State v. McCarthy (In Re McCarthy)

This opinion was
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Susan L. Carlson
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASfflNGTON,
No. 96653-2
Petitioner,

V. En Banc

MATTHEW SEAN McCARTHY,

Respondent.

In the Matter ofthe Personal Restraint
of

MATTHEW SEAN McCARTHY,

Petitioner.
Filed AUG 0 8 2019

JOHNSON,J.—This case concerns two issues:' whether under ROW

10.77.060(1)(a) the trial court erred, during trial, in not ordering a third

competency hearing after a jury had previously found the defendant competent to

stand trial, and what deference, if any, is given to the trial court when it does not
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

sua sponte order a competency hearing. Matthew McCarthy's appellate counsel'
contends that McCarthy's mental health deteriorated and that the trial court erred

in not sua sponte ordering another competency evaluation either before or during

McCarthy's third strike burglary trial. A jury found McCarthy guilty of first degree

burglary, and he was sentenced to life in prison as a most persistent offender. The

Court of Appeals engaged in what the parties characterize as an independent

review^ of the record, held that the trial court should have ordered another

evaluation, and vacated the conviction. The State petitioned for review. We reverse

the Court of Appeals. The proper standard of review is abuse of discretion, and the

trial court did not abuse its discretion when it did not sua sponte order a

competency evaluation based on the evidence presented during the criminal

proceedings. We reverse and remand to the Court of Appeals for consideration of

the remaining issues raised in McCarthy's personal restraint petition.^

' We refer to McCarthy and his counsel separately as McCarthy has, throughout the
proceedings, vigorously contended that he is competent, in disagreement with his competency
trial counsel and appellate counsel. McCarthy's burglary trial counsel never indicated he
questioned McCarthy's competence to stand trial.

^ The Court of Appeals does not specify the standard of review it used, but the parties
agree it engaged in an independent review, so we refer to it as such throughout the opinion.

^ Because the Court of Appeals reversed the conviction based solely on the failure to
order a competency hearing, it did not resolve the other issues raised on appeal.
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

FACTS AND PROCEDURAL fflSTORY

On September 21, 2014, McCarthy approached a stranger's home under a

mistaken belief that he would find his ex-wife within the home. He forced his way

into the home and pushed the occupant against the wall. He returned twice the next

evening: the first time once again looking for his ex-wife and the second time

looking for his cell phone. Out of these events, the State charged McCarthy with

first degree burglary predicated on assault. The State notified him that this was a

most serious offense and that he was facing life in prison without parole due to his

criminal history.

Prior to McCarthy's arraignment, his public defender, Kari Reardon,

expressed to the court that she had reason to doubt McCarthy's competency to

stand trial. The trial court ordered a competency evaluation and stayed the

proceedings. McCarthy objected to the initiation of competency proceedings

against his will because he believed himself to be competent. Dr. Daniel Lord-

Flynn conducted an evaluation and diagnosed McCarthy with bipolar disorder with

nonbizarre delusions,'^ and various substance abuse disorders. Dr. Lord-Flynn

initially found McCarthy had a detailed understanding of the legal proceedings

^ "Nonbizarre delusions" are delusions that could be real but in actuality are not, such as
"the FBI is surveilling me." In contrast, "bizarre delusions" are delusions of things that could not
happen, such as "aliens invaded and have taken over my body." See 2 Verbatim Report of
Proceedings (Jan. 27, 2016) at 383.
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

against him and the ability to assist in his own defense, and he tentatively believed

McCarthy was competent to stand trial. After receiving more information from

attorney Reardon, Dr. Lord-Flynn changed his opinion and concluded that

McCarthy was incompetent to stand trial as he could not assist in his own defense.

Based on Dr. Lord-Flynn's opinion, the trial court ordered a 90-day competency

restoration period.

McCarthy maintained he was competent and requested a second opinion,

which resulted in the appointment of Dr. Debra Brown. Dr. Brown evaluated

McCarthy and found him incompetent to stand trial because of his inability to work

with Reardon. After the first 90-day restoration treatment. Dr. Lord-Flynn changed

his conclusion and found McCarthy capable of assisting in his own defense but

only with another attorney. The trial court held another hearing and, based on the

conflicting evidence, ordered a second 90-day competency restoration period.

