HOUSE BILL 14-1032 BY REPRESENTATIVE(S) Kagan, Lee, Buckner, Fields, Foote, Hullinghorst, Labuda, May, McLachlan, Melton, Mitsch Bush, Moreno, Pabon, Pettersen, Primavera, Ryden, Salazar, Schafer, Vigil, Young, Kraft-Tharp; also SENATOR(S) Guzman, Ulibarri, Aguilar, Heath, Johnston, Kefalas, King, Newell, Nicholson, Schwartz, Steadman, Tochtrop, Todd, Carroll. Concerning the provision of defense counsel to juvenile offenders, and, in connection therewith, making and reducing appropriations. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 19-2-507, amend (5) as follows: 19-2-507. Duty of officer - screening teams - notification - release or detention. (5) (a) As an alternative to taking a juvenile into temporary custody pursuant to subsections (1), (3), and (4) of this section, a law enforcement officer may, if authorized by the establishment of a policy that permits such service by order of the chief judge of the judicial district or the presiding judge of the Denver juvenile court, which policy is established after consultation between such judge and the district attorney and law enforcement officials in the judicial district, serve a written promise to appear for juvenile proceedings based on any act that would constitute a felony, misdemeanor, or petty offense upon the juvenile and the juvenile's parent, guardian, or legal custodian. (b) Such A promise to appear served pursuant to paragraph (a) of this subsection (5) shall must state any charges against the juvenile and the date, time, and place where such juvenile shall be required to answer such charges. The promise to appear must also state: (I) That the juvenile has the right to have the assistance of counsel; (II) That counsel can be appointed for the juvenile if the juvenile and the juvenile's parent, guardian, or legal custodian lack adequate resources to retain counsel or the juvenile's parent, guardian, or legal custodian refuses to retain counsel for the juvenile; (III) That, to determine if the juvenile is eligible for court-appointed counsel, or to apply for court-appointed counsel, the juvenile's parent, guardian, or legal custodian is advised to call the office of the state public defender, visit the state public defender's office, or visit the state public defender's internet web site; (IV) That, to avoid delay in obtaining counsel, the juvenile's parent, guardian, or legal custodian is advised to apply for court-appointed counsel at least five days before the juvenile's promised date of appearance; and (V) The contact information for the local office of the state public defender, including the office's telephone number and address, and the address of the internet web site of the office of the state public defender. (c) The promise to appear shall be signed by the juvenile. The promise to appear shall be served upon the juvenile's parent, guardian, or legal custodian by personal service or by certified mail, return receipt requested. The date established for the juvenile and the juvenile's parent, guardian, or legal custodian to appear shall not be earlier than seven days nor later than thirty days after the promise to appear is served upon both the juvenile and the juvenile's parent, guardian, or legal custodian. SECTION 2. In Colorado Revised Statutes, 19-2-508, amend (2), (3) (a) (I), (3) (a) (II), and (3) (a) (III) introductory portion; and add (2.5) and (3) (a) (I.5) as follows: 19-2-508. Detention and shelter - hearing - time limits - findings - review - confinement with adult offenders - restrictions. (2) When a juvenile is placed in a detention facility, in a temporary holding facility, or in a shelter facility designated by the court, the screening team shall promptly so notify the court, the district attorney, and the local office of the state public defender. The screening team shall also notify a parent or legal guardian or, if a parent or legal guardian cannot be located within the county, the person with whom the juvenile has been residing and inform him or her of the right to a prompt hearing to determine whether the juvenile is to be detained further. The court shall hold such the detention hearing within forty-eight hours, excluding Saturdays, Sundays, and legal holidays. For a juvenile being held in detention on a warrant for violating a valid court order on a status offense, the court shall hold the detention hearing within twenty-four hours, excluding Saturdays, Sundays, and legal holidays. (2.5) A juvenile who is detained for committing a delinquent act shall be represented at the detention hearing by counsel. If the juvenile has not retained his or her own counsel, the court shall appoint the office of the state public defender or, in the case of a conflict, the office of alternate defense counsel to represent the juvenile. This appointment shall continue if the court appoints the office of the state public defender or the office of alternate defense counsel pursuant to section 19-2-706 (2) (a) unless: (a) The juvenile retains his or her own counsel; or (b) The juvenile makes a knowing, intelligent, and voluntary waiver of his or her right to counsel, as described in section 19-2-706 (2) (c). (3) (a) (I) A juvenile taken into custody pursuant to this article and placed in a detention or shelter facility or a temporary holding facility shall be is entitled to a hearing within forty-eight hours, excluding Saturdays, Sundays, and legal holidays, of such placement to determine if he or she should be detained. The time of the detention hearing must allow defense counsel sufficient time to consult with the juvenile before the detention hearing. This consultation may be performed by secure electronic means if the conditions under which the electronic consultation is held allow the consultation to be confidential. The time in which the hearing shall must be held may be extended for a reasonable