In Re People v. Nunez

                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203


2021 CO 31

                      Supreme Court Case No. 20SA324
                    Original Proceeding Pursuant to C.A.R. 21
               Arapahoe County District Court Case No. 19CR1088
                      Honorable Michael J. Spear, Judge

                                       In Re

                       The People of the State of Colorado,



                             Alexander Carlos Nunez.

                               Rule Made Absolute
                                     en banc

                                   May 17, 2021

Attorneys for Plaintiff:
John Kellner, District Attorney, Eighteenth Judicial District
Susan J. Trout, Senior Deputy District Attorney
      Centennial, Colorado

Attorneys for Defendant:
Megan A. Ring, Public Defender
Zack Tennant, Deputy Public Defender
      Centennial, Colorado

JUSTICE HART delivered the Opinion of the Court.
¶1    Colorado’s speedy trial statute, § 18-1-405, C.R.S. (2020), requires that a

criminal defendant be brought to trial within six months of entering a plea of not

guilty unless the time for trial is tolled for one of several statutorily specified

reasons.   Alexander Nunez was not brought to trial within his speedy trial

timeframe, which expired on June 12, 2020. Instead, about six weeks after that

date, the trial court declared a mistrial in the case and stated that the mistrial was

retroactive to April 30, 2020. The court reasoned that Crim. P. 24(c)(4) would have

permitted it to declare a mistrial at the April 30 pretrial readiness hearing because

of its inability to safely assemble a fair jury pool at that time in light of the COVID-

19 pandemic. Because the speedy trial statute excludes delay caused by a mistrial

from the six-month calculation, the court concluded that Nunez’s speedy trial

deadline had not passed.

¶2    Nunez filed a petition to show cause under C.A.R. 21, arguing that the trial

court lacked jurisdiction over his case after the speedy trial deadline passed on

June 12 and that it could not declare a retroactive mistrial to reassert jurisdiction.

We granted Nunez’s petition, and we now make the rule absolute. The charges

against Nunez must be dismissed with prejudice.

                         I. Facts and Procedural History

¶3    On August 19, 2019, Nunez entered not guilty pleas to charges of possession

with intent to distribute a controlled substance, attempted possession with intent

to distribute, and obstruction of a peace officer. His original speedy trial deadline

was February 7, 2020, but on December 13, 2019, Nunez requested a continuance,

which reset his speedy trial deadline to June 12, 2020. A pretrial readiness

conference was set for April 30, 2020, with a trial date of May 4, 2020.

¶4    In the intervening months, COVID-19 descended on the world, causing

major disruptions to, among many other things, the justice system in Colorado.

On March 24, 2020, the Chief Judge in the Eighteenth Judicial District issued an

Order providing that the public health concerns created by COVID-19 required

that no jury trials be scheduled between then and May 15, 2020. That Order was

extended on May 17 to preclude calling a jury until July 6, 2020. On April 7, the

Colorado Rules of Criminal Procedure were amended to permit a court to “declare

a mistrial . . . on the ground that a fair jury pool cannot be safely assembled . . . due

to a public health crisis.” Crim. P. 24(c)(4).

¶5    At the April 30 hearing, although the trial court had issued a writ for his

appearance, Nunez did not appear in person, apparently because the Arapahoe

County Sheriff’s Office was not executing writs in light of the Chief Judge’s Order.

At that hearing,       the   People    moved     for   a continuance      pursuant to

section 18-1-405(6)(g), which permits a court to continue a trial without running

afoul of the speedy trial requirements based on the prosecution’s inability to

prepare. The trial court did not rule on this motion. Rather, referencing the recent

amendment to the Rules of Criminal Procedure, the trial court stated:

      Frankly, due to the rule changes that have occurred over the course
      of the last 30 days permitting the [c]ourt to find a mistrial, and a public
      health crisis exists such as to make it unsafe for jurors to report to the
      courthouse, I can obviously make that particular finding at this
      time. . . . So I’m going to go ahead and vacate the trial for Monday,
      recognizing . . . the futility of proceeding . . . and that vacating is
      based primarily upon the [c]ourt’s ability to declare mistrials in these
      types of situations as currently exist in our community.

The court vacated the May 4 trial setting and rescheduled the trial for June 1, 2020,

which, the court noted, was the only trial date available before Nunez’s speedy

trial deadline on June 12, 2020.

¶6    At a pretrial readiness hearing on May 28, the People moved for a mistrial

based on the public health crisis, which would have tolled the speedy trial

deadline for up to three months under section 18-1-405(6)(e). Defense counsel

noted that Nunez, who was again not present because the Arapahoe County

Sheriff’s Office was not transporting defendants to the courthouse, was not willing

to consent to any waiver of his speedy trial right. The court asked the parties

whether they agreed that the speedy trial deadline as of that time was June 12,

2020. Both the People and defense counsel agreed.

¶7    The court did not expressly rule on the People’s motion for a mistrial.

