People v. Cardenas
62 P.3d 621
Colo.
2002
Check Treatment

*1 In re The of the State PEOPLE Colorado, Plaintiff,

Benjamin CARDENAS, Defendant.

No. 02SA236.

Supreme Court Colorado. 18, 2002.

Nov. *

Rehearing Jan. Denied Adams,

Mark Attorney T. District R. Ja- Richards, Deputy Attorney son District Ster- Colorado, ling, for the Plaintiff. Sterling, Colorado, Janet D. Zimmerman for Defendant. Opinion

JUSTICE RICE delivered the the Court. proceeding original

This C.A.R. currently pend- arises out of ing in Logan County issue is Court. The whether the state must at its own serve as a translator for out-of-court discussions be- tween a defendant and his did hold that trial court not abuse its refusing er for Defendant under circum- stances of this case.

I. AND FACTS PROCEDURAL HISTORY Defendant, Cardenas, Benjamin pled Logan County Court to one count driv- (DUI) ing under the influence and is current- ly awaiting sentencing. At the time his * grant Justice HOBBS and Justice MARTINEZ Petitions.

622 by attorney. that the represented an We conclude taken, was not he was However, answer is no. his case came be- when sentencing, Zimmer- for Janet fore the court 18-1- Defendant relies section bono, man, representing Defendant 403, argu of 6 in C.R.S. appearance on his behalf.1 entered her interpreting that ment out-of-court Spanish-speaker section, is a who Defendant provided. that the Gen English. Ms. Zimmer- speaks Because expressed pro no Assembly its intention to eral Spanish, speaks she has been unable indigent legal represen man no defendants with vide communication with expense: substantive at tation state only regarding her client. Her information persons charged indigent who [A]ll from her discussions the ease was derived for the of a crime with held commission friends, appar- one Defendant’s who of legal representation and are entitled ently speaks English. some expense, supporting services at state in provided in for extent and the manner sentencing hearing, Zimmerman no- At the 21, 2 articles 1 and of title that Defendant’s tified the court her belief (2002).2 § In Defendant’s 6 C.R.S. plea by was the state and was coerced legal representation the cost involuntary. therefore being by Ms. supplied Zimmer- is language herself and barrier between man, only pay need for the cost of state Defendant, could not learn sufficient de- services,” namely, the “supporting cost of case in tails about the order determine interpreter, private interpreter. Without whether Defendant’s should be with- Defendant, argues Zimmerman that drawn. Rather than hire and for competent unable order her in investi- in to assist representation will therefore be de- gating surrounding circumstances Defen- prived constitutional the assis- plea, requested dant’s Zimmerman that the tance at trial court an inter- state preter capacity. in trial to serve that The in Defendant is correct his assertion that request. The court denied Zimmerman’s all have a fundamental to be defendants court, however, sentencing during pros continued ecution, arranged date and to be that defendants are solely hearing appointed the next entitled to have at the Const, purpose proceed- translating in-court art. of the state. See Colo. petition II, 16; 582, ings. pursuant People, § Defendant filed Allen Const, VI; (1965); this a rule to C.A.R. 21 and court issued amend P.2d U.S. Gid discharge the rule. Wainright, show cause. We now S.Ct. eon 372 U.S. (1963). 792, 9 L.Ed.2d II. ANALYSIS Although indigent entitled defendants are state-paid sup- in case is the narrow The issue this the trial court abused its Defendant fails notice failing phrase pro- provide, discretion in at state ex last in section 18-1-403 which pense, only, private interpreter out- vides is “to translate such in of-court in the discussions between Defendant extent and manner initially application by public Ms. told the court that she defender's only entering appearance,” finding a "conditional office must make and that her further would be condi- involvement before defendant is entitled to tioned translator. sentation defender. The Defen- accept court stated that it a condition- dant, been declared to be has al or Ms. Zim- limited therefore currently pending Logan Coun- unrelated case general appearance as merman entered her ty District Court counsel for Defendant. did not defender this defender in 2. We there in this note that has been case. is, fact, indigent. Pursu- that Defendant (2002), upon ant 18—1— articles 1 and C.R.S.” trial title Assembly General facts of this ease. agency charged provid-

has created encourage lawyers engage ing legal representation indi- and services to gent defendants: the office *3 However, we found no have statute or case -106, § to defender. See 21-1-101 which would us to lead conclude that the trial (2002). Pursuant to section court abused its discretion in refusing to office, defender’s appoint an interpreter for the Defendant. upon application from is re- quired to make determination that III. CONCLUSION he obtain defendant is before the services that office. The trial court did not abuse its discretion refusing private appoint interpreter to ap In this has not Defendant Accordingly, Defendant. the rule to plied for the services of the defender. discharged. show cause is Instead, represented by he chose to be Ms.

