v. Yakas

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 1, 2019

2019COA117

No. 17CA0959, People v. Yakas — Criminal Law — Uniform
Mandatory Disposition of Detainers Act — Waiver

A division of the court of appeals, interpreting section 16-14-

104(2), C.R.S. 2018, of the Uniform Mandatory Disposition of

Detainers Act (UMDDA), holds, as a matter of first impression, that

UMDDA rights are not personal and may be waived by counsel. The

division further holds that the statutory advisement may be waived

by counsel. While the division disagrees with the trial court that

the UMDDA issue is moot, it affirms the court’s decision on

alternate grounds.
COLORADO COURT OF APPEALS 2019COA117

Court of Appeals No. 17CA0959
Arapahoe County District Court No. 15CR3031
Honorable Natalie T. Chase, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Theodore Yakas,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE FREYRE
Fox and Welling, JJ., concur

Announced August 1, 2019

Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tara N. Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for
Defendant-Appellant
¶1 In this statutory interpretation case, we are asked to decide

whether the right to a speedy disposition guaranteed by the

Uniform Mandatory Disposition of Detainers Act (UMDDA), §§ 16-

14-101 to -108, C.R.S. 2018, can be waived by counsel or whether a

defendant must personally waive this right. We hold that this

statutory right may be waived by counsel and that counsel may also

waive the required statutory advisement of rights. We further hold

that when the defendant is present for counsel’s waiver and does

not voice an objection to it, he cannot later complain that his

UMDDA rights were violated.

¶2 Defendant, Joshua Theodore Yakas, appeals the trial court’s

order denying his motion to dismiss his criminal case for violation

of the UMDDA. We affirm.

I. Background

¶3 In October 2015, the police arrested Mr. Yakas for violating

parole in an unrelated case. While incarcerated, the state charged

him, on November 3, 2015, with three counts of enticement of a

child, three counts of attempted inducement of child prostitution,

three counts of attempted sexual assault on a child, three counts of

indecent exposure – (third or subsequent offense), and habitual

1
criminality. Mr. Yakas appeared with court-appointed counsel at

his first appearance on November 9, 2015. After waiving his right

to a speedy preliminary hearing twice, Mr. Yakas proceeded to a

preliminary hearing on January 13, 2016. The court found

probable cause and bound the case over for arraignment on

February 19, 2016. On February 19, the parties agreed to continue

arraignment to April 29, 2016.

¶4 On February 29, 2016, Mr. Yakas filed a pro se “Petition for

Speedy Disposition Under [the UMDDA].” As relevant here,

paragraph four of the pro se petition states:

4. The defendant, does not waive any rights of
limits set forth under or in this act. If, at any
time, the defendant chooses to waive any of
these, it shall be himself, not through council
[sic], by explicitly stating, in writing for the
court or in open court, that he, knowingly,
intentionally, and voluntarily waives his right
under this act.

¶5 Upon receiving the petition, the court rescheduled

arraignment for March 25, 2016. As well, on March 17, 2016,

counsel for Mr. Yakas sent the following email to the court and the

district attorney:

I just wanted to let everyone know that Mr.
Yakas is going to be withdrawing the detainer

2
and we will be asking that the April 29
arraignment date remain. We’re fine with Mr.
Yakas being brought in on 3/25 to do that on
the record. Additionally, Mr. Yakas has been
held at the Arapahoe County Jail, so unless he
is going to be moved, we do not need a writ
prepared.

¶6 When Mr. Yakas refused to appear on March 25, defense

counsel explained that Mr. Yakas was “confused about the court

date” and asked that the matter be reset for March 31, 2016,

“because he’s going to withdraw that detainer [sic].”

¶7 Mr. Yakas appeared with counsel on March 31. The trial court

asked whether “[defendant] was going to withdraw th[e] request [for

speedy disposition] and . . . wanted to keep the arraignment date

that we currently had set of April 29th.” Counsel responded, “That

is correct.” The court then asked, “Do you wish any further

advisement on the record with respect to Mr. Yakas’s withdrawal of

request for speedy detainer?” Both defense counsel and the district

attorney responded, “No.” Mr. Yakas remained silent. The trial

court then found that the request for speedy disposition had been

withdrawn and continued the matter to the April arraignment date.

