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06 & 2014CA2511. The People of the State of Colorado v. Ari Misha Liggett

Court: Colorado Court of Appeals
Date filed: 2018-07-12
Citations: 2018 COA 94
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Combined 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
                                                                July 12, 2018

                                2018COA94

Nos. 2014CA2506 and 2014CA2511 — Criminal Law —
Competency to Proceed; Courts and Court Procedure — Court
of Appeals — Jurisdiction

     In this direct appeal of a criminal conviction and a revocation

of probation, in which the defendant was found legally incompetent

after the notice of appeal was filed, a division of the court of appeals

considers (1) defendant’s request for an indefinite stay of the direct

appeal due to incompetence; (2) defendant’s request for a limited

remand to restore competence; and (3) counsel’s request to stay a

ruling on the defendant’s motions to terminate counsel’s

representation and to dismiss the appeal. As a matter of first

impression, the division denies the defendant’s request for an

indefinite stay and holds that the direct appeal may proceed as long

as the defendant is permitted to raise any issues not raised by
appellate counsel, due to the defendant’s incompetence, in a

postconviction proceeding. Under well-settled Colorado and federal

law, the division grants the requests to stay a ruling on the motions

to terminate counsel and to dismiss the appeal because an

incompetent defendant can do neither. Finally, the division holds,

as a matter of first impression, that it may order restoration to

competence on limited remand under section 13-4-102(3), C.R.S.

2017, because restoration to competence is necessary for the

division to resolve the motions to dismiss counsel and to dismiss

the appeal. Accordingly, the motion is granted in part and denied

in part.
COLORADO COURT OF APPEALS                                                   2018COA94


Court of Appeals No. 14CA2506
Arapahoe County District Court No. 12CR2253
Honorable Michelle A. Amico, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ari Misha Liggett,

Defendant-Appellant.

                       -----------------------AND------------------------

Court of Appeals No. 14CA2511
Arapahoe County District Court No. 10CR576
Honorable Michelle A. Amico, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ari Misha Liggett,

Defendant-Appellant.


         ORDER GRANTING MOTION IN PART AND DENYING IN PART,
               AND REMANDING CASE WITH DIRECTIONS

                                  Division A
                           Order by JUDGE FREYRE
                        Taubman and Ashby, JJ., concur

                             Announced July 12, 2018
Cynthia H. Coffman, Attorney General, Matthew S. Holman, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1    In this direct appeal of two cases — first degree murder after

 deliberation and revocation of probation (based on the murder

 conviction) — counsel for the defendant, Ari Misha Liggett, request

 an indefinite stay of the appellate proceedings due to Liggett’s

 incompetence. For the same reason, counsel ask us to stay ruling

 on Liggett’s request to terminate counsel’s representation and to

 dismiss the appeal. Finally, counsel ask us to remand the cases to

 the district court for competency restoration proceedings.

¶2    Liggett’s counsel and the People agree, as do we, that an

 incompetent defendant cannot waive the right to counsel or a direct

 appeal. Therefore, we cannot rule on these requests until Liggett is

 restored to competence during the period in which we have

 jurisdiction over the appeal, as discussed in Part IV.

¶3    The remaining two requests present issues no Colorado

 appellate court has considered. First, should a defendant’s direct

 criminal appeal be stayed indefinitely when such person is found

 legally incompetent after the notice of appeal is filed? For the

 reasons explained below, we answer that question “no.” We hold

 that a defendant’s direct criminal appeal should proceed, despite a



                                   1
 finding of incompetence. Therefore, we deny Liggett’s counsel’s

 request to indefinitely stay the appellate proceedings.

¶4    Second, does this court have the authority to bifurcate the

 direct appeal and to grant a limited remand for competence

 restoration proceedings while the appeal proceeds? We answer that

 question “yes.” We hold that section 13-4-102(3), C.R.S. 2017,

 authorizes this court to “issue any writs, directives, orders, and

 mandates necessary to the determination of cases within [our]

 jurisdiction.” Because, due to Liggett’s incompetence, we are

 unable to rule on the pending requests to dismiss counsel and to

 dismiss the appeal, we conclude that a limited remand for

 restoration proceedings under section 16-8.5-111(2), C.R.S. 2017,

 is necessary for our future determination of these motions and the

 dispositions of the direct appeals. Therefore, we grant in part

 Liggett’s counsel’s request for a remand to restore Liggett to legal

 competence.

