in Interest of J.V.D

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
May 9, 2019

2019COA70

No. 18CA0186, People in Interest of J.V.D. — Juvenile Court —
Delinquency — Waiver of Right to Counsel; Constitutional Law
— Sixth Amendment — Right to Counsel

A division of the court of appeals considers the requirements

of a juvenile’s valid waiver of the constitutional right to counsel.

The division concludes that a juvenile court has an expanded duty

of careful inquiry into a juvenile’s understanding of his or her right

to counsel before the court can find that a waiver is voluntary,

knowing, and intelligent. A juvenile must benefit not only from the

constitutional standards that apply to adults — (1) presumptions

against a waiver; (2) advisement regarding the many risks of self-

representation; and (3) inquiry into his or her understanding of

those risks and the reasons for the requested waiver — but also

from the statutory requirements of section 19-2-706(2)(c), C.R.S
2018 — (4) an inquiry into the juvenile’s maturity; (5) an inquiry

into the juvenile’s understanding that counsel will be provided

regardless of a parent’s or guardian’s ability or willingness to do so;

and (6) findings on the record.

Relying on People v. Janis, 2018 CO 89, the division also

concludes that in cases such as this one, where the challenge relies

solely on the facts in the record, an appellate court can address

waiver on direct appeal.

Because the juvenile court did not fulfill its constitutional or

statutory duties to secure an effective waiver, the division concludes

that the juvenile’s right to counsel was violated. The division

reverses the juvenile’s delinquency adjudication and remands for a

new trial.
COLORADO COURT OF APPEALS 2019COA70

Court of Appeals No. 18CA0186
Gunnison County District Court No. 17JD8
Honorable J. Steven Patrick, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.V.D.,

Juvenile-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE RICHMAN
Navarro and Welling, JJ., concur

Announced May 9, 2019

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-
Appellant
¶1 The juvenile, J.V.D., appeals his delinquency adjudication on

a charge of first degree criminal trespass. Because we agree with

him that his right to counsel was violated when he proceeded

without representation despite no valid waiver of that right, we

reverse the adjudication.

I. Background

¶2 According to the prosecution’s evidence, J.V.D., then sixteen

years old, opened the window of his neighbor’s trailer, but left after

the neighbor’s face appeared in the window.

¶3 Nearly six months later, J.V.D. received a notice to appear

concerning an allegation of second degree criminal trespass — a

class 3 misdemeanor. He appeared at the hearing with his mother.

There, the juvenile court advised them, as relevant here, (1) of the

allegation of second degree trespass; (2) that if he pleaded guilty or

was found guilty at trial, he could be sentenced to the Department

of Youth Corrections; and (3) that he had the right to be

represented by counsel and that a public defender would be

appointed if he was financially qualified. J.V.D. asked the court if

he could represent himself. After cautioning him that the

proceedings could be complicated and that he might get bad advice

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 from a nonlawyer, it responded that he had the right to represent

himself.

¶4 J.V.D. proceeded to debate his Sixth Amendment right to a

jury trial with the juvenile court, and it advised him repeatedly that

he was “getting bad advice.” The court offered to appoint a

guardian ad litem (GAL), and J.V.D. declined. As the court

attempted to conclude the proceedings, J.V.D. asked whether the

case was a civil or criminal action. The court briefly explained that

a juvenile delinquency case was neither civil nor criminal but was

analogous to a criminal case, and it repeated its caution against

getting legal advice from nonlawyers.

¶5 A week later, the prosecution filed a delinquency petition

charging first degree criminal trespass, a class 5 felony, not the

second degree trespass about which J.V.D. had been advised. A

copy of the petition was mailed to J.V.D.’s mother, but the envelope

was returned unclaimed.

¶6 At the plea hearing, J.V.D. stated that he did not wish to enter

a plea until some of his questions were answered. He asked for

information on the nature and cause of the action, whether the

action was civil or criminal, and “for the rule-book — the

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 regulations, the rules, the codes, the statutes — in order for me to

intelligently defend myself.”

¶7 The juvenile court suggested that perhaps he should have an

attorney, but J.V.D. said that he was not looking for legal advice.