¶8 After several continued arraignments, made at the defense’s

request, Mr. Yakas entered a not guilty plea on August 1, 2016.

3
But the parties eventually reached a disposition, and on December

15, 2016, Mr. Yakas pleaded guilty to several counts in exchange

for the dismissal of the remaining counts and a stipulated sentence

of twenty years in the custody of the Department of Corrections

(DOC). The court accepted Mr. Yakas’s guilty pleas and sentenced

him accordingly.

¶9 Around the time he pleaded guilty, Mr. Yakas filed a pro se

motion to dismiss his case for violation of the UMDDA. The motion

asserted, in part, that counsel’s withdrawal of the UMDDA petition

on March 31 was “against his request” and constituted an invalid

waiver of his rights, thereby depriving the court of jurisdiction to

accept his guilty pleas. Mr. Yakas did not mention this pro se

motion at the providency hearing, and nothing in the record shows

that the court or counsel knew of its existence when Mr. Yakas

pleaded guilty.

¶ 10 Following the providency hearing on December 15, the trial

court issued an order requesting clarification concerning whether

the motion to dismiss should be ruled on in light of the guilty pleas.

After receiving no response, the trial court denied the motion to

dismiss as moot, on December 21, 2016.

4
II. Counsel’s Withdrawal of the UMDDA Petition Constituted a
Valid Waiver

A. Standard of Review and Law

¶ 11 The UMDDA, which governs the disposition of intrastate

detainers, People v. Slusher, 43 P.3d 647, 649 (Colo. App. 2001),

provides that “[a]ny person who is in the custody of the [DOC] . . .

may request final disposition of any untried indictment,

information, or criminal complaint pending against him in this

state,” § 16-14-102(1), C.R.S. 2018. A parolee in county jail on a

parole violation is in DOC custody for purposes of the UMDDA. See

People v. Gess, 250 P.3d 734, 736 (Colo. App. 2010); Slusher, 43

P.3d at 648-50. The UMDDA’s purpose is to provide a mechanism

for prisoners to timely resolve untried charges that are the subject

of a detainer so that they may proceed with or complete

rehabilitative programs. People v. Higinbotham, 712 P.2d 993, 997

(Colo. 1986).

¶ 12 Once a prisoner requests final disposition, the untried

indictment, information, or criminal complaint must be brought to

trial “[w]ithin one hundred eighty-two days after the receipt of the

request by the court and the prosecuting official . . . .” § 16-14-

5
104(1), C.R.S. 2018. If the matter is not brought to trial within 182

days, “no court of this state shall any longer have jurisdiction

thereof, nor shall the untried indictment, information, or criminal

complaint be of any further force or effect, and the court shall

dismiss it with prejudice.” Id.

¶ 13 A defendant may waive the right to final disposition of an

untried matter within the 182-day period if the waiver is express,

on the record, and made after full advisement by the court. § 16-

14-104(2).

¶ 14 Statutory interpretation of the UMDDA is a question of law

that we review de novo. People v. Adolf, 2012 COA 60, ¶ 9.

Whether a defendant has waived a right is also a question of law

that we review de novo. Stackhouse v. People, 2015 CO 48, ¶ 4.

¶ 15 Finally, where the facts are undisputed, a trial court’s denial

of a motion to dismiss for violation of the UMDDA is reviewed de

novo. People v. Glasser, 293 P.3d 68, 76 (Colo. App. 2011). When

the facts are disputed, we review the court’s decision for an abuse

of discretion. Id.

6
B. Analysis

¶ 16 Mr. Yakas challenges the court’s denial of his motion to

dismiss on two grounds. First, he contends that the

superintendent of the institution where he was confined failed to

comply with the UMDDA’s statutory requirements and that this

failure required the dismissal of the charges against him. Second,

he contends that his purported waiver was invalid and, therefore,

the court lacked jurisdiction on December 15, 2016, to accept his

guilty pleas. We address and reject each of his contentions.