After the second restoration treatment. Dr. Lord-Flyim, with Dr. Brown

observing, evaluated McCarthy again. At this interview, McCarthy spoke about the

case and his defense, indicated he understood the charges and what the prosecutor

needed to prove, and again expressed that he did not trust Reardon to be his

attorney. Dr. Lord-Flynn added a diagnosis of antisocial personality disorder but

concluded McCarthy was competent to stand trial. The trial court then ordered a

jury trial to determine if McCarthy was competent.
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

A different judge presided over the competency trial. During that trial,

McCarthy testified that he believed he was competent but agreed there may have

been reasons to doubt competency earlier in the case. Both experts testified about

their opinions, including that they both found McCarthy suffered from bipolar

disorder with paranoid, nonbizarre delusions and irrational thought, but they

differed as to whether he was competent. Dr. Brown discussed McCarthy's

conspiracy theories and inability to trust his attorney. She opined that because

McCarthy's version of the facts did not make sense, that he thought others were

out to get him, and that his asserted defense was not viable, he could not assist his

attorney in his own defense and, thus, was not competent. She also testified that

while testifying that day, McCarthy still exhibited signs of paranoia and delusions.

Dr. Lord-Flyrm disagreed, testifying that McCarthy was calm when he

testified and his behavior was dramatically different from previous interactions.

Dr. Lord-Flynn explained that McCarthy's bipolar disorder was being treated, he

was taking his medications, and Dr. Lord-Flynn had found him competent. Fie

testified McCarthy was intelligent and at the time was able to understand the

consequences of his different legal options and could assist in his defense. The jury

found McCarthy competent to stand trial. At his arraignment following the verdict,

McCarthy pleaded not guilty. The court then allowed Reardon to withdraw as

counsel and agreed to appoint another public defender.
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

At McCarthy's next hearing, in front of the same judge as the competency

trial, the court heard McCarthy's motion to proceed pro se with the potential to

have Dennis Dressier as standby counsel. McCarthy indicated he wanted to

proceed pro se because of governmental misconduct and harassment within the

jail. The trial court inquired into McCarthy's education, familiarity with the law,

and his understanding ofthe consequences. The court asked if Dressier had any

input. Dressier indicated that he had read McCarthy's filings with the court and

stated that he had "seen a lot worse" from lawyers and that McCarthy had been

diligent in learning how to handle the matters. 4 Verbatim Report ofProceedings

(VRP)(May 13, 2016) at 709. The trial court granted McCarthy's request, finding

McCarthy knowingly, voluntarily, and intelligently waived his right to an attorney,

and Dressier was appointed in limited scope as standby counsel. The State raised

concerns about delusions resurfacing based on McCarthy's beliefs that his ex-wife

was working in the county jail mail room and that his jailers were out to get him.

The judge stated,

I understand the State's concern. We went through a whole
competency trial. You were found to be competent. In listening to you
today, you don't sound a whole lot different than you did at the
competency trial. You seem to understand the process, the procedure,
where you are in this case, and it seems that you have some defense.
Whether or not it's a defense that other people would choose is a
separate question.
I think what we'll do is have you come back to check on you,
though, to make sure you're doing okay. If there does appear to be
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

issues of competency, then we might have to start this whole thing
over again.

4 VRP(May 13, 2016) at 716.

In subsequent proceedings, in front of different judges, McCarthy continued

to express delusional beliefs and file corresponding motions. Although McCarthy

indicated that the court was to monitor his mental health, no one questioned

McCarthy's competency. In a petition for a writ of habeas corpus, McCarthy

alleged his jailers were harming him with toxic fumes, prohibiting him from

reviewing his discovery. The court held a later hearing with jail staff testifying to

address McCarthy's allegations within the jail but twice delayed ruling on the

petition for writ of habeas corpus. The record does not contain a subsequent

hearing on these allegations of the toxic fumes.

At a pretrial hearing, the parties discussed the witnesses McCarthy wanted to

call and why, among other pretrial issues. McCarthy continued to allege that there

was a conspiracy between his ex-wife and the burglary victim and that there had

been governmental misconduct. He also had rejected the State's plea deal, which

would have allowed him to avoid persistent offender status by pleading guilty to a

nonstrike offense.

At this point, the State again alerted the court that there may be "slippage"

due to McCarthy's delusions about the toxic fumes and other governmental
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

misconduct. VRP (July 15, 2016) at 96. The trial court expressed concerns about

McCarthy's ability to represent himself, and McCarthy then agreed to allow

Dressier to be his counsel for the trial. Neither the trial court nor the parties

questioned McCarthy's competence.

The case proceeded to trial where McCarthy testified and described the facts

from his point of view. Based on the trial record, McCarthy appeared coherent in

his recitation and there is no indication of any irrational behavior or outbursts.

When he arrived for the reading of the verdict, McCarthy wore "jail clothes"

although he was told he could wear "street clothes." 2 VRP (Sept. 21, 2016) at 253.

Dressier stated, "Although I would prefer him being in civilian attire, I have to

assume Mr. McCarthy knows what he's doing.I never have had any thoughts

otherwise^ 2 VRP (Sept. 21, 2016) at 254(emphasis added). McCarthy was

convicted of first degree burglary and sentenced to life as a persistent offender.

McCarthy filed a personal restraint petition in the Court of Appeals, again

alleging governmental misconduct. Shortly after. Dressier filed a notice of appeal.

The Court of Appeals consolidated the cases. In her Court of Appeals brief,

McCarthy's appellate counsel alleged that McCarthy's delusions about

governmental misconduct and the relationship between his ex-wife and the victim

were a sufficient basis to doubt his competency and that the trial court abused its

discretion in not sua sponte ordering another competency hearing. In his briefing.
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

McCarthy still contended he was competent. See Statement of Additional Grounds

for Review at 18(Wash. Ct. App. No. 34859-8-III (2017))("Incompetence is not

the real issue here.").

The Court of Appeals, based on its review of the record, agreed that reasons

existed to doubt McCarthy's competency, vacated his conviction, and remanded to

the trial court. See State v. McCarthy, 6 Wn. App. 2d 94, 143-44, 429 P.3d 1086

(2018). The State petitioned for review, arguing that the Court of Appeals applied

the wrong standard of review and the proper standard of review should be abuse of

discretion, and that the trial court did not abuse its discretion; further, even if error

occurred, the proper remedy is to remand for an evidentiary hearing on whether

McCarthy was competent at the time of trial. We granted review. State v.

McCarthy, 192 Wn.2d 1023, 435 P.3d 265 (2019).

ANALYSIS

The due process clause ofthe Fourteenth Amendment to the United States

Constitution guarantees an accused the fundamental right not to stand trial if he is

legally incompetent. State v. Ortiz-Ahrego, 187 Wn.2d 394, 402-03, 387 P.3d 638

(2017). This principle is codified under RCW 10.77.050, which states,"No

incompetent person shall be tried, convicted, or sentenced for the commission of

an offense so long as such incapacity continues." Under the statutory definition,

"'[i]ncompetency' means a person lacks the capacity to understand the nature of
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

the proceedings against him or her or to assist in his or her own defense as a result

of mental disease or defect." RCW 10.77.010(15).

"Chapter 10.77 RCW governs the procedures and standards trial courts use

to [assess] the competency of defendants to stand trial." State v. Coley, 180 Wn.2d

543, 551,326 P.3d 702(2014).

Under Washington's statutory scheme,

[w]henever ... there is reason to doubt [the accused's] competency,
the court on its own motion or on the motion of any party shall either
appoint or request the secretary to designate a qualified expert or
professional person, who shall be approved by the prosecuting
attorney, to evaluate and report upon the mental condition ofthe
defendant.

RCW 10.77.060(l)(a)(emphasis added). When making the determination of

whether a competency hearing is necessary, the factors the trial court considers

include the defendant's behavior, demeanor, appearance, personal and family

history, and psychiatric reports. In re Pers. Restraint ofFleming, 142 Wn.2d 853,

863, 16 P.3d 610(2001). In addition, we have recognized that the trial court should

afford "considerable weight" to a defense attorney's opinion regarding his or her

client's competency. State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177(1991).

