¶44 (dissenting) — The defense argues that at a hearing to determine whether a defendant has been restored to competency, the State — the party challenging the previously entered order finding the defendant incompetent — has the burden of proving competence by a preponderance of the evidence. At oral argument, the State took the same position. It represented that it had canvassed the practice of prosecutors across Washington, weighed the competing interests at stake, and — considering that history and practice — it was taking the same position as the defense on this particular point. Specifically, the State argued that at a hearing to determine whether a defendant, who was declared incompetent by the most recent court order, has been restored to competency, the State — the party challenging the previously entered order *563finding the defendant incompetent — bears the burden of proving competency by a preponderance.
¶45 I agree with both parties on this point. I think the statutes at issue here are most properly interpreted as placing the burden of proof on the party challenging the status quo. At the start of the trial, the status quo is usually the default presumption that a defendant is competent. See In re Pers. Restraint of Rhome, 172 Wn.2d 654, 663 n.2, 260 P.3d 874 (2011) (recognizing “the general presumption of competency to stand trial” (citing State v. Hahn, 106 Wn.2d 885, 895, 726 P.2d 25 (1986))). If there is a question about competency and the judge enters an order of competency, the status quo remains a presumption of competency. But where, as here, the judge signs an order stating that the defendant is not competent, then the presumption of competency no longer exists. The trial judge’s actual finding replaces that presumption.
¶46 Treating the trial judge’s ruling like it does not exist does not make sense and could not have been what the legislature intended. If the trial judge’s finding of incompetency did not remain in force, then that finding would be deprived of all meaning — a party who disagreed with it could just keep coming in and challenging it, day after day, and keep placing the burden on the incompetent defendant to prove continuing incompetency. That seems time-consuming, counterproductive, and disrespectful to the trial judge, who must have given some serious thought to the matter before signing the order.
¶47 I think it is much more reasonable to interpret the statute to place the burden of proof on the party challenging the status quo. In this case, at the beginning of the trial, it was the defendant, Mr. Coley. On Mr. Coley’s motion, the judge referred him to Eastern State Hospital (Eastern) for a competency evaluation. Based on that initial uncontested evaluation, the judge entered an order that Mr. Coley was competent, thus maintaining the status quo. But the judge again became concerned about the defendant’s competency *564a few months later and ordered another evaluation at Eastern. Based on that second (also uncontested) evaluation, the judge ruled that the defendant lacked competency and signed an order requiring the State to transport the defendant to Eastern for treatment to restore competency. At that point, a new status quo was established by the judge’s decision that the defendant lacked present competency to proceed.
¶48 The State then took the steps that the trial court ordered. It sent Mr. Coley to Eastern and provided treatment, and then the State’s expert submitted reports and testified to the court. The State’s expert concluded that Mr. Coley had been restored to competency. But the trial court’s order of incompetency was still in force; only the trial court, not the expert, has the power to make the ultimate legal determination of competency or incompetency.
¶49 To be sure, the expert’s reports and testimony alone can carry the State’s burden of proving restoration to competency. And that may have happened in this case. It is true that the trial court made some statements at the restoration hearing to the effect that it was placing the burden of proving incompetency on the defendant. But the trial court also made some statements at the restoration hearing suggesting the opposite; it expressly considered the testimony of both the State’s expert and the defense’s expert, as well as the testimony of the defendant (who testified at the competency hearing), before concluding that it believed the State’s expert that the defendant’s competency had been restored. Verbatim Report of Proceedings (June 11, 2010) at 156-59.
¶50 I therefore disagree with the majority’s decision that the burden of proof always lies with the party challenging competency. A trial court’s actual finding of incompetency changes the status quo, and the burden of proof properly rests with the party challenging that status quo — here, the State, not the defendant. Since it is not clear whether the trial court in this case applied the correct burden of proof or *565not, I would remand for clarification.4 If the trial court did not apply the correct standard of proof, then a reconstructed competency hearing is not appropriate — reversal and remand is required. Drope v. Missouri, 420 U.S. 162, 183, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); see also In re Pers. Restraint of Fleming, 142 Wn.2d 853, 16 P.3d 610 (2001). Therefore, I respectfully dissent.
Fairhurst, J., concurs with Gordon McCloud, J.The majority implies that we cannot grant relief in this case because the competency issue is moot due to an initial mistrial. But the parties and the majority have not treated this case as moot or even raised the issue. And it would not make sense to do so. The trial judge declared a mistrial in October 2010 because a witness revealed inadmissible evidence to the jury, and a new trial was held in December 2010 before the same judge. That mistrial was unrelated to, and thus had no effect on, Mr. Coley’s claim that the trial court erred in allocating the burden of proof at the competency hearing held in June 2010.