People v. Nagi

JUDGE LICHTENSTEIN

dissenting.

¶ 32 The majority recognizes that a trial court has broad discretion in deciding whether to refer a defendant for a competency evaluation. I take no issue with this premise. But, I believe this discretion is limited by a defendant’s constitutional right to self-representation.

¶ 33 In my view, the trial court here suspended the proceedings and referred defendant for a competency evaluation based on “the fact that [defendant] would want to represent [himself] in a case that the consequences to [him] can be an indeterminate life sentence with no legal training at all.” This was error for two reasons. First, the court did not apply the applicable legal standard underlying a “reason to believe” a defendant should be referred for a competency evaluation. See §§ 16-8.5-101(11), -102(2)(a), C.R.S.2013. Second, its referral order also infringed on defendant’s constitutional rights. Accordingly, I respectfully dissent.

¶ 34 I begin my analysis by discussing the applicable legal standards.

I. The Legal Standard of Incompetence and Statutory Provisions Governing a Referral for a Competency Evaluation

¶ 35 It is well established that subjecting an accused to trial when he or she is incompetent violates the defendant’s constitutional right to due process. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Jones v. Dist. Court, 617 P.2d 803, 806 (Colo.1980). Our statutory procedures provide safeguards to ensure against the prosecution of an incompetent defendant. Section 16-8.5-102(2) provides that the issue of competency may be i'aised by defense counsel, the pi’osecutor, or the trial court. This statute requires the court to suspend criminal proceedings and determine the competency or incompetency of a defendant if it *67“has reason to believe that the defendant is incompetent to proceed.” § 16-8.5-102(2)(a); see People v. Pnce, 240 P.3d 557, 561 (Colo. App.2010). The court may either make a preliminary finding or order that the defendant be evaluated to determine whether the defendant is incompetent to proceed. § 16-8.5-103(2), C.R.S.2013.

¶ 36 The legislature has defined “incompetent to proceed” as follows:

“Incompetent to proceed” means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

§ 16-8.5-101(11); accord Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (articulating a similar standard).

¶ 37 The “reason to believe” threshold that triggers the need for further inquiry into a defendant’s competence to proceed is a discretionary determination. Cappelli v. Demlow, 935 P.2d 57, 62 (Colo.App.1996). This is because the trial court has the opportunity to observe firsthand the defendant, and his or her actions and general demeanor. People v. Bolton, 859 P.2d 303, 307 (Colo.App.1993). But that discretion is not unbounded.

¶ 38 Although there is no definitive standard regarding the type or amount of evidence necessary to raise a doubt in the mind of a judge regarding a defendant’s competency, see Cappelli, 935 P.2d at 62, it is clear from the competency statutes that a court’s "reason to believe” that a defendant is “incompetent to proceed” must be based on whether a mental or developmental disability prevents a defendant from either (1) consulting with defense counsel with a reasonable degree of rational understanding in order to assist in the defense or (2) having a rational and factual understanding of the criminal proceedings. § 16-8.5-101(11) (defining “incompetent to proceed”). Consequently, a court’s competency referral order that departs from this applicable legal standard will constitute an abuse of discretion. See People v. Wilson, 251 P.3d 507, 508 (Colo.App.2010).

¶ 39 In my view, the record does not support the court’s referral order. See, e.g., People v. Morino, 743 P.2d 49, 52 (Colo.App. 1987) (looking to the record to determine whether there is support for the trial court’s decision); see also People v. Young, 34 Cal.4th 1149, 24 Cal.Rptr.3d 112, 105 P.3d 487, 529 (2005) (“In resolving the question of whether, as a matter of law, the evidence raised a reasonable doubt as to defendant’s mental competence, we may consider all the relevant facts in the record.”).