1. Superintendent’s UMDDA Requirements

¶ 17 Section 16-14-103, C.R.S. 2018, provides that

(1) Any request made pursuant to section 16-
14-102 shall be delivered to the
superintendent where the prisoner is confined
who shall forthwith:

(a) Certify the term of commitment under
which the prisoner is being held, the time
already served on the sentence, the time
remaining to be served, the earned time
earned, the time of parole eligibility of the
prisoner, and any decisions of the state board
of parole relating to the prisoner; and

(b) Send, by registered mail, a copy of the
request made by the prisoner and a copy of the
information certified under paragraph (a) of
this subsection (1) to both the court having
jurisdiction of the untried offense and to the

7
prosecuting official charged with the duty of
prosecuting the offense.

¶ 18 Mr. Yakas claims that, upon learning of his UMDDA rights, he

immediately filed a petition invoking those rights “with the Court,

Prosecuting Official, and Superintendent of Parole.” He argues that

the superintendent failed to comply with the statutory requirements

of section 16-14-103(1) that were triggered upon receipt of this

petition and that this violation requires dismissal of the charges

against him. 1

¶ 19 The record does not reflect whether Mr. Yakas sent his

UMDDA petition to the correct person or, if so, whether that person

complied with his or her statutory duties.

¶ 20 Even assuming, without deciding that Mr. Yakas correctly

delivered his petition to the superintendent of the facility where he

was confined and that the superintendent did not perform the

statutory duties required by the UMDDA, we are not persuaded that

dismissal of the charges is an appropriate remedy. See Martin v.

1Mr. Yakas also asserted in his motion to dismiss that the
superintendent violated the notice provision in section 16-14-
102(2), C.R.S. 2018. However, he does not reassert this claim on
appeal, so we do not address it. Cf. People v. Brooks, 250 P.3d 771,
772 (Colo. App. 2010).

8
People, 738 P.2d 789, 793 (Colo. 1987) (“Dismissal is not required

unless the evidence fails to establish that the defendant was not

prejudiced, in view of the purposes of the [UMDDA], by the

superintendent’s failure to send ‘forthwith’ a copy of the defendant’s

request for disposition to the trial court.”); Higinbotham, 712 P.2d at

998-1001; Slusher, 43 P.3d at 650-51.

¶ 21 Our supreme court has determined that a prisoner may invoke

his or her UMDDA rights through either strict or substantial

compliance with the statute. See People v. McKimmy, 2014 CO 76,

¶¶ 20, 23-24.

¶ 22 Strict compliance requires the prisoner to address his or her

requests for speedy disposition to the prosecutor and the court, but

also to send those requests to the superintendent of the facility

where the prisoner is confined. Id. at ¶ 23; see also §§ 16-14-

102(1), 16-14-103(1). The superintendent must then comply with

the requirements of section 16-14-103(1). McKimmy, ¶ 23.

¶ 23 Substantial compliance occurs when, notwithstanding the

superintendent’s involvement, a prisoner substantially complies

with the UMDDA’s requirements and the prosecution receives

actual notice of the request for speedy disposition. Id. at ¶ 24.

9
¶ 24 Mr. Yakas admits, and the certificate of service reveals, that he

sent his petition invoking his UMDDA rights to the court and the

prosecutor. Further, the record contains an email from the

prosecutor’s office acknowledging receipt of Mr. Yakas’s petition and

asking the court to reschedule the arraignment date to align with

the UMDDA’s time requirements.

¶ 25 Thus, even assuming that the superintendent failed to comply

with section 16-14-103(1), we discern no prejudice from the

violation since Mr. Yakas invoked his UMDDA rights by

substantially complying with the statute. See Martin, 738 P.2d at

793; Higinbotham, 712 P.2d at 998-1001; Slusher, 43 P.3d at 650-

51.

2. Counsel’s Waiver of UMDDA Rights Was Valid

¶ 26 We begin by agreeing with Mr. Yakas that the court erred in

finding his motion to dismiss was moot based on his guilty plea.

The failure to bring a case to trial within the UMDDA’s required

182-day timeframe automatically divests a trial court of jurisdiction

over the matter, see § 16-14-104(1); therefore, such an issue is not

mooted by the entry of a guilty plea, see Gess, 250 P.3d at 736.

Nevertheless, we may affirm the judgment on any ground supported

10
by the record. See People v. Garcia, 2012 COA 79, ¶ 62. So, we

address his contention that counsel’s withdrawal of his UMDDA

petition on March 31, 2016, was not a valid waiver of his rights.

