*1 III. Conclusion trial court abused its that the conclude

We produce ordering Cameron

discretion establishing without inspection laptop truth-seeking pur-

parameters to balance privacy interests discovery with the

pose of rule make the in this case. We stake proceed- and remand the case for

absolute opinion.

ings consistent with Petitioner, REYES,

Efrain Torres

The PEOPLE State

Colorado, Respondent.

No. 07SC658. Colorado,

Supreme Court of Banc.

En 3, 2008.

Nov.

degree child, sexual assault on a felony me- nacing, degree assault, and third for which he was sentenced to three consecutive life in prison, plus terms forty-eight years. Reyes accomplice and his apparently were looking large for a money they amount of believed to be located on premises. Evi- dence indicated that occupants of the terrorized, home were beaten and and their ten-year-old daughter raped was and sodom- by Reyes. ized Firm, P.C., L. Walter Gerash Law Walter Gerash, Scherer, Denver, L. James F. Colo- Reyes was arrested in 2000 in New Mexico rado, Attorneys for Petitioner. on a federal firearms charge, for which he Suthers,

John Attorney W. Colorado Gen- ultimately was convicted and sentenced to a eral, Chappell, Robert A. term Special forty-eight Assistant months at the federal General, Denver, Attorney Colorado, penitentiary in In April Attor- Florence. arrest warrant was in Arapahoe issued

neys Respondent. Coun- ty, lodged and detainer against by was him Justice Opinion COATSdelivered the During state. the course of the state the Court. proceedings, Reyes produced by was writ in Arapahoe County District Court for vari- Reyes sought review of ap- the court of hearings, ous after a number of which he was peals' judgment People Reyes, in 179 P.3d custody returned to federal in Florence. (Colo.App.2007), which affirmed his con- victions on numerous criminal aris- appearance At his first in state court in ing from a home invasion. Before August Reyes, who was assisted district court denied his motions to dismiss defender, public requested that for various violations of matter give be reset to him opportunity Agreement of the Interstate on private contact a attorney repre- who had appeals upheld Detainers. The court of sented him in past. The district court ruling, finding Reyes effectively reset September advisement anti-shuttling provision prosecution's and with the open assurance in requesting either acquiescing in trans- "try court that it get would fers between custody state and federal dur- time," Reyes back at that was returned to continuances, lengthy numerous custody. federal Reyes brought When was moved for him. Arapahoe September back to he told the court that he had been unable to By asking that he be returned to contact the New attorney Mexico in he had federal disposition before final mind. him, charges against Reyes both waived the protections of the anti-shuttling statute at time, Reyes At that expressly requested, that time and was asserting any barred from court, open that he be returned to federal unobjected-to earlier judg violations. The again in Florence because he would ment of appeals the court of is therefore there, permitted Arapahoe unlike the affirmed. County jail, to long make the distance tele- phone necessary arrange calls private

I. exchange Reyes counsel. After an in which part For his in a 1999 quite home invasion in was insistent that he be returned to Arapahoe County, defendant, custody, Efrain federal the court denied his demand Reyes, degree Torres was convicted of first him try get assured that it would assault, kidnapping, sexual degree second attorney Reyes New Mexico to contact in the kidnapping, child, sexual assault on a Arapahoe County jail first and would direct degree burglary, aggravated robbery, accept second sheriff Reyes any and transfer liminary hearing February after days attorney. Four calls from that Reyes's contacting desired attempts