II. The Record Proceedings Leading to the Trial Court’s Referral for Competency Evaluation

¶ 40 During the month prior to defendant’s scheduled jury trial, the court held proceedings addressing defendant’s dissatisfaction with defense counsel’s request to continue the trial date beyond the six month speedy tidal period in order to locate additional witnesses. Defendant explained that he was ready to proceed to trial without these witnesses; he distrusted his counsel’s motivations for the continuance and wondered if the request was part of a “back door deal” with the prosecution. He also believed counsel would be unable to locate the witnesses defense counsel sought — especially since some of the witnesses were in the politically unstable country of Yemen. Defendant explained that he would release his attorney from any responsibility for not doing the additional investigation. He apologized for being forthright in referring to counsel’s “defense plans” to investigate these additional witnesses as “fake investigations,” but stated that, as a Semite, he tends to say what he feels. He emphasized that he wanted to preserve his right to speedy trial, as he had been in jail over the past eight months waiting for trial to finally proceed. He believed his attorney had already demonstrated the inconsistencies in the alleged victim’s allegations against him (at the preliminary hearing) and the prosecution would not be able to meet its “beyond a reasonable doubt” burden at trial. But, he knew he risked receiving a life sentence, and *68was willing to accept what “God has written for me,” even if it meant that he would spend the rest of his life in prison.

¶ 41 When the court explained that it could grant defense counsel’s request for a continuance over defendant’s assertion of his speedy trial right, defendant weighed his options, which included (1) proceeding with alternate defense counsel, with whom he had no history of distrust (even if that meant resetting the trial beyond the speedy trial date); or (2) representing himself in order to preserve his original trial date. After initially wavering in this decision, defendant ultimately decided to proceed pro se.

¶ 42 The court then conducted an Arguello advisement, and defendant confirmed that he understood the possible penalties if convicted and the various consequences of his decision to represent himself. After conducting the advisement, the court did not indicate it had any concerns regarding defendant’s competency to either waive counsel or to proceed to trial, To the contrary, it indicated it would allow defendant to proceed to trial on the originally scheduled date either (1) with defendant representing himself, if defense counsel was still unwilling to proceed on the original trial date; or (2) with defense counsel, if counsel appeared in court stating that he agreed to do so.

¶ 43 The day before defendant’s scheduled trial, defense counsel did not appear. The court then asked defendant if he still wished to represent himself. Surprisingly, when defendant answered “Yes, sir,” the court abruptly suspended the proceedings, vacated the trial date, and ordered a competency evaluation. The court explained that its order was based on defendant’s desire to represent himself at trial:

The [c]ourt has had some hearings on this case over the last couple of weeks. [Defendant] indicated to the [c]ourt, we had discussion[s] on June 6th, maybe the week before that, he wanted to represent himself in this matter. The [c]ourt’s concern, frankly, [defendant], based on the statements that you’ve made to me that you’re not making good decisions; that the fact that-you would want to represent yourself in a case that the consequences to you can be an indeterminate life sentence with no legal training at all raises a concern with the [c]ourt that you are not acting competently. I have a duty, sir, to suspend the proceedings and determine whether or not you are, in fact, competent or incompetent if I have reason to believe that you are incompetent.
Again, based on your actions and your decision making, I am concerned that you are not acting competently at this time.

¶ 44 Defendant then underwent the evaluation, and was found competent to proceed. The evaluator noted that defendant’s discussion of his case was “considered and reasonable,” and, during their discussions, there was never “any indication of psychosis or other mental illness that influenced [defendant’s] thinking.”

¶ 45 After the parties did not dispute the finding of competence, defense counsel moved to dismiss the case for a violation of defendant’s speedy trial right. In doing so, defense counsel challenged the court’s order requiring defendant to undergo a competency evaluation as lacking a “legal-sound basis.” The court again explained that its reason for the order was defendant’s decision to represent himself:

[T]he [c]ourt felt [a competency evaluation] was appropriate, based on what was being stated to the [c]ourt by [defendant]. The [c]ourt’s concern was that he wanted to represent himself in a case, which, if convicted, would result in an indeterminate sentence. So the [c]ourt did not feel that he was making good decisions and felt it was appropriate to order a competency examination.

Based on these findings and this record, I conclude that the trial court’s order was an abuse of discretion.

III. The Trial Court’s Order for Competency Evaluation was an Abuse of Discretion

¶ 46 Because the trial court did not base its order -on the legal standard for competence, its order suspending the proceedings and directing defendant to undergo a competency evaluation constituted an abuse of dis-*69eretíon. Wilson, 251 P.3d at 508. Here, the trial court did not identify any concern that defendant lacked a rational and factual understanding of the proceedings against him or was unable to consult with counsel. To the contrary, the record shows that defendant had a rather sophisticated understanding of the proceedings. He identified the nature of the proceedings, potential tidal strategies, his statutory and constitutional rights, and weighed his options and their consequences.

