People v. Allen.
2024 COA 43. No. 23CA1011. Preliminary Hearing—Defendant in Custody.
April 25, 2024
Allen was charged with menacing, a class 5 felony, for allegedly driving up next to the victim’s car, pointing a handgun at her, and threatening to kill her. Allen was serving a sentence in a Louisiana Department of Corrections facility (LDOC) for an unrelated conviction when he received notice of the menacing count. Allen initially appeared in the Colorado proceeding by video from the LDOC at a hearing in which the parties confirmed that there was an active warrant for the menacing charge. Defense counsel requested a preliminary hearing. The prosecutor objected to setting the matter for a preliminary hearing because although Allen was serving a sentence in Louisiana, he was not in custody on the Colorado case. The district court scheduled a preliminary hearing at which Allen appeared by video and defense counsel requested to proceed. The prosecution objected and argued again that because Allen was not in custody for the offense charged, he was therefore not entitled to a preliminary hearing. The district court disagreed, and then asked the prosecutor if he was ready to proceed with the preliminary hearing. The prosecutor responded, “[I]f the court finds that the defendant is in fact entitled to the preliminary hearing, the People will not be calling any witnesses.” In response, defense counsel asked the court to dismiss the menacing charge. The district court found no probable cause to move the case forward and dismissed the menacing charge.
On appeal, the prosecution argued that the district court erred by dismissing Allen’s menacing charge based on the prosecution’s failure to present evidence at the preliminary hearing, because Allen wasn’t in custody for the menacing charge and therefore wasn’t entitled to the preliminary hearing. A Colorado defendant charged with a class 4, 5, or 6 felony is entitled to a preliminary hearing only if such defendant is in custody for the offense for which the preliminary hearing is requested. Here, while Allen had an active warrant for his arrest, he had not yet been arrested on it, so he was not being held in connection with the menacing charge. Therefore, he was not “in custody” for the menacing charge within the meaning of CRS § 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) and was not entitled to a preliminary hearing. Because the district court lacked the authority to conduct a preliminary hearing, the court also lacked authority to dismiss the charges based on the prosecution’s refusal to proceed.
The order was reversed and the case was remanded with directions to reinstate the menacing charge.