The prosecutor asked for a GAL to be appointed. J.V.D. objected,

and his mother agreed that a GAL was not necessary. The court did

not appoint a GAL.

¶8 J.V.D. pressed the court regarding his questions. The court

told him that he had been informed of the nature of the proceeding,

directed him to go to the library to find the relevant information,

deemed his actions to be a denial of the petition, and set the matter

for trial. 1 J.V.D. repeatedly objected to the involuntary entry of a

plea. The matter was set for trial six weeks later.

¶9 At the outset of trial, J.V.D. “totally object[ed] to the

proceeding” because he did not “know the full nature and cause,”

and he had been unprepared to enter a plea. The juvenile court

1 The court later directed J.V.D. to title 19, the Juvenile Rules, and
section 18-4-502, C.R.S. 2018 (the first degree criminal trespass
statute).

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 took a few moments to explain jurisdiction and then proceeded with

the trial.

¶ 10 J.V.D. acted pro se at trial, though he was also represented by

his mother.2 He was not invited to give an opening statement, and

he did not testify or call any witnesses, though he claimed that he

had an alibi. His mother made some objections, asked some

questions on cross-examination, and made closing arguments.

Both J.V.D. and his mother made clear that they had not accessed

any of the exhibits or the police report before trial. 3

¶ 11 The juvenile court adjudicated J.V.D. delinquent. Due in part

to two prior adjudications for possession/consumption of

marijuana and misdemeanor criminal mischief — each of which

2 We have not found Colorado authority granting juveniles the right
to be represented by their parents in a delinquency adjudication.
Generally, only a licensed attorney may represent a client in court
proceedings. See Cikraji v. Snowberger, 2015 COA 66, ¶ 14 (where
the plaintiff was not a licensed attorney in Colorado, he could not
represent his son in court proceedings without an attorney). And
parents do not have a personal right to participate. See People in
Interest of J.P.L, 214 P.3d 1072, 1077 (Colo. App. 2009). (Even
“parents named as parties in a juvenile delinquency proceeding do
not have a due process right to participate in the adjudicative
proceedings.”)
3 A copy of the endorsement of witnesses and exhibits was mailed to

J.V.D., care of his mother, but the envelope was returned as not
deliverable.

4
 had resulted in a plea agreement — the court sentenced him to one

to two years in the custody of the Department of Youth Corrections.

¶ 12 J.V.D. is represented by counsel on appeal. He contends that

he did not effectively waive his right to counsel at trial. 4 We agree.

II. Applicable Law

¶ 13 The Fourteenth Amendment and the Bill of Rights are not for

adults alone; however, not all of their protections extend to

juveniles. In re Gault, 387 U.S. 1, 13-14 (1967). Though a juvenile

facing delinquency proceedings is not afforded constitutional rights

coextensive with those afforded adults in criminal proceedings, a

juvenile enjoys the right to counsel because “[t]he juvenile needs the

assistance of counsel to cope with problems of law, to make skilled

inquiry into the facts, to insist upon regularity of the proceedings,

and to ascertain whether he has a defense and to prepare and

submit it.” Id. at 36 (footnote omitted); see L.O.W. v. Dist. Court,

623 P.2d 1253, 1256 (Colo. 1981) (“Rights provided to adult

defendants [are not] uniformly available to juveniles because the

4In his opening brief, J.V.D. contended that his indeterminate
sentence was illegal. He withdrew that contention in his reply brief,
so we do not address it.

5
 protective purposes of juvenile proceedings preponderate over their

punitive function.”).

¶ 14 While the juvenile court in this case apparently recognized it, a

juvenile in Colorado may not enjoy a corollary constitutional right to

self-representation. Faretta v. California, 422 U.S. 806, 819-20

(1975), holds that the Sixth Amendment implies the right to self-

representation, but neither the Supreme Court nor the State of

Colorado has expressly extended the right of self-representation to

juveniles. Indeed, section 19-2-706(2)(a), C.R.S. 2018, seems to

suggest that a juvenile in Colorado does not have that right, as it

authorizes the court to appoint counsel “on its own motion, [if it]

determines that counsel is necessary to protect the interests of the

juvenile or other parties.”5

5 Other states approach this right in one of three ways. Some
states recognize the juvenile’s right. See L.D.S.J. v. State, 14 So. 3d
289, 290 (Fla. Dist. Ct. App. 2009) (a juvenile’s knowing and
intelligent waiver of counsel requires, as relevant here, a
determination that no unusual circumstances preclude the
juvenile’s exercise of the right of self-representation). Some afford
the right to a juvenile’s parents. See In Interest of R.D.B., 575
N.W.2d 420 (N.D. 1998) (a juvenile may waive the right to counsel if
the juvenile is represented by his parents). And some statutorily
exclude the right of self-representation from the panoply of due
process rights afforded to juveniles in delinquency proceedings. See
N.C. Gen. Stat. § 7B-2405(6) (2018) (The court shall protect “[a]ll

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¶ 15 In Colorado, the juvenile court must appoint counsel for a

juvenile in most circumstances. However, the court may not

appoint counsel if (1) the juvenile has retained his own counsel; or

(2) the juvenile has made a knowing, intelligent, and voluntary

waiver of his right to counsel. § 19-2-706(2)(a); see also

§ 19-2-508(2.5), C.R.S. 2018. While the right to counsel in a

juvenile delinquency proceeding may be waived, the court is

required to follow appropriate procedure to determine the validity of

the waiver and to ensure that the waiver is voluntary, knowing, and

intelligent. See § 19-2-706(2)(c).

¶ 16 An adult’s waiver of the right to counsel may be effective if the

record shows that, under the totality of the circumstances, the

defendant’s conduct demonstrates an unequivocal knowing,

intelligent, and voluntary intent to relinquish the right to

representation. People v. Alengi, 148 P.3d 154, 159 (Colo. 2006). A

waiver is knowing and intelligent only when “the record clearly

shows that the defendant understands the nature of the charges,

the statutory offenses included within them, the range of allowable

rights afforded adult offenders except the right to bail, the right of
self-representation, and the right of trial by jury.”).

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 punishments thereunder, possible defenses to the charges and

circumstances in mitigation thereof, and all other facts essential to

a broad understanding of the whole matter.” People v. Arguello, 772

P.2d 87, 94 (Colo. 1989). Because there is a strong presumption

against finding a waiver of a constitutional right, a court has the

duty of careful inquiry into the reasons given for not having counsel

and the defendant’s understanding of the many risks of self-

representation. Alengi, 148 P.3d at 159.

¶ 17 Because “juveniles are presumed to have less capacity than

adults to understand their rights and privileges,” a court

considering whether a juvenile’s waiver of constitutional rights is

effective must also consider, while applying a totality of the

circumstances test, factors such as “the juvenile’s age, previous

court experience, education, background, intelligence, and capacity

to understand the nature of his or her rights and the consequences

of waiving those rights.” People v. Simpson, 51 P.3d 1022, 1025,

1027 (Colo. App. 2001) (considering juvenile rights at a providency

hearing), rev’d on other grounds, 63 P.3d 79 (Colo. 2003).

¶ 18 Although no Colorado decision expressly addresses a juvenile’s

waiver of counsel, we conclude that the protections afforded to a

8
 juvenile must, at a minimum, be equivalent to those afforded to an

adult defendant. Thus, failure to properly advise a juvenile and to

inquire on the record into whether the juvenile demonstrates, under

the totality of the circumstances, an unequivocal knowing,

intelligent, and voluntary intent to relinquish the right to

representation results in an invalid waiver of counsel. We do not

require a showing of prejudice to reverse a delinquency adjudication

when a juvenile’s waiver of the right to counsel is ineffective. See

Arguello, 772 P.2d at 97 (a deprivation of the right to counsel

“undoubtedly taint[s] the whole trial”).

¶ 19 The General Assembly further protected a juvenile’s right to

counsel through “An Act Concerning the Provision of Defense

Counsel to Juvenile Offenders . . . ,” which took effect in 2014. Ch.

247, 2014 Colo. Sess. Laws 948. Among many other statutory

changes, section 19-2-706(1)(e) was added to specify that the failure

of a juvenile’s parent to apply for court-appointed counsel may not

be construed as a waiver of the juvenile’s right to counsel. Id. at

952. In section 19-2-706(2)(a)(II), the General Assembly restated

the constitutional requirement that any waiver of counsel by a

juvenile must be knowing, intelligent, and voluntary, and in section

9
 19-2-706(2)(c), it supplemented the constitutional requirement by

requiring a trial court to make particular findings before accepting a

juvenile’s waiver. Id. at 952-53; see Valley Forge Christian Coll. v.

