COUNTY COURT, CITY & COUNTY OF DENVER, COLORADO

502 West Colfax Avenue, Rm. 160

Denver, CO 80202

PEOPLE OF THE STATE OF COLORADO, Case No. 19GS007990

Plaintiff, Courtroom 4A

v.

DAMEION WELLS,

Defendant.

ORDER

This Court, having reviewed the file in this case, including Defendant Dameion Wells’s
“Amended Objection to Continuance and Setting Outside of Speedy With Supporting Caselaw,”
hereby FINDS, CONCLUDES, ADJUDGES and ORDERS as follows:

INTRODUCTION

1. In October 2019, Mr. Wells was charged with Assault (D.R.M.C. 39-93) and
Disturbing the Peace (D.R.M.C. 39) and Threats to Injure (D.R.M.C. 38-89(a)). He has pleaded
not guilty and demanded a jury trial.

2. Mr. Wells’s speedy trial period began running on February 4, 2020. Under Rule
248(b) of the Colorado Municipal Court Rules of Procedure, his 91-day speedy trial deadline
was May 4, 2020. Under Rule 248(b), an additional 28-day continuance can be allowed

3. Since late 2019 – early 2020, the COVID-19 pandemic has swept and consumed
our nation, killing more than over 85,000 Americans and counting, and shutting down tens of
thousands of businesses and schools. It is, to put it mildly, a deadly contagion that has killed
more Americans than died in the Viet Nam war, caused job losses for many millions more
Americans, and upset every aspect of our individual and collective lives. And is projected to
continue to do so for months to come. Accord https://www.usa.gov/coronavirus (last visited
5/11/2020); https://covid19.colorado.gov (last visited 5/11/2020).

4. As a result of the COVID-19 pandemic, this Court, on March 26, 2020, entered a
General Order, captioned “Necessary Orders Relating to COVID-19 Pandemic Crisis”
(hereinafter, the “General Order”). As applicable here, that General Order provides that,

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“[s]peedy trial will be tolled [in] all cases effective immediately and will recommence upon
Order of the Court at the first court appearance set after June 1, 2020.”

5. Arguing that a continuance is a critical stage in criminal proceedings, Mr. Wells

argues that this Court must dismiss the case because his procedural due process right to be
present at all such critical stages in his case was infringed when this Court continued his case,
sua sponte, “based on information not contained in the record” and without notice and an
opportunity to be heard. The Court respectfully rejects Mr. Wells’s arguments and DENIES his
Motion.

DISCUSSION

A. Mr. Wells’s Due Process Rights Were Not Infringed When This Court Continued
His Case Outside His Presence and Without His Input.

6. Mr. Wells’s due process argument hinges on the notion that a hearing was
required before his case could be continued – a hearing he had a right to attend and at which he
had a right to be heard. This Court rejects that argument here.

7. “Article II, section 16, of the Colorado Constitution, and the Due Process Clause,
as well as the Sixth Amendment to the United States Constitution, guarantee the right of a
criminal defendant to be present at all critical stages of the prosecution.” People v. Harris, 914
P.2d 434, 437 (Colo. 1994). That right “is rooted to a large extent in the Confrontation Clause of
the Sixth Amendment.” Luu v. People, 841 P.2d 271, 273 (Colo. 1992).1 But “[t]he Due Process
Clause . . . affords defendants the right to be present in situations where the Confrontation Clause
is not implicated.” People v. Aldridge, 446 P.3d 897, 902 (Colo. App. 2018) (citing United States
v. Gagnon, 470 U.S. 522, 526 (1985)); Luu, 841 P.3d at 273. Our courts have interpreted that
right as being “guaranteed by due process if the fundamental fairness of the proceeding would be
undermined by the defendant’s absence.” People v. Isom, 140 P.3d 100, 104 (Colo. App. 2005).

8. But “[w]hether secured by the Sixth or Fourteenth amendments, the federal

constitutional right to presence is not absolute.” Luu, 841 P.2d at 273. Indeed, “due process does
not require the defendant’s presence when it would be useless or only slightly beneficial.” Isom,
140 P.3d at 104; accord People v. Valdez, 725 P.2d 29, 33 (Colo. App. 1986). Thus, a defendant
has the right to be present “whenever his presence has a relation, reasonably substantial, to the
fullness of his opportunity to defend against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745
(1987); Zoll v. People, 425 P.3d 1120, 1126 (Colo. App. 2018).

