SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
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June 28, 2021
In the Court of Appeals of Georgia
A21A0554. FOREMAN v. THE STATE.
MILLER, Presiding Judge.
After Najee Foreman was indicted on various sexual offenses, the trial court
declared him incompetent to stand trial and eventually ordered him into involuntary
civil commitment due to his substantial neuro-cognitive and memory disorders.
Foreman seeks review of the trial court’s order placing him in civil commitment,
arguing that the trial court lacked jurisdiction to have him committed because it had
ruled previously that he did not meet the criteria for civil commitment and had
subsequently lost jurisdiction over him. Upon a close review of the statutory
framework, we conclude that the competency statute did indeed grant the trial court
jurisdiction to rehear and reconsider the issue of whether Foreman met the criteria for
civil commitment. We therefore affirm.
“Whether a trial court lacked [jurisdiction] is an issue of law that we review de
novo[.]” (Citation omitted.) MacBeth v. State, 304 Ga. App. 466 (696 SE2d 435)
(2010).
A grand jury indicted Foreman on one count of aggravated sexual battery
(OCGA § 16-6-22.2) and one count of child molestation (OCGA § 16-6-4 (a)). Before
trial, the trial court ordered that the Georgia Department of Behavioral Health and
Development Disabilities (“Department”) conduct a mental evaluation of Foreman
after his mental competency was called into question. Following a bench trial on
Foreman’s plea of incompetency, the trial court found that Foreman was incompetent
to stand trial due to significant neuro-cognitive and memory disorders and ordered
that the Department conduct further evaluation as to whether Foreman could
potentially be restored to competency. Following further evaluation, on July 11, 2018,
the trial court concluded that Foreman remained incompetent and would not be
restorable in the foreseeable future. Noting that the parties had agreed that Foreman
could be released on bond, the trial court ordered that Foreman be released on bond,
subject to multiple conditions.
In May 2019, the State moved to revoke Foreman’s bond, alleging that he had
committed further crimes while released and that he had violated multiple provisions
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of his bond by possessing illegal drugs and firearms. The State further argued that
Foreman’s actions showed that he presented a danger to the community and that he
was a threat to continue to commit more offenses. Following a hearing, the trial court
ordered that Foreman’s competency to stand trial be re-evaluated. In February 2020,
the State amended its motion to include a plea that the trial court consider civilly
committing Foreman because he continued to present a danger to the community.
Following another hearing, on March 3, 2020, the trial court ordered that
Foreman be involuntarily civilly committed. The trial court concluded that clear and
convincing evidence showed that Foreman was “a mentally ill person, who presents
a substantial risk of imminent harm to himself or others . . . and who is unable to care
for his own physical health and safety as to create an imminently life-endangering
crisis.” The trial court ordered that Foreman be committed until the State conducted
a review of his status or for one year, whichever was sooner, and that such
commitment could be renewed annually until the maximum period for which he could
have been sentenced, so long as Foreman met the criteria for commitment. Foreman
appealed to the Supreme Court of Georgia, and that court transferred the case to us.1
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Although the underlying criminal proceedings are ongoing and Foreman did
not use the procedures for interlocutory review, OCGA § 5-6-34 (b), we nevertheless
conclude that we have jurisdiction over this direct appeal. An order involuntarily
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In his sole enumeration of error, Foreman argues that the trial court’s
jurisdiction to order him into civil commitment had lapsed once it had determined that
he did not meet the criteria for civil commitment and then released him from custody,
and so it lacked jurisdiction to revisit the matter and place him in civil commitment.
Upon a close reading of the statutory framework, we are compelled to disagree.
When analyzing statutes, “we are mindful of the applicable principles of
statutory construction and look diligently for the intention of the General Assembly.
In so doing, the ordinary signification shall be applied to all words. Where the
language of a statute is plain and susceptible to only one natural and reasonable
construction, courts must construe the statute accordingly.” (Citation and punctuation
omitted.) State v. Rich, 348 Ga. App. 467, 471 (823 SE2d 563) (2019).
Georgia law provides that
If the court finds the accused is mentally incompetent to stand trial, the
court may order a department physician or licensed psychologist to
evaluate and diagnose the accused as to whether there is a substantial
committing a criminal defendant falls under the collateral order doctrine because it
“(1) resolves an issue that is ‘substantially separate’ from the basic issues to be
decided at trial, (2) would result in the loss of an important right if review had to
await final judgment, and (3) completely and conclusively decides the issue on appeal
such that nothing in the underlying action can affect it.” (Citation omitted.) Warren
v. State, 297 Ga. 810, 811 n.2 (778 SE2d 749) (2015).
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probability that the accused will attain mental competency to stand trial
in the foreseeable future. The court shall retain jurisdiction over the
accused and shall transfer the accused to the physical custody of the
[Department of Behavioral Health and Developmental Disabilities].
OCGA § 17-7-130 (c).
If the evaluation . . . shows that the accused is mentally incompetent to
stand trial and that there is not a substantial probability that the accused
will attain competency in the foreseeable future[, and] the accused is
charged with a felony, the department shall return the physical custody
of the accused to a sheriff of the jurisdiction of the court[.] . . . [T]he
court shall [either c]onsider entry of a nolle prosequi of the charges
pursuant to Code Section 17-8-3 and . . . request that the department
petition the probate court of the jurisdiction of the accused’s residence
for civil commitment of the accused; or [r]etain jurisdiction of the
accused and conduct a trial at which the court shall hear evidence and
consider all psychiatric and psychological evaluations submitted to the
court and determine whether the state has proved by clear and
convincing evidence that the accused meets the criteria for civil
commitment. . . . Following the trial[, i]f the court finds that the accused
does not meet the criteria for civil commitment, the accused shall be
released in accordance with the provisions of Chapter 6 of this title.
