People ex rel. G.S.S.

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

          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.

          OPINION

          ASHBY JUDGE.

         ¶ 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 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 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, 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 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 18-1-405'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 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 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 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 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 ...