9. “Nowhere in the decisions of [the United States Supreme Court] is there a dictum,
and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when
presence would be useless, or the benefit but a shadow. What has been said, if not decided, is
distinctly to the contrary.” Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1935) (overruled in

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Here, Mr. Wells does not argue that his rights under the Sixth Amendment’s Confrontation Clause have
been abridged, so the Court does not address that issue.

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part on other grounds, Mallow v. Hogan, 378 U.S. 1 (1964)) (citing Howard v. Kentucky, 200
U.S. 164, 175 (1906), and Valdez v. United States, 244 U.S. 432, 445 (1917)); see Zoll, 425 P.3d
at 1126. Accordingly, for Fourteenth Amendment purposes, “the presence of a defendant is a
condition of due process to the extent that a fair and just hearing would be thwarted by his
absence, and to that extent only.” Snyder, 291 U.S. at 107; Aldridge, 446 P.3d at 902; Zoll, 425
P.3d at 1126

10. And, for appellate purposes, where a defendant has been deprived of his or her
right to be present, reversal is required unless the error is adjudged to be harmless. People v.
Grace, 55 P.3d 165, 169 (Colo. App. 2001).

11. Mr. Wells has cited no governing case holding that a defendant’s presence is
always required before a court can issue a continuance, and this Court can find none. The reason
for that, perhaps, is because no case in this State so holds because the actual standard is that
enunciated in Snyder and its state and federal progeny.

12. Given the circumstances here, this Court finds that having Mr. Wells present with
counsel to make a record at the time the Court entered the General Order and otherwise continued
the case would have been not only slightly beneficial, but actually wholly useless. Given the wake
of destruction caused by the COVID-19 pandemic, the Court engaged in no case-by-case
balancing of interests that might have benefitted by Mr. Wells and his counsel. Rather, all
criminal cases were continued, in large part for the safety of people like Mr. Wells and his
counsel. This Court therefore rejects Mr. Wells’s due process argument.

B. There is No Waiver Here.

13. Noting that the six-month speedy trial deadline enunciated in C.R.S. § 18-1-405
can be “extended if the defendant requests and is granted a continuance or if [he] expressly agrees
to a continuance requested by the prosecution,” People v. Bell, 669 P.2d 1381, 1383-84 (Colo.
1983), Mr. Wells next argues that “[s]peedy trial is a right that only the accused can waive.” In
other words, he argues that a continuance can be granted in a criminal case only if the defendant
“agrees [to it] or is given a right to be heard.” Again, the Court disagrees.

14. As noted in Bell, C.R.S. § 18-1-405(4) provides in relevant part as follows:

If a trial date has been fixed by the court, and thereafter the prosecuting attorney
requests and is granted a continuance, the time is not thereby extended within which
the trial shall be had, as is provided in subsection (1) of this section, unless the
defendant in person or by his counsel in open court of record expressly agrees to the
continuance or unless the defendant without making an appearance before the court in
person or by his counsel files a dated written waiver of his rights to a speedy trial
pursuant to this section and files an agreement to the continuance signed by the
defendant. The time for trial, in the event of such agreement, is then extended by the
number of days intervening between the granting of such continuance and the date to
which trial is continued.

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 15. But section 18-1-405 governs violations of state statutes rather than municipal
code violations. See C.R.S. 18-1-103(3). This Court concludes that it does not govern here. Rather
than being governed by Title 18 or the Colorado Rules of Criminal Procedure (see Crim. P.
54(a)), this case is governed solely by the Colorado Municipal Court Rules of Procedure (and, of
course, the United States and Colorado constitutions). Unlike section 18-1-405(4), M.C.R.P. 248
– which addresses continuances – does not require an express agreement by the defendant in open
court. Further, the continuance of Mr. Wells’s case was not the result of a motion by the
prosecution; it was granted by the Court, sua sponte.

16. The Court therefore respectfully rejects Mr. Wells’s waiver argument.

C. The Court Did Not Exceed Its Authority in Continuing This Case Sua Sponte.

17. Resting primarily on Day v. McDonough, 547 U.S. 198, 210 (2006), Mr. Wells
next argues that this Court exceeded its authority in continuing the case sua sponte. Finding Day
distinguishable from this case, anad finding no other support for Mr. Wells’s position, this Court
rejects that argument.

18. As the Tenth Circuit noted in United States v. Mitchell, 518 F.3d 740 (10th Cir.
2008):

Day presented the question of whether a federal district court may sua sponte dismiss a
habeas petition as untimely for failure to comply with the time bars of the [Antiterrorism
and Effective Death Penalty Act] after the state has answered the petition without raising
a timeliness objection. 547 U.S. at 201. Although recognizing district courts were not
obligated to raise the non-jurisdictional statute of limitations, the Court held district
courts may raise the time bar sua sponte provided the parties have been accorded fair
notice and opportunity to present their positions. Id. at 206, 210. . .

518 F.3d at 745-46. “The justifications for the result in Day, however, are unique to the habeas
corpus context,” the Mitchell court held, and they have “limited applicability” in outside that
context. Mitchell, 518 F.3d at 746, accord Williams v. Hobbs, 562 U.S. 1097 (2010) (mem.)
(Sotomayor and Ginsburg, JJ., dissenting from denial of certiorari).

19. One way we know that Day does not demonstrate that categorical federal ban on
sua sponte continuances of speedy trial deadlines is by examining the federal Speedy Trial Act,
18 U.S.C. § 3161. It expressly permits sua sponte continuances. See 18 U.S.C. § 3161(h)(7)(A);
accord United States v. Brooks, 697 F.2d 517 (3d Cir. 1982), cert. denied, 460 U.S. 1071 (1983),
cert. denied, 460 U.S. 1073 (1983); United States v. Reese, 917 F.3d 177 (3d Cir. 2019). Indeed,
that statute expressly permits courts to continue case sua sponte in the interests of justice. See
United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449 U.S. 872 (1980).
Under subsection 3161(h)(7)(A), “[t]he district court may order such a continuance sua sponte”
so long as it “set[s] out its reasons for granting the continuance on the record, either orally or in
writing.”

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 20. The reasoning that guides federal jurisprudence on sua sponte continuances under
the federal Speedy Trial Act has been adopted by state courts, which also permit sua sponte
continuances in the interests of justice. See, e.g., McIntosh v. Davis, 441 N.W.2d 115, 120 (Minn.
1989), which held as follows:

The general notion that trial courts are responsible for case management and must
control calendars, including the authority to grant continuances, is widely accepted.
The American Bar Association recommends that trial courts have “absolute”
control over trial calendars because delegation of any scheduling responsibility to
the prosecutor can lead to the appearance of abuse. ABA Standards on Criminal
Justice 12-1.2 comment at 12-8-9 (1980). Federal courts allow delays by the court
on its own motion where the judge finds that the ends of justice will be served. 18
U.S.C. § 3161(h)(8)(A) (1982); see also United States v. Edwards, 627 F.2d 460,
461 (D.C.Cir. 1980).

21. Finally, although the Court has found no Colorado state case directly holding that
a trial court can continue a case sua sponte, the case law is nevertheless replete with instances of
that precise thing occurring. In Hills v. Westminster Muni. Court, 245 P.3d 947 (Colo. 2011), for
example, our supreme court affirmed a decision holding that “when a trial court continues the trial
on its own motion but offers a new trial date within the speedy trial period, and defense counsel
rejects that date because of his own scheduling conflicts and instead proposes a date outside the
speedy trial period, “the delay is attributable to the defendant” and excluded from the speedy trial
calculation under Rule 248(b).

22. Accordingly, it appears that under both state and federal law a court can continue
a case sua sponte under appropriate circumstances. Indeed, both state and federal law are to the
contrary, and Day does not hold otherwise. Because those appropriate circumstances are
abundantly present here, this Court did not err in continuing the case on its own motion.

ACCORDINGLY, for each of the reasons set forth above, this Court respectfully
DENIES Mr. Wells’s Motion to Dismiss.

Dated: May 13, 2020.

BY THE COURT

_____________________________
Barry A. Schwartz
Denver County Court Judge