with custody. he returned to federal unsuccessful, again demand- attorney Reyes again brought still Coun- open court to be returned federal ty May ed to confer with counsel and *3 custody. demands were once more re- again His was re- arraigned, be after which he court, jected by express with the district turned to Florence. accommodate to the sheriff to directions 30, 2008, Reyes filed a motion to On June Reyes's to contact both the New Mex- efforts notification re dismiss for violation of the attorney. attorney and a local ico quirement Article III of the Interstate 2002, 8, the state hearing At a on October Agreement on Detainers but failed to as defender, again assisting public who was anti-shuttling provis sert violation of the court's di- Reyes, represented Reyes brought August, ion.2 In when was by the sheriff rections had not been followed County hearings Arapahoe for on back Reyes asking grant- that he be was and motions, argument his IAD mo his and on time and a transfer back to ed additional delayed, (acting the district court tion was point, At that the court penitentiary. federal judge), on own initia through a different its Reyes granted to send back to tive, Reyes ordered that remain Florence, hearing and it set the matter for anti-shuttling possible to avoid a vi Reyes 25. When returned October later, month when the court olation. One hearing, Arapahoe County for the October 25 claim, Reyes's actually heard his Article III counsel, finally court re- still without the court counsel for the first time informed quired eligibility public that his defender anti-shuttling that he intended raise evaluated, it representation be and ordered challenge, previous transfers be based that he not be returned to Florence for one County Arapahoe and Florence. The tween week, attorney during which time the district Reyes held in court then ordered attorney. agreed to contact the New Mexico hearing until the motions week, Reyes following appeared be- 8, 2008. recommenced on October court, again public with the defend- fore the 8, Reyes's counsel filed his On October from the er. After assessments anti-shuttling again first motion and attorney public and defender con- district conjunction speedy trial in with cerning likelihood that the New Mexico continue the October 20 date. The dis- retained, attorney court would ever be ultimately trict the defense mo- court denied appointed public defender and set dismiss, Reyes requested and a fur- tion to preliminary hearing. To accom- matter delay petition ther for intervention this schedule, public modate the defender's denied, eventually petition court. His was preliminary to a defense waived its it, delay during occasioned he was thirty days, hearing hearing within federal again onee transferred back to custo- January was set for 2008. At the time of Florence, dy resulting in a second motion days appointment again several anti-shuttling to dismiss for violation of the public generally that defender asserted provision. Although court ac- the district invoking rights, all the defendant was knowledged that this final transfer violated waivers, revoking any demanding access order, again its denied dismissal as express physical all evidence. remedy. November, Reyes again Later in re- convictions, appeal Reyes On direct of his Florence; and on December turned to assigned to the denial of both motions error private the local counsel entered violations. The dismiss appearance place public defender rejected challenges, appeals court of these immediately pre- moved to continue the finding the statute's anti- liminary hearing again. Reyes brought that he had waived two-day shuttling protections by requesting numerous Arapahoe County pre- back to for a 24-60-501, (2007). 24-60-501, III(b), § art. C.R.S. 1. See art. C.R.S. See continuances, IV(e). during which he either ex- waived his under Article Boze pressly requested acquiesced in his return 156-57, man at S.Ct. 2079. penitentiary to the federal in Florence. general reliance on the pre rule that Reyes petitioned then for further review in availability sumes the see United court, by writ of certiorari. Mezzanatto, 196, 200-201, States v. 513 U.S. (1995), 180L.Ed.2d 697 of even defendants, most basic of eriminal

IL. States, see Peretz v. United Agreement The Interstate on Detain- (1991); 115 L.Ed.2d 808 compact, ers is a entered into the federal and the court's determination that government states, and the vast contemplates degree party control that *4 24-60-501, § including Colorado. See C.R.S. is consonant background with the presump (2007). Agreement pro creates uniform waivability; Supreme tion of Court had lodging executing cedures for detainers earlier found a valid waiver time limits prisoners in other states to ensure nothing of Article III from more than de they they will be held until can be tried on agreement fense specified counsel's to a de outstanding charges. Alabama v. lay in the trial date. See New York v. 533 U.S. 121 S.Ct. 145 L.Ed.2d 560 (2001). L.Ed.2d 188 Article III of the (2000). Similarly, (along we with a number Agreement gives prisoner against a whom a courts) of other state and lower federal have lodged right detainer has been long held that IAD nonjurisdie- are disposition a final charges; of the relevant subject tional and nonconstitutional and are gives jurisdiction and Article IV in which waiver, voluntary without need for a right remain untried the to have the showing that the waiver was concomitant prisoner made available for trial. Id. at 149- knowing intelligent. People See invoked, 121 S.Ct. 2079. Onee each arti Moody, (Colo.1984); see, 676 P.2d different, provides specific, cle a but time Nonahal, e.g., State v. 241 Wis.2d frame within which trial must be had. (App.2001) (finding N.W.2d statutory are in nature and are waived (which policy For various reasons remain if prisoner requests procedure a inconsis unclear, to some extent see id. at tent provisions). with the statute's 2079), each article also contains what "anti-shuttling has come to be known as an Nothing in either the statute itself provision," prohibiting prison- the return of a waivability or the generally, notion of howev sending er to the completion state before er, permits prisoner jurisdic a to dictate the initially the trial for which he was trans- tion of his or location of his confine (e) particular, ferred. specifies: Article IV ment. To the extent that the anti-shuttling benefit, prisoner exists for his a any indictment, If trial is not had on infor- prohibition against waive the statute's mation, complaint contemplated or hereby pre-trial state; sending return to a prior prisoner's being returned to so, doing acquires greater right, no original place imprisonment pursu- actually demand his return to the V(e) hereof, indictment, ant to article such state, when, information, or complaint shall not be of much less to demand his return when, only only as, long or for as it suits his effect, any further force or and the court purposes. By waiving protections of the shall enter dismissing an order the same applicable anti-shuttling provision, a defen prejudice. with merely dant relieves the trial court of a 24-60-501, art. C.R.S. While statutory obligation to dismiss if he is re interpreted Court has this lan- trial, by turned before which it would other guage upon premature to mandate dismissal wise be bound. return, regardless brevity of the re- error, turn or Similarly, harmlessness of the it has also whether or not a defendant expressly noted that receiving might a state is not also retain sufficient control be able returning barred from expressly who has limit the nature or extent (1959) ("The wish, recognized in a if that be his rule number jury nothing in statute or the notion of waiver is that onee a waiver of trial has cases statutory suggests matured, that a itself defendant's not withdrawn the waiver be in a until his right-to remain party."). one If for no at the insistence of trial-automatically into effect springs back orderly scheduling than other reasons to that state for each time he is returned proceedings, administration onee a proceedings prosecution. in the same further waived, effectively has been waiver contrary, purporting rather than On the can re- be revoked returning a prohibit state from claimed in the discretion of the court. particular proceedings defendant after might, or not a court under some Whether events, protects the statute a defendant cireumstances, have set of be held to abused against him requiring prosecution that the refusing permit its discretion a defen- upon his return to the dismissed dant to reclaim the of the anti- state, any point prior to his trial. time shuttling enough provision, here that By voluntarily requesting that he be re- could occur in the such abuse com- more, a turned before his without de- plete absence of a motion to revoke the de- simply fendant does not waive ruling fendant's waiver and an adverse particu- assert a violation of the statute for *5 by the court. transfer; statutory protec- lar he waives the 27, 2002, by September At least when against premature return and its manda- tion Reyes brought County was tory sanction of dismissal. time, District Court for the second it is un- Finally, nothing in while the statute only disputed requested, that he not in precludes concept or the of waiver itself demanded, Florence, fact to be returned to withdrawal, revocation, subsequent of a or Arapahoe County rather than in remain anti-shuttling provision, waiver of the even months, jail. Over the next nine he was typi waivers of fundamental trial are brought to state court and returned to feder- cally subject not to revocation as a matter of and, custody frequently al on a number 28(6) right. (prohibiting See Crim.P. defen occasions, at his own insistence. He failed to withdrawing voluntary dant from and know object allege or a violation of the anti-shut- ing jury right, waiver of trial as a matter of tling provision year until more than a allowing only permission with 8, on October Price, court); 1190, People v. 903 P.2d 1192- defendant, arguably, attempted even (holding (Colo.App.1995), 93 cert. denied that only to revoke his earlier waivers on one grant compelled court is not eriminal de public occasion. defender was When fendant's to withdraw valid waiver of him, briefly appointed represent counsel counsel); Sewell v. Jefferson generally asserted that the defendant was Ct., (6th 461, F.2d Fiscal 863 466 invoking rights, revoking any all of his waiv- Cir.1988)(relying on Hanlon v. Providence ers, Coll., (1st Cir.1980) demanding physical to all 535, access 615 F.2d 538-39 Nothing general evidence. in this assertion proposition party withdrawing right that suggested to the court an intent to revoke mind); jury may simply change trial not his anti-shuttling the defendant's nor did Servs., Fletcher, Gen. Bus. Inc. v. 435 F.2d (4th 863, Cir.1970); object Gallegos, 864 147 defense counsel to the return State v. custody client to federal thereafter or seek (Utah Ct.App.2006) (holding P.3d 476-77 in appointment that mid-trial of counsel after exercise of the court's discretion this regard. finally When defendant moved by competent valid waiver defendant is with Vincent, alleged for dismissal on October court); in discretion of State v. 137 (Ct.App.2005) N.M. 112 P.3d 1133 specif- the earlier returns were done without occasion, ic waivers on each but he never (holding assistance counsel waivers; prior moved to revoke his and al- be demanded as matter of after a valid though the district court had then ordered waiver); generally Henry, see H.H. Annota tion, Jury Disregard Withdrawal or Trial that the defendant remain state Action, against possible in Civil 517-19 ensure future anti-shut- A.L.R.2d (hold 659); violation, Moody, tling it never exercised its discre- see also 676 P.2d at 695 any prior permit voluntary); tion to him to revoke waiver that waiver need see statutory protection Nonahal, that he or reclaim (holding at 4 N.W.2d anti-shut earlier waived. tling provision by requesting pro "a provi cedure inconsistent with the statute's Reyes returned to federal cus- When sions"). jurisdiction, long we have time, 3, 2002, tody for the second on October requesting held that a further continuance is insistence. His he was returned his own constituting action voluntary of the IAD's affirmative a waiver of waiver discharge whatever prior for a statutory provision at that time waived his return, speedy trial violation a defendant have right to dismissal for further permitted People, or until he was to revoke had at time. unless See Keller v. (1963); Colo. 387 P.2d see grant- that waiver. The district court never Dumas, ed a motion to revoke the defendant's App.3d also State v. 68 Ohio no such motion ever (1990) waiver because (concurring N.E.2d 933-35 made. prosecutor's for continuance after speedy ability trial violation waived to chal TIL violation); 18-1-405, lenge C.R.S. cf. (codifying aspects principle generally Reyes of this