Instead, the court stated that “I have some concerns about the declaration of a

mistrial pursuant to our Amended Rule 24, trial jurors being summoned during
the public health crisis, so I would like to have Mr. Nunez present.” The court

then vacated the trial set for June 1 and set a date of June 19 for a hearing on “what

would be the operative date for the declaration of the mistrial pursuant to the

statute, . . . whether it’s 90 days from today’s date plus the potential for 13, 14 days,

whatever, and then also whether or not it should start on the date we can actually

get Mr. Nunez here.”

¶8    Defense counsel noted that, although he was available for a hearing on June

19, he was preserving his right to argue that setting a hearing on this issue after

June 12 would run afoul of Nunez’s speedy trial right. On June 15, Nunez filed a

motion to dismiss, arguing that his speedy trial deadline had passed and his case

must be dismissed.

¶9    The court ultimately held a hearing on this motion on July 29, 2020. At that

hearing, the court denied the motion to dismiss, explaining that “the [c]ourt

obviously was a little reluctant to act without the defendant being present and

hearing from the [c]ourt the problems, but frankly the April 30th pretrial readiness

conference would have been the date by which the Court would have declared a

mistrial due to the fact that I wasn’t able to call jurors into the building under any


¶10   Having declared a mistrial retroactive to April 30, the court noted that the

following    day—July     30—was      the    new    speedy     trial   deadline   under

section 18-1-405(6)(e), which permits exclusion of three months from the speedy

trial calculation due to a mistrial. The court then declared a second mistrial

because of its continuing inability to assemble a fair jury pursuant to Crim P.


¶11    Nunez filed this petition pursuant to C.A.R. 21, and we granted the petition.

                                  II. Jurisdiction

¶12    The exercise of this court’s original jurisdiction under C.A.R. 21 is entirely

discretionary. People v. Lucy, 

2020 CO 68

, ¶ 11, 

467 P.3d 332

, 335; C.A.R. 21(a)(1).

Relief pursuant to Rule 21 is “an extraordinary remedy that is limited in both

purpose and availability.” People in Int. of T.T., 

2019 CO 54

, ¶ 16, 

442 P.3d 851


855–56 (quotation omitted). In the past, we have exercised jurisdiction “when an

appellate remedy would be inadequate, when a party may otherwise suffer

irreparable harm, [or] when a petition raises issues of significant public

importance that we have not yet considered.” People v. Kilgore, 

2020 CO 6

, ¶ 8,

455 P.3d 746

, 748 (citations and quotation omitted). Further, we have opted to

grant relief when “a trial court acts in excess of its jurisdiction or without

jurisdiction.” Chessin v. Off. of Att’y Regul. Couns., 

2020 CO 9

, ¶ 8, 

458 P.3d 888

, 890

(quotation omitted).

¶13    In view of these principles, relief under C.A.R. 21 is appropriate here for at

least two reasons. First, as we have previously recognized, “[r]elief in the nature

of prohibition under C.A.R. 21 is an appropriate remedy when a district court is

proceeding without jurisdiction to try a defendant in violation of his right to a

speedy trial.” Marquez v. Dist. Ct., 

613 P.2d 1302

, 1304 (Colo. 1980). In this case,

the trial court acted without jurisdiction when it set a trial date for Nunez after the

time limit under Colorado’s speedy trial statute, § 18-1-405, had passed. See

Hampton v. Dist. Ct., 

605 P.2d 54

, 56 (Colo. 1980).

¶14   And second, if we declined to exercise our original jurisdiction, Nunez

would be without any adequate remedy. Section 18-1-405(1) requires dismissal

with prejudice if a defendant’s statutory speedy trial right is violated. Nunez has

a right not to be tried in this case, so even a successful appeal in his case would

require him to first be subjected to the very trial he is entitled by statute to avoid.

¶15   Based on the foregoing, we conclude that our exercise of jurisdiction over

this case pursuant to C.A.R. 21 is warranted.

                                    III. Analysis

¶16   Colorado’s speedy trial statute is intended to safeguard a defendant’s

constitutional right to a speedy trial. Mosley v. People, 

2017 CO 20

, ¶ 17, 

392 P.3d


, 1202. Whether a defendant’s statutory speedy trial right has been violated is

a matter of statutory interpretation and is therefore reviewed de novo. 

Id. at ¶ 15,

392 P.3d at 1202


¶17   Colorado’s speedy trial statute provides that a defendant must be brought

to trial “within six months from the date of the entry of a plea of not guilty” or the

“pending charges shall be dismissed, and the defendant shall not again be

indicted, informed against, or committed for the same offense.” § 18-1-405(1). The

language of the speedy trial statute is mandatory—it leaves no discretion for the

trial court to make exceptions to the six-month rule beyond those specifically

enumerated in section 18-1-405(6). People v. DeGreat, 

2020 CO 25

, ¶ 13, 

461 P.3d 11


15; People v. Gallegos, 

946 P.2d 946

, 949 (Colo. 1997); People v. Byrne, 

762 P.2d 674


676 (Colo. 1988).