time by order of the court upon good cause shown. (I.5) The law enforcement agency that arrested the juvenile shall promptly provide to the court and to defense counsel the affidavit supporting probable cause for the arrest and the arrest report, if the arrest report is available, and the screening team shall promptly provide to the court and to defense counsel any screening material prepared pursuant to the juvenile's arrest. Upon completion of the detention hearing, the defense shall return any materials received pursuant to this subparagraph (I.5) unless the appointment is continued at the conclusion of the hearing. (II) The primary purpose only purposes of a detention hearing shall be are to determine if a juvenile should be detained further and to define conditions under which he or she may be released, if his or her release is appropriate. A detention hearing shall not be considered combined with a preliminary hearing or a first advisement. Due to the limited scope of a detention hearing, the representation of a juvenile by appointed counsel at a detention hearing does not, by itself, create a basis for disqualification in the event that such counsel is subsequently appointed to represent another individual whose case is related to the juvenile's case. (III) With respect to this section, the court may further detain the juvenile only if the court is satisfied finds from the information provided at the hearing that the juvenile is a danger to himself or herself or to the community. Any information having probative value shall be received regardless of its admissibility under the rules of evidence. In determining whether a juvenile requires detention, the court shall consider any record of any prior adjudications of the juvenile. There shall be a rebuttable presumption that a juvenile is a danger to himself or herself or to the community if: SECTION 3. In Colorado Revised Statutes, 19-2-514, amend (1) as follows: 19-2-514. Summons - issuance - contents - service. (1) After a petition has been filed, the court shall promptly issue a summons reciting briefly the substance of the petition. The summons shall set forth the constitutional and legal rights of the juvenile, including the right to have an attorney present at the hearing on the petition must also state, in a separate box, in bold, and in capitalized letters, the following text, inserting the telephone number and address of the local office of the state public defender and the internet web site address of the state public defender, as indicated: 1. YOU HAVE THE RIGHT TO HAVE YOUR OWN LAWYER HELP YOU AT YOUR HEARING. 2. YOU MAY BE ELIGIBLE FOR THIS LAWYER AT NO CHARGE. 3. TO FIND OUT IF YOU ARE ELIGIBLE, YOU OR YOUR PARENT, GUARDIAN, OR LEGAL CUSTODIAN SHOULD CALL THE OFFICE OF THE STATE PUBLIC DEFENDER AT __________, VISIT THE OFFICE OF THE STATE PUBLIC DEFENDER AT __________, OR VISIT THE STATE PUBLIC DEFENDER'S WEB SITE AT __________. 4. YOU ARE MORE LIKELY TO HAVE A FREE LAWYER PRESENT AT YOUR HEARING IF YOU OR YOUR PARENT, GUARDIAN, OR LEGAL CUSTODIAN CALLS OR VISITS THE OFFICE OF THE STATE PUBLIC DEFENDER AT LEAST FIVE DAYS BEFORE YOUR HEARING. SECTION 4. In Colorado Revised Statutes, 19-2-706, amend (1) and (2) as follows: 19-2-706. Advisement - right to counsel - waiver of right to counsel. (1) (a) At the juvenile's first appearance before the court, after the filing of a petition detention hearing or at the first appearance if the juvenile appears on a summons, the court shall advise the juvenile and his or her parents, guardian, or other legal custodian shall be advised by the court of their the juvenile's constitutional rights and legal rights as set forth in rule 3 of the Colorado rules of juvenile procedure, including, but not limited to, the right to counsel. Such The advisement shall include the possibility of restorative justice practices, including victim-offender conferences if restorative justice practices are available in the jurisdiction. The advisement regarding restorative justice practices does not establish any right to restorative justice practices on behalf of the juvenile. (b) If the respondent has made an early application for appointed counsel for the juvenile and the office of the state public defender has made a preliminary determination that the juvenile is eligible for appointed counsel as set forth in section 21-1-103, C.R.S., or if the court has appointed counsel for the juvenile pursuant to section 19-2-508 (2.5), an attorney from the office of the state public defender or, in the case of a conflict, from the office of alternate defense counsel, shall be available to represent the juvenile at the juvenile's first appearance, as described in paragraph (a) of this subsection (1). (c) If the respondent has not made an early application for appointed counsel for the juvenile but the juvenile requests appointment of counsel at the first appearance, the court shall determine if the juvenile is eligible for counsel pursuant to paragraph (a) of subsection (2) of this section. (d) As used in this subsection (1), unless the context otherwise requires, "early application" means that the respondent has contacted the office of the state public defender and applied for representation of the juvenile by the state public defender not less than five days before the juvenile's scheduled court date for the first appearance and has provided sufficient information to the office of the state public defender to allow that office to make a preliminary determination of eligibility for representation. (e) Failure of the juvenile's parent, guardian, or legal custodian to apply for court-appointed counsel may not be construed as a waiver of the right to counsel or any other rights held by the juvenile. (2) (a) If the juvenile or and his or her parents, guardian, or other legal custodian requests counsel and the juvenile or his or her parents, guardian, or other legal custodian is are found to be without sufficient financial means, indigent pursuant to section 21-1-103 (3), C.R.S., or the juvenile's parents, guardian, or other legal custodian refuses to retain counsel for said the juvenile, or the court, on its own motion, determines that counsel is necessary to protect the interests of the juvenile or other parties, or the juvenile is in the custody of the state department of human services or a county department of social services, the court shall appoint counsel the office of state public defender or, in the case of a conflict, the office of alternate defense counsel for the juvenile; except that the court shall not appoint the office of the state public defender or the office of alternate defense counsel if: (I) The juvenile has retained his or her own counsel; or (II) The juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel, as described in paragraph (c) of this subsection (2). (b) (I) If the court appoints counsel for the juvenile because of the refusal of the parents, guardian, or other legal custodian to retain counsel for the juvenile, the parents, guardian, or legal custodian, other than a county department of social services or the department of human services, shall be ordered to reimburse the court for the cost of the counsel unless the court finds there was good cause for such refusal. advised by the court that if the juvenile's parent, guardian, or legal custodian is determined not to be indigent pursuant to section 21-1-103 (3), C.R.S., then the court will order the juvenile's parent, guardian, or legal custodian, other than a county department of human services or the state department of human services, to reimburse the court for the cost of the representation unless the court, for good cause, waives the reimbursement requirement. The amount of the reimbursement will be a predetermined amount that: (A) Shall be set by the supreme court, in consultation with the office of the state public defender and the office of alternate defense counsel; (B) Shall be included in the chief justice directive concerning the appointment of state-funded counsel in criminal and juvenile delinquency cases; and (C) May be based partly or entirely upon the stage a proceeding has reached when counsel is appointed, the stage a proceeding has reached when representation is terminated, or both. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (b) to the contrary, if the court finds that there exists a conflict of interest between the juvenile and the juvenile's parent, guardian, or legal custodian such that the income and assets of the parent, guardian, or legal custodian are unavailable to the juvenile, then the court shall consider only the juvenile's own income and assets for the purpose of determining whether to issue an order for reimbursement pursuant to this paragraph (b). (c) The court may appoint counsel without such request if it deems representation by counsel necessary to protect the interest of the juvenile or of other parties. accept a waiver of counsel by a juvenile only after finding on the record, based on a dialogue conducted with the juvenile, that: (I) The juvenile is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel; (II) The juvenile understands the sentencing options that are available to the court in the event of an adjudication or conviction of the offense with which the juvenile is charged; (III) The juvenile has not been coerced by any other party, including but not limited to the juvenile's parent, guardian, or legal custodian, into making the waiver; (IV) The juvenile understands that the court will provide counsel for the juvenile if the juvenile's parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and (V) The juvenile understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged, which consequences may occur in addition to the actual adjudication or conviction itself. (d) The appointment of counsel pursuant to this subsection (2) shall continue until: such time as (I) The court's jurisdiction is terminated; or until such time as (II) The juvenile or the juvenile's parent, guardian, or legal custodian retains counsel for the juvenile; (III) The court finds that the juvenile or his or her parents, guardian, or other legal custodian has sufficient financial means to retain counsel or that the juvenile's parents, guardian, or other legal custodian no longer refuses to retain counsel for the juvenile; or (IV) The court finds the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel, as described in paragraph (c) of this subsection (2). SECTION 5. In Colorado Revised Statutes, 19-1-111, add (2.5) as follows: 19-1-111. Appointment of guardian ad litem. (2.5) A court shall not deem a guardian ad litem who is appointed by the court for a juvenile in a delinquency proceeding pursuant to subsection (2) of this section to be a substitute for defense counsel for the juvenile. SECTION 6. In Colorado Revised Statutes, 21-1-103, add (5) as follows: 21-1-103. Representation of indigent persons. (5) Nothing in this section may be construed to prevent the public defender, before determining indigency, from providing representation to juveniles in detention hearings. SECTION 7. In Colorado Revised Statutes, 19-2-103, add (12.5) and (12.7) as follows: 19-2-103. Definitions. For purposes of this article: (12.5) "Office of alternate defense counsel" means the office of alternate defense counsel created and existing pursuant to section 21-2-101, C.R.S. (12.7) "Office of the state public defender" means the office of state public defender created and existing pursuant to section 21-1-101, C.R.S. SECTION 8. In Colorado Revised Statutes, 19-2-1004, repeal (4) (b) as follows: 19-2-1004. Parole violation and revocation. (4) If, rather than issuing a summons, a parole officer makes