                           I.    Background

¶5    A jury convicted Liggett of first degree murder after

 deliberation on November 10, 2014. The court sentenced him to life

 in prison without the possibility of parole on November 14, 2014.

                                    2
 At the same time, the court found that Liggett’s murder conviction

 constituted a violation of his probation and sentenced him to a

 three-year concurrent prison sentence for the violation. It awarded

 him 1095 days of presentence confinement credit on the three-year

 sentence.1

¶6    Following the imposition of sentence, trial counsel asked the

 court to appoint the public defender’s office for the purpose of

 appealing both cases. Liggett did not object. Thus, when Liggett

 was competent, the public defender filed a timely notice of appeal

 on December 29, 2014. Both cases were eventually assigned to

 current counsel acting as alternate defense counsel.

¶7    On September 19, 2016, appellate counsel filed a motion to

 dismiss the appeal in the murder case. By an order, this court

 denied that motion with leave to renew it upon receiving an affidavit

 from Liggett averring that he had been advised of his rights

 concerning the appeals and that he wished to dismiss them.

¶8    On October 24, 2016, appellate counsel filed a motion to stay

 the proceedings in both cases and requested a limited remand to

 1Although that sentence has been fully served, the probation
 appeal is not moot because a reversal of the murder conviction
 would require reversal of the probation revocation finding.
                                   3
 determine whether Liggett was competent to proceed and competent

 to knowingly, voluntarily, and intelligently waive his rights to appeal

 and to counsel. Counsel represented that Liggett wished to

 terminate counsel’s representation, and to dismiss the appeals.

 Counsel asserted a good faith belief that Liggett (1) lacked the

 capacity to make an informed choice; (2) lacked an understanding

 of his choices; (3) lacked an understanding of counsel’s role in the

 appellate proceedings; and (4) was overcome by a serious thought

 disorder. Because of these issues, counsel maintained they could

 not ethically procure an affidavit from Liggett waiving his rights to

 appeal and to counsel, absent a competency determination.

¶9    By a one-judge order, this court granted the motion for limited

 remand on December 13, 2016. After receiving two evaluations

 declaring Liggett incompetent to proceed, the district court entered

 an order on September 26, 2017, finding Liggett incompetent to

 proceed and incompetent to make a knowing, voluntary, and

 intelligent wavier of his rights to counsel and to appeal. Based on

 the language of the remand order, the district court ruled that it did

 not have jurisdiction to initiate restoration proceedings.



                                    4
¶ 10   After the recertification of both cases on appeal, counsel filed a

  motion to stay the appellate proceedings indefinitely and for a

  limited remand to restore Liggett to competence. The People

  objected, arguing, based on out-of-state jurisprudence and on

  William H. Erickson et al., Mental Health Standards 7-5.4 (Am. Bar

  Ass’n 1984), that the appeal could proceed. Thereafter, we

  requested supplemental briefing on the novel issues described

  above.

                   II.   Waiver of Counsel and Appeal

¶ 11   It is well settled that the right to counsel is a constitutional

  right and that a defendant may waive that right only if (1) the

  defendant is competent to waive the right, and (2) the defendant

  makes the waiver knowingly, voluntarily, and intelligently. U.S.

  Const. amends. VI, XIV; Colo. Const. art. II, § 16; Godinez v. Moran,

  509 U.S. 389, 400-01 (1993); People v. Davis, 2015 CO 36M, ¶ 15.

  A defendant is competent to waive this right when he has “sufficient

  present ability to consult with his lawyer with a reasonable degree

  of rational understanding[] and . . . has a rational as well as factual

  understanding of the proceedings against him.” Davis, ¶ 16

  (quoting Dusky v. United States, 362 U.S. 402 (1960)). Moreover, a

                                     5
  defendant must be competent to abandon his appeals. Rees v.

  Payton, 384 U.S. 312 (1966); see People v. Bergerud, 223 P.3d 686,

  693-94 (Colo. 2010) (noting that decision whether to take an appeal

  is so fundamental to a defense that it cannot be made by defense

  counsel, but rather must be made by the defendant himself).

¶ 12      Because Liggett’s counsel and the People agree that Liggett is

  incompetent, and because they agree that an incompetent

  defendant cannot waive the right to counsel or to a direct appeal,

  we conclude, consistent with the district court’s finding, that Liggett

  is currently incompetent to waive counsel and to dismiss the

  appeal. Therefore, we cannot rule on the requests to dismiss

  counsel and to dismiss the appeal unless and until Liggett is

  restored to competence during the appellate process.

       III.   The Direct Appeal May Proceed Despite the Incompetence
                                   Finding

¶ 13      Liggett’s counsel contend that the direct appeal should be

  stayed indefinitely because proceeding while Liggett is incompetent

  will violate his Sixth Amendment right to counsel and his Fifth and

  Fourteenth Amendment rights to due process of law. Counsel rely

  on well-established federal jurisprudence holding that an


                                      6
  incompetent defendant may not be prosecuted unless he possesses

  both a sufficient present ability to consult with counsel and a

  rational and factual understanding of the nature of the proceedings.

  See Dusky, 362 U.S. at 402; see also Drope v. Missouri, 420 U.S.

  162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966).

  Appellate defense counsel further contend that a meaningful

  attorney-client relationship cannot exist if a defendant is

  incompetent, so counsel is unable to fulfill the ethical obligations of

  representation. Finally, counsel contend that proceeding with the

  appeal to completion will trigger state and federal periods for filing

  postconviction motions, and, thus, Liggett’s incompetence may

  work a forfeiture of important postconviction rights.

¶ 14   Relying on numerous out-of-state cases that have addressed

  this issue, the People argue that the direct appeal should proceed

  because appellate proceedings do not require a defendant’s

  participation in the same way that trial proceedings do. They

  further argue that any failure of appellate counsel to raise

  meritorious issues due to incompetence can be remedied through

  postconviction relief. We find the People’s argument persuasive and



                                     7
  therefore deny Liggett’s motion to indefinitely stay the direct

  appeals.

               A.   Standard of Review and Relevant Law

¶ 15   It is well settled that the conviction of a person who is

  mentally incompetent violates the basic concepts of due process

  under the Fourteenth Amendment to the United States Constitution

  and article II, section 16 of the Colorado Constitution. Moreover,

  federal and state due process guarantees mandate fair procedures

  on appeals as of right, including the appointment of counsel for

  indigent defendants and the effective assistance of counsel. See

  Evitts v. Lucey, 469 U.S. 387, 396 (1985); Douglas v. California, 372

  U.S. 353, 357-58 (1963); Adargo v. People, 159 Colo. 321, 324, 411

  P.2d 245, 247 (1966); Petition of Griffin, 152 Colo. 347, 349-50, 382

  P.2d 202, 204 (1963). Colorado provides a statutory direct appeal

  as of right to all persons convicted of a felony. § 16-12-101, C.R.S.

  2017; see C.A.R. 4(b)(1), (c); People v. Wiedemer, 852 P.2d 424, 438

  (Colo. 1993). This right includes the right to counsel and the right

  to the effective assistance of appellate counsel. See People v.

  Arguello, 772 P.2d 87, 92 (Colo. 1989).



                                     8
¶ 16   The General Assembly has prescribed the procedures for

  district courts to follow when a defendant’s competence is raised

  during the trial proceedings. See §§ 16-8.5-102 to -116, C.R.S.

  2017. However, no such procedures exist for defendants who

  become incompetent after a notice of appeal is filed. Thus, we

  examine how other courts faced with this issue have resolved this

  procedural conundrum, together with Colorado’s competency

  statutes, to the extent they are applicable.

¶ 17   Whether an incompetent defendant’s appeal should be stayed

  or should proceed is a question of law that we review de novo. See

  In re J.C.T., 176 P.3d 726, 729 (Colo. 2007). Moreover, we interpret

  statutes de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.

  2007). In construing statutes, we look first to their plain language

  and give words their common and ordinary meanings. Id. at 690.

  We presume the General Assembly understands the legal import of

  the words it uses and intends that each word be given meaning.

  Dep’t of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004).

