NRS 175.015(1)(b) (listing orders from which State may take an appeal);
NRS 177.015(1)(c), (2) (similar). The district court dismissed the charges
without prejudice so arguably, the State may refile the charges against
Ashraf. However, the statute of limitations will continue to run on the
charges during the time that Ashraf is incompetent, see MRS 178.425(5),
which may leave the State at a disadvantage depending on when Ashraf
attains competency.'
We conclude that the State's petition has demonstrated that
our intervention is warranted. A defendant may not be tried while
incompetent. NRS 178.400(1); Scarbo v. Eighth Judicial Dist. Court, 125
Nev. 118, 121, 206 P.3d 975, 977 (2009); see also Oliveras v. State, 124
Nev. 1142, 1147, 195 P.3d 864, 868 (2008) (noting that Fourteenth
Amendment prohibits criminal prosecution of an incompetent defendant).
Accordingly, when doubt as to a defendant's competency arises, the
district court must suspend the proceedings against him, see MRS
178.405(1); conduct a hearing to address the doubts, see Scarbo, 125 Nev.
at 121-22, 206 P.3d at 977; appoint psychological professionals to evaluate
the defendant and receive the reports from those professionals in a
hearing during which the parties may examine the appointed
professionals and introduce other evidence, NRS 178.415(1)-(3); Scarbo,
125 Nev. at 122-23, 206 P.3d at 978; commit the defendant to evaluation
and treatment, MRS 178.425(1); and engage in hearings regarding the
'Although there is no statute of limitations on murder, see NRS
178.080(1), there is a statute of limitation for child abuse and neglect, see
NRS 171.085(2).
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findings of the treatment team, NRS 178.450(2); NRS 178.460(1);
Fergusen v. State, 124 Nev. 795, 804, 192 P.3d 712, 719 (2008). Thus, in
order to dispel or confirm doubt as to a defendant's competency, the
district court must engage in thorough and exhaustive adversarial
scrutiny of the facts. We conclude that the district court's finding that
Ashraf was incompetent with no substantial probability of attaining
competence in the foreseeable future absent such scrutiny amounts to a
manifest abuse of discretion. The failure to engage in such extensive fact-
finding resulted in factual finding by the district court that was not based
on reasoned consideration of the evidence.
First, the district court failed to adhere to the statutory
process for evaluating competency in reaching its conclusion. Defense
counsel raised the issue of Ashracs competence with a report from its
expert. The report raised sufficient doubt as to Ashrafs competency to
obligate the court to appoint two psychological professionals to evaluate
Ashraf and hold a hearing to receive the reports of those professionals.
NRS 178.415(1)-(3). However, the district court did not appoint the
necessary professionals to evaluate Ashraf. Instead, it accepted the
defense expert's report and ordered the State to find an expert. This did
not alleviate its statutory burden to appoint professionals to evaluate
Ashraf. Nevertheless, as the State conceded that Ashraf was incompetent
and that he should be evaluated at Lake's Crossing, the State cannot
complain that the district court order denied it a meaningful opportunity
to be heard at this stage of the competency proceedings. See Fergusen, 124
Nev. at 805, 192 P.3d at 719 (concluding the district court abused its
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discretion by denying appellant opportunity to be heard during
competency proceedings).
However, the district court manifestly abused its discretion at
the later hearing when it concluded that Ashraf was incompetent with no
substantial probability of attaining competence in the foreseeable future.
Once committed to Lake's Crossing, the statutes provide that the
treatment team submit reports to the district court at six-month intervals
concerning Ashrafs competency and the likelihood of him attaining
competency. NRS 178.450(2). It is only when these reports are received
by the district court and the parties that the district court may make
another finding regarding Ashrafs competency and the likelihood of his
attaining competency in the foreseeable future. NRS 178.460(3). The
district court did not follow the procedure set forth in the statute but
instead elected to make a finding in the absence of the anticipated report.
It did so without the event that triggers its obligation to hold a hearing
and the evidence that would be the subject matter of that hearing. This
decision denied the parties a meaningful opportunity to advocate for or
challenge the findings of the treatment team The result of the failure to
follow the statutory framework for competency proceedings resulted in
findings by the district court that had not been the subject of adversarial
testing.
Second, "an abuse of discretion occurs whenever a court fails
to give due consideration to the issues at hand." Patterson v. State, 129
Nev. „ 298 P.3d 433, 439 (2013); see also State v. Eighth Judicial
Din. Court (Armstrong), 127 Nev. , 267 P.3d 777, 780 (2011) ("An
arbitrary or capricious exercise of discretion is one founded on prejudice or
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preference rather than on reason, or contrary to the evidence or
established rules of law." (quotation marks and citation omitted)). The
district court concluded that Ashraf was incompetent based on the defense
expert's report. In their first six-month report, the Lake's Crossing
treatment team agreed that Ashraf was incompetent but believed that he
could attain competence with continued assistance from staff. Based on
these initial reports, the district court concluded that there was a
substantial probability that Ashraf would attain competency through his
treatment. Eight months later the court came to the conclusion that
Ashraf had no substantial probability of attaining competence in the
foreseeable future based on virtually the same evidence. Therefore, it
appeared that the decision was exercised without due consideration of the
evidence. Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to VACATE ITS ORDER FINDING REAL PARTY IN
INTEREST INCOMPETENT WITH NO PROBABILITY OF ATTAINING
COMPETENCE IN THE FORESEEABLE FUTURE AND DISMISSING
THE CRIMINAL CHARGES.
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cc: Hon. Linda Marie Bell, District Judge
Clark County District Attorney
Attorney General/Carson City
Clark County Public Defender
Eighth District Court Clerk
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