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 selfrepresentation; 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 

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.
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 JuvenileAppellant
1

¶ 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 
2

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 
3

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).
4

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. 
5

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 

 

4 In 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.
6

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 selfrepresentation, 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 
7

¶ 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.”).
8

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 selfrepresentation. 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 
9

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 
10

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;
11

(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 

 

6 We 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.
12

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 
13

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 
14

(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 
15

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 
16

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.
17

¶ 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 selfrepresentation. Moreover, his waiver was ineffective because the 

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

the record. 
18

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.