                              B.   Analysis

¶ 18   A majority of courts faced with deciding whether an

  incompetent defendant’s appeal should be stayed or should proceed

                                     9
have adopted the procedure set forth in the Mental Health

Standards prepared by the American Bar Association (ABA). These

courts have held that an incompetent defendant’s direct appeal

should not be stayed, despite incompetence, as long as the

defendant is provided a postconviction remedy to raise issues not

raised on appeal due to the defendant’s incompetence. See Buxton

v. State, 352 P.3d 436, 438 (Alaska Ct. App. 2015) (holding that an

incompetent defendant’s appeal may proceed provided that

postconviction relief is later available, at which time he can show

that he was prejudiced by the appeal proceeding); People v. Kelly,

822 P.2d 385 (Cal. Ct. App. 1992) (same); Dugar v. Whitley, 615 So.

2d 1334, 1335 (La. 1993) (same); Fisher v. State, 845 P.2d 1272,

1276-77 (Okla. Crim. App. 1992) (holding that an incompetent

defendant’s appeal may proceed if he is later provided a

postconviction remedy for raising issues due to incompetence); Reid

v. State, 197 S.W.3d 694, 705-06 (Tenn. 2006) (holding that in

postconviction proceedings, which include direct appeal, legal

claims and factual claims not requiring a defendant’s input should

not be stayed based on incompetence); State v. Debra A.E., 523

N.W.2d 727, 735-36 (Wis. 1994) (applying procedure from ABA

                                  10
  standards to postconviction and direct appeal proceedings). But see

  Commonwealth v. Silo, 364 A.2d 893, 895 (Pa. 1976) (holding that it

  would be improper to permit an incompetent defendant’s appeal to

  proceed if the defendant was unable to assist counsel in its

  preparation).

¶ 19   These courts reason that a stay would be harmful by causing

  a defendant to suffer from delayed reversals of meritorious claims,

  and further, that proceeding with the appellate process advances

  the state’s interest in the expeditious administration of the criminal

  justice system. See Buxton, 352 P.3d at 438; Reid, 197 S.W.3d at

  705-06. They further reason that the same considerations that

  prohibit an incompetent person from being tried do not apply once

  judgment has been entered. For instance, issues on appeal are

  limited to the appellate record, and attorneys do not need to rely on

  a defendant’s recollection of the trial proceedings to decide which

  issues are worthy of pursuit. See Kelly, 822 P.2d at 407-08. In

  permitting an appeal to proceed, however, these courts agree that

  due process requires that a defendant be able to raise issues not

  raised on appeal due to the defendant’s incompetence in a later

  postconviction setting when and if the defendant has been restored

                                    11
  to competence. See Debra A.E., 523 N.W.2d at 735 (“Assessing

  competency during [appellate] proceedings creates a record of a

  defendant’s mental capacity, thus eliminating the difficulty of

  attempting to measure that capacity months or years after the

  period in question.”).

¶ 20   ABA mental health standard 7-5.4, titled “[m]ental

  incompetence at time of noncapital appeal,” provides as follows:

             (a) A defendant is incompetent at the time of
             appeal in a noncapital case if the defendant
             does not have sufficient present ability to
             consult with [the] defendant’s lawyer with a
             reasonable degree of rational understanding,
             or if the defendant does not have a rational as
             well as factual understanding appropriate to
             the nature of the proceedings.

             (b) Mental incompetence of the defendant at
             the time of appeal from conviction in a
             criminal case should not prohibit the
             continuation of such appeal as to matters
             deemed by counsel or by the court to be
             appropriate.

             (i) If, following the conviction of the defendant
             in a criminal case, there should arise a good
             faith doubt about the mental competence of
             the defendant during the time of appeal,
             counsel for the state or the defendant should
             make such doubt known to the court and
             include it in the record.



                                    12
             (ii) Counsel for the defendant should proceed
             to prosecute the appeal on behalf of the
             defendant despite the defendant’s
             incompetence and should raise on such appeal
             all issues deemed by counsel to be
             appropriate.

             (c) Mental incompetence of the defendant
             during the time of appeal shall be considered
             adequate cause, upon a showing of prejudice,
             to permit the defendant to raise, in a later
             appeal or action for postconviction relief, any
             matter not raised on the initial appeal because
             of the defendant’s incompetence.