Ams. United for Separation of Church & State, 454 U.S. 464, 492

(1982) (“[B]y legislation[,] the Congress[] may impart a new, and on

occasion unique, meaning to [certain terms] in particular statutory

or constitutional contexts.”).

¶ 20 Pursuant to these sections, a court must make specific

inquiries and findings on the record before accepting a juvenile’s

waiver of the right to counsel. The court may accept a juvenile’s

waiver

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;

10
 (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.

§ 19-2-706(2)(c) (emphasis added). 6

¶ 21 The statute does not specify the remedy if the juvenile court

fails to make specific inquiries and requisite findings on the record,

but Arguello is instructive. Even for adults, Colorado “require[s]

that the trial court conduct a specific inquiry on the record to

ensure that the defendant is voluntarily, knowingly and intelligently

waiving the right to counsel.” Arguello, 772 P.2d at 95. The court

further noted that failure to substantially comply with this

requirement “does not automatically render the waiver invalid, but

6We note that the Juvenile Delinquency Benchbook, although last
updated prior to the addition of section 19-2-706(2)(c), C.R.S. 2018,
contains questions that the juvenile court should ask before
accepting waivers from a juvenile. William Alexander, Juvenile
Delinquency Benchbook (updated Sept. 2013),
https://perma.cc/CKF8-558X.

11
 is an exception which should rarely be invoked.” Id. at 96. And it

specified that “before a reviewing court can find a valid implied

waiver based on conduct, there must be ample, unequivocal

evidence in the record that the defendant was advised properly in

advance of the consequences of his actions.” Id. at 97. When there

is insufficient record evidence of a valid waiver of the right to

counsel, the error is structural and requires reversal. Id.

III. Standards of and Basis for Review

¶ 22 The People argue that we should not review this case because

J.V.D. may only challenge his waiver of the right to counsel in a

postconviction proceeding. See Moore v. People, 2014 CO 8, ¶ 3.

Alternatively, the People argue that we should review only for plain

error, because J.V.D. did not argue that his waiver was ineffective

or that he had been inadequately advised at trial.

¶ 23 J.V.D. argues that we should review an ineffective waiver as a

denial of his constitutional right to counsel — a structural error

requiring reversal. We agree with J.V.D.

¶ 24 Though Moore (waived right to testify) and People v. Walker,

2014 CO 6 (waived right to a jury trial), might support an argument

that a juvenile may not contest the validity of his waiver of the right

12
 to counsel on direct appeal, we do not agree that those cases

preclude our review. In those cases, the supreme court relegated

the defendants’ waiver challenges to postconviction proceedings

because the challenges would likely require an inquiry “into facts

that the defendant brings forward that are not contained in the

direct appeal record.” Moore, ¶ 17. Here, the juvenile court record

fully demonstrates that J.V.D.’s waiver was ineffective because of

the absence of advisement and express findings in the record. And

when a challenge relies solely on the facts in the record, we can

address waiver on direct appeal. See People v. Janis, 2018 CO 89,

¶ 27.

¶ 25 The requirement of a contemporaneous objection and

application of plain error review to a juvenile’s failure to effectively

waive his own right to counsel and lack of advisement is illogical.

See Moore, ¶ 18. The very premise of an ineffective waiver is that

the juvenile may not understand the nature of the right or the

consequences of waiving it, so to require the juvenile to object on

this basis at trial makes little sense. See id.

¶ 26 We agree with J.V.D. that an invalid waiver of the right to

counsel constitutes structural error. See Arguello, 772 P.2d at 97

13
 (an invalid waiver of the right to counsel amounted to a Sixth

Amendment violation that tainted the whole trial, could never be

considered harmless, and rendered the conviction invalid).

Accordingly, we do not agree with the People that the record

requires a showing of prejudice.

¶ 27 We review de novo whether a waiver of counsel was effective as

a mixed question of law and fact. Alengi, 148 P.3d at 159.