¶ 27 We requested supplemental briefing related to this issue.2 The

parties agree that waiver and withdrawal are synonymous, and that

counsel’s actions at the March 31 hearing should be treated as an

express or attempted waiver of Mr. Yakas’s UMDDA rights.

Because the March 31 hearing transcript shows that counsel

expressly waived Mr. Yakas’s UMDDA rights on the record, we must

decide (1) whether UMDDA rights can be waived by counsel or must

be personally waived by the defendant; and (2) whether counsel can

waive section 16-14-104(2)’s advisement requirement.

¶ 28 We first conclude that a defendant’s UMDDA rights can be

waived either by the defendant or by counsel. See People v. Bryant,

2013 COA 28, ¶ 12 (recognizing that either the defendant or

counsel may waive UMDDA rights); see also People v. Newton, 764

2 We asked three questions: (1) whether there is a difference
between withdrawing a UMDDA petition and waiving UMDDA
rights; (2) if there is a difference, whether counsel withdrew the
petition or waived Mr. Yakas’s rights on March 31; and (3) what
effect, if any, Mr. Yakas’s presence and silence had on counsel’s
withdrawal or waiver.

11
P.2d 1182, 1187-88 (Colo. 1988) (recognizing, under the Interstate

Agreement on Detainers Act (IAD), that either the defendant or his

attorney may waive a defendant’s right to speedy trial); Sweaney v.

Dist. Court, 713 P.2d 914, 918 (Colo. 1986) (noting that the policies

underlying the UMDDA and the IAD are the same). Therefore, we

reject Mr. Yakas’s assertion that UMDDA rights can only be waived

by a defendant personally.

¶ 29 A criminal defendant is guaranteed certain constitutional

rights that “are so inherently personal and basic that fundamental

fairness of a criminal trial is called into question if they are

surrendered by anyone other than the accused.” People v. Curtis,

681 P.2d 504, 511 (Colo. 1984); see also New York v. Hill, 528 U.S.

110, 114 (2000) (“For certain fundamental rights, the defendant

must personally make an informed waiver.”); United States v. Olano,

507 U.S. 725, 733 (1993) (“Whether a particular right is waivable;

whether the defendant must participate personally in the waiver;

whether certain procedures are required for waiver; and whether

the defendant’s choice must be particularly informed or voluntary,

all depend on the right at stake.”). “For other rights, however,

waiver may be effected by action of counsel.” Hill, 528 U.S. at 114.

12
¶ 30 While the intent of the UMDDA is to render the constitutional

guarantee of a speedy trial more effective, the rights afforded under

the UMDDA are not fundamental constitutional rights requiring

personal waiver by a defendant. See People v. Anderson, 649 P.2d

720, 722-23 (Colo. App. 1982) (An extension of the UMDDA’s

deadline did not require the defendant’s personal consent because

“[t]his case does not involve the question of whether defense

counsel may waive his client’s constitutional right to a speedy trial

without his client’s consent.”); State v. Hinojosa, 798 N.W.2d 634,

637 (N.D. 2011) (“The [UMDDA] creates ‘a conditional procedural

statutory right’ and ‘is not the equivalent of a fundamental

constitutional right requiring the personal waiver or consent of the

defendant to be effective.’” (quoting State v. Carlson, 258 N.W.2d

253, 258 (N.D. 1977))).

¶ 31 Instead, “waiver of rights under the [UMDDA] is to be governed

by the words of the statute.” Anderson, 649 P.2d at 723. Section

16-14-104(2) contains no language requiring a defendant to

personally waive his or her rights. And we may not add such

language. See Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007).

13
¶ 32 Furthermore, because “[t]he UMDDA’s counterpart governing

interstate detainers, the Interstate Agreement on Detainers [IAD],

embodies similar policies to those in the UMDDA,” “the principles

applicable to the IAD may be applied to the UMDDA.” Slusher, 43

P.3d at 649. As relevant here, courts have held that counsel can

waive a defendant’s rights under the IAD. See Hill, 528 U.S. at 114-

15; Newton, 764 P.2d at 1187-88.