Zimmerman. While legal representation to right has the Justice dissents HOBBS and Justice supporting joins services at state he does MARTINEZ the dissent. pick attorney not have the of his HOBBS, dissenting: Coria, People choice. See 937 P.2d 386 Shook, (Colo.1997); 339, People v. respectfully I dissent. Our rule to show (1974); People, 627 P.2d 816 Valarde required briefing response cause (1965). 375, Colo. 399 P.2d 245 If Defendant following question: pay wants the state the costs of his attor Whether the court has discretion to services, ney supporting only his choice appoint translator for an client public defender, represented by is to be represented by attorney bono conflict, state-appointed or in the of a added). (emphasis in a criminal case.1 alternate defense counsel. See 21-2-101 my view, In court erred in -106, certainly While he determining that it did not has a Zim Ms. to assist Cardenas in merman, obliged the state is not communications his representation. costs of that guilty plea, When entered his Cardenas addition, points Defendant to Chief was without assistance of counsel. (amended Aug. Justice Directive 90-01 only interpreter available to him the 2001), his view the trial court plea proceeding a law enforcement em- appointed should have a translator. Chief ployee. Recognizing legal a factual and basis represent an expression Justice directives possible guilty plea, for a withdrawal of the policy, given Judicial Branch full force attorney Janet Zimmerman volunteered to and effect in matters of court administration. represent she could have the See the State Court Adm’r v. Back Office of help services of a certified translator Servs., ground Inc., 994 P.2d Info. privileged attorney-client communication. (Colo.1999). Defendant reads 90- directive permitted general ap- court her expression policy regarding pearance but determined that it lacked au- hiring interpreters, broadly much more thority Cardenas and directive, than we do. Pursuant out-of-courtroom only situation which the state-paid interpreter mandatory is for Rather, translation proceedings. of in-court The di ruled that court rective, conclude, we obligated defender’s office is Majority rephrases question 1. The state: lator for out-of-court discussions between a de- attorney." maj. op "whether the at its own ex- See fendant added). pense, (emphasis trans- serve at-. indigency court to determine the persons; sent indigency purposes providing a determination cannot make office; defender’s independent of the beyond the in-courtroom cannot choose that defendant er: pay for attor- court to then may appoint, The court authority requir- ney; there is no any party to an additional interpreters or other ing the to furnish a court case when there is attorney making experts to assist (See to that individual. 13- rep- determination whether C.R.S.)(See 90-114 also Colorado Judicial a potential client. resent 17.2). Department Ch. Fiscal Procedures to con- sought hallway, in the courthouse *4 fer with Cardenas 90-01, 2, as Directive Section Chief Justice judicial rebuked district’s administrator added). (emphasis The Amended 8/16/01 through letter which stated Zimmerman a statutory parenthetical lan- reference pays in- Department that “The Judicial duty is to of the state guage the rule interpreting.... a conve- language court As the accounts of court administrator audit interpreter and to eliminate nience to 13-90-114, See minutes, tracking of for a few additional time no distinction This directive makes bargain interrupts court hallway plea that in regard criminal and civil cases between through proceedings paid also mandated is interpreter services.2 additional letter). (emphasis original costs.” prohibit a court The directive not Majority opinion the trial states that determining person is from denying abuse its discretion in court did not services; interpreter’s needs the to the See the services of additional translator. wording contrary, the directive’s assumes county maj. op. at authority. is that courts have such This stage exercising reach its court did not consistent with our determinations. discretion, ruled that it had no because it county previously have held that a court has interpreter allow discretion to authority to make determinations of indi- expense, other than in-court transla- apart gency from the defender’s deci- record demonstrates that both tion. The regarding indigency person be- court administrator when court sion Be- discretion. representation by lieved that courts lack such seeks that office. See applicable Justice Directive Penitentiary, cause the Chief P.3d Rodden Colo. State permits court (Colo.2002) the additional (county had court interpreter at state we re- should ruling indigency its that the to determine may mand this case so that the court indigent precluded person was incarcerated exercise its discretion under informed stan- bond). requiring appeal (1) dards, allowing court deter- my In Chief Justice Directive 90-01 (2) indigency and mine the allows court provide interpreter whether to thought provides it lacked. directive Cardenas and his bono counsel or (1) “may appoint plainly that the court more repre- Cardenas to defender (2) case,” interpreter than one one gain in order translation assis- sentation “may the court tance at state any party additional A. Directive Allows Chief Justice 90-01 finding indigen- is court case when there Interpreter De- for An Additional cy Justice Di- that individual.” Chief Represented Is Pro Bono fendant 90-01, rective Section as Amended 8/16/01. juxtaposition, provides al- directive plainly Directive 90-01 Chief Justice interpreter may county court cost of lows—but does not —the 2. The of in- nile cases. directive requires juve- services in criminal party non-indigent The result ruling assessed is cost: as court wishes where is no In instances there sent Cardenas bono. a holding Such appoint an indigency, may the court addi- deters encourages pro rep- rather than may fees be con- tional whose resentation. pursuant to sidered court costs statute and parties be assessed to the case. actively encouraged pro This court has Id. 6.1; See Colo. RPC Justice Rebecca L. Kour- entirety, When read its this Chief Jus- Judge Taubman, lis & M. Changes Daniel assigns tice Directive the court the deter- Code Judges Judicial Conduct Allow mination the costs addition- Services, Support Legal Pro Bono charged interpreter ought party al to be to a 2000). (May Law. 41 Judges special depending party opportunity obligation posi- to use their indigent. The make that court should deter- justice system, tions to access to our mination of consistent and, vein, they obligation in that have an (2002) Chief use the court’s administrative tools to devel- 98-01, II, Directive Section as Revised 6/1/98. op a supportive court culture that See v. Dist. P.2d Walcott *5 bono service. Id. (Colo.1996). Allowing pay costs, conjunc- the in state pro time, tion attorney with bono matter B. Pro Bono Services reality encourage of attorney economic attorneys professional Colorado re- participation pro in bono Pro service. bono sponsibility not to refuse the cause of the providing legal envisions ser- oppressed. or defenseless compensation, vices without but not neces- reject, any I will never from consideration sarily high individual to the attor- personal myself the cause of the de- ney. attorney provides pro When an bono oppressed. or fenseless service, she demonstrates a commitment to Admission, Supreme Oath of Colorado the interest. WTien counsel aspira- agrees sixth Colo. represent clause. RPC 6.1 states an indigent goal year per per attorney tional hours the burden financial cost off is taken the pursuit responsibility. Nothing in this Allowing state office. defender’s indi- “persons 6.1 gent Colo. RPC states that the support defendants receive limited from they means” would benefit this at the state’s even when private counsel, by encourages cannot be a defen- 6.1(a)(1). dant. See RPC provide Colo. counsel to the service and saves the attorney’s state the cost of fees. county prohibited Nor ais from ac- cepting Nothing statutory prohibits the bono attor- in our law ney in a support criminal case state funded translation services required. county proceed pri- services would be defendants accept appearance, Further, allowing court need such vate indigent person the is not entitled to defendant to have ser- by vices, state, particular attorney, paid by give but for the would not court, it has discretion to do so. The the defendant the to choose us, recognized charge representa- the the case before so enter- then state for the But, ing attorney appearance. responsible Zimmerman’s tion. The state would not be for impres- attorney’s mistaken the An court labored under the fees. required paid sion that had state it to make a would still be to obtain attorney representation through determination attorney out-of-courtroom defender’s office. The decision that might effectively attorney’s indigent’s need to will not fees for an sup- sent Cardenas. counsel of choice does not during provided interpretation governed ratio- port same services paid proceedings inter- plea was uncertified nale as Furthermore, state funded preter, state. a witness Cardenas defendants would pending services for district court and is another necessity for an by the standard controlled employed by the Victim’s Assistance Coordi- adequate defense. Logan County nator for the Sheriffs Office. Undoubtedly, not be Torres could considered County Allow Court Remand Would C. a neutral facilitator aid Cardenas’ under- Exercise Its Discretion standing implications. of his choices and their attorney’s of of- oath Consistent with I would court to exer- rule, aspirational I con- fice county court could cise its discretion. The this remand case to clude that we should indigent and determine whether Cardenas is court, it so that determine of an addi- certified whether out-of-courtroom interpreter, tional accordance with just aid resolution of er services will Directive, purpose Chief first court. The court could case before the permitting proceed the as- proceed with in-courtroom deciding sistance benefit whether Cardenas would determine whether to move withdraw his from Zimmerman’s alternative, sentencing. proceed to In the interpreter. and the additional court could that Carde- determine so, If make the could nas must defender’s office not, If it could de- representation if he wants out-of-court cline to so. do interpreter assistance at state underlying appears in this issue has a for with- to be whether Cardenas basis Contrary assumption, *6 plea. ini- drawing was (2002), provid- 6 tially driving influ- charged with under the ing public a deter- defender make ence, se, per influence driving under the preclude indigency, mination of the charges on other traffic incident two proceed court’s discretion under the di- February 25, Because blood 2002. Cardenas’ (2002), 18-1-403, rective. Section 6 C.R.S. positive the test to show result for failed precedent provide and case for the exercise tested, illegal the district attor- substances providing of court discretion state funded dismiss, ney’s a motion to and the office filed indigent services subsequently dismissed the DUI Court charges. per during the DUI se indigent 18-1^403 states that all Section traffic first on the offenses on persons charged with a crime are entitled to 22, 2002, May granted the court the district legal supporting services attorney’s charges motion to amend the 18-1-403, expense. at state driving to include a under defendant legal necessarily If included (DUID) drugs charge. The the influence of supporting all out- services and services persuaded plead guilty defendant was available, public the are side defender’s office charge in return for a dismissal DUID Assembly’s the General inclusion of the word remaining charges suspension all de- superfluous. indigent “and” is jail probation. condition Probation fendant is the defend- years. period was to last two office, authority the court has the er’s still responsibility grant sup- to withhold or Defendant was without dur- supporting services. ing plea, the is unclear whether expert, such as an at the state’s defender would assisted Carde- dependent guilty plea jail nas in sen- is not because his Torres, Sally suspended.3 tence the defender. was part penalty, represen- provides Section incarceration prosecuting at state that when a does not seek tation need not

627 (1975) (court Majority narrowly my the too 541 P.2d indigent 1248 denied provide request construes a inter defendant’s preter repre expert to an client failed to show A by pro sought necessary; rep sented were defendant was defender); provide with the defendant basic resented People v. Garcia, adequate Rojem tools to defense. 981 P.2d (Colo.App.1998) 218 (10th Cir.2001) Gibson, 1130,1139 (indigent 245 F.3d pub Oklahoma, 68, 77, defender, (citing requested lic Ake v. 470 U.S. state funds to hire an (1985)). expert, L.Ed.2d 53 Communi request S.Ct. court denied the cation between the and client is failed to show the services of integral Recently, expert effective necessary); People assistance. were v. Tafo (defen appeals People ya, (Colo.App.1985) court of Ochoa- 703 P.2d dant, counsel, Magana, (Colo.App.2001), represented by private P.3d 141 ac re quested knowledged investigatory that the lack of an services at state’s non-English speaking request assist a defendant in the court denied the be attorney-client impair can cause communication there was no the defendant was necessary). assistance constitutional effective or the services were Indeed, at 143. effective counsel. Id. assis None of these cases base determina- impossible tance of counsel is unless the tion of whether the state should lawyer client can his or her defendant with services on input. intelligent and informed United represents defendant. decision Mosquera, F.Supp. States v. an interpreter, (E.D.N.Y.1993). discretionary provision Directive, applies prem- A three factor test to whether a the Chief Justice should be specific necessary adequate requested for an ised on service (1) including: pri- necessary defense effect to an defense and effec- accuracy if vate of the trial tive of counsel. In this interest assistance (2) provided, speak service burden on is not the Cardenas was unable to his coun- government’s provid- speak sel English interest the service is because he did not and she (3) ed, probable speak Spanish. Consequently, value the addition- did not coun- proceeding al and risk of error in the sel stated service could not determine if provided. Rojem, guilty plea voluntary. if the is not 245 Cardenas’ With- *7 translator, great. out a F.3d focus of test is on risk of error was contrast, pro- whether the defendant be able the burden on state of adequate viding defense without the service, not whether the has cho- Cardenas minimal and the interest state’s defender, in encouraging sen to be se, proceed pro private great. or retain counsel on a

pro bono basis. Accordingly, respectfully I dissent. sup

A determination services should be at the I am authorized state that Justice expense depends necessity state’s joins in MARTINEZ this dissent. service, represents no matter who Price, defendant. See 83 F.3d Matthews (10th Cir.1996) (indigent counsel, is entitled to appointed expert only if he shows such necessary

services are to an de

fense); Brown Dist. Colo: