Peo v. Mares

23CA1003 Peo v Mares 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1003
City and County of Denver District Court No. 19CR7304
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anastacio Mares,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE TOW
Yun and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado, for
Defendant-Appellant
¶1 Defendant, Anastacio Mares, appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

assault on a child and sexual assault on a child by one in a position

of trust. We reverse and remand with instructions to dismiss the

charges.

I. Background

¶2 On April 25, 2022, Mares entered a plea of not guilty, which

started the six-month speedy trial period under section 18-1-405(1),

C.R.S. 2024. Instead of scheduling a trial date at the arraignment,

however, the parties set a dispositional hearing to occur seven

weeks later, on June 13, 2022. At that hearing, Mares requested

that the dispositional hearing be reset to June 24, 2022, and agreed

to toll the speedy trial deadline for eleven days.

¶3 On June 24, 2022, defense counsel raised the issue of Mares’s

competency, and the trial court ordered a competency evaluation,

which further tolled the speedy trial deadline. § 18-1-405(6)(a). On

August 1, 2022, the court received the competency evaluation

opining that Mares was competent to proceed. Based on this

report, the court found Mares competent on August 5, 2022. At

that hearing, defense counsel requested another disposition date,

1
but Mares was unwilling to toll the speedy trial deadline to

accommodate that request. As a result, the trial court said the

parties would need to select a trial date before the expiration of the

speedy trial deadline, which it calculated to be December 14, 2022.1

¶4 The trial court proposed to start the trial one month later, on

September 6, 2022, but defense counsel rejected that date, stating

that she would not have enough time to prepare for trial. The trial

court then proposed September 20, 2022, but defense counsel

1 The parties disagree as to the accuracy of the trial court’s

calculation of the speedy trial deadline. The competency evaluation
tolled the speedy trial deadline an additional thirty-eight days.
§ 18-1-405(6)(a), C.R.S. 2024 (providing for the exclusion from the
six-month speedy trial period “[a]ny period during which the
defendant . . . is under observation or examination at any time after
the issue of the defendant’s . . . incompetency . . . is raised”); cf.
People v. Renfrow, 564 P.2d 411, 413 (Colo. 1977) (in the context of
a sanity evaluation, construing the phrase “any period during which
the defendant . . . is under observation or examination” to mean
until the filing of the psychiatric report). Thus, because the report
was filed on August 1, 2022, the speedy trial deadline was tolled for
a total of forty-nine days — the original agreed upon eleven days for
the rescheduled dispositional hearing plus the thirty-eight days for
the competency evaluation — ending December 13, 2022, not
December 14. Because the trial was set well beyond either date,
however, this minor miscalculation has no bearing on the outcome
of the case.

2
rejected that date as well because she had another trial set for that

week.2

¶5 Defense counsel said the trial would likely take four days. The

court and the prosecutor then discussed their availability. The

prosecutor declined to double set the case for a week in November

when defense counsel was available, and the court assumed that

defense counsel was not going to double set cases for two weeks in

October when she had another trial set.

¶6 Ultimately, the court said,

We were trying to set this matter for trial and,
frankly, the problem that we have is that since
trials have been restarted after all of the Covid
breaks, the number of trials that have been
reset on the Court’s docket has basically
[defense counsel] and [the prosecutor] in trial
every week, basically, between now and
December 14th, which is the speedy trial date
currently as calculated for Mr. Mares. — Many
of these are very serious cases and . . . both
defense counsel and the [prosecutor] are set on
murders, attempted murders, sex assault
cases, and I have not had to trigger [section]
18-1-405(6)(j)([I])[, C.R.S. 2021]. I have worked
very hard to avoid that on these Covid

2 It appears the prosecutor also believed that a September setting

was too soon, saying that “it simply wouldn’t be viable to have a
sexual assault on a child case, especially a case where the
defendant is a habitual criminal[,] be set for trial within September
which, frankly, I don’t think the Court can accommodate.”

3
resettings, with the docket the way it is
because of all of the reorganization that we
had to do and the backlog created by the
Covid-19 pandemic but, at this time, the Court
is going to have to find that the backlog of jury
trials that I have on my docket and, frankly,
that both counsel have on their dockets, both
the Office of the Public Defender and the
District Attorney’s Office have had a lot of
turnover. There’s a lot of new attorneys and
the fact of the matter is that the Covid
pandemic and other — the Covid pandemic
has directly resulted in the Court being unable
to find a date that works for either — for both
counsel. In fact, the prosecution is already
double set on at least three of the weeks
between now and December 14th. Every
criminal jurisdiction in Denver is facing the
same issues and I have not previously granted
a continuance for this reason under — well I’m
not granting a continuance but we have not
had to trigger [subsection] 6(j) previously and,
as indicated, the — this is [a sexual assault on
a child] case. This is very serious so I am
going to, though [section] 18-1-405(6)(j)[I],
which allows us to exceed three months if the
defendant is in custody, I’m going to trigger
that because of the Covid pandemic and we
will set this. Up to three months is excluded.

