Original Proceeding Pursuant to C.A.R. 21 El Paso County
District Court Case No. 18CR3870 Honorable Gregory R. Werner,
Judge
Rule
Made Absolute
Attorneys for Plaintiff: Philip J. Weiser, Attorney General
LeeAnn Morrill, First Assistant Attorney General Denver,
Colorado
Attorneys for Defendant: Megan A. Ring, Public Defender Max
Shapiro, Deputy Public Defender Colorado Springs, Colorado
OPINION
HART
JUSTICE
¶1
In this original proceeding, we consider whether the trial
court erred by declining to review the defense's sealed
motion raising competency unless and until the defense made
the motion available to the prosecution. We conclude that it
did.
¶2
Although Rule 2.9(A) of the Colorado Code of Judicial Conduct
generally prohibits judges from considering communications
that are shared with only one party in a pending matter, this
type of ex parte communication is permitted when expressly
authorized by law. Because section 16-8.5-102(2)(b), C.R.S.
(2018), requires the trial court to consider defense
counsel's motion raising competency without disclosing
that motion to the prosecution, we make our rule to show
cause absolute and remand to the trial court for further
proceedings.
I.
Facts and Procedural History
¶3
Petitioner, Benjamin Roina, was charged with harassment and
assault on an at-risk adult. At his preliminary hearing,
Roina's defense counsel filed a sealed motion with the
trial court contesting his competency and requested that the
court order a competency evaluation. Defense counsel provided
notice of the motion to the prosecution but did not provide
the prosecution with a copy of the motion.
¶4
The trial court refused to review the sealed motion unless
defense counsel provided the prosecution with a copy. In its
written order, the trial court explained that engaging in an
ex parte communication with the defense would contravene Rule
2.9(A) of the Colorado Code of Judicial Conduct, which
prohibits communications made to the judge outside the
presence of the parties or their lawyers unless, as relevant
here, expressly authorized by law. The court further
concluded that section 16-8.5-102(2)(b), the statute
governing competency determinations, is ambiguous as to
whether ex parte review of defense counsel's motion would
be permitted. The court thus determined that defense counsel
was required to provide the prosecution a copy of the sealed
competency motion before the court could review the motion
and make a preliminary finding as to the defendant's
competency.
¶5
Defense counsel moved again for the trial court to consider
its motion, contending that section 16-8.5-102(2)(b) requires
that the defense provide a copy of the sealed motion to the
prosecution only if it requests a competency hearing, not
when it asks for a preliminary finding as to competency.
Because the defense here requested just the preliminary
evaluation, defense counsel argued that the statute requires
notice only to the prosecution of the filing. The trial court
again rejected these arguments, concluding that section
16-8.5-102(2)(b) and the Colorado Code of Judicial Conduct,
read together, do not permit the court to make "legal
and procedural ruling[s] based on an ex parte submission of
offers of proof or representations of evidence."
¶6
Defense counsel petitioned for relief pursuant to C.A.R. 21.
We issued a rule to show cause and the trial court responded.
Because section 16-8.5-102(2)(b) requires the defense to
provide the prosecution a copy of a sealed motion raising
competency only when defense counsel requests a competency
hearing, not a preliminary finding as to competency, we
conclude that the trial court erred and now make that rule
absolute.
II.
Analysis
¶7
This court's exercise of its jurisdiction under C.A.R. 21
is within our sole discretion. Fognani v. Young, 115
P.3d 1268, 1271 (Colo. 2005). In this instance, we have
determined that exercise of this extraordinary remedy is
appropriate because the trial court's interpretation of
section 16-8.5-102(2)(b) has led it to refuse a preliminary
competency determination and because a defendant may not be
tried or sentenced when he or she is incompetent to proceed.
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