¶ 47 Not only did the order lack record support but, even more significant, the court’s order also infringed on defendant’s constitutional rights. People v. Robles, 302 P.3d 269, 273-74 (Colo.App.2011) (a decision that infringes on a defendant’s constitutional rights is an abuse of discretion); see also People v. Stephenson, 165 P.3d 860, 866 (Colo.App.2007) (to show an abuse of discretion, a defendant must establish that under the circumstances the trial court’s decision was manifestly arbitrary, unreasonable, or unfair).

¶ 48 Three separate times the court identified only one reason for its referral order: that defendant made bad decisions by waiving his right to counsel and choosing to represent himself at trial, without legal training, when he was facing an indeterminate sentence. This is not a proper basis for a competency referral order.

¶ 49 Understandably, here, the trial court believed that defendant’s decision to represent himself was ill-advised because he faced an indeterminate life sentence if convicted.

¶ 50 But a defendant’s ill-advised legal strategy is ordinarily not justification to question a defendant’s competency. See United States v. Perez, 603 F.3d 44, 48. (D.C.Cir.2010) (“Although [the defendant] may have held dubious legal views and pursued an inadvisable strategy, none of this provided reasonable cause for the district court to question his competence to stand trial. As the Seventh Circuit has recognized, ‘ “persons of unquestioned competence have espoused ludicrous legal positions,” but the articulation of unusual legal beliefs is a far cry from incompetence.’ ” (quoting United States v. Alden, 527 F.3d 653, 660 (7th Cir. 2008))); Commonwealth v. Adkinson, 80 Mass.App.Ct. 570, 954-N.E.2d 564, 579 (2011) (“[A] foolish or unsuccessful choice does not render [a defendant] incompetent.”); see also Commonwealth v. Robidoux, 450 Mass, 144, 877 N.E.2d 232, 241 (2007) (“If we are to protect a defendant’s autonomy to make decisions relating to his defense, the exercise of that autonomy cannot alone be grounds to doubt his competency.” (citation omitted)),

¶ 51 Several state courts agree with this view. See, e.g., Adkinson, 954 N.E.2d at 579; State v. Barton, 108 Ohio St.3d 402, 844 N.E.2d 307, 316-17 (2006); Baldwin v. State, 227 S.W.3d 251, 254 (Tex.App.2007); see also Agan v. State, So.2d 1254, 1256 (Fla. 1987) (rejecting an argument' that would require a competency inquiry in virtually every case in which an accused person makes a decision perceived by others as being'unwise”). ’’ ’’

¶ 52 Not only is á defendant’s, ill-advised legal strategy improper grounds to support, a “reason to believe” a defendant is incompetent to proceed, but, crucially, the decision here is one that is constitutionally guaranteed: criminal defendants have a constitutional right to represent themselves at trial. See Faretta v. California, 422 U.S. 806, 817, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Arguello, 772 P.2d 87, 92 (Colo.1989),

¶ 53 Courts must respect that decision, no matter how ill-advised it may be. See Faretta, 422 U.S. at 834, 95 S.Ct, 2525 (“It is the defendant ... who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to 'his own detriment, his choice must be honored out of that respect for the individual which-is the lifeblood of the law.” (internal’’quotation marks omitted)); see also People v. Bergerud, 223 P.3d 686, 701 (Colo.2010) (“The’Wisdom or unwisdom’ of the defendant’s choice does not diminish his right' to make it.” (internal quotation marks omitted)); People v. Lucero, 200 Colo. 335, 341, 615 P.2d 660, 664 (1980) (a defendant “is bound by his choices, however ill-advised they may be”); Alongi v. Ricci, 367 Fed.Appx, 341, 348 (3d Cir.2010) (“[A] defendant’s request to waive, the right *70to counsel and proceed pro se cannot be denied because the court believes that the defendant’s choice is ill-advised. Such a choice is almost always ill-advised.”).

