in Interest of A.P.H

2020 COA 159

• Court: Colorado Court of Appeals
• Decided: November 12, 2020
• Docket: 18CA0668, People
• Status: Published

Opinion

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 November 12, 2020

2020COA159

No. 18CA0668, People in Interest of A.P.H.— Juvenile Court — Delinquency — Magistrates — Petition for Review; Appeals — Court of Appeals — Jurisdiction

This is a juvenile delinquency matter in which the juvenile is

appealing a magistrate’s order revoking his probation and deferred

adjudication. As a matter of first impression, a division of the court

of appeals addresses whether, under the Children’s Code and the

Colorado Rules of Magistrates, a juvenile appellant must first

petition the district court for review of a magistrate’s order revoking

probation and imposing sentencing as a prerequisite to seeking

review by the court of appeals. The division concludes that,

pursuant to section 19-1-108(1) and (5.5), C.R.S. 2019, a juvenile

must petition the district court for review of a magistrate’s order

revoking probation before the juvenile may pursue review by the court of appeals. And this conclusion holds independent of whether

consent was given or required for the magistrate to conduct the

proceeding from which the juvenile appeals.

Because the juvenile in this case is directly appealing the

magistrate’s order — and not any order from the district court —

the division dismisses his appeal for lack of jurisdiction. COLORADO COURT OF APPEALS 2020COA159

Court of Appeals No. 18CA0668 Mesa County District Court No. 14JD120 Honorable William T. McNulty, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.P.H.,

Juvenile-Appellant.

APPEAL DISMISSED

Division V Opinion by JUDGE WELLING J. Jones and Gomez, JJ., concur

Announced November 12, 2020

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Laura Harvell, Alternate Defense Counsel, Grand Junction, Colorado, for Juvenile-Appellant ¶1 A.P.H., a juvenile, appeals the magistrate’s order revoking his

probation and deferred adjudication. A.P.H. first sought review of

the magistrate’s order before the district court. However, the

district court held that A.P.H.’s petition for review — which was

filed after an extended deadline had expired — was untimely. On

appeal, he doesn’t ask us to review the district court’s ruling that

his petition was untimely; rather, he seeks direct appellate review of

the magistrate’s order revoking his probation and deferred

adjudication.

¶2 As a matter of first impression, we address whether, under the

Children’s Code and the Colorado Rules of Magistrates, a juvenile

appellant must first petition the district court for review of a

magistrate’s order revoking probation and imposing sentencing as a

prerequisite to seeking this court’s review. We conclude that,

pursuant to sections 19-1-108(1) and (5.5), C.R.S. 2019, a juvenile

must petition the district court for review of a magistrate’s order

revoking probation before the juvenile may pursue review by the

court of appeals. And this conclusion holds independent of whether

1 consent was given or required for the magistrate to conduct the

¶3 Because A.P.H. is directly appealing the magistrate’s order —

and not any order from the district court — we dismiss his appeal

for lack of jurisdiction.

I. Background

¶4 In December 2013, A.P.H. pleaded to a deferred adjudication

for an offense that, if committed by an adult, would constitute a

felony. A condition of A.P.H.’s deferred adjudication was that he

comply with the terms and conditions of probation.

¶5 In February 2015, the probation department filed a complaint

and request for detention, alleging that A.P.H. had violated the

terms and conditions of his probation. Over the next twenty-seven

months, the probation complaint was withdrawn, refiled, and

amended. For reasons immaterial to this appeal, a hearing on the

complaint wasn’t conducted until May 2017.

¶6 When the hearing on the petition to revoke A.P.H.’s probation

was eventually held, it was conducted before a juvenile magistrate.

Following the evidentiary hearing, the magistrate sustained the

2 petition, revoked A.P.H.’s probation, entered the adjudication which

had been previously deferred, and set the matter over for

sentencing. On November 7, 2017, the magistrate sentenced A.P.H.

