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In re People

Supreme Court of Colorado, En Banc

March 25, 2019

In Re The People of the State of Colorado, Plaintiff
v.
Benjamin Roina. Defendant

          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. ยง ...


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