Opinion
No. 07SC658.
November 3, 2008.
Appeal from the District Court, Arapahoe County, Michael J. Spear, J.
Walter L. Gerash Law Firm, P.C., Walter L. Gerash, James F. Scherer, Denver, Colorado, Attorneys for Petitioner.
John W. Suthers, Colorado Attorney General, Robert A. Chappell, Special Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.
Reyes sought review of the court of appeals' judgment in People v. Reyes, 179 P.3d 170 (Colo.App. 2007), which affirmed his convictions on numerous criminal charges arising from a home invasion. Before trial, the district court denied his motions to dismiss for various violations of the anti-shuttling provision of the Interstate Agreement on Detainers. The court of appeals upheld that ruling, finding that Reyes effectively waived the protections of the anti-shuttling provision by either requesting or acquiescing in transfers between state and federal custody during numerous and lengthy continuances, moved for by him.
By asking that he be returned to federal custody before final disposition of the charges against him, Reyes both waived the protections of the anti-shuttling statute at that time and was barred from asserting any earlier unobjected-to violations. The judgment of the court of appeals is therefore affirmed.
I.
For his part in a 1999 home invasion in Arapahoe County, the defendant, Efrain Torres Reyes, was convicted of first degree kidnapping, sexual assault, second degree kidnapping, sexual assault on a child, first degree burglary, aggravated robbery, second degree sexual assault on a child, felony menacing, and third degree assault, for which he was sentenced to three consecutive life terms in prison, plus forty-eight years. Reyes and his accomplice were apparently looking for a large amount of money they believed to be located on the premises. Evidence indicated that the occupants of the home were beaten and terrorized, and their ten-year-old daughter was raped and sodomized by Reyes.
Reyes was arrested in 2000 in New Mexico on a federal firearms charge, for which he was ultimately convicted and sentenced to a term of forty-eight months at the federal penitentiary in Florence. In April 2001, an arrest warrant was issued in Arapahoe County, and a detainer was lodged against him by this state. During the course of the state proceedings, Reyes was produced by writ in the Arapahoe County District Court for various hearings, after a number of which he was returned to federal custody in Florence.
At his first appearance in state court in August 2002, Reyes, who was assisted by the state public defender, requested that the matter be reset to give him an opportunity to contact a private attorney who had represented him in the past. The district court reset the advisement for September 27, 2002, and with the prosecution's assurance in open court that it would "try to get the defendant back at that time," Reyes was returned to federal custody. When Reyes was brought back to Arapahoe County on September 27, he told the court that he had been unable to contact the New Mexico attorney he had in mind.
At that time, Reyes expressly requested, in open court, that he be returned to federal custody in Florence again because he would be permitted there, unlike the Arapahoe County jail, to make the long distance telephone calls necessary to arrange for private counsel. After an exchange in which Reyes was quite insistent that he be returned to federal custody, the court denied his demand but assured him that it would try to get the New Mexico attorney to contact Reyes in the Arapahoe County jail and would direct the sheriff to accept and transfer to Reyes any calls from that attorney. Four days later, with attempts at contacting Reyes's desired attorney still unsuccessful, he again demanded in open court to be returned to federal custody. His demands were once more rejected by the district court, with express directions to the sheriff to accommodate Reyes's efforts to contact both the New Mexico attorney and a local attorney.
At a hearing on October 3, 2002, the state public defender, who was again assisting Reyes, represented that the court's directions had not been followed by the sheriff and that Reyes was asking that he be granted additional time and a transfer back to the federal penitentiary. At that point, the court granted the request to send Reyes back to Florence, and it set the matter for hearing on October 25. When Reyes returned to Arapahoe County for the October 25 hearing, still without counsel, the court finally required that his eligibility for public defender representation be evaluated, and it ordered that he not be returned to Florence for one week, during which time the district attorney agreed to contact the New Mexico attorney.
The following week, Reyes appeared before the court, again with the public defender. After receiving assessments from the district attorney and public defender concerning the likelihood that the New Mexico attorney would ever be retained, the court appointed the public defender and set the matter for preliminary hearing. To accommodate the public defender's schedule, the defense waived its right to a preliminary hearing within thirty days, and the hearing was set for January 22, 2003. At the time of his appointment and again several days later, the public defender asserted generally that the defendant was invoking all his rights, revoking any waivers, and demanding access to all physical evidence.
Later in November, Reyes was again returned to Florence; and on December 6, 2002, the local private counsel entered an appearance in place of the public defender and immediately moved to continue the preliminary hearing again. Reyes was brought back to Arapahoe County for a two-day preliminary hearing in February 2003, after which he was returned to federal custody. Reyes was again brought to Arapahoe County on May 9, 2003, to confer with counsel and be arraigned, after which he was again returned to Florence.
On June 30, 2003, Reyes filed a motion to dismiss for violation of the notification requirement of Article III of the Interstate Agreement on Detainers but failed to assert any violation of the anti-shuttling provision. In August, when Reyes was brought back to Arapahoe County for hearings on his motions, and argument on his IAD motion was delayed, the district court (acting through a different judge), on its own initiative, ordered that Reyes remain in state custody to avoid a possible anti-shuttling violation. One month later, when the court actually heard his Article III claim, Reyes's counsel for the first time informed the court that he intended to raise an anti-shuttling challenge, based on previous transfers between Arapahoe County and Florence. The court then ordered that Reyes be held in Arapahoe County until the motions hearing recommenced on October 8, 2003.
See § 24-60-501, art. III(b), C.R.S. (2007).
See § 24-60-501, art. IV(e), C.R.S. (2007).
On October 8, Reyes's counsel filed his first anti-shuttling motion and again waived speedy trial in conjunction with a request to continue the October 20 trial date. The district court ultimately denied the defense motion to dismiss, and Reyes requested a further delay to petition for intervention by this court. His petition was eventually denied, but during the delay occasioned by it, he was once again transferred back to federal custody in Florence, resulting in a second motion to dismiss for violation of the anti-shuttling provision. Although the district court acknowledged that this final transfer violated its express order, it again denied dismissal as a remedy.
On direct appeal of his convictions, Reyes assigned error to the denial of both motions to dismiss for anti-shuttling violations. The court of appeals rejected these challenges, finding that he had waived the statute's anti-shuttling protections by requesting numerous continuances, during which he either expressly requested or acquiesced in his return to the federal penitentiary in Florence. Reyes then petitioned for further review in this court, by writ of certiorari.
II.
The Interstate Agreement on Detainers is a compact, entered into by the federal government and the vast majority of states, including Colorado. See § 24-60-501, C.R.S. (2007). The Agreement creates uniform procedures for lodging and executing detainers on prisoners in other states to ensure that they will be held until they can be tried on outstanding charges. Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001). Article III of the Agreement gives a prisoner against whom a detainer has been lodged the right to request a final disposition of the relevant charges; and Article IV gives the jurisdiction in which charges remain untried the right to have the prisoner made available for trial. Id. at 149-50, 121 S.Ct. 2079. Once invoked, each article provides a specific, but different, time frame within which trial must be had.
For various policy reasons (which remain to some extent unclear, see id. at 156, 121 S.Ct. 2079), each article also contains what has come to be known as an "anti-shuttling provision," prohibiting the return of a prisoner to the sending state before completion of the trial for which he was initially transferred. In particular, Article IV(e) specifies:
If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
§ 24-60-501, art. IV(e), C.R.S. (2007). While the Supreme Court has interpreted this language to mandate dismissal upon premature return, regardless of the brevity of the return or harmlessness of the error, it has also expressly noted that a receiving state is not barred from returning a prisoner who has waived his rights under Article IV(e). Bozeman at 156-57, 121 S.Ct. 2079.
In reliance on the general rule that presumes the availability of waiver, see United States v. Mezzanatto, 513 U.S. 196, 200-201, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), of even the most basic rights of criminal defendants, see Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); and the court's determination that the IAD contemplates a degree of party control that is consonant with the background presumption of waivability; the Supreme Court had earlier found a valid waiver of the time limits of Article III from nothing more than defense counsel's agreement to a specified delay in the trial date. See New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). Similarly, we (along with a number of other state and lower federal courts) have long held that IAD rights are nonjurisdictional and nonconstitutional and are subject to voluntary waiver, without any need for a concomitant showing that the waiver was knowing and intelligent. See People v. Moody, 676 P.2d 691, 695 (Colo. 1984); see, e.g., State v. Nonahal, 241 Wis.2d 397, 626 N.W.2d 1, 4 (App. 2001) (finding that IAD rights are statutory in nature and are waived if the prisoner requests a procedure inconsistent with the statute's provisions).
Nothing in either the statute itself or the notion of waivability generally, however, permits a prisoner to dictate the jurisdiction of his custody or location of his confinement. To the extent that the anti-shuttling provision exists for his benefit, a prisoner may waive the statute's prohibition against pre-trial return to a sending state; but by doing so, he acquires no greater right, to actually demand his return to the sending state, much less to demand his return when, only when, or only for as long as, it suits his purposes. By waiving the protections of the applicable anti-shuttling provision, a defendant merely relieves the trial court of a statutory obligation to dismiss if he is returned before trial, by which it would otherwise be bound.
Similarly, whether or not a defendant might also retain sufficient control to be able to expressly limit the nature or extent of an anti-shuttling waiver, if that be his wish, nothing in the statute or the notion of waiver itself suggests that a defendant's statutory right — to remain in a receiving state until his trial — automatically springs back into effect each time he is returned to that state for further proceedings in the same prosecution. On the contrary, rather than purporting to prohibit a receiving state from returning a defendant after particular proceedings or events, the statute protects a defendant by requiring that the prosecution against him be dismissed upon his return to the sending state, at any point in time prior to his trial. By voluntarily requesting that he be returned before his trial, without more, a defendant does not simply waive his right to assert a violation of the statute for a particular transfer; he waives the statutory protection against premature return and its mandatory sanction of dismissal.
Finally, while nothing in the statute or the concept of waiver itself precludes the subsequent revocation, or withdrawal, of a waiver of the anti-shuttling provision, even waivers of fundamental trial rights are typically not subject to revocation as a matter of right. See Crim.P. 23(6) (prohibiting defendant from withdrawing voluntary and knowing waiver of jury trial as a matter of right, and allowing it only with permission of court); People v. Price, 903 P.2d 1190, 1192-93 (Colo.App. 1995), cert. denied (holding that court is not compelled to grant criminal defendant's request to withdraw valid waiver of right to counsel); Sewell v. Jefferson County Fiscal CI, 863 F.2d 461, 466 (6th Cir. 1988) (relying on Hanlon v. Providence Coll., 615 F.2d 535, 538-39 (1st Cir. 1980) for proposition that party withdrawing right to jury trial may not simply change his mind); Gen. Bus. Servs., Inc. v. Fletcher, 435 F.2d 863, 864 (4th Cir. 1970); State v. Gallegos, 147 P.3d 473, 476-77 (Utah Ct.App. 2006) (holding that mid-trial appointment of counsel after valid waiver by competent defendant is within discretion of court); State v. Vincent, 137 N.M. 462, 112 P.3d 1119, 1133 (Ct.App. 2005) (holding that assistance of counsel may not be demanded as matter of right after a valid waiver); see generally H.H. Henry, Annotation, Withdrawal or Disregard of Jury Trial in Civil Action, 64 A.L.R.2d 506, 517-19 (1959) ("The rule recognized in a number of cases is that once a waiver of jury trial has matured, the waiver may not be withdrawn at the insistence of one party."). If for no other reasons than scheduling and orderly administration of the proceedings, once a right has been effectively waived, that waiver can be revoked and the waived right reclaimed only in the discretion of the court. Whether or not a court might, under some set of circumstances, be held to have abused its discretion in refusing to permit a defendant to reclaim the protections of the anti-shuttling provision, it is enough here that such an abuse could not occur in the complete absence of a motion to revoke the defendant's prior waiver and an adverse ruling by the court.
At least by September 27, 2002, when Reyes was brought to the Arapahoe County District Court for the second time, it is undisputed that he not only requested, but in fact demanded, to be returned to Florence, rather than remain in the Arapahoe County jail. Over the next nine months, he was brought to state court and returned to federal custody frequently and, on a number of occasions, at his own insistence. He failed to object or allege a violation of the anti-shuttling provision until more than a year later, on October 8, 2003.
The defendant, even arguably, attempted to revoke his earlier waivers on only one occasion. When the public defender was briefly appointed to represent him, counsel asserted generally that the defendant was invoking all of his rights, revoking any waivers, and demanding access to all physical evidence. Nothing in this general assertion suggested to the court an intent to revoke the defendant's anti-shuttling waiver, nor did defense counsel object to the return of his client to federal custody thereafter or seek an exercise of the court's discretion in this regard. When the defendant finally moved for dismissal on October 8, he alleged that the earlier returns were done without specific waivers on each occasion, but he never moved to revoke his prior waivers; and although the district court had by then ordered that the defendant remain in state custody to ensure against a possible future anti-shuttling violation, it never exercised its discretion to permit him to revoke any prior waiver or reclaim the statutory protection that he earlier waived.
When Reyes was returned to federal custody for the second time, on October 3, 2002, he was returned at his own insistence. His voluntary waiver of the IAD's anti-shuttling provision at that time waived his statutory right to dismissal for any further return, unless or until he was permitted to revoke that waiver. The district court never granted a motion to revoke the defendant's prior waiver because no such motion was ever made.
III.
Arguably, Reyes also waived the protection of the IAD's anti-shuttling provision at his first appearance in state court, even though the record does not reflect an express request to be returned to federal custody at that time. He was returned to Florence following his first appearance only upon his own request for more time to contact and retain an attorney who had represented him in the past and only upon the assurance of the prosecutor, in open court, that he would try to have the defendant returned for the rescheduled advisement date. Whether or not a defendant's request and acceptance of a continuance under these circumstances could amount to a voluntary waiver of the anti-shuttling provision, it is enough here that Reyes' subsequent express waiver, prior to any objection to his return, was sufficient to bar him from asserting any prior violation.
Whatever the precise rationale that led the signatories to agree to Article IV(e)'s anti-shuttling provision, see Bozeman, 533 U.S. at 154-46, 121 S.Ct. 2079, it clearly dove-tails with the article's requirement for speedy disposition, once a receiving state invokes its statutory prerogatives. Like Article IVs 120-day time limitation on bringing a defendant to trial, its anti-shuttling protections may be waived by a voluntary act with which they are inconsistent. See Bozeman, 533 U.S. at 152-53, 121 S.Ct. 2079; 156-57 (analogizing waiver of anti-shuttling provision to waiver of article Ill's speedy trial provision in Hill, 528 U.S. at 114-15, 120 S.Ct. 659); see also Moody, 676 P.2d at 695 (holding that waiver need only be voluntary); see Nonahal, 626 N.W.2d at 4 (holding anti-shuttling provision waived by requesting "a procedure inconsistent with the statute's provisions"). In this jurisdiction, we have long held that requesting a further continuance is an affirmative action constituting a waiver of whatever right to discharge for a prior speedy trial violation a defendant may have had at the time. See Keller v. People, 153 Colo. 590, 596, 387 P.2d 421, 425 (1963); see also State v. Dumas, 68 Ohio App.3d 174, 587 N.E.2d 932, 933-35 (1990) (concurring in prosecutor's request for continuance after speedy trial violation waived ability to challenge violation); cf. § 18-1-405, C.R.S. (2007) (codifying aspects of this principle generally by specifying that assertion of speedy trial violation is waived unless raised before trial, pre-trial motions, or guilty pleas).
The anti-shuttling provision protects a defendant by entitling him to remain in the receiving state, rather than being returned to the sending state prior to trial. A request to be returned to the sending state, made any time before trial, clearly waives that protection. If a defendant prefers to be returned to the custody of the sending state pending trial, he may of course waive his right to dismissal for a premature return and request such a transfer; but in doing so, he takes an affirmative action in direct conflict with his right to remain in the receiving state pending trial. Whether or not the defendant might otherwise have been entitled to dismissal for deprivation of that right, his subsequent waiver of the protections of the statute also waives his right to initially assert a previous violation.
IV.
By requesting that he be returned to federal custody before final disposition of the charges against him, the defendant not only waived the protections of the anti-shuttling statute at that time but also was barred from asserting any earlier unobjected-to returns. The judgment of the court of appeals is therefore affirmed.
Justice BENDER dissents, and Chief Justice MULLARKEY and Justice MARTINEZ, join in the dissent.