¶7 Initially, A.P.H. proceeded as though he needed to petition the

district court for review of the magistrate’s order before appealing to

this court. Specifically, on November 20, 2017, thirteen days after

the magistrate imposed sentence, A.P.H. filed a motion for extension

of time to file a petition for review. The district court granted that

motion, setting January 3, 2018, as the deadline for A.P.H. to file

his petition for review. On January 4, 2018 — one day after the

extended deadline had passed — A.P.H. filed his petition for district

court review along with an unopposed motion requesting that the

district court accept his petition for review as timely filed.

¶8 On January 15, 2018, the district court denied A.P.H.’s

unopposed motion to accept the petition for review as timely filed,

concluding that “the motion was untimely filed” and, thus, “the

court lost jurisdiction” over A.P.H.’s case. The following day, A.P.H.

filed a motion asking the district court to reconsider its denial of his

request to file the petition for review out of time. After the People

3 had an opportunity to respond, the district court denied the motion

for reconsideration, still concluding that it lacked jurisdiction to

consider the merits of A.P.H.’s petition for review.

¶9 A.P.H. then filed a direct appeal of the magistrate’s order to

this court.1

II. Analysis

¶ 10 A.P.H. is not appealing the district court’s order denying his

motion to file his petition for review out of time, nor is he appealing

the district court’s ruling that it lacked jurisdiction to consider his

petition for review of the magistrate’s order because the petition and

the request for additional time were filed after the extended deadline

had expired.2 Instead, A.P.H. seeks direct review of the magistrate’s

order by this court, contending that district court review of the

1 A motions division of this court granted A.P.H.’s motion to file his notice of appeal of the magistrate’s order out of time, which is why this appeal isn’t barred as untimely. 2 Because A.P.H. doesn’t appeal these rulings, we offer no opinion

on whether the district court abused its discretion by denying A.P.H.’s motion or correctly concluded that it lacked jurisdiction to consider A.P.H.’s petition for review since it was filed after the extended deadline had expired.

4 magistrate’s order is not a prerequisite to this court’s review of that

order.

A. The Children’s Code

¶ 11 Section 19-1-108(1) of the Children’s Code provides that “the

juvenile court may appoint one or more magistrates to hear any

case or matter under the court’s jurisdiction” except where a

juvenile defendant requests a jury trial or the matter is a transfer

hearing. (Emphasis added.) Because a probation revocation

hearing doesn’t fall within one of the exceptions, a juvenile

magistrate may conduct a hearing for the revocation of a juvenile’s

probation.

¶ 12 Another subsection of section 19-1-108 sets forth the

procedural requirements for appealing a juvenile magistrate’s order.

Under section 19-1-108(5.5), a party aggrieved by a magistrate’s

order is required to file a petition for review to the district court

within fourteen days of the magistrate’s order. This “petition for

review is a prerequisite before an appeal may be filed with the

Colorado court of appeals or Colorado supreme court.” § 19-1-

108(5.5). Accordingly, the Children’s Code requires a juvenile

5 defendant to appeal a magistrate’s revocation of probation to the

district court as a prerequisite to appeal the decision to the court of

appeals.

B. The Magistrate Rules

¶ 13 Notwithstanding the provisions of the Children’s Code

discussed above, A.P.H. contends that C.R.M. 7 controls whether he

was required to first seek review of the magistrate’s order to the

district court before appealing to this court. Specifically, A.P.H.

asserts that the parties’ consent is required for a juvenile

magistrate to preside over a revocation of probation matter and,

thus, C.R.M. 7(b) applies. Under C.R.M. 7(b), if consent was

required for the magistrate to hear the matter, the magistrate’s

decision “shall be appealed pursuant to the Colorado Rules of

Appellate Procedure in the same manner as an order or judgment of

a district court.” That is, a timely petition to the district court isn’t

a prerequisite for review from the court of appeals. (Indeed, if

C.R.M. 7(b) applied, as A.P.H. now argues, the district court

couldn’t have reviewed the magistrate’s order.)