¶7 The General Assembly enacted the provision the trial court

referenced, section 18-1-405(6)(j), in response to the COVID-19

pandemic. Ch. 277, sec. 1, § 18-1-405, 2021 Colo. Sess. Laws

1600-02. This provision, which we refer to as the COVID-19

exclusion provision, allowed the court, on its own motion, to

4
continue a trial one time for up to three months (six months if the

defendant was not in custody at the time) to account for the backlog

created by the pandemic. Id. at 1600. However, the General

Assembly explicitly provided that the COVID-19 exclusion provision,

which went into effect on June 21, 2021, would only be available

through April 29, 2022, and no continuance could be granted under

that provision after that time. Id. at 1601.

¶8 Apparently overlooking the statutory language regarding the

expiration of the COVID-19 exclusion provision, the trial court then

proposed dates in January 2023, and the prosecutor agreed to

them.3 Though defense counsel acknowledged that she was

available on January 17, 2023, she nevertheless objected to that

date, stating that the trial was being set outside the speedy trial

period, though she did not explicitly raise the expiration of the

COVID-19 exclusion provision. The court set the trial for January

17, 2023.

3 At the prosecutor’s request, the trial court also made a finding

that no other division of the district court was available to try the
case during the first two weeks of November.

5
¶9 On January 13, 2023, defense counsel filed a motion to

dismiss Mares’s charges for violation of his statutory right to a

speedy trial, raising for the first time the expiration of the

COVID-19 exclusion provision. On January 17, 2023, the trial

court denied the motion to dismiss. The court stated that it had

already made a record that “I could not fit in the case of this nature

of this length prior” to the speedy trial deadline, and “the Court did

make its findings as to good cause to extend this date as the

earliest date that I could get in a case of this length, of this nature,

onto the Court’s docket.”

¶ 10 Defense counsel then argued that no subsection in the speedy

trial statute other than the COVID 19 exclusion provision provided

the trial court with a basis to extend the speedy trial deadline. The

court responded, “Well, the Court’s looking at it, frankly, as delays

caused by the — that could be attributable to the defense” because

the competency evaluation pulled the case out of the normal docket

rotation, allowing other cases to fill up the docket “to the point

where we could not fit this in before” the speedy trial deadline.

¶ 11 The prosecutor stated that it was her recollection “that the

Court did offer dates but that we were unable to find a mutually

6
agreeable date based upon the defense’s unavailability.” The court

responded, “Well, that happened as well.” The prosecutor then

asked the court to make findings pursuant to People v. Chavez, 650

P.2d 1310, 1310 (Colo. App. 1982), “that based upon the

inconvenience of defense counsel its effectively tantamount to a

continuance.” The court declined to do so, stating that everything

was already on the record, and that “I did everything I could to, not

only the spirit, but the letter of speedy trial [sic], and this is the

fastest we could get it in after the delay and after he was found

competent.”

¶ 12 A jury found Mares guilty of sexual assault on a child and

sexual assault on a child by one in a position of trust. The trial

court sentenced Mares to indeterminate prison terms of

twenty-four-years to life for the sexual assault by one in a position

of trust conviction and ten years to life for the sexual assault on a

child conviction, to be served consecutively.

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II. Statutory Speedy Trial Right

¶ 13 Mares contends that the trial court violated his statutory right

to a speedy trial.4 We agree.

A. Applicable Law and Standard of Review

¶ 14 Subject to several exclusions and exceptions, a defendant

must be brought to trial within six months from the date of the

entry of a not guilty plea, or the charges must be dismissed.

§ 18-1-405(1); People v. Nunez, 2021 CO 31, ¶ 16 (“Section

18-1-405(1) requires dismissal with prejudice if a defendant’s

statutory speedy trial right is violated.”).

¶ 15 As discussed above, one such provision for extending this six-

month period was the COVID-19 exclusion provision, which

excluded from the computation of the six months the “period of

delay for any continuance due to the backlog of jury trials directly

4 Mares’s opening brief references his constitutional right to a

speedy trial, but he makes no argument as to how this right was
violated. We therefore do not address his undeveloped
constitutional claim. See People v. Cuellar, 2023 COA 20, ¶ 44.