¶ 33 Therefore, we conclude that a defendant’s UMDDA rights are

not among the fundamental rights that require personal waiver by

the defendant and that counsel here possessed the authority to

waive Mr. Yakas’s UMDDA rights at the March 31 hearing. See Hill,

528 U.S. at 114; People v. Baird, 66 P.3d 183, 190 (Colo. App. 2002)

(“A statutory right may be waived by counsel’s statements.”).

¶ 34 Having concluded that counsel may waive a defendant’s

UMDDA rights, we must next decide whether counsel can also

waive the advisement requirement of section 16-14-104(2).

Consistent with our supreme court’s holding in Finney v. People,

2014 CO 38, ¶¶ 15-17, we conclude that counsel’s waiver of the

required advisement, in Mr. Yakas’s presence, was permissible and

14
effected a valid waiver of his UMDDA rights. See also Hill, 528 U.S.

at 114; Baird, 66 P.3d at 190.

¶ 35 A defendant who invokes his rights to a speedy disposition of

untried charges is entitled to the procedural safeguards conferred

by the statute. Cf. Finney, ¶ 15. As relevant here, section 16-14-

104(2) provides as follows:

(2) Any prisoner who requests disposition
pursuant to section 16-14-102 may waive the
right to disposition within the time specified
[182 days] in subsection (1) of this section by
express waiver on the record after full
advisement by the court. . . .

(Emphasis added.) And as recognized by a division of this court in

People v. Carr, 205 P.3d 471, 473-74 (Colo. App. 2008), these

safeguards preclude an implied waiver of UMDDA rights — any

waiver must be express and on the record. Nevertheless, counsel

may waive a defendant’s statutory rights and such a waiver must

only be voluntary, not knowing or intelligent. Finney, ¶ 16 (listing

cases finding counsel’s conduct waived a defendant’s statutory

rights).

¶ 36 In Finney, the defendant’s challenge to the revocation of his

deferred judgment was premised on the court’s failure to advise him

15
of the penalties associated with revocation under section 16-11-

206, C.R.S. 2018. Id. at ¶ 15. Similar to the UMDDA, section 16-

11-206(2) contains language stating that “the court shall advise the

probationer of the charges against him and the possible penalties

therefor.” The court held that plea counsel’s waiver of the

advisement, in Finney’s presence, constituted an express and

voluntary waiver of this penalty advisement. Finney, ¶ 17.

¶ 37 Here, the record reflects that counsel advised the court and

the district attorney by email that Mr. Yakas intended to withdraw

his UMDDA petition. At the hearing, the court asked whether this

remained Mr. Yakas’s intent, and counsel responded that it did. At

no time did Mr. Yakas express any disagreement with counsel’s

representation, nor did he voice an objection to the petition’s

withdrawal. See People v. Rodriguez, 209 P.3d 1151, 1160 (Colo.

App. 2008) (“[I]t was incumbent upon [the] defendant to press for a

definitive ruling before being able to claim on appeal that the court

somehow erred.”), aff’d, 238 P.3d 1283 (Colo. 2010); People v.

Anderson, 70 P.3d 485, 487 (Colo. App. 2002) (where defense

counsel asked the court to take action that was contrary to the

defendant’s wishes, any objection thereto may be abandoned by the

16
defendant’s failure to press for a ruling); see also People v.

DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001) (stating that at a

providency hearing, the defendant had the affirmative obligation to

ask for clarification if he did not understand the plea agreement).

¶ 38 We are not persuaded that paragraph 4 of the petition,

precluding a waiver by counsel, requires a different result. Mr.

Yakas cites no authority to support that it does, and, as noted, he

had ample opportunity to bring his intention expressed in the

paragraph to the court’s attention at the hearing. Therefore, as in

Finney, we hold that counsel validly waived section 16-14-104(2)’s

advisement requirement. 3 As well, because Mr. Yakas waived his

UMDDA rights, the trial court had jurisdiction to accept his guilty

pleas.

III. Conclusion

¶ 39 The order is affirmed.

JUDGE FOX and JUDGE WELLING concur.

3 We do not address Mr. Yakas’s argument, raised for the first time
in his reply brief, that any waiver, if valid, was not voluntary. See
People v. Grant, 174 P.3d 798, 803 (Colo. App. 2007).

17