concurring.
I concur fully in the resolution of the issues presented in this appeal. I write separately to express the same concerns I raised in my concurring opinion in Habibzadah v. State, 904 N.E.2d 367, 369 (Ind.Ct.App.2009), trans. denied, and additional concerns raised by A.J.’s circumstances regarding the adequacy of our current criminal justice procedures to resolve the issues presented by defendants suffering from chronic mental illness.
Here, like in Habibzadah, all of the psychiatrists who have examined A.J. during the course of the proceedings culminating in the involuntary commitment at issue here, a period spanning approximately two years, have consistently agreed that he has not been and is not currently competent to assist in his defense. The private psychiatrists appointed to conduct A.J.’s initial competency evaluation in 2009 opined that A.J. would never be restored to competency. Specifically, Dr. Masbaum, a forensic psychiatrist certified by the American Board of Psychiatry and Neurology, concluded that “it is unlikely that [A/.] can ever be restored to competence to stand trial.” Respondent’s Ex. at 9 (emphasis added). Similarly, Dr. Berger, another board-certified forensic psychiatrist, concluded that “[A./.] will never be restored or habilitated to competence to stand trial. He ⅜(⅜] the mind of a 5 year old. He never has had and never will have the cognitive ability to achieve competence to stand trial.” Id. at 22 (emphasis added). Despite these conclusions reached by Dr. Masbaum and Dr. Berger, A.J. was found only to be incompetent to stand trial and ordered committed to Logansport State Hospital (“Logansport”) to receive competency restoration services pursuant to Indiana Code section 35-36-3-1.
*117Five months into this commitment to Logansport, Dr. Morris, a forensic psychiatrist employed by Logansport, evaluated A.J.17 In his report dated September 24, 2009, Dr. Morris concluded that A.J. was incompetent to stand trial, but recommended that A.J. remain at Logansport “for further treatment and evaluation, continued competency restoration efforts, an[d] initiation of Regular Commitment proceedings.” Respondent’s Ex. B at 6. Approximately two weeks later, Logans-port filed its petition to initiate the regular commitment proceedings at issue in this appeal. Attached to the petition was the “Physician’s Statement” prepared by Dr. Thompson, another employee of Logans-port and AJ.’s treating psychiatrist, in which Dr. Thompson concluded that Lo-gansport was the only suitable treatment facility for A. J.
One year later, at the September 29, 2010 hearing on Logansport’s petition for involuntary commitment, Dr. Morris opined that there is a “very good possibility” that A.J. will attain competency. Tr. pp. 38-89. There was no independent psychological evaluation of A.J. obtained for this hearing, only the evaluation of Dr. Morris. Thus, aside from Dr. Masbaum’s and Dr. Berger’s initial competency evaluations, the only evidence available to the trial court and to us regarding the likelihood that A.J. will ever attain competency is Dr. Morris’s evaluation of A.J. after he began receiving competency restoration services.
Assuming that A.J. ever attains competency, the resolution of the pending criminal charges will likely turn on whether, at the time of the alleged acts of molestation, A.J.’s mental disease was such that he cannot be held criminally responsible for his actions. This is where defendants like A.J. fall into Indiana’s twin “black holes” of incompetency to assist defense counsel and competency restoration services. As I explained in my concurring opinion in Ha-bibzadah,
[a] large and ironic lapse in the logic of our criminal justice system is that its initial imperative is to determine the competency of defendants prospectively, to assist counsel at trial. And the courts can determine whether the defendant is able to assist in his or her own defense at any time, whether relatively soon after arrest, or long thereafter, sometimes years after arrest. Only after a defendant is determined competent is the issue of competency at the time of the crime raised, and only along with the trial of the facts of the offense alleged.
The problem arises that if a defendant is not competent to assist in his or her own defense, under our current system, the defendant will never be able to go to trial and present evidence relating to his or her culpability at the time of the crime.... [Especially] troublesome is the possibility of a defendant who regains competency during civil commitment over a period of decades. It is quite likely that such a person will have no memory of the crime charged and be horrified upon learning of it. Even worse, that defendant might then be convicted for the underlying crime, in part because his demeanor is now that of a competent person.
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Our criminal justice system needs an earlier and intervening procedure to determine competency retroactively to the time of the alleged crime. Perhaps we as a society need to consider the concept of a defendant being unchargeable because of mental illness under Indiana *118Code section 35-41-3-6, and not just guilty but mentally ill under Indiana Code section 35-36-2-1, et. seq. In either case, the commitment proceedings provided for in Indiana Code section 35-36-2-4 would both protect society and best care for the defendant involved.
Whether such a procedure is promulgated by the Indiana Supreme Court through its rule-making process or by the Indiana General Assembly through statute, it is time for the truly long-term, incompetent criminal defendant to have an earlier and intervening opportunity for a determination of his or her competency at the time of the crime alleged. Such a procedure convened soon after arrest, rather than years later when stale evidence and dim or nonexistent memories are all that are left, or never, would best serve society and the defendant.
904 N.E.2d at 370-71
All of these concerns are compounded in a case where, despite the earliest expert opinions received closest to the time of the alleged criminal act, evidence which then established that A. J. will never attain competency, A.J. has been shunted off to competency restoration services at Logansport and held there for over two years. A.J.’s family has worked hard to try and create a safe, community-based alternative for his treatment, but in the face of the position of Logansport’s physician that Logansport is the only suitable facility for A.J., A.J. will likely remain there for years, if not for a lifetime.
There are no simple answers in the treatment of chronic mental illness, whether in a criminal or civil context, but A.J.’s case is an example of an area where the law must do better.
. Apparently, Dr. Morris also evaluated A.J. in July, 2009, approximately two months into A.J.’s commitment. This evaluation has not been included in the record.