IV. Discussion

¶ 28 Because juveniles “often lack the experience, perspective, and

judgment to recognize and avoid choices that could be detrimental

to them,” J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011)

(quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)), a court has an

expanded duty of careful inquiry into a juvenile’s understanding of

his or her right to counsel before the court can find that a waiver is

voluntary, knowing, and intelligent. A juvenile must benefit not

only from the constitutional standards that apply to adults — (1)

presumptions against a waiver; (2) advisement regarding the many

risks of self-representation; and (3) inquiry into his or her

understanding of those risks and the reasons for the requested

waiver — but also from the statutory requirements of section

14
 19-2-706(2)(c) — (4) an inquiry into the juvenile’s maturity; (5) an

inquiry into the juvenile’s understanding that counsel will be

provided regardless of a parent’s or guardian’s ability or willingness

to do so; and (6) findings on the record. Findings on the record are

also strongly suggested by Arguello. See Arguello, 772 P.2d at 95-

96.

¶ 29 Substantial information in the record supports a finding that

J.V.D.’s waiver was voluntary. J.V.D. asked to represent himself,

never asked for an attorney, declined offers of a GAL appointment,

and submitted letters to the court affirming that position. But we

conclude that his waiver was not knowing and intelligent. See id. at

94 (“[E]ven if the choice to proceed pro se is ‘voluntary,’ the waiver

is not valid until the court ensures that the waiver is made

knowingly and intelligently.”).

¶ 30 To be sure, J.V.D. was defiant and discourteous in court. He

interrupted the court, the prosecutor, and his mother. He

demanded answers to legal questions that were out of place in the

proceedings. He attempted to testify and to make arguments

during objections and cross-examination. We further note that he

had prior experience with the juvenile system, and he gave the

15
 court the impression that he was simply trying to prevent or delay

the proceedings. We commend the juvenile court for its efforts in

attempting to control the proceeding while respecting the rights of

this obstreperous juvenile.

¶ 31 Nonetheless, we must conclude that J.V.D. was insufficiently

advised. First, we see no evidence in the record that he was advised

that the prosecution had entered a petition with felony charges.

See id. The court did not explain the range of allowable

punishments or the collateral consequences of a felony

adjudication. See id.; see also § 19-2-706(2)(c)(II). It did not

explain the risks of self-representation, beyond possibly receiving

“bad advice.” See Alengi, 148 P.3d at 159. And J.V.D. was not

advised that counsel would be appointed regardless of his mother’s

ability or willingness to pay. See § 19-2-706(2)(c)(IV).

¶ 32 Moreover, the court did not assess J.V.D.’s education,

background, or maturity before accepting his waiver of counsel.

See Simpson, 51 P.3d at 1027; see also § 19-2-706(1)-(2). And it did

not inquire into the reasons J.V.D. did not want counsel. Alengi,

148 P.3d at 159.

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¶ 33 The People concede that the juvenile court did not make the

inquiries and findings required by section 19-2-706(2). Indeed, the

court’s inquiry as it applies to the right to counsel was limited to

that recounted above, and it did not make any findings on the

record as to whether the juvenile’s waiver of his right to counsel

was voluntary, knowing, and intelligent. It did not assess the

juvenile’s maturity level, his understanding of the length of the

possible sentence or the collateral consequences emanating from a

felony juvenile adjudication, and it did not inquire whether he had

been coerced in any way, all required by statute.

¶ 34 We cannot assume that the court made implicit findings that

comport with the statute and render J.V.D.’s waiver constitutionally

effective.

¶ 35 Considering the totality of circumstances, we conclude that

J.V.D.’s waiver was invalid. It was not knowing and intelligent

because he was insufficiently advised and did not appear to

understand the nature of the proceedings or the risks of self-

representation. Moreover, his waiver was ineffective because the

juvenile court did not inquire into his maturity or make findings on

the record.

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 V. Conclusion

¶ 36 J.V.D.’s right to counsel for juvenile delinquency proceedings

was violated when he was allowed to proceed in the absence of a

knowing and intelligent waiver of that right. Accordingly, we

reverse his delinquency adjudication and remand for a new trial.

JUDGE NAVARRO and JUDGE WELLING concur.

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