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In re People

Supreme Court of Colorado, En Banc

December 9, 2019

In Re The People of the State of Colorado, Plaintiff
v.
James Rowell, Defendant

          Original Proceeding Pursuant to C.A.R. 21 Larimer County District Court Case Nos. 18CR1611 & 19CR15 Honorable Gregory M. Lammons, Judge

         Rule Made Absolute

          Attorneys for Plaintiff: Clifford E. Riedel, District Attorney, Eighth Judicial District Joshua D. Ritter, Deputy District Attorney Fort Collins, Colorado

          Attorneys for Defendant: Megan A. Ring, Public Defender Erin Crowgey, Deputy Public Defender Fort Collins, Colorado

          OPINION

          SAMOUR, JUSTICE

         ¶1 In this original proceeding brought pursuant to C.A.R. 21, we must determine whether the district court erred in denying James Rowell's request for a preliminary hearing on one of the two felony charges in case number 18CR1611 and on all five felony charges in case number 19CR15 (collectively, "the relevant charges"). The relevant charges are class 4, 5, and 6 felonies that do not carry mandatory sentencing, are not crimes of violence pursuant to section 18-1.3-406, C.R.S. (2019), and are not sexual offenses. It is undisputed that Rowell was initially ineligible to receive a preliminary hearing on the relevant charges because he posted bond in both cases. The issue we confront is whether Rowell was entitled to demand and receive a preliminary hearing on the relevant charges when he later found himself in custody in both cases because his bonds were revoked. The district court ruled that he was not, and we subsequently granted his petition for a rule to show cause. We now make the rule absolute.

         ¶2 Because Rowell was taken into custody on the relevant charges when his bonds were revoked, he was entitled to demand a preliminary hearing on those charges "within a reasonable time." The question that naturally flows from this determination is: What does "within a reasonable time" mean? The legislature asked this court to establish, through rule, the precise timeframe within which a demand for a preliminary hearing must be made. See § 16-5-301(1)(a), C.R.S. (2019). Although Crim. P. 7(h)(1) requires that a preliminary hearing request in district court be made "within 7 days after the defendant is brought before the court for or following the filing of the information," it does not address Rowell's situation-Rowell did not become eligible to demand a preliminary hearing on the relevant charges until months after he was brought before the court for the filing of the information. Inasmuch as Rule 7(h)(1) is silent on the timeframe within which Rowell was required to demand a preliminary hearing on the relevant charges after his bonds were revoked, we remand the case to the district court to determine whether his demand was made "within a reasonable time" after he became statutorily eligible to advance it.

         I. Facts and Procedural History

         ¶3 In June 2018, Rowell was charged in Larimer County case number 18CR1611 with multiple crimes, including two felonies: count one, second degree assault (peace officer), a class 4 felony; and count two, second degree assault (serious bodily injury), a class 4 felony. Rowell posted bond and was released the next day-before the information was filed and prior to any court appearance for the filing of the information.

         ¶4 Approximately six months later, on January 1, 2019, Rowell was accused of committing additional crimes in Larimer County case number 19CR15. He was charged in that case with a misdemeanor and the following five felonies: three counts of second degree assault (peace officer), all class 4 felonies; one count of attempted second degree assault (peace officer), a class 5 felony; and one count of violation of bail bond conditions, a class 6 felony. Again, Rowell posted bond before the information was filed and prior to any court appearance for the filing of the information.

         ¶5 In February 2019, Rowell requested a preliminary hearing in each case. The district court granted the request as to count two in 18CR1611, finding that second degree assault (serious bodily injury) requires mandatory sentencing and is also a crime of violence pursuant to section 18-1.3-406 ("crime of violence").[1] See § 16-5-301(1)(b)(I) ("No person accused of a class 4, 5, or 6 felony . . . except those which require mandatory sentencing or which are crimes of violence . . . or which are sexual offenses . . . shall have the right to demand or receive a preliminary hearing."). But it denied the request as to the relevant charges-i.e., the remaining felony charge in 18CR1611 and all five felony charges in 19CR15-reasoning that Rowell was on bond and those charges do not require mandatory sentencing, are not crimes of violence, and are not sexual offenses.[2] See § 16-5-301(1)(b)(II) ("Any defendant accused of a class 4, 5, or 6 felony . . . who is not otherwise entitled to a preliminary hearing . . . may demand and shall receive a preliminary hearing within a reasonable time . . . if the defendant is in custody for the offense for which the preliminary hearing is requested."). Following a preliminary hearing on count two in 18CR1611 in March, the court found that probable cause existed to believe that Rowell committed that crime.

         ¶6 On May 2, 2019, Rowell was charged in a third case, Larimer County case number 19CR1086, with three additional felonies: second degree assault (strangulation), a class 4 felony; and two counts of violation of bail bond conditions, both class 6 felonies. Less than two weeks later, the district court granted the People's request to increase the bond amounts in 18CR1611 and 19CR15. Rowell posted the bond in the most recent case, 19CR1086, but could not post the increased bonds in the two older cases. Consequently, he was taken into custody in 18CR1611 and 19CR15 on May 13.

         ¶7 On July 25, seventy-three days after his bonds were revoked in 18CR1611 and 19CR15, Rowell demanded a preliminary hearing on the relevant charges. He did so before entering a plea in either case. The district court denied the request, ruling that a defendant charged with class 4, 5, and 6 felonies, which do not require mandatory sentencing and are not crimes of violence or sexual offenses, "does not have a right to a preliminary hearing if [he is] out of custody." Moreover, continued the court, when a defendant "violates [his] ...


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