Arguably, protec- also waived the by specifying that anti-shuttling provision assertion of tion of the IAD's court, appearance his first even violation is waived unless raised before though express the record does not reflect an motions, pre-trial guilty pleas). to be returned to federal anti-shuttling provision protects a de- time. He was returned to Florence by entitling fendant him to remain in the following appearance only upon his first *6 state, receiving being rather than returned to request own for more time to contact and sending prior state to trial. A to attorney represented retain an who had him state, sending any be returned to the made past only upon in the and the assurance of trial, clearly protec- time before waives that court, prosecutor, open that he would prefers If tion. a defendant to be returned try to have the defendant returned for the pending to the of the state

rescheduled date. advisement Whether or trial, may of course to waive his acceptance not a defendant's and of a premature dismissal for a return and continuance under these cireumstances could transfer; so, doing a such he takes voluntary a amount to waiver of the anti- action in affirmative direct conflict with his shuttling provision, enough it is here that receiving pending to remain state Reyes' subsequent express prior to might trial. Whether or not the defendant objection return, any to his was sufficient otherwise have been entitled to dismissal for asserting any prior bar him from violation. deprivation right, subsequent of that his precise Whatever rationale that protections waiver of the of the statute also IV(e)'s signatories agree led the to Article initially previous waives his assert a Bozeman, anti-shuttling provision, see 533 violation. 154-46, clearly at U.S. S.Ct. requirement dove-tails with the article's

speedy disposition, onee a in state IV. statutory prerogatives. vokes its Arti Like By requesting that he be returned to fed- 120-day bringing cle time limitation on a IV's disposition eral before final anti-shuttling protec defendant its him, charges against only the defendant not voluntary tions be waived a act with Bozeman, waived the they are inconsistent. See 152-53, 2079; 533 U.S. S.Ct. 156-57 at that time from statute but also was barred any unobjected-to asserting earlier returns. (analogizing anti-shuttling provision waiver of judgment appeals The of the court of speedy provi to waiver of article trial III's 114-15, sion in therefore affirmed. dissents, system by simplified lodging detainer Justice BENDER and Chief groundless and bad-faith detainers. Justice MULLARKEY and Justice join in MARTINEZ. the dissent. Recently, the United States IV(e) Court held that article is to be inter BENDER, dissenting. Justice strictly literally require preted and dis that, majority The concludes under prisoner's missal of criminal when ("IAD"), right of no return is violated. Alabama v. Agreement Interstate on Detainers requests Bozeman, who a transfer defendant back sending state on a one-time basis and for (holding that no de L.Ed.2d 188 (e) securing exists, and, limited the counsel of exception to article minimis IV thereby choosing, waives violations of therefore, day a transfer for even one vio arising the IAD from transfers agreement). Although lates the this is a 663, 665-66, Maj. requested op. transfer. Congress may relatively new case and Moreover, that, majority 667. concludes I change this construction of article single after a waiver as to transfer has compelled apply feel the Court's mandate respectfully made, and dissent. thereafter be been defendant shuttled back and forth between the receiv- indefinitely, and states even though requested the defendant has neither procedures creates uniform subsequent nor consented to these transfers. executing lodging and detainers. Maj. op. at 665-66. The also 146, 121 A 583 U.S. at S.Ct. 2079. detainer concludes that when a defendant's motion to legal requires is a order that a state to hold a granted continue the trial is the trial court currently imprisoned individual when he has state, waives, in the serving finished his sentence so another retroactively prospectively, both may try him for a different crime. Id. rights, provi- under the Agreement attempts remedy "The the dis IAD, sion article IV of the but under the advantages hardships imposed upon pris no return of that article as well. oners with the use of attendant detainers Maj. op. at 666-67. potential to eliminate abuses of the detainer Dixon, system." United States v. 592 F.2d concept introduces *7 Cir.1979). (6th provi The central IAD retroactive waiver into the for the first III sions of the are articles and IV. Id. jurisdictions construing time. Cases of other procedure Article III forth the sets support concept. the IAD not do this new by prisoner against which a whom a detainer types concludes that the of lodged speedy disposi has been can demand constituting defendant conduct a waiver of charges giving tion of the rise to the detain- IV, protections the of article the provides by er. Id. Article a means which IV days trial within after arrival the prosecutor lodged a who has a detainer jurisdiction receiving the not to be jurisdiction against prisoner in another can returned to the trial on state before custody prisoner temporary secure of that outstanding charges, are identical. This disposition outstanding charges. for the of conclusion conflates the distinct nature of Id. rights. Finally, these two con- express statutory grants separate travenes the command of Article IV of the IAD two "agreement prisoner against article IX of the IAD that of one state liberally lodged by shall be construed so as to effectu- whom a detainer is another state. 24-60-501, IV, art. These C.R.S. ate purposes." purposes its of the no (1) encouraging charging jurisdic- return triggered include: ex- are pedited outstanding charges temporary custody resolution of tion's against prisoner by requiring resolving prisoner purpose for the of expense housing against him. pending state bear the Id. Article IV(c) prisoner prior protecting provides that "trial shall be commenced prisoner prosecutorial twenty days from abuse of the within one hundred of the arriv- establish, al in the state." the facts the defendant was trans- IV(e), Supreme despite having request- Article referred to ferred five times grants ed those provision," the "no return transfers. Court as prisoner: to the different sentencing After on federal criminal indictment, any If infor- trial is not had on charges, the defendant was incarcerated at mation, complaint contemplated hereby or USP-Florence. While the defendant was prisoner's origi- return to the sentence, to the serving Arapahoe his federal Coun- place imprisonment pursuant nal to ar- ty lodged a detainer with federal authorities V(e) hereof, indictment, ticle such infor- against him. Because the defendant was mation, complaint serving shall not be of his federal sentence at the time it effect, lodged, further force or and the court shall was of the IAD were dismissing triggered. an order the same with enter