8
resulting from a restriction, procedure, or protocol implemented

during” the COVID-19 pandemic.5

¶ 16 Section 18-1-405(6)(f) provides another way of extending the

six-month speedy trial period. This provision excludes “[t]he period

of any delay caused at the instance of the defendant.” People v.

DeGreat, 2020 CO 25, ¶ 14. When determining whether this

extension is applicable, “[t]he key . . . is to determine whether the

defendant caused the delay. If the delay is caused by, agreed to, or

created at the instance of the defendant, it will be excluded from the

speedy-trial calculation made by the court.” People v. Bell, 669 P.2d

1381, 1384 (Colo. 1983). A defendant is deemed to have caused the

delay when there is “express consent to the delay or other

affirmative conduct” evincing a clear intent to waive the right to

speedy trial. Id. at 1385 (quoting Harrington v. Dist. Ct., 559 P.2d

225, 228 (1977)). We look to whether the defendant was the

“moving force” behind the delay, id. at 1386, and whether his

5 We note that the COVID-19 exclusion provision spoke in terms of

“any continuance,” while this case involves the initial setting of
Mares’s trial. Nevertheless, because Mares does not contend that
this provision was inapplicable to the initial setting of his trial date,
we assume, without deciding, that the provision applied (or, more
accurately, would have had it not expired).

9
actions “could be construed as ‘tantamount to a request for a

continuance,’” id. at 1384 (quoting Chavez, 650 P.2d at 1311).

¶ 17 To satisfy its burden to comply with the speedy trial statute,

the trial court must make “a record sufficient for an appellate court

to determine statutory compliance.” People v. Lucy, 2020 CO 68,

¶ 21 (quoting Marquez v. Dist. Ct., 613 P.2d 1302, 1303-04 (Colo.

1980)).

¶ 18 We review de novo whether a trial court violated a defendant’s

statutory speedy trial right. Nunez, ¶ 16. Because a trial court

lacks jurisdiction to try a defendant in violation of his statutory

speedy trial rights, DeGreat, ¶ 8, we must reverse the conviction if

we conclude that Mares’s statutory speedy trial rights were violated.

See § 18-1-405(1) (mandating dismissal of charges and prohibiting

re-charging the defendant if the defendant is not brought to trial

within the speedy trial deadline); People v. Novotny, 2014 CO 18,

¶ 26 (recognizing section 18-1-405 as a legislative mandate that

requires automatic reversal).

B. Mares’s Speedy Trial Right Was Violated

¶ 19 As noted, Mares entered his not guilty plea on April 25, 2022.

After accounting for the initial agreed upon tolling and the delay

10
resulting from Mares’s competency evaluation, he had a statutory

right to be brought to trial by mid-December. His trial, however,

did not begin until approximately one month after that deadline.

Thus, absent additional tolling or other extension of the deadline,

his trial was untimely.

¶ 20 The People contend that two different statutory provisions

support such additional time: the COVID-19 exclusion provision

and the provision accounting for delays caused by the defendant.

Neither provides the People with safe harbor.

1. The COVID-19 Exclusion Provision Did Not Apply

¶ 21 Mares contends that, because the COVID-19 exclusion

provision had expired, the trial court erred by relying on it to extend

the speedy trial deadline.

¶ 22 The People concede that at the time the trial court invoked it,

the COVID-19 exclusion provision had expired. But the People

nevertheless argue that Mares’s conviction should not automatically

be reversed with prejudice. Relying on “equitable principles” from

United States Supreme Court case law, the People contend that

Mares waived his right to claim that the COVID-19 exclusion

provision had expired. Specifically, quoting Harrow v. Department

11
of Defense, 601 U.S. 480, 483-84 (2024), the People assert that,

unless a statute clearly conveys a procedural deadline as

jurisdictional, “a court will not enforce a procedural deadline

against a non-complying party if his opponent has forfeited or

waived an objection.” They further rely on Harrow, as well as

McIntosh v. United States, 601 U.S. 330, 344-45 (2024), to argue

that “equitable principles preclude [the expiration of the COVID-19

exclusion provision] from being weaponized retroactively to justify

vacatur.”

¶ 23 We acknowledge that “statutory rights can be waived or

forfeited.” Richardson v. People, 2020 CO 46, ¶ 24. But the

People’s reliance on these federal cases is unavailing for several

reasons.

¶ 24 Notably, neither McIntosh nor Harrow involved a speedy trial

challenge. And the People do not cite any Colorado case invoking

the equitable principles discussed in McIntosh or Harrow to excuse

a speedy trial violation. Moreover, unlike the federal rules involved

in those cases, the relevant Colorado statute, section 18-1-405,

explicitly mandates reversal if the deadline is not met. Even under

the People’s own characterization of Harrow, the equitable

12
considerations articulated in that case do not apply where there is a

clear statutory indication that the deadline is jurisdictional.

