Chapter 3 - § 3.4 • OTHER DELAYS IN THE PROCEEDINGS AFFECTING SPEEDY TRIAL

• Jurisdiction: Colorado

§ 3.4 • OTHER DELAYS IN THE PROCEEDINGS AFFECTING SPEEDY TRIAL

§ 3.4.1—Summary

A variety of other delays may, or may not, be excusable under the speedy trial statute and thus excluded from the speedy trial calculation. The most problematic of these delays is the delay that is caused when the defendant's right to counsel, and specifically the defendant's right to obtain new counsel in certain circumstances, conflicts with the duty of the court and the prosecution to bring the defendant to trial within the statutory speedy trial period.

§ 3.4.2—Delay Caused by the Right to Counsel

The right to speedy trial may conflict with the right to the effective assistance of counsel. This occurs when there is a request for a change in defense counsel on, or close to, the trial date. If the request for a change is a legitimate one, which needs to be granted in order to ensure that the defendant receives effective assistance, the right to a speedy trial may be impacted because new counsel will need adequate time to prepare. If the defendant waives the right to a speedy trial, there is no speedy trial problem. If the defendant refuses to waive the right to speedy trial, the issue is more complicated.

The basic rule of C.R.S. § 18-1-405(6)(f), that six months is added on to the statutory speedy trial period if the defendant requests a continuance, may be applicable in this situation. If the need for new counsel is properly chargeable to the defendant, then the speedy trial period is extended by the operation of the statute. A continuance is "chargeable to defendant if it was caused by an affirmative act of his, with his express consent, or by other affirmative conduct evincing consent." People v. Monroe, 907 P.2d 690, 693 (Colo. App. 1995), disapproved of on other grounds, People v. Monroe, 925 P.2d 767 (Colo. 1996).The determination of whether the continuance necessitated by the substitution of counsel is properly chargeable to the defendant must be determined on a case-by-case basis. People v. Scales, 763 P.2d 1045 (Colo. 1988) (counsel substituted only 14 days before scheduled trial date); People v. Cerrone, 867 P.2d 143 (Colo. App. 1993) (counsel withdrew at defendant's request 20 days before speedy trial deadline).

When a trial court is required to substitute defense counsel, the defendant's right to effective assistance of counsel may be jeopardized by the strict adherence to the statutory speedy trial right because the substitute counsel has inadequate time to prepare. Under such circumstances, charging a continuance of the trial date to the defendant is appropriate if continuing the trial date is necessary to allow new counsel to prepare for trial. See Scales, 763 P.2d at 1048; see also People v. Rocha, 872 P.2d 1285, 1288 (Colo. App. 1993) (substituted counsel requested continuance six days before trial and 14 days before speedy trial deadline). In order to reach such a conclusion, however, the record must support the trial court's conclusion that the delay in derogation of the defendant's statutory right to a speedy trial was necessary to protect his or her constitutional right to effective assistance of counsel. See People ex rel. Gallagher v. District Court, 933 P.2d 583, 588 (Colo. 1997).

A defendant, however, may waive his or her constitutional rights to effective assistance of counsel in favor or his or her right to a speedy trial. In People v. Bryant, 2013 COA 28, the Colorado Court of Appeals analyzed this tension. In Bryant, defense counsel appeared before the trial court with the defendant, who had previously decided to proceed pro se, and explained to the trial court that, in her opinion, the earlier trial date would limit her effectiveness and that she would be more effective if she had two more weeks to prepare. The defendant's responsive comments showed that he understood his rights and knew defense counsel's position, and the defendant did not assert that he was insufficiently advised before he chose his speedy trial rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA) at the expense of being represented by insufficiently prepared counsel. The court of appeals agreed and ruled that...