¶ 21   Comments to the standard explain that it is based on three

  assumptions. First, criminal defendants’ interests are best served

  by proceeding with the appeal because a timely resolution of the

  appeal might overturn their convictions or modify their sentences.

  Mental Health Standards 7-5.4 cmt. Second, although criminal

  defendants must decide whether to appeal a conviction, they

  otherwise rely on appellate counsel’s strategic and tactical decisions

  about which claims to raise and how those claims should be

  argued. Id. Finally, a defendant’s incompetence “rarely affects the

  fairness or accuracy of appellate decisions” because defendants

  generally do not actively participate in the appellate proceedings.

  Id. at cmt. intro.


                                    13
¶ 22   On August 8, 2016, the ABA replaced these standards with

  new ones. See Criminal Justice Standards on Mental Health (Am.

  Bar Ass’n 2016), https://perma.cc/82UC-QZXH. The new standard

  applicable here is Standard 7-8.8, titled “[c]ompetence to proceed:

  appealing from conviction in a noncapital case.” It provides as

  follows:

             (a) Consistent with Standard 7-5.2, the test for
                determining whether the defendant is
                competent to make a decision regarding
                whether to appeal [a] conviction in a
                noncapital case should be whether the
                defendant has sufficient present ability to
                consult with counsel with a reasonable
                degree of rational understanding and
                whether the defendant has a rational as well
                as factual understanding of the nature and
                consequences of the decision.

             (i)    If the defense attorney believes the
                    defendant is competent under this
                    Standard, then the defense attorney
                    should abide by the defendant’s decision
                    about whether to appeal.

             (ii)   If the defense attorney believes the
                    defendant is incompetent under this
                    Standard then the attorney may petition
                    the court to permit a next friend acting
                    on the defendant’s behalf to initiate or
                    pursue the appeal.

             (b) The decision about which issues to raise on
                appeal is the defense attorney’s. However,

                                     14
                incompetence of the defendant during the
                time of appeal should be considered
                adequate cause, upon a showing of
                prejudice, to permit the defendant to raise,
                in a later appeal or action for postconviction
                relief, any matter not raised on the initial
                appeal because of the defendant’s
                incompetence.

¶ 23   Further, Standard 7-5.2, titled “[c]ompetence to proceed with

  specific decisions: control and direction of case,” identifies matters

  solely under the defendant’s sphere of control. These matters

  include the decisions to plead guilty; to assert a defense of non-

  responsibility; and to waive the rights to a jury trial, to testify, and

  to appeal. Standard 7-5.2(a).

¶ 24   While Standard 7-8.8 omits specific language directing

  appellate counsel to prosecute the appeal despite the defendant’s

  incompetence, we construe that standard as assuming the ongoing

  prosecution of the appeal by (1) specifically identifying matters

  within a defendant’s sphere of control in Standard 7-5.2, which

  notably excludes appellate issues; (2) specifying that defense

  counsel decides which issues to raise on appeal; and (3) providing

  an incompetent defendant with a remedy for challenging issues not




                                     15
  raised due to incompetence in a later appeal or postconviction

  proceeding.2

                             C.   Application

¶ 25   We are persuaded by the reasoning of the ABA standards and

  the cases applying them and conclude that they set forth a practical

  procedure that both promotes the effective administration of the

  judicial system and provides meaningful postconviction relief to

  defendants when and if competence is restored.

¶ 26   First, there are significant differences between the trial and

  appellate stages of a criminal proceeding. Criminal proceedings are

  initiated by the state. The purpose of a trial, from the state’s

  perspective, is to prove beyond a reasonable doubt that a

  presumptively innocent person is guilty of a crime. Requiring

  competence at this stage preserves the presumption of innocence by

  ensuring that a criminal defendant can assist defense counsel in

  defending the case. Competence also ensures that a defendant is


  2The revised standards also provide a procedure for initiating the
  appellate process where a defendant becomes incompetent in the
  period between the imposition of sentence and the filing of the
  notice of appeal, an issue not presented here. Criminal Justice
  Standards on Mental Health 7-8.8 (Am. Bar Ass’n 2016),
  https://perma.cc/82UC-QZXH.
                                    16
  able to make significant constitutional choices that require the