Hampton v. Dist. Ct., 605 P.2d 54, 56 (Colo. 1980); Novotny, ¶ 26.

¶ 25 In addition, the People’s suggestion that Mares had some

obligation to raise the speedy trial issue earlier is inconsistent with

established precedent. “The burden of compliance with the speedy

trial statute is on the district attorney and the trial court.” People v.

Roberts, 146 P.3d 589, 593 (Colo. 2006). “[I]n the speedy trial

context, ‘the only affirmative action required on the part of the

defendant [is] that he move for a dismissal prior to trial.’” DeGreat,

¶ 16 (quoting Harrington, 559 P.2d at 228).

¶ 26 Nor do we agree with the People that Mares waived his right to

invoke the expiration of the COVID-19 exclusion provision merely

because he did not explicitly reference it when asserting his speedy

trial right or at any point before expiration of the speedy trial

deadline. Neither the trial court nor either of the parties noticed the

expiration of the provision at the time the trial court invoked it.6

Nor is there any indication in the record that Mares knew about the

6 The People acknowledge that the record suggests no one appeared

aware at this time.

13
expiration of the provision before the speedy trial deadline passed.

Thus, it simply cannot be said that Mares knew about the

expiration and intentionally chose not to raise it. See Forgette v.

People, 2023 CO 4, ¶ 28 (“Waiver is ‘the intentional relinquishment

of a known right or privilege.’” (quoting People v. Rediger, 2018 CO

32, ¶ 39)).

¶ 27 Similarly, we reject the People’s alternative contention that

Mares forfeited any challenge to the error and, presumably, that the

error was not plain.7 As noted, a speedy trial violation is not

subject to any review for prejudice; the statute mandates reversal.

§ 18-1-405; Novotny, ¶ 26. (This mandate also dispenses with the

People’s apparent suggestion that any error could be harmless.)

¶ 28 The People attempt to draw a distinction between analyzing

whether the trial court erred by setting the trial beyond the speedy

trial deadline (which would not be subject to plain error review) and

whether the trial court erred by relying specifically on the expired

COVID-19 exclusion provision (which the People argue should be

7 The People do not explicitly argue that any error was not plain.

However, forfeited appellate claims are analyzed for plain error.
People v. Rediger, 2018 CO 32, ¶ 40.

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reviewed for plain error). The People offer no statute, rule, or case

law — and we are aware of none — that recognizes such a

distinction.

¶ 29 Nevertheless, even assuming that we can review the trial

court’s invocation of the COVID-19 exclusion provision for plain

error, the error here was plain. First, the error was obvious

because it “contravene[d] a clear statutory command.” People v.

Crabtree, 2024 CO 40M, ¶ 42. The General Assembly’s words

unequivocally state that the provision is not to be invoked after a

specific date. Second, the error was substantial because it calls

into doubt the reliability of the judgment of conviction. See

Hoggard v. People, 2020 CO 54, ¶ 13 (an error is substantial if it “so

undermine[s] the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction”

(quoting People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005)).

Indeed, contrary to the People’s contention, Mares’s untimely trial

did deviate from the intent of the speedy trial statute — which is

that, if a defendant is not timely tried, the charges against him

must be dismissed. We cannot see how the reliability of a

15
conviction flowing from a trial that was not supposed to take place

at all could possibly be free from doubt.

2. The Delay Cannot Be Attributed to Mares

¶ 30 The People also contend that the delay in setting the trial was

attributable to Mares. Thus, the People argue that the period of

delay between August 5 and the trial date in January should be

attributed to Mares and excluded from the speedy trial period under

section 18-1-405(6)(f). Again, we disagree.

¶ 31 As an initial matter, we note that the trial court did not make

any findings attributing any of the delay to Mares or his counsel

before the speedy period had expired. Instead, the issue of whether

Mares caused the delay did not surface until the hearing on the

motion to dismiss, after Mares notified the court and the prosecutor

that the COVID-19 exclusion provision was not available. At that

point, as noted above, the trial court suggested for the first time

that, because the defense raised the competency issue, which

removed the case from “the normal rotation,” it was considering the

delay attributable to Mares. At the prosecutor’s prompting, the

court also found that the parties were unable to find a mutually

agreeable date based on defense counsel’s unavailability.

16
¶ 32 It is unclear whether a trial court can revive an expired speedy

trial deadline by such post hoc rationalizations. See Nunez, ¶ 23

(holding that the trial court could not retroactively declare a mistrial

after the speedy trial deadline had passed to revive the speedy trial

period); cf. Nagi v. People, 2017 CO 12, ¶ 18 (Márquez, J.,

dissenting) (expressing concern about engaging in post hoc

conjuring of support for an event that would toll the speedy trial

deadline). Nevertheless, because the People presented the

argument to the trial court at the hearing on the motion to dismiss,

and the trial court made findings on the issue, we will address it.

¶ 33 In doing so, we conclude that the trial court improperly treated

the delay in resetting the trial after receiving Mares’s competency

evaluation as being attributable to the defense merely because

defense counsel raised the competency question. And the record

does not support its findings related to defense counsel’s

unavailability.

¶ 34 As noted, and as the People concede, the period during which

Mares’s competency was being evaluated does not trigger section

18-1-405(6)(f), as that delay is specifically covered by section

18-1-405(6)(a). But there is no statutory basis to expand that

17
excluded period beyond the date the evaluation is received under

the guise of “delay caused at the instance of the defendant” merely

because docket congestion makes rescheduling the trial difficult.

Further, such a reading of the statute would suggest that

post-evaluation delay in getting the case back on the calendar

would be attributable to the defendant only if the defendant raised

the issue of competency but not if the People or the court did so.

Again, we see no support in the statute, either textual or

contextual, for such a distinction. Indeed, this reading of the

statute would place a defense attorney whose client presents

competency concerns in an untenable position: insist on the

possibly incompetent client’s speedy trial or raise competency and

risk being held responsible for extensions beyond the time it takes

to have the client evaluated. We can discern no indication that the

General Assembly intended to place defense counsel on the horns of

such a dilemma. And we are aware of no case law that suggests

otherwise.

¶ 35 We also conclude that the record does not support the People’s

contention that defense counsel’s schedule necessitated setting the

case beyond the speedy trial deadline. True, a defense counsel’s

18
unavailability throughout the remaining speedy trial period can be

attributable to the defendant and excluded from the calculation of

the speedy trial deadline. See Hills v. Westminster Mun. Ct., 245

P.3d 947, 952 (Colo. 2011) (“Because the court’s effort to reschedule

within the speedy trial deadline was rejected by defense counsel due

to a scheduling conflict, and that rejection ultimately pushed the

trial past the speedy trial deadline, we hold that the resulting delay

was attributable to the defendant.”). However, the trial court

explicitly declined to make such a finding here.

¶ 36 Instead, the trial court simply agreed that dates had been

offered but the parties were unable to find a mutually available

date. While this is generally accurate, it is not, as the People

contend, due to “defense counsel’s inability to accept a trial date

within the remaining time frame.” In fact, the record suggests the

opposite: defense counsel was available the week of November 15,

but the prosecutor had a trial that week. Beyond rejecting two

proposed trial dates in September (which the prosecutor later

agreed would have been unworkable), defense counsel is not on

record rejecting any other dates. Instead, it appears that the trial

court assumed, based on reviewing its own division’s trial calendar,

19
that defense counsel would not double set the case on her own

schedule.

¶ 37 We acknowledge that defense counsel was present when the

trial court was making statements about counsel’s unavailability

and did not interject to correct the court. Nevertheless, we reiterate

that defense counsel has no burden to ensure that a trial gets

scheduled before the speedy trial deadline. DeGreat, ¶ 16. Based

on this record, it simply cannot be said that defense counsel made

it clear that she would not be available throughout the remaining

speedy trial period. As a result, it cannot be said that the delay

between August 5, when the trial setting was discussed, and

January 17 was at the instance of the defendant.

C. Remand

¶ 38 Finally, the People contend that a remand for further factual

findings, instead of reversal, is the proper remedy to “resolve any

ambiguity” as to whether the facts supported their argument under

section 18-1-405(6)(f). We disagree.

¶ 39 When “[t]he trial court’s findings are insufficient to allow us to

determine whether dismissal of the case was warranted on speedy

20
trial grounds,” a remand may be appropriate. People v. Desantiago,

2014 COA 66M, ¶ 22.

¶ 40 The trial court’s factual findings here do not hinder our

appellate review, and the court’s record is sufficient for us to

determine the basis of its ruling, as we have done. See Lucy, ¶ 21.

Thus, a remand is unnecessary. The remedy for violating Mares’s

statutory speedy trial rights is reversal with prejudice. See

§ 18-1-405(1); Nunez, ¶ 23; Novotny, ¶ 26.

III. Disposition

¶ 41 The judgment is reversed, and the case is remanded for

dismissal of the charges with prejudice.

JUDGE YUN and JUDGE SULLIVAN concur.

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