Here, the trial court did not sua sponte refer McCarthy for an additional

competency hearing after a jury found him competent. We must initially determine

the standard ofreview to review the trial court's decision. Although the briefing at

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

times characterizes this issue as challenging the trial court's "decision,"^ no such

decision exists. Instead, it is the trial court's failure to order a new competency

hearing, although it makes no substantive difference to the analysis.

1. Standard of Review

The parties disagree as to whether appellate courts should give deference to

the trial court when a trial court judge does not order a competency evaluation or

hearing where no request is raised. The State contends that the proper standard of

review is abuse of discretion. McCarthy's counsel instead urges that the appellate

court engage in an independent review of the record, given that this is a matter of

constitutional significance.

In State v. Sisouvanh, 175 Wn.2d 607, 620, 290 P.3d 942(2012), to address

whether Sisouvanh's competency evaluation was adequate, we first needed to

determine the appropriate standard of review. In holding that the standard of

review for the adequacy of a competency evaluation is abuse of discretion, we

noted that "various decisions by the trial court regarding competency are subject to

an abuse of discretion standard." Sisouvanh, 175 Wn.2d at 620. We also explained.

^ See, e.g., Appellant's Opening Br. at 8-9(Wash. Ct. App. No. 34859-8-III (2017))
("Appellate courts will review a trial court's decision about a defendant's competency or, as
here, its decision not to evaluate whether a defendant's competency continues, for abuse of
discretion."(emphasis added)); Suppl. Br. of Pet'r at 2("Whether the trial court's decision not to
refer Matthew McCarthy for additional competency evaluations was within its discretion?"
(emphasis added)).

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

An abuse of discretion standard often is appropriate when(1)
the trial court is generally in a better position than the appellate court
to make a given determination,(2) a determination is fact intensive
and involves numerous factors to be weighed on a case-by-case basis,
(3)the trial court has more experience making a given type of
determination and a greater understanding of the issues involved,(4)
the determination is one for which "no rule of general applicability
could be effectively constructed,", and/or(5)there is a strong interest
in finality and avoiding appeals.

Sisouvanh, 175 Wn.2d at 621 (citations omitted)(quoting re Parentage of

Jannot, 149 Wn.2d 123, 127,65 P.3d 664(2003)). As in Sisouvanh, all ofthese

factors support appljdng an abuse of discretion standard for failure to sua sponte

order another competency hearing where no motion or request is made for another

hearing.

Similarly, in Fleming we applied the abuse of discretion standard to a failure

to order a competency hearing. Under that standard, we found the judge did not err

in not ordering a competency evaluation where the "trial judge did not see any

irrational behavior in the courtroom, nor were there any psychiatric reports given

to the trial court judge." 142 Wn.2d at 863. We have also applied the abuse of

discretion standard to a trial court's decision whether defense counsel has met the

threshold "reason to doubt... competency" such that a trial court must order a

competency hearing, affirming the trial court's decision that counsel had not met

the threshold. Lord, 117 Wn.2d at 904.

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

Applying the reasoning from our cases, we hold that whether a trial court

should have sua sponte ordered a competency evaluation is also reviewed for abuse

of discretion.

2. Discretion To Order Additional Competency Hearings

Applying an abuse of discretion standard, a reviewing court will find error

only when the trial court's decision is manifestly unreasonable or is based on

untenable grounds. Sisoiivanh, 175 Wn.2d at 623. Although the appellate court

reviews the relevant record, it does so not to come to its own conclusions; the

focus is to determine if the trial court's exercised discretion was reasonable and

tenable. Therefore, in the present case, if the issue of competency is '"fairly

debatable,"' failure to order a subsequent evaluation does not violate RCW

10.77.060, and the trial court did not abuse its discretion. Sisouvanh, 175 Wn.2d at

623 (internal quotation marks omitted)(quoting Walker v. Bangs, 92 Wn.2d 854,

858,601 P.2d 1279(1979)).

RCW 10.77.060(l)(a) requires the trial court to order a competency hearing

whenever there is a reason to doubt competency. This requirement continues even

after a determination of competency. However, once there has been a

determination that a defendant is competent to stand trial, a trial court need not

revisit the issue of competency unless some objective incident or event occurs

where the court is provided with new information that indicates a significant

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

change^ in the defendant's mental condition. State v. Ortiz, 119 Wn.2d 294, 301,

831 P.2d 1060(1992)(plurality opinion). The Court of Appeals has similarly

found that a reason to doubt is "not definitive, but vests a large measure of

discretion in the trial [court]." City ofSeattle v. Gordon, 39 Wn. App. 437, 441,

693 P.2d 741 (1985).

Washington courts have found that a trial court errs in not ordering a

competency evaluation when there is significant evidence that the defendant is not

competent, especially where the record includes evidence from expert witnesses

and defense counsel. For example, in State v. Marshall, 144 Wn.2d 266, 279, 27

P.3d 192(2001), we vacated Marshall's guilty plea because of the "ample

evidence" before the court that called his competency into question. In that case, in

addition to the motion to vacate the plea due to incompetency, Marshall provided

the court with expert testimony indicating that Marshall suffered from a high level

of brain atrophy, below average intelligence, and diagnoses of bipolar disorder.

® The Court of Appeals adopted a California rule that requires another competency
hearing after a determination of competency only when there is a "substantial change of
circumstances or new evidence presented casting serious doubt on the validity of the prior
finding of the defendant's competency." McCarthy,6 Wn. App. 2d at 135-36 (citing People v.
Mendoza,62 Cal. 4th 856, 884, 365 P.3d 297, 198 Cal. Rptr. 3d 445, cert, denied, 137 S. Ct. Ill
(2016); People v. Medina, 11 Cal. 4th 694, 734, 906 P.2d 2, 47 Cal. Rptr. 2d 165 (1995)). The
Court of Appeals adopted this rule in part because "substantial change" is, in their view, the
same as "significant change" from our plurality decision in Ortiz. McCarthy,6 Wn. App. 2d at
136. There is no need to adopt an out of state rule when our case law provides a persuasive rule
that is virtually indistinguishable.

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

depression, and paranoid schizophrenia. One expert testified that Marshall did not

understand he could go to prison if he pleaded guilty. Another witness testified that

Marshall stated he did not intend to kill the victim, yet he still pleaded guilty to

premeditated murder. The trial court denied the motion despite finding Marshall

had a mental impairment. We held that given the substantial evidence calling

Marshall's competency into question when he pleaded guilty, the trial court erred

in not ordering a competency hearing or granting the motion to vacate Marshall's

guilty plea. Marshall, 144 Wn.2d at 281.

Similarly, in State v. Fedoruk, 5 Wn. App. 2d 317, 339-40, 426 P.3d 757

(2018), review denied, 192 Wn.2d 1012(2019), the Court of Appeals reversed

Fedoruk's conviction when new information arose during trial that brought

competency into question. Fedoruk had been found to be competent after many

months of concerning behavior. Flowever, at trial, Fedoruk began exhibiting

"extreme behavior that was similar to behavior he displayed in past mental

breakdowns." Fedoruk, 5 Wn. App. 2d at 337. This included screaming in an

unintelligible language, the need to be increasingly physically restrained due to his

inability to remain composed, interrupting witnesses, collapsing on the floor, and

other disruptive behaviors. At first, Fedoruk's counsel expressed concern about

Fedoruk's mood, but as the trial went on, counsel moved for a mistrial based on

what was happening in the courtroom. The trial court denied the motion, finding

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

that any need for a mistrial was due to Fedoruk's behavior. In that case, after trial,

the trial court did order a competency evaluation, and a psychologist found

Fedoruk was in a psychotic state and not competent to proceed with sentencing. On

appeal, the Court of Appeals vacated the conviction and held that the trial court

abused its discretion when it failed to consider if Fedoruk was competent to stand

trial. Fedoruk, 5 Wn. App. 2d at 338-39.