¶18   The People argue that three of the enumerated statutory tolling provisions

could be applicable to this case. First, they note that the court could have declared

a mistrial because of the public health emergency and that up to three months can

be excluded from calculation of the speedy trial deadline for any mistrial. See

Crim. P. 24(c)(4); § 18-1-405(6)(e). Second, they argue that the defendant was not

available because the Arapahoe County Sheriff’s Office was not transporting

prisoners to court for hearings during the relevant time period.                  See

§ 18-1-405(6)(d). And, finally, they argue that the speedy trial deadline could have

been tolled because the prosecution could not obtain necessary evidence, despite

its due diligence. See § 18-1-405(6)(g)(I).

¶19   As we have previously noted, COVID-19 “has wreaked havoc on just about

every aspect of our lives. The criminal justice system has not been spared from the

ravages of this malady. In particular, trial courts have struggled with effectuating

a defendant’s statutory right to speedy trial amid this unparalleled public health

crisis.” Lucy, ¶ 1, 

467 P.3d at 334

. This case presents a textbook example of this

struggle. Nunez was set to appear at a pretrial readiness conference in the first

months of the emergency. At the time of the April 30 hearing, the Chief Judge in

the Eighteenth Judicial District had declared that no juries would be impaneled,

and the Arapahoe County Sheriff’s Office was not transporting detainees to court

for in-person proceedings. The parties and the court were confronted with the

extremely difficult question of how to proceed under the circumstances without

violating Nunez’s speedy trial right.

¶20   One possibility would have been for the trial court to declare a mistrial in

light of the recent amendment to Crim P. 24(c), giving the courts authority to

declare a mistrial if a public health emergency made it impossible to impanel a fair

jury. In fact, the People argue that the district court effectively declared a mistrial

at the April 30 hearing. But their argument suffers from three flaws. First, the

court cannot “effectively” declare a mistrial; it must explicitly do so. Second, the

circumstances of the May 28 hearing demonstrated that no mistrial had been

declared: The People moved for a mistrial at that hearing, and the judge and both

parties agreed that the speedy trial deadline at that point was still June 12, which

it would not have been if a mistrial had been declared on April 30. Finally, when

the court actually declared a mistrial on July 29, it explained that “the April 30th

pretrial readiness conference would have been the date by which the [c]ourt would

have declared a mistrial due to the fact that I wasn’t able to call jurors into the

building under any scenario.” (Emphasis added.) The court further stated that “if

everybody had appeared in an appropriate fashion at the pretrial readiness

conference, I would have declared a mistrial at that time, but I was just reluctant in

doing so because of the absence of Mr. Nunez.”1 (Emphasis added.) While it

seems entirely possible that the court could have declared a mistrial on April 30,

these facts demonstrate that it did not. A court may not declare a retroactive

mistrial in order to get around the mandatory deadlines set by Colorado’s speedy

trial statute.

1While the court did not explicitly say so, its concern about Nunez’s absence was
presumably derived from a defendant’s constitutional right to be present at all
critical stages of a trial. See United States v. Gagnon, 

470 U.S. 522

, 526 (1985). We
have never held that the declaration of a mistrial is a critical stage of the proceeding
at which the defendant has a right to be present. Assuming, however, that it is,
the right to be present is not absolute. See Luu v. People, 

841 P.2d 271

, 274 (Colo.
1992) (noting that allegations of a denial of the right to be present are scrutinized
under the harmless error standard). Moreover, Crim. P. 43 had been amended by
the time of these hearings to permit a consenting defendant to appear by
“interactive audiovisual device” at any proceeding not involving a jury. Crim. P.

¶21   The People next argue that certain days should have been excluded from the

calculation of Nunez’s speedy trial deadline because the Arapahoe County

Sheriff’s Office was not at the time responding to writs to deliver defendants to

the courts because of the Chief Judge’s Order prohibiting in-person hearings.

They note that section 18-1-405(6)(d) provides for the exclusion of “[t]he period of

delay resulting from the . . . unavailability of the defendant.” While this statutory

provision might have provided an avenue for extending Nunez’s speedy trial

deadline, the People did not present this argument to the district court, and the

court did not make any findings with regard to this issue. For this reason, we do

not consider this argument.

¶22   Finally, the People argue that Nunez’s speedy trial period should have been

extended because section 18-1-405(6)(g)(I) permits the prosecution to request a

continuance and exclude the resulting time from the calculation of the speedy trial

deadline when “[t]he continuance is granted because of the unavailability of

evidence material to the state’s case, when the prosecuting attorney has exercised

due diligence to obtain such evidence and there are reasonable grounds to believe

that this evidence will be available at the later date.” Here, again, it is possible that

the court could have granted a continuance on these grounds. But the prosecution

moved for such a continuance on April 30, and the trial court did not rule on the

motion.    The record contains no suggestion that any further motion for a

continuance under section 18-1-405(6)(g)(I) was presented to the court. Moreover,

at the July 29 hearing, the court explicitly stated that its denial of the motion to

dismiss was premised on its declaration of a mistrial retroactive to April 30.

                                 IV. Conclusion
¶23   Because the trial court could not declare a retroactive mistrial after the

speedy trial deadline had passed, the charges against Nunez must be dismissed

with prejudice. Accordingly, we now make the rule absolute.


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