prejudice. transported The defendant was first 27, 2002, Arapahoe County provision, August It is article the no return one day case, appearance before his in issue in this and not first in district article hearing, court. At this the defendant re- TV(e)'s provision. quested continuance, a trial which the court disposition Also relevant of this case granted, but he did not ask to be remanded IX, provides "agree is article to USP-Florence. The trial court neverthe- liberally ment shall be construed so as to less remanded the defendant to USP-Flor- purposes." effectuate its The IAD is a feder ence. construction, subject al law to federal and we Approximately one month the defen- are bound the decisions of the United again transported dant was States Court. 149,121 September appear- S.Ct. 2079. ances in September district court on Oc- mind, background this I With review tober and October 8. At the first of these some of the facts relevant to this case. appearances, stated that he had been unable to contact his New Mexico IL. attorney Arapahoe County jail because the long did not have distance service. He re- that, The record reveals while the defen- USP-Florence, quested return to so that he dant was transferred from state would be able to call the New Mexico attor- times, federal six one those ney. request. The court denied In- request. transfers was made Most stead, attorney the court ordered the district importantly, requests the defendant made his attorney to call the New Mexico to be sure particular solely for this transfer for the represent that he intended to the defendant. contacting attorney another The court further directed the sheriff to ad- state. His for transfer was necessi- *8 jail expect the vise staff to a call from New jail's obey tated the failure to the trial Mexico and to allow the defendant to receive jail directing court's order the staff to allow the call. phone the defendant access to retain counsel. 1, 2002, however, 1, November appearance, On counsel was At the next on October defendant, and, 2002, appointed represent to requested the defendant transfer back therefore, requests jail he no further county made to be to USP-Florence because the was penitentiary returned to the federal in Flor- him permitting phone to make calls free- denied, ly. again, request ence, ("USP-Florence") Onee this Colorado after that judge the trial Nonetheless, ordered the defendant be date. the trial court trans- ferred the permitted phone defendant four more times after to make local calls order Moreover, very 1. Finally, November first trans- to obtain local counsel. on October custody fer of the defendant from state back 3, that he defendant informed the court being permitted was still not to make local 28, custody August to federal occurred on 2002, calls, request phone jail comply- before the defendant's first and that the was not 27, Thus, September transfer on 2002. as with the order of court's earlier October

670 waivable."). explained that benefit and is Courts hearing, dant's]