6 ¶ 14 By focusing on whether consent was required for a magistrate

to preside over his probation revocation, A.P.H. misses the mark.

To be sure, C.R.M. 7 generally divides cases into those for which

consent from the parties is required for a magistrate to preside, see

C.R.M. 7(b), and those for which consent from the parties isn’t

required for a magistrate to preside, see C.R.M. 7(a).

¶ 15 But the requirements of C.R.M. 7 apply only if there isn’t a

statute or rule that otherwise governs. See C.R.M. 7(a)(1) (“Unless

otherwise provided by statute, this Rule is the exclusive method to

obtain review of a district court magistrate’s order or judgment

issued in a proceeding in which consent of the parties is not

necessary.”) (emphasis added). Indeed, “a juvenile court magistrate

has the powers and is subject to the limitations set forth in [the

Children’s Code, sections 19-1-101 to -129, C.R.S. 2019,] and it

must conduct proceedings in accordance with the [statute].” In re

A.P.H., 98 P.3d 955, 957 (Colo. App. 2004) (citing C.R.M. 6(d)).

Thus, we look to the Children’s Code — in particular, section 19-1-

108 — to determine the requirements for a juvenile appellant to

seek review of a magistrate’s order revoking probation. See id.

7 (holding that, in reviewing the decision of a juvenile magistrate, “the

magistrate and the district court erred in relying on the rules for

magistrates . . ., rather than on [section] 19-1-108”).

¶ 16 Pursuant to section 19-1-108(5.5), a juvenile appellant must

file a petition for review within fourteen days of a magistrate’s order.

This petition for review “is a prerequisite before an appeal may be

filed with the Colorado court of appeals or Colorado supreme court.”

§ 19-1-108(5.5). Simply put, under the Children’s Code, it is of no

consequence whether the proceeding presided over by the

magistrate required the parties’ consent. Either way, a petition for

review to the district court was a prerequisite to our review.3

3 To be sure, there is case law that indicates this isn’t a matter that requires consent. See People in Interest of M.A.M., 167 P.3d 169, 171 (Colo. App. 2007) (reasoning that because section 19-1-108(1), C.R.S. 2019, provides that a magistrate may hear “any” juvenile delinquency matter except for transfer hearings or where a jury trial is requested, the consent of the parties isn’t required for a magistrate to conduct a juvenile adjudication of delinquency). We need not resolve this issue, however, because whether the magistrate had authority to decide this matter isn’t disputed and, for the reasons discussed in this opinion, whether the parties gave consent isn’t material to whether district court review was required as a prerequisite to appeal.

8 C. Application

¶ 17 To summarize, the magistrate held a hearing on the revocation

of A.P.H.’s probation and revoked A.P.H.’s probation and deferred

adjudication. A.P.H. filed — and was granted — an extension of

time to file a petition for review of the magistrate’s order to the

district court. He then filed a petition for review simultaneously

with another request for an extension of time after his initially-

extended deadline had passed.

¶ 18 The district court held that A.P.H.’s petition was filed untimely

and that it lacked jurisdiction. However, A.P.H. doesn’t challenge

the district court’s order on appeal.

¶ 19 The only matter A.P.H. appeals is whether the magistrate erred

by revoking his probation. But we lack jurisdiction to review the

magistrate’s order directly because the district court didn’t review

it. See People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App.

2006) (“Because the issue was not presented on judicial review to

the district court judge, it is not properly before us on appeal.”).

Rather, the only matter we have jurisdiction to review — the district

9 court’s decision to dismiss A.P.H.’s petition for review — is not

raised. Accordingly, we dismiss the appeal.

III. Conclusion

¶ 20 For the reasons set forth above, we dismiss the appeal for lack

of jurisdiction.

JUDGE J. JONES and JUDGE GOMEZ concur.