In contrast, in Lord, the trial court denied a motion for a competency

hearing, and we affirmed the denial. In support of the motion. Lord's counsel

offered testimony that Lord told a correctional officer that he had spoken with the

devil and that the devil asked him to '"drink .. . his own blood to prove his

irmocence.'" Lord, 117 Wn.2d at 901. Lord told the court he was competent and

requested that one of his attorneys withdraw. The trial court noted Lord's counsel

"had not made any assertion that Lord was unable to recall or relate facts sufficient

for defense counsel to proceed." Lord, 117 Wn.2d at 902. Upon reviewing the

record, we held that the trial court did not abuse its discretion in declining to hold a

competency hearing because the "threshold burden of establishing that there was

reason to doubt Lord's competency was not met." Lord, 117 Wn.2d at 903-04.

Here, McCarthy's counsel argues the trial court should have ordered an

additional competency hearing when it addressed McCarthy's motions concerning

his conditions in the jail and when he presented his defense theory. However,

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

neither instance presents a situation similar to the cases finding reversible error

where it was found the trial court was required to order a competency hearing. The

record indicates no significant change in McCarthy's mental health that would

create doubt as to whether McCarthy was incompetent as statutorily defined. It is

undisputed that McCarthy understood the nature ofthe proceedings against him

throughout this case. Thus, at issue is only whether McCarthy could assist in his

defense.

A defendant can assist in his own defense when he "possess[es] an adequate

recall of the factual events involved in the charge against him,[is] able to

communicate those recollections to his attorney, and ha[s] both an intellectual and

emotional appreciation of the ramifications and consequences of the crime

charged." 12 RoYCE A.FERGUSON,Jr., Washington Practice: Criminal

Practice AND Procedure § 902, at 171 (3d ed. 2004)(citing v. Gwaltney,

11 Wn.2d 906, 468 P.2d 433 (1970)). As in Lord, this case presents a situation

where, although delusions may have been apparent, there was no evidence

presented to the trial court that would cast doubt on the defendant's ability to recall

facts, communicate with his attorney, or understand the ramifications and

consequences ofthe crime.

While McCarthy's delusions may have changed, including allegations of

toxic fumes within the jail and presenting a theory that the victim and his ex-wife

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State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2

were in a relationship, the judges who presided over the proceedings entertained

McCarthy's motions, including bringing in jail staff to testify as to the fumes and

jail conditions. No party in any of the proceedings following the competency trial

raised a concern as to McCarthy's competence. No party had McCarthy evaluated

again by an expert witness who could testify as to whether McCarthy was

competent during the trial. When the court expressed concerns about McCarthy

representing himself in a third strike case, McCarthy seemed to act reasonably by

choosing to have counsel reappointed to him when the judge expressed those

concerns. There is no indication that McCarthy did not retain composure during his

trial. His testimony is an accurate representation of the facts as he believed them.

He was coherent throughout trial, and his defense counsel stated that he never had

a thought that McCarthy did not know what he was doing.

This case is not similar to Marshall, where multiple experts provided

evidence that the defendant was not competent at the time of his plea. Nor is it

similar to Fedoruk, where the defense attorney asked for another evaluation of

competency when the defendant could not keep himself composed in the

courtroom and was exhibiting signs of a mental breakdown. This case is similar to

Lord, where we held that simply having delusions, without more, was not a

sufficient showing that there was reason to doubt the defendant's competency.

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

In the present case, McCarthy's appellate counsel cannot identify any event,

other than McCarthy's continuing delusions, to support the conclusion that

McCarthy was incompetent to stand trial. Further, counsel provides no evidence

that any delusions affected McCarthy's ability to recall facts and communicate

with his attorney during the trial. Therefore, the trial court's failure to sua sponte

order another competency hearing was reasonable, and the trial court did not abuse

its discretion.^

^ The State argues the Court of Appeals incorrectly vacated McCarthy's conviction
instead of remanding for an evidentiary hearing. We need not address this issue because we
reverse the Court of Appeals.

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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2

CONCLUSION

We reverse and remand to the Court of Appeals for resolution of the issues

raised in McCarthy's personal restraint petition. Under the statutory scheme, the

judge was not required to order another competency hearing as there was no reason

to doubt McCarthy's competence.

WE CONCUR:

'am.

/

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