OCGA §§ 17-7-130 (e) (2) (A), (B) (i). Finally,
[i]f an accused is determined by a department physician or licensed
psychologist to be mentally incompetent to stand trial, whether or not
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civilly committed pursuant to this Code section, the state may file at any
time a motion for rehearing on the issue of the accused’s mental
competency to stand trial. If the state’s motion is granted, the case shall
proceed as provided in this Code section.
(Emphasis added.) OCGA § 17-7-130 (g).
For multiple reasons, we reject Foreman’s argument that we should interpret
OCGA § 17-7-130 (e) (2) (B) (i) to completely terminate the trial court’s authority
over him once he is released because the context of the statute makes clear that
further criminal proceedings are contemplated after an accused is released under that
section.
We first note that OCGA § 17-7-130 (e) (2) (B) (i) provides that an accused
who “does not meet the criteria for civil commitment . . . shall be released in
accordance with the provisions of” the Georgia Code concerning the pre-trial release
of prisoners on bond. See OCGA § 17-6-1, et seq. Thus, OCGA § 17-7-130 (e) (2)
(B) (i) explicitly contemplates further proceedings after an accused is released. The
exact nature of those additional proceedings is detailed in §§ 17-7-130 (f) and (g),
which provide vehicles for the department’s physician or licensed psychologist and
the State, respectively, to reopen the proceedings upon a change in the accused’s
mental state. Both §§ 17-7-130 (f) and (g) provide that the issue of a criminal
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accused’s competency may be readdressed “at any time” after a trial court’s previous
ruling on the matter. Additionally, § 17-7-130 (g) specifically includes the phrase
“whether or not civilly committed pursuant to this Code section,” which indicates that
the Legislature contemplated that such motions for rehearing could be filed even after
a trial court determined that an accused did not meet the criteria for civil commitment
and was released pursuant to OCGA § 17-7-130 (e) (2) (B) (i). The statute also clearly
dictates that, if granted, a motion for rehearing on the issue of the accused’s mental
competency to stand trial would result in the case proceeding “as provided in this
Code section,” which we can only interpret to mean that a trial court may again
analyze the issue of civil commitment as provided for in OCGA § 17-7-130 (c).
Second, we note that OCGA §§ 17-7-130 (e) (2) (A) and (B) set out two
separate “tracks” for a trial court to follow depending on whether the State or trial
court wish to continue prosecuting the charges. Under OCGA § 17-7-130 (e) (2) (A),
the trial court enters a nolle prosequi of the charges and remands the question of civil
commitment to probate court. Under OCGA § 17-7-130 (e) (2) (B), the trial court
takes up the question of civil commitment itself and then either commits the accused
or releases the accused on pre-trial bond. It would be illogical for the Legislature to
set out these separate tracks if OCGA § 17-7-130 (e) (2) (B) (i) is interpreted to
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completely terminate the trial court’s authority over an accused upon release when
the trial court could simply follow the nolle prosequi track to achieve the same result.
Instead, the entire purpose of the release provision of OCGA § 17-7-130 (e) (2) (B)
(i) is to provide an avenue for the State to continue prosecuting the charges if/when
the accused’s competency is restored.
In light of these statutory provisions, the only credible interpretation of OCGA
§ 17-7-130 (e) (2) (B) (i) is that an accused’s release under that provision does not
end a trial court’s jurisdiction over that accused. Instead, the accused is merely
released on pre-trial bond pending further criminal proceedings.
As part of his argument in favor of his interpretation, Foreman contends that,
unless OCGA § 17-7-130 (e) (2) (B) (i) is interpreted to mean that the trial court’s
jurisdiction ends if it finds that the accused does not meet the criteria for civil
commitment, that provision will violate equal protection and due process principles.
It is true that, “[u]nder the canon of constitutional doubt, if a statute is susceptible of
more than one meaning, one of which is constitutional and the other not, we interpret
the statute as being consistent with the Constitution.” (Citations omitted.) Premier
Health Care Investments, LLC v. UHS of Anchor, L.P., 310 Ga. 32, 48 (3) (e) (849
SE2d 441) (2020). However, “that ca[n]on cannot be relied upon to avoid a potential
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constitutional issue when we can identify only one plausible interpretation of a
statute.” (Citation omitted.) Id. For the reasons cited above, the statute does not
plausibly lend itself to Foreman’s interpretation. We further note, as the Supreme
Court did in its transfer order, that the trial court did not directly rule on Foreman’s
equal protection and due process claims regarding OCGA § 17-7-130, nor does
Foreman argue that the trial court should have ruled on those claims, and so we have
no cause to squarely address those issues in this appeal.
We are compelled to conclude that the competency statute provided a
jurisdictional vehicle through OCGA § 17-7-130 (g) for the trial court to revisit the
question of whether Foreman qualified for civil commitment despite his prior release.
Because Foreman does not challenge the trial court’s conclusion that he satisfied the
relevant criteria for involuntary commitment, we affirm the trial court’s commitment
order.
Judgment affirmed. Hodges and Pipkin, JJ., concur.
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