¶ 54 “It is well settled that a person should not be penalized for exercising a constitutional privilege.” People v. Pollard, 2013 COA 31, ¶ 25, 307 P.3d 1124; see also Chaffin v. Stynchcombe, 412 U.S. 17, 32 n. 20, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (“[I]f the only objective of a state practice is to discourage the assertion of constitutional rights it is patently unconstitutional.” (internal quotation marks omitted)); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (“For if the government could deny a benefit to a person because of his [exercise of his] constitutionally protected [rights], his exercise of those freedoms would in effect be penalized and inhibited.... Such interference with constitutional rights is impermissible.”); In re Marriage of Ciesluk, 113 P.3d 135, 142 (Colo.2005) (“‘[A] legal rule that operates to chill the exercise of [a] right, absent a sufficient state interest to do so, is as impermissible as one that bans exercise of the right altogether.’ ” (quoting Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299, 306 (1991))); Apodaca v. People, 712 P.2d 467, 473 (Colo.1985) (“A constitutional right may be said to be impermissibly burdened when there is some penalty imposed for exercising the right.”).

¶ 55 To be sure, “an incompetent person cannot waive his constitutional rights,” and trial judges “must carefully safeguard such rights should the judge have a reasonable doubt as to a criminal defendant’s competency.” People v. Lopez, 640 P.2d 275, 278 (Colo.App.1982) (internal quotation marks omitted). The statutory speedy trial right must yield to protection of those rights. Gallagher v. Dist. Court, 933 P.2d 583, 588 (Colo.1997) (a reasonable delay beyond the speedy trial deadline may be necessary to protect other fundamental constitutional rights of a defendant).

¶ 56 Even so, the invocation of the constitutional right to self-representation, without more, is an improper basis to suspend proceedings and order a competency evaluation. To conclude otherwise would permit a court to impermissibly penalize the exercise of that constitutional right by requiring a defendant to undergo an unwarranted competency evaluation. See Pollard, ¶ 25; see also Cappelli 935 P.2d at 60, 62 (recognizing that subjecting a defendant to a mental competency evaluation constitutes an infringement upon that individual’s liberty).

IV. The Improperly Ordered Competency Evaluation Was Not Harmless

¶ 57 Defendant contends that the trial court’s unwarranted competency order violated his statutory right to a speedy trial requiring that his conviction be vacated. I recognize this is a drastic remedy but, under the unique circumstances of this case, I agree.

A. Standard of Review and Relevant Law

¶ 58 A trial court’s denial of a motion to dismiss for violation of speedy trial rights is reviewed de novo. See People v. Adolf, 2012 COA 60, ¶ 9, 296 P.3d 251,253.

¶ 59 Colorado’s speedy trial statute requires dismissal if a defendant is not brought to trial within six months of the entry of a not guilty plea, unless the delay falls into one of the exclusion categories set forth by statute. § 18-1-405(1); see People v. Arledge, 938 P.2d 160, 165 (Colo.1997). The trial court and the prosecution have the burden of ensuring compliance with this statute. Arledge, 938 P.2d at 165.

B. Analysis

¶ 60 The speedy trial statute mandates that the period during which a defendant is incompetent or is under observation or examination after the defendant’s incompeteney has been raised “shall be excluded” from the six-month speedy trial calculation. § 18 — 1— 405(6)(a).

¶ 61 Despite the compulsory language of the speedy trial statutes’ time exclusions, the fundamental purpose of the speedy trial statute is “to prevent unnecessary prosecutorial and judicial delays to a pending criminal proceeding.” People v. Yellen, 739 P.2d 1384, 1390 (Colo.1987). Indeed, our supreme court has cautioned against a “wooden or *71mechanistic” application of this statute, and instead requires we keep in mind that a “ ‘just result is intended.’ ” Yellen 739 P.2d at 1390 (quoting People v. Moye, 635 P.2d 194, 195 (Colo.1981)). Accordingly, the statutory exclusions to the speedy trial calculation will not be applied when an unwarranted delay thwarts the fundamental purpose of the statute. See Arledge, 938 P.2d at 165-66 (dismissal of charges may result from unwarranted delay); People v. Chavez, 779 P.2d 376, 378 (Colo.1989); People v. Ferguson, 653 P.2d 725, 727-28 (Colo.1982).

¶ 62 Here, the court’s improper referral for a competency evaluation circumvented the very purpose for which defendant sought to exercise his constitutional right to represent himself — to prevent further delays and obtain a speedy trial. Thus, application of the statutory exclusion to speedy trial would thwart the purpose of the speedy trial statute and would yield an unjust result. See Yellen, 739 P.2d at 1390. Because defendant was not brought to trial within six months of his not guilty plea as required by section 18 — 1— 405(1), I would vacate his conviction.