In this decision, a division of the Court of Appeals considers the validity of a juvenile’s waiver of his right to counsel. During the juvenile court proceedings, J.V.D. refused appointment of counsel, proceeded at trial pro se/represented by his mother, was adjudicated delinquent, and was sentenced to two years in the custody of DYS. On appeal, represented by counsel, J.V.D. asserted that he did not effectively waive his right to counsel.
The division agrees with J.V.D., reasoning that neither the Colorado nor U.S. Supreme Court has expressly extended the right of self-representation to juveniles and that, by authorizing the juvenile court to appoint counsel on its own motion, § 19-2-706, C.R.S., suggests that a juvenile does not have that right. A waiver of counsel must be both knowing and voluntary and a strong presumption applies against any waiver; the division reasons that in addition to the factors a court must inquire into for adults waiving their right to counsel, a juvenile court must also consider, when considering the totality of the circumstances, “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.” (citing People v. Simpson, 51 P.3d 1022, 1025, 1027 (Colo. App. 2001)). The division also notes that the protections afforded to juveniles at a minimum must be equivalent to those afforded an adult defendant. Additionally, the court must make specific findings pursuant to § 19-2-706(2)(c). Moreover, the division applies a structural error analysis, concluding that a plain error analysis should not apply to this inquiry because, for a juvenile lacking legal representation, “the requirement of a contemporaneous objection . . . is illogical.”
The division concludes that the record itself demonstrates that the juvenile’s waiver was ineffective because of the absence of advisement and express findings in the record. While the factors and record demonstrate that the waiver was voluntary, it was not knowing and intelligent.