1. At the sheriff generally agreed that waiver occurs made and the defendant have a mistake had been prisoner requests to inadvertently phone access. under the when had been denied request to be be treated in a manner inconsistent with the The defendant reiterated purpose particular provision to USP-Florence for the transferred Hill, 114, granted retaining agreement counsel. The trial court at issue. 528 U.S. at of cases). request (collecting and the defendant was remanded In the con 120 S.Ct. 659 6, 2002. to on October provision, USP-Florence text of the no return prisoner transferred back to the be was transferred back to The defendant sending repeatedly state has been held to be and, County in at a late October type of "inconsistent" conduct that con 1, 2002, trial court hearing on November See, Keohane, eg., stitutes waiver. Webb v. public represent defender appointed (7th 413, Cir.1986); 415 v. 804 F.2d private determining after the defendant (9th Black, 1330, Cir.1979); 609 F.2d forthcoming. public counsel was not Eaddy, v. 595 F.2d United States all purported defender to revoke waiv- (6th Cir.1979); Vinson, 712; S.W.3d made the defendant. At this ers (Ala. State v. 638 So.2d 1379-80 point, retaining private counsel was because Crim.App.1993); People Browning, issue, made no longer no the defendant Mich.App. 306 NW.2d 334-35 requests for transfer. further suggested Court has Nevertheless, was returned defendant might permitted that a state four additional times over a USP-Florence prisoner transfer a back to the state period twenty three months. He was mutually before trial "when it would be ad custody on transferred from state to federal vantageous prisoner accordingly later, Again, November four months IV(e)." rights under Article waives his on March he was transferred 2079. How S.Ct. 5 custody and returned USP-Florence. ever, when a transfer back to the later, Again, a month and a half he was state before trial occurs and is neither re custody transferred from state to federal quested by nor made for his May again, 2008. And almost seventeen benefit, requires the IAD dismissal of the months he was transferred back to 155-56, 2079; charges. Id. at last USP-Florence on October 2004. This ("Where Browning 306 at 335 N.W.2d object- transfer occurred after the defendant transfer back is not done at the by filing mo- ed to further transfer his first attorney, or we believe that the defendant tion to dismiss the for violation of his charged responsibili state should be with the IAD; apparently, under the this trans- therefore."). ty an "administra- fer occurred as the result of tive error." None of these four most recent case, In this the defendant was returned any way. transfers benefited the defendant from state to federal five They purpose al- were not made for the consent, separate express times without his lowing to obtain counsel or implied. The defendant's to be prepare him trial. enable lim- remanded to USP-Florence was retaining ited counsel because

IIL ability denied the to communicate with *9 state, may rights A defendant waive his under counsel Colorado. agreement's protections request IAD This came after the initial transfer because the Hill, 27, 2002, made, again, August exist for his New York v. which was benefit. See initiative, at the trial court's not the defen- 116, 110, 659, 528 120 145 L.Ed.2d counsel, Brooklyn Savings appointment (quoting 560 Bank dant's. After the 895, O'Neil, 697, 704, 89 was transferred four additional times over v. period twenty-three months. As of No- Vinson, (1945); L.Ed. 182 1296 State 1, 2002, 709, (Mo.Ct.App.2006)("The 712 vember the defendant's need to re- [no S.W.3d longer a and so provision] return ... is thus for defen- tain counsel was no concern [the

G71 that occurred after that the four transfers cases, (Pa.Super.Ct.2001). 683 In these jurisdictions the various that date were made neither for the defendant's held a defen Indeed, validly rights dant could not request. nor at his the rec- waive his under benefit the IAD speedy after the statute's trial time that the most recent of these ord discloses Monroe, transfers, years expired. had example, occurred almost two counsel, that, though court held appointment of was made even after the expressly agreed speedy of an "administrative error." had to waive his as the result held, occasions, rights trial agree, courts have and I that on various he was Our lower enti discharge tled to requires "the that since these [IAD] "waivers" were 180-day consequences oversights period expired of official made after the had adverse already upon prosecution, upon be visited the violation had occurred. 978 Lincoln, Thus, Colo.App. prisoner." People v. So.2d the case law indicates that unwilling recognize 601P.2d courts have been speedy rights retroactive waivers of trial un transfer, majority The holds that the first der the IAD. August which occurred on did not IAD violate the because the defendant compelling reject I can find no reason to right challenge particular waived his this trend in the context of the of no The defendant did not transfer. IV(e). While, return under article I ex- as transfer, nor the record indicate does below, plain recognize I speedy that trial and which acerued to the de- ostensible benefit rights no return should not be conflated in It fendant as a result of the transfer. is required each, terms of the conduct to waive precisely unclear to me what conduct analysis the inconsistent conduct pro- of Hill majority argues constituted waiver of this holding vides no basis for that retroactive subsequent first violation: the defendant's speedy rights waiver is inconsistent with trial transfer, request for which was not made rights. but consistent with no return There- transfer, maj. op. until one month after this fore, I conclude that the defendant's subse- 665-66, 666, 667, for a or his quent request to transfer back trial continuance of the made at first remedy state could not the first violation of hearing, maj. op. I at 666-67. therefore (e) that occurred here. IV arguments address each these below. B.