  advice of counsel, like whether to plead guilty, to testify, or to

  pursue self-representation. See McCoy v. Louisiana, 584 U.S. ___,

  ___, 138 S. Ct. 1500, 1508 (2018) (describing decisions reserved for

  the defendant as including whether to plead guilty, waive the right

  to a jury trial, testify in one’s own behalf, assert innocence at trial,

  and forgo an appeal). Such assistance is crucial as the defendant

  often possesses the only information that may cast doubt on the

  state’s case. Further, a defendant’s ability to communicate with

  and assist defense counsel preserves the defendant’s constitutional

  rights to be present and to confront accusers.

¶ 27   In contrast, appellate proceedings are generally initiated by a

  defendant who seeks to overturn a finding of guilt. A convicted

  defendant no longer enjoys the presumption of innocence and the

  attendant rights of confrontation and to be present at the

  proceeding. Indeed, a convicted defendant’s choices are primarily

  whether to pursue a direct appeal and whether to be represented by

  counsel. Moreover, unlike the right to a jury trial, which is

  guaranteed by the Federal and State Constitutions, there is no

  corresponding constitutional right to an appeal. See Ross v. Moffitt,

                                     17
  417 U.S. 600, 610-11 (1974). And, because appellate counsel’s

  ability to raise issues is limited to the appellate record,

  communication with and input from a defendant are not necessary

  for counsel to effectively brief issues on appeal. See Kelly, 822 P.2d

  at 414 (‘“[C]onvicted defendants, like parties to appellate litigation

  in general, do not participate in appeal proceedings.’” (quoting ABA

  Criminal Justice Mental Health Standards 7-5.4(c) cmt. intro.

  (1989))). Because of these significant differences between a

  defendant’s involvement in the trial and appellate processes, we are

  not convinced that the cases which preclude the prosecution of an

  incompetent defendant, on which Liggett’s counsel rely, necessarily

  preclude the direct appeal of a defendant’s conviction when

  incompetence arises during the appellate process.

¶ 28   We find support in the existing competency statutes and in

  particular, section 16-8.5-102(1), C.R.S. 2017, which governs the

  procedures for raising pretrial incompetency. This provision

  provides as follows:

             While a defendant is incompetent to proceed,
             the defendant shall not be tried or sentenced,
             nor shall the court consider or decide pretrial
             matters that are not susceptible of fair
             determination without the personal

                                     18
            participation of the defendant. However, a
            determination that a defendant is incompetent
            to proceed shall not preclude the furtherance of
            the proceedings by the court to consider and
            decide matters, including a preliminary
            hearing and motions, that are susceptible of
            fair determination prior to trial and without the
            personal participation of the defendant.

  Id. (emphases added). Thus, the General Assembly has recognized

  that even before a conviction is entered, incompetence implicates a

  defendant’s decisions and choices, but does not require the

  complete cessation of all proceedings. Indeed, those pretrial

  proceedings in which the personal participation of the defendant is

  not required and that are susceptible of fair determination without

  the defendant’s participation may proceed.

¶ 29   Similarly, Colorado law holds that appellate counsel — not the

  defendant — primarily decides, as a matter of strategy, which

  issues should be raised on appeal. See Downey v. People, 25 P.3d

  1200, 1206 (Colo. 2001); People v. Ray, 2015 COA 92, ¶ 13; People

  v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007).