an arrest of a parolee with or without a warrant or takes custody of a parolee who has been arrested by another, the parole officer shall place the parolee in the nearest local juvenile detention facility or shelter care facility approved by the department of human services, if under eighteen years of age, or in the nearest county jail, if eighteen years of age or older. Within forty-eight hours, not including Saturdays, Sundays, and legal holidays, the parole officer shall take one of the following actions: (b) Request a court to conduct a juvenile parole preliminary hearing as a part of a detention hearing conducted as described in section 19-2-508, in which hearing the court shall make a finding as to whether there is probable cause to believe that the parolee has violated a condition of parole; or SECTION 9. In Colorado Revised Statutes, 21-1-104, add (4) as follows: 21-1-104. Duties of public defender. (4) Pursuant to section 2-7-203, C.R.S., the state public defender shall report annually to the judiciary committees of the house of representatives and senate, or to any successor committees, information concerning: (a) The number of juvenile delinquency cases for which counsel from the office is appointed; (b) The number of juvenile cases that involve a conflict of interest; (c) The process of selecting, training, and supporting attorneys who represent children in juvenile delinquency court; (d) The average length of time attorneys are assigned to juvenile court; and (e) The outcome of efforts to reduce juvenile court rotations and increase opportunities for promotional advancement in salaries for attorneys in juvenile court. SECTION 10. In Colorado Revised Statutes, 21-2-104, add (3) as follows: 21-2-104. Duties of alternate defense counsel and contract attorneys. (3) Pursuant to section 2-7-203, C.R.S., the office of alternate defense counsel shall report annually to the judiciary committees of the house of representatives and senate, or to any successor committees, information concerning: (a) The number of juvenile delinquency cases for which counsel from the office is appointed; (b) The number of juvenile cases that involve a conflict of interest; (c) The process of selecting, training, and supporting attorneys who represent children in juvenile delinquency court; (d) The average length of time attorneys are assigned to juvenile court; and (e) The outcome of efforts to reduce juvenile court rotations and increase opportunities for promotional advancement in salaries for attorneys in juvenile court. SECTION 11. In Colorado Revised Statutes, add 13-1-137 as follows: 13-1-137. Reporting of data concerning juvenile proceedings. (1) The judicial branch shall report annually to the judiciary committees of the house of representatives and senate, or to any successor committees, information concerning: (a) The number of juvenile delinquency cases; (b) The number of juvenile delinquency cases that involved an appointment of counsel; (c) The number of juvenile cases that involved a waiver of counsel; (d) The status of recommended reviews to juvenile court rules, forms, and chief justice directives regarding the representation of children in juvenile delinquency courts; and (e) The number of juvenile delinquency cases that involved a detention hearing, the number of juveniles who were released after the detention hearing, and the number of juveniles who remained in detention after the detention hearing. SECTION 12. Appropriation - adjustments to 2014 long bill. (1) For the implementation of this act, the general fund appropriation made in the annual general appropriation act to the controlled maintenance trust fund created in section 24-75-302.5 (2) (a), Colorado Revised Statutes, for the fiscal year beginning July 1, 2014, is decreased by $698,452. (2) For the implementation of this act, appropriations made in the annual general appropriation act to the judicial department for the fiscal year beginning July 1, 2014, are adjusted as follows: (a) The general fund appropriation to the trial courts for court costs, jury costs, and court-appointed counsel is decreased by $114,539; and (b) The cash funds appropriation from various fees and cost recoveries to the trial courts for court costs, jury costs, and court-appointed counsel is decreased by $53,350. (3) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund, not otherwise appropriated, to the judicial department, for the fiscal year beginning July 1, 2014, the sum of $737,875 and 11.1 FTE, or so much thereof as may be necessary, to be allocated to the office of the state public defender for the implementation of this act as follows: (a) $609,429 and 11.1 FTE for personal services; (b) $32,009 for operating and travel expenses; (c) $94,157 for capital outlay; and (d) $2,280 for attorney registration fees. (4) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund, not otherwise appropriated, to the judicial department, for the fiscal year beginning July 1, 2014, the sum of $75,116 and 0.6 FTE, or so much thereof as may be necessary, to be allocated to the office of the alternate defense counsel for the implementation of this act as follows: (a) $65,548 and 0.6 FTE for personal services; (b) $4,865 for operating and travel expenses; and (c) $4,703 for capital outlay. SECTION 13. Act subject to petition - effective date. This act takes effect November 1, 2014; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2014 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. ________________________________________________________ Mark Ferrandino Morgan Carroll SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES THE SENATE ____________________________ ____________________________ Marilyn Eddins Cindi L. Markwell CHIEF CLERK OF THE HOUSE SECRETARY OF OF REPRESENTATIVES THE SENATE APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO