
  was trying to improve G.S.S.’s plea bargaining position, the
  prosecutor didn’t provide the court with the legal authority I’ve cited
  above.


                                    26
       II.    The Proper Remedy for a Violation of Section 19-2-509(4)(b)

¶ 48         The majority holds that dismissal is the only remedy available

  when a court fails to try the case within sixty days of a no-bond

  order. In so holding, the majority applies section 18-1-405(1) to

  section 19-2-509(4)(b). It’s not clear to me, however, that section

  18-1-405(1) applies to this juvenile statute.

¶ 49         The case on which the majority relies, People in Interest of

  J.M.N., 39 P.3d 1261 (Colo. App. 2001), concerned speedy trial

  provisions of sections 19-2-108(1) and -708(1), C.R.S. 2018. The

  division held that the juvenile was required to make a speedy trial

  objection before the adjudicatory trial, reasoning that section

  19-2-108(1) expressly incorporates a sixty-day deadline from

  section 19-2-708(1) and also says that “[t]he juvenile’s right to a

  speedy trial shall be governed by section 18-1-405.” 39 P.3d at

  1263.

¶ 50         But this case doesn’t involve sections 19-2-108 and -708.

  Rather, it involves section 19-2-509, which doesn’t include any

  reference to section 18-1-405. Further, section 19-2-509 is a “bail”

  statute. The most closely analogous statute in the Code of Criminal

  Procedure is section 16-4-101, C.R.S. 2018. Subsection (4) of that


                                         27
  statute says that if a defendant is denied bail, “the trial of the

  person shall be commenced not more than ninety-one days after the

  date on which bail is denied.” So that bail statute essentially tracks

  the language of the juvenile bail statute, section 19-2-509(4)(b),

  substituting ninety-one days for sixty days. But it doesn’t provide

  for dismissal of charges; rather, it says that “[i]f the trial is not

  commenced within ninety-one days and the delay is not attributable

  to the defense, the court shall immediately schedule a bail hearing

  and shall set the amount of the bail for the person.” § 16-4-101(4).

¶ 51   The upshot is that in directly analogous circumstances, the

  General Assembly has told us that the remedy is to hold a hearing

  and set bail, not to dismiss the charges. The majority, however,

  reasons that the general purposes of the juvenile system —

  particularly the need for swift adjudication — justify the harsher

  result of dismissal under section 18-1-405. Maybe. But maybe

  not. Perhaps those purposes are adequately accounted for by the

  shorter time periods set forth in the juvenile statutes.

¶ 52   In any event, I see an ambiguity in section 19-2-509(4)(b) that

  calls for legislative fixing. If the General Assembly decides to take a

  look at that ambiguity, it may also wish to consider whether the


                                      28
  drastic remedy of dismissal is appropriate for all speedy trial

  violations even when such violations don’t amount to violations of

  the constitutional right to a speedy trial.

                             III.   Conclusion

¶ 53   I would reverse the district court’s dismissal of the charges

  against G.S.S. and remand for further proceedings on those

  charges.




                                     29