A. that, majority "arguably," also states respect theory With the retroactive inconsistently the defendant acted with the the de- concludes IV(e) protection no return of article mov- transfer, requests fendant's which oc- grant- for a trial continuance which was time, September curred later in Octo- ed, and therefore waived his not to be 3, effectively 1 and ber October waived his returned to the trial. before August though unilateral transfer on even Maj. op. holding at 666-67. This conflates he made no for transfer at that time. concept of waiver under the no return any authority fails to cite provision, with waiver under proposition that a violation of the IAD IV(c). speedy provision, trial is, retroactively, be waived after the already Maj. op violation has occurred. true that under the IAD While 665-66,666,667. waived, may be suffices for waiver "[wlhat exists, however, authority depends There for the on the nature of the at issue." 528 U.S. at 120 S.Ct. 659. As contrary proposition, at least the context mentioned, jurisdictions provision. of article III's Mon other have held that (Fla.Dist.Ct. State, roe v. 978 So.2d be waived if the defendant Smith, App.2007); particular State v. takes actions inconsistent with the SW.2d cases). Mason, (Mo.Ct.App.1985); right. (collecting State v. Id. This formula- *10 N.J.Super. (App.Div. by approval 218 A.2d tion has been cited with the 1966); Hill, Mayle, particu- Commonwealth v. 780 A.2d Court. Id. Under the in rights by relying upon return dictum Boze- type

lar of conduct that will be "inconsistent" Hill, right speedy at that which depend on the nature of the man cites addressed will rights trial under article III: issue. reject interpreta Although we Alabama's speedy

In the context of the trial Agreement, tion of the our decision does IV(c), particular the inconsistent conduct returning a not bar a State from include giving rise to waiver has been held to mutually it advan prisoner when would be of the a defendant's motion for a continuance accordingly tageous 339, 353, 114 Farley, trial. Reed v. 512 U.S. IV(e) rights waives his under Article (1994); 2291, 129 L.Ed.2d 277 see also Cf. Hill, 114-115[, 528 U.S. at 120 S.Ct. 659] Hill, (finding at 120 S.Ct. 659 may (holding that a defendant waive his 180-day in the context of article III's waiver rights Agreement). Art. III under requirement). This rule makes speedy trial Requesting delayed that trial be sense. (emphasis 533 U.S. at S.Ct. 2079 demanding logically inconsistent with that added). majority by argues citing The that statutory speedily and within the time occur general inHill the context of a discussion of mentioned, jurisdictions frame. As other have waiver, analogizes in Bozeman the manner may rights held that a defendant waive rights may which no return be waived to the IV(e)'s provision by request under no return speedy rights in manner trial under Again, ing a transfer state. may Maj. op I article IV be waived. at 667. logically actions inconsistent with these are disagree that in this statement Bozeman and by specific provi afforded analogizes to Hill reference waivers article a transferred is inconsis sion: be (c) (e) rights rights. to waivers of article IV IV right transferred.1 tent with the not to be case, III an article is cited Bozeman general proposition rights for the that IAD provi- two conflates these conduct, by (c) be waived inconsistent and sions, articles IV and and the kinds proposition not for the that the manner required protec- their of conduct to waive rights speedy which no return and trial It holds that a defendant who re- tions. rights are waived is identical. Id. To the continuance, quests is not a conduct contrary, IV(e) Hill states that suffices for "[wlhat by right granted inconsistent with the depends right nature waiver on the state, to remain waives issue." 528 U.S. at 120 S.Ct. 659. only rights, speedy trial but his no return Hence, majority's construction of the rights requesting as well. a continu- While manner in which the two distinct article IV speedy ance is inconsistent with the trial waived, rights may be that the waiver of one IAD, rights nothing in the nature of other, waives the also contravenes for a trial continuance itself is support. case it on for relies inconsistent with the to remain in the receiving state until trial. IV. support proposi- finds for the IV(c) speedy tion that a waiver of article trial I now turn to the four transfers that oc- (e) rights constitutes waiver of article IV no curred after November after counsel waived, reasoning similarly high 1. This has been echoed other for reasons which are courts, explicitly by Browning, prisoner's priorities. Certainly, and most on the our Citing Eaddy, 180-day impliedly N.W.2d 595 F.2d rule be waived own (D.Kan. ready if the case stands for trial Benson, Gray F.Supp. 1978), Browning concept examined of waiver time, delaying within that but the "defendant's distinguished in the article IV context delay preclude motions" cause sufficient separate distinct manner in which the commencing trial from before end of speedy might trial and no return period. waived: (internal omitted). at 335 citations 306 N.W.2d Significantly, Browning court concluded that accept [It is not difficult to the fact that the defendant had waived his might pris- trial before return be waived under article III and under article priorities require oner whose a return before IV(c) Similarly, was not determinative of whether he had trial within a trial. days may IV(e) certain number of likewise be rights. his article no return Id. *11 days the trial faster than 120 or not to appointed represent to defendant. seek detainers, majority disposing these violations of arti- The exeuses extensions-thus of IV(e) by holding, without and the attendant cle "uncertainties which ob- authority, that the defendant's citing programs prisoner struct of treatment and purpose rehabilitation," of a transfer for the limited "expeditious" for in the most manner. securing choosing of his acted as the counsel to all an of his refuse absolute waiver (quoting Id. at 121 S.Ct. 2079 transfers, irre- subsequent non-consensual I). receiving 2 art. If the U.S.C.A. state many times these transfers spective of how for could use one-time transfer as Here, Maj. op. at 665-66.