¶ 30   We acknowledge that a defendant’s incompetence might

  prevent counsel from acquiring information or learning of concerns

  important to the proper disposition of an appeal. Consequently, we


                                    19
  hold that Liggett must be permitted to raise in a postconviction

  motion any matter not raised in the direct appeal due to his

  incompetence. When and if he is restored to competence,3 the

  postconviction limitations set forth in Crim. P. 35(c), including, but

  not limited to, the time limits of subsection (3)(I), the claim limits of

  subsection (3)(VI), the claim limits of subsection (3)(VII), and the

  claim limits of subsection (3)(VIII), should not apply to him.4

¶ 31   Accordingly, we deny Liggett’s counsel’s request to indefinitely

  stay the direct appeal in each case, and we direct the parties to

  proceed with briefing in accordance with a separate briefing order

  3 Because of this holding, we do not further address timing issues
  related to state postconviction proceedings or offer any opinion on
  whether a defendant must be competent to pursue postconviction
  relief under Crim. P. 35(c). Additionally, we reject Liggett’s
  counsel’s argument that proceeding with the appeal would
  necessarily cause a forfeiture of Liggett’s federal habeas corpus
  rights. See Holland v. Florida, 560 U.S. 631 (2010) (holding that the
  one-year statute of limitations on petitions for federal habeas relief
  by state prisoners is subject to equitable tolling); Ata v. Scott, 662
  F.3d 736, 742 (6th Cir. 2011) (holding that a petitioner’s
  incompetence can constitute an extraordinary circumstance that
  tolls the limitations period if the petitioner established mental
  incompetence and that such incompetence caused the failure to
  comply with the statute of limitations).
  4 A defendant claiming ineffective assistance of appellate counsel

  during the period of incompetency retains the burden of proving
  both deficient performance and prejudice in order to receive
  postconviction relief. People v. Valdez, 789 P.2d 406, 409-10 (Colo.
  1990).
                                     20
  issued today. The briefing schedule will be sent under a separate

  order of this court.

                         IV.   Bifurcated Proceedings

¶ 32   Having concluded that the direct appeal can proceed, we must

  decide how to resolve the pending motions before us in light of

  Liggett’s incompetence. The People contend that the direct appeal

  divested the district court of jurisdiction and that the appeal and

  restoration proceedings cannot occur simultaneously. They also

  argue that the district court has no authority to order the

  Department of Corrections (DOC), in whose custody Liggett resides,

  to restore him to competency.

¶ 33   Liggett’s counsel do not separately address bifurcation, but

  request a stay of all proceedings, which we have already rejected,

  and a remand for restoration to competence.

¶ 34   This court’s subject matter jurisdiction is a question of law

  that we review de novo. People v. Sandoval, 2016 COA 57, ¶ 14.

  We agree with the People that, generally, the filing of a notice of

  appeal divests the district court of jurisdiction to issue further

  orders that relate to the order or judgment on appeal. People v.

  Hampton, 696 P.2d 765, 771-72 (Colo. 1985); see also § 13-4-

                                      21
  102(1)(2); C.A.R. 1. We further agree that the existing competency

  statutes, article 8.5 of title 16, govern a defendant’s competency to

  participate in criminal proceedings in the district court before a

  conviction enters and do not apply to direct appeals.

¶ 35   Nevertheless, section 13-4-102(3) provides that “[t]he court of

  appeals shall have authority to issue any writs, directives, orders,

  and mandates necessary to the determination of cases within its

  jurisdiction.” (Emphasis added.) See also People v. Bergen, 883

  P.2d 532, 542 (Colo. App. 1994) (recognizing that the court of

  appeals does not possess general powers of supervision over lower

  courts except as provided in section 13-5-102(3)). No one questions

  our jurisdiction to consider Liggett’s appeals — the only question is

  whether we possess the legal authority to order restoration while

  the appeal is pending. The answer to that question depends on

  whether restoration is necessary to the determination of Liggett’s

  cases. Because his incompetence precludes us from ruling on his

  pending requests to terminate counsel and to dismiss the appeal,

  we conclude that a limited remand to restore Liggett’s competence




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  is necessary to our determination of these requests and, thus, to

  these cases.5

¶ 36   We find support for our position in the numerous instances

  recognized by statute, case law, and rule in which this court retains

  concurrent jurisdiction with the district court during a direct

  appeal. See, e.g., § 13-20-901(1), C.R.S. 2017 (district court

  proceedings not stayed when the court of appeals exercises its

  discretion to consider an interlocutory appeal of an order granting

  or denying class certification); § 18-1.3-202, C.R.S. 2017 (district

  court retains jurisdiction to modify terms of and revoke probation

  during appeal); § 19-3-205, C.R.S. 2017 (district court retains

  jurisdiction over any child adjudicated neglected or dependent until

  the age of twenty-one including when adjudication order is on

  appeal); Sanoff v. People, 187 P.3d 576 (Colo. 2008) (district court

  retains jurisdiction to rule on restitution after notice of appeal is

  filed); People in Interest of Dveirin, 755 P.2d 1207, 1209 (Colo. 1988)

