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People v. Nagi

Court of Appeals of Colorado, Second Division

February 13, 2014

The People of the State of Colorado, Plaintiff-Appellee,
Farouk Nagi, Defendant-Appellant.

Pueblo County District Court No. 10CR1368 Honorable Thomas B. Flesher, Judge.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Michael J. Heaphy, P.C., Michael J. Heaphy, Vail, Colorado, for Defendant-Appellant.



¶ 1 Defendant, Farouk Nagi, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child by one in a position of trust – pattern of abuse. He contends that the trial court violated his right to a speedy trial and incorrectly calculated the applicable sentencing range. We disagree and thus affirm.

I. Background

¶ 2 On January 10, 2011, while represented by the public defender (original defense counsel), defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust – pattern of abuse. The court set his trial for June 21, 2011, about twenty days before the expiration of the six-month speedy trial period set forth in section 18-1-405(1), C.R.S. 2013.

¶ 3 In March 2011 defendant filed a pro se motion seeking to obtain a different attorney. While he was completely satisfied with original defense counsel's performance at the preliminary hearing, he asserted various reasons for the request; primarily, that counsel was not communicating with him. But following a hearing, the trial court found no conflict of interest or other just reason and declined to appoint a new public defender or alternate defense counsel (ADC).

¶ 4 On June 1, 2011, original defense counsel filed a motion to continue the case, asserting that he needed additional time to investigate out-of-state witnesses and some witnesses in Yemen, defendant's native country. Counsel also stated that he did not believe he could effectively represent defendant without conducting the additional investigation. Defendant vehemently objected to any continuance, asserted his right to a speedy trial, and indicated that he wished to have ADC appointed to represent him.

¶ 5 The trial court conducted an extensive inquiry concerning defendant's relationship with original defense counsel, eventually asking defendant whether, if the court appointed ADC and the ADC attorney was not in a position to go to trial on June 21, he would agree to waive his speedy trial right and would consent to reset the trial. Defendant agreed with that proposition. The court scheduled another hearing for June 6.

¶ 6 On June 6, defendant appeared with ADC present, but without original defense counsel. Defendant initially told the court that he did not wish to have ADC appointed, but desired to represent himself. He then abruptly changed his mind and asked to retain original defense counsel "as long as I don't waive my constitutional right to speedy trial." The court pointed out that original defense counsel had filed a motion to continue the trial, which would require a speedy trial waiver. Defendant stated that he would not want original defense counsel if that attorney still wanted a continuance; if the attorney would not withdraw the continuance request, he would proceed pro se.

¶ 7 The court then gave defendant an Arguello advisement concerning his right to self-representation. See People v. Arguello, 772 P.2d 87, 94-95 (Colo. 1989) (setting forth criteria to employ in determining whether a defendant has made a voluntary, knowing, and intelligent waiver of his right to counsel). The court also offered to appoint ADC, but pointed out that ADC would not be in a position to represent defendant at a trial on June 21. The ADC attorney confirmed that assertion.

¶ 8 Defendant declined the offer, and stated that he wanted original defense counsel to appear with him on June 21 to see if that attorney would withdraw his request for continuance and could effectively represent him. The court stated that, unless original defense counsel appeared, withdrew the continuance request, and stated that he could provide effective representation, defendant would represent himself at trial, to which defendant agreed. The court set another hearing for June 20.

¶ 9 On that date, the court inquired whether defendant still wanted to represent himself, and when defendant replied affirmatively, the court vacated the trial date and ordered defendant to undergo a competency evaluation. On June 21, the court advised defendant concerning his rights and ordered the evaluation to occur at the Colorado Mental Health Institute in Pueblo (CMHIP).

¶ 10 The CMHIP determined that defendant was competent to proceed. The parties did not contest that evaluation and, at a hearing on August 22, 2011, the trial court found that defendant was competent to proceed to trial. Defendant represented himself at the trial that started on August 30, 2011. The jury convicted him as charged, and the trial court sentenced him to an indeterminate term of twelve years to life.

II. Speedy Trial

¶ 11 Defendant contends that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. We disagree.

A. Standard of Review and Legal Authority

¶ 12 The application of the speedy trial statute to undisputed facts presents a question of law that we review de novo. See People v. Walker, 252 P.3d 551, 552 (Colo.App. 2011).

¶ 13 A defendant must be brought to trial within six months of entering a not guilty plea. § 18-1-405(1). As relevant here, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. § 18-1-405(6)(a).

¶ 14 If a court has "reason to believe" that a criminal defendant is "incompetent to proceed, " the court must suspend the proceedings and determine competency. § 16-8.5-102(2)(a), C.R.S. 2013. "'Incompetent to proceed'" means that

as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

§ 16-8.5-101(11), C.R.S. 2013.

¶ 15 While section 16-8.5-101, C.R.S. 2013, does not contain a definition of "reason to believe, " and "there is no definitive constitutional standard with respect to the nature and quantum of evidence necessary to require resort to an adequate procedure for determining competency, " Cappelli v. Demlow, 935 P.2d 57, 62 (Colo.App. 1996), it is clear that a trial court has a "duty to suspend the proceedings . . . even if no more than a 'doubt' is entertained as to a defendant's competency, " People v. Scherrer, 670 P.2d 18, 20 (Colo.App. 1983) (some internal quotation marks omitted). Hence, the standard of "reason to believe" presents a low threshold. Cappelli, 935 P.2d at 62. As to what may trigger a doubt concerning competency, the division in Cappelli stated:

A defendant's irrational behavior or his or her demeanor at a hearing or trial may be sufficient, of themselves, to require an evaluation. There are no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.


¶ 16 This low threshold is justified in light of the due process interests of the accused that are at stake. One purpose of section 16-8.5-102 is to ensure against a violation of due process that would arise if a defendant who is not mentally competent were required to stand trial or participate in other critical criminal procedures. See Cappelli, 935 P.2d at 61-62; see also Drope v. Missouri, 420 U.S. 162, 171-72 (1975) (putting an accused on trial while he or she is incompetent violates due process of law); People v. Zapotocky, 869 P.2d 1234, 1237 (Colo. 1994) (same).

¶ 17 In addition, a criminal defendant may not waive the right to counsel unless he or she does so competently and intelligently. Godinez v. Moran, 509 U.S. 389, 396 (1993). A defendant is competent to waive the constitutional right to counsel if the defendant (1) is able to consult with his lawyer with a reasonable degree of rational understanding and (2) has a rational and factual understanding of the proceedings. Id. In other words, a defendant must have a factual understanding of the proceedings; he must be properly oriented as to time, place, and ...

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