might occur. prisoner an exeuse to shuttle the back and that the holds the waiver lasted indefinitely, sending forth to the state then years. over two the state would be able to cireumvent one of IV(e): majority's decision allows a waiver The primary purposes the of article en- on a one-time basis and for a limited made couraging expeditious pending resolution of indefinitely, purpose continue for the life- to charges by requiring receiving the to state pre-trial proceedings. It holds that a time of expense housing prisoner. bear the of the limited, waiver excuses all trans- one-time precisely happened By This is what here. not, fers, potential whether consensual transferring the defendant back to USP- ly years pur- This contravenes the occasions, on end. Florence on these four Colorado poses Supreme of IAD as stated the the expense housing saved itself the the defen- and the various federal cireuit courts Court periods during dant for non-trivial of time appeal, and violates article IX's command pretrial period. extensive "agreement the shall be construed lib- Dizon illustrates another Con- erally purposes." so as to effectuate its IV(e): gress adopted had in mind when it majority suggests purposes preventing prosecutorial the abuse of the IAD's Congress simplified system. enacted the no return detainer 592 F.2d at 336. IV(e) IV(e) Mj. provision Again, article are unclear. receiving forces the state to op. disagree. housing prisoner at 665. I Court prior bear the burden of the aims, which, appeal federal circuit courts of trial in several order to achieve its as purposes have articulated least two out, points discouraging Dixon include IV(e) majority's lodging Article with which the hold of frivolous or faith detainers. bad (1) encouraging expedited is at odds: To treat a for a one-time transfer as outstanding charges against prosecutors prisoners resolution of a license to to transfer effectively bypasses fi- without restraint prisoner by requiring receiving that the state expense housing prisoner prosecutorial bear nancial miscon- deterrent IV(e) trial; prior protecting designed impose. article duct prosecutorial simplified from abuse of the Finally, nothing claims that system by lodging groundless and detainer IV(e) suggests the statute that a defendant's Bozeman, bad-faith detainers. not to transferred to the Dixon, 2079; 592 F.2d at 336. "springs to trial back into effect explained that "the the Court each time he is returned to that state for purpose of the 'no return' cannot be proceedings prosecu further the same simple, prevent . a direct effort Maj. op. appears at 665-66. There tion." interruption of rehabilitation." 533 U.S. at way. authority directly point either be no Instead, 121 S.Ct. 2079. However, jurisdictions that have the few [tlhe agreement only prevents "re- even obliquely addressed this issue have all turn," requires willingness indicated a to treat each transfer also See, Black, pay prisoner's separately. e.g., for the incarcera- 609 F.2d at 1334 State (defendant government during period prior alleged tion in that vio State may provide provisions; requirement to trial ... That lated the IAD's no return court noted that the defendant was returned State with incentive proceed eustody sepa- on three pretrial period-to shorten the state's *12 674A occasions, Lee; Lewis; miah "[oln

rate but that each occasion P. Ronald P. Charles return."). Likewise, Maas; Morrison; requested Ben J. Town Na suggested much in Court as Boze- Larry pheys; Plume; Red J. Rocks "[EJvery prisoner Country Club; Evergreen in the man: arrival receiv South Water State, very District; Zorich; whether followed brief Theodore M. and the stay very long stay or a in the Department Colorado of Water Re IV(e)'s State, triggers requirement." sources, 'no return' Engineers, and Division State (em 53 Applicants-Appellees. phasis original). No. 06SA373. I am authorized to state Chief Justice Colorado, Supreme Court of and Justice MARTINEZ MULLARKEY En Banc.

join in this dissent.

Nov. 2008. Rehearing As Modified Denial of Nov. Concerning Application for Water

Rights in the South Platte River or its Jefferson, Douglas, Arap

Tributaries City

ahoe and Park Counties County

and of Denver. PARK

BUFFALO DEVELOPMENT

COMPANY, corporation; a Colorado Properties, Inc.,

Colorado Mountain Corporation; Evergreen

Colorado and Park, Inc., corpo

Memorial a Colorado

ration, Applicants-Appellants:

MOUNTAIN MUTUAL RESERVOIR

COMPANY, non-profit a Colorado cor

poration; Associates, and North Fork

LLC, Applicants-Appellees, Association;

Bear Mountain Homeowners District;

Brook Forest Water Colorado Board; City

Water Conservation Denver, Acting

Through its Board of Water Commis

sioners; City Englewood; Evergreen

Metropolitan District; Exline; Vista Irrigation

Farmers Reservoir and Com

pany; Metropolitan Foothills Recre District;

ation and Park Genesee Water District;

and Sanitation Jefferson Coun

ty Open Henry Space Department; L. City Lakewood;

Kerschbaum; Jere