  (district court retains jurisdiction over all subsequent certification

  5 We may rule on the pending requests if Liggett’s competence is
  restored before we lose jurisdiction over the appeal. If Liggett
  remains incompetent, restoration for those matters within the
  appellate court’s jurisdiction will be rendered moot when the
  mandate issues.
                                     23
proceedings when the validity of short-term certification is pending

appeal); In re Parental Responsibilities Concerning W.C., 2018 COA

63 (district court retains jurisdiction to consider motions to modify

parenting time and decision-making while permanent orders are on

appeal); People in Interest of E.M., 2016 COA 38M (district court

retains jurisdiction to enter and modify treatment plans while

adjudicatory order is on appeal), aff’d sub nom. People in Interest of

L.M., 2018 CO 34; In re Estate of Scott, 119 P.3d 511 (Colo. App.

2004) (probate court retains jurisdiction to conduct administration

of the estate after its judgment regarding all pending claims and

parties is final), aff’d sub nom. Scott v. Scott, 136 P.3d 892 (Colo.

2006); People v. Stewart, 26 P.3d 17 (Colo. App. 2000) (district court

retains jurisdiction to rule on motions for stay and for appeal bonds

during appeal), aff’d in part and rev’d in part, 55 P.3d 107 (Colo.

2002); Koontz v. Rosener, 787 P.2d 192, 198 (Colo. App. 1989)

(district court retains jurisdiction to consider attorney fees as costs

after notice of appeal is filed); see also C.R.C.P. 54(b) (district court

retains jurisdiction over remaining claims while certified claims are

appealed); C.R.C.P. 59 (district court retains jurisdiction to rule on

a pending Rule 59 motion after notice of appeal is filed).

                                    24
¶ 37   Moreover, we are not persuaded that Liggett’s confinement in

  the custody of the DOC necessarily precludes restoration

  proceedings from occurring. The plain language of section 16-8.5-

  111(2)(b) provides that the district court may commit a defendant to

  the Department of Human Services for restoration and gives the

  executive director of the Department authority over the restoration

  proceedings. Nothing in the statutory language requires a

  defendant to reside in a particular location for restoration to occur.

  And we note that Liggett was confined in the custody of the DOC

  when the district court ordered the Department to perform the

  competency examinations pursuant to our limited remand. We

  have no reason to expect that such cooperation between the

  Department and the DOC will not or cannot occur with respect to

  restoration proceedings.

¶ 38   Nevertheless, we leave to the district court’s discretion the

  resolution of any issues that may arise between the Department

  and the DOC. Accordingly, we remand the case to the district court

  for the limited purpose of ordering proceedings to restore Liggett to

  competence. This order will remain in effect until Liggett is restored

  to competence or until the mandate issues, whichever occurs first.

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                             V.   Conclusion

¶ 39   We grant a stay of the ruling on Liggett’s requests to terminate

  counsel and to dismiss the appeal. We deny the request to

  indefinitely stay the appellate proceedings and order the direct

  appeal to proceed in accordance with the scheduling order. We

  grant the request for a limited remand to seek to restore Liggett to

  competence and remand the case to the district court for that

  limited purpose. If competence is restored before the mandate

  issues, then Liggett shall immediately forward a copy of the district

  court’s order to this court. Entry of the order on the matter shall be

  construed as recertification of the appeal by the district court. The

  order entered shall be made a part of the record on appeal.

¶ 40   If Liggett wishes to amend the notice of appeal with any issue

  arising on remand, a motion to amend shall be filed within fourteen

  days of notice of recertification of the appeal by this division and

  shall be accompanied by a motion to supplement the record, if

  necessary.

¶ 41   We further order Liggett’s counsel to notify this division in

  writing of the status of the district court proceedings in the event

  that this matter is not concluded within sixty-three days from the

                                    26
date of this order. Liggett’s counsel shall file status reports every

sixty-three days until recertification or until further order of this

division.

     JUDGE TAUBMAN and JUDGE ASHBY concur.




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