People v. Corichi

• Citation: 18 P.3d 807
• Decision Date: 20 July 2000
• Docket Number: No. 99CA0434.,99CA0434.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Karen CORICHI, Defendant-Appellant.
• Court: Court of Appeals of Colorado

18 P.3d 807

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Karen CORICHI, Defendant-Appellant.

No. 99CA0434.

Colorado Court of Appeals, Div. V.

July 20, 2000.

Rehearing Denied August 17, 2000.

Certiorari Denied March 5, 2001.

Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

E. Ronald Beeks, Evergreen, Colorado, for Defendant-Appellant. Opinion by Judge CASEBOLT.

Defendant, Karen Corichi, appeals the order denying her Crim. P. 35(c) motion for post-conviction relief. We affirm.

As pertinent here, the prosecution charged defendant with one count of sexual assault on a child by a person in a position of trust and sexual assault on a child as part of a pattern of abuse.

On the sixth day of a nine-day jury trial, defense counsel informed the court of his belief that defendant had become incompetent to proceed. He stated that defendant's husband, a co-defendant, had informed him that she had been up all night trying to contact various parties in an attempt to establish that a conspiracy existed and that defense counsel was part of it. Defense counsel indicated that defendant had informed him that she would no longer communicate with him.

Defense counsel also stated that, up until that time, his relationship with defendant had been a good one, she had a keen grasp of the evidence, and she had been assisting in her own defense.

After hearing the prosecution's response, which included citation to pertinent case law, the trial court made a preliminary finding that defendant was competent to proceed. The court noted that defendant's comments the preceding day when she had asked for a new attorney had been responsive and rational and that there was no indication that she was not competent to proceed. The court did, however, state that it would schedule a competency hearing to be held upon conclusion of the trial. Defense counsel approved this proposal.

The jury convicted defendant of the charged offenses. Approximately fifteen months later, a different judge conducted a post-trial competency hearing at which he determined defendant had been competent during trial.

A division of this court affirmed defendant's conviction on direct appeal. People v. Corichi, (Colo.App. No. 96CA0469, Oct. 23, 1997) (not selected for official publication). She then filed, pro se, the post-conviction motion at issue here.

In that motion, defendant asserted that: (1) the court had erred in finding her competent during trial; (2) the trial court had violated her right of cross-examination when it allowed the victim to testify to certain acts; (3) the trial court had committed reversible error when expert testimony concerning the victim's behavior and statements was not subjected to the correct test for admissibility; and (4) there had been recent scientific findings regarding the reliability of minors' claims of sexual abuse and the significance of recantations of such claims, which findings constituted newly discovered evidence. The Crim. P. 35(c) court denied defendant's motion without a hearing and this appeal followed.

I.

As a preliminary matter, we reject the People's contention that we should not consider defendant's claim of incompetency because she failed to raise it on direct appeal.

Crim. P. 35(c)(2)(I) provides that every person convicted of a crime is entitled as a matter of right to apply for postconviction review where there is a claim that the conviction was obtained in violation of the federal or state constitution.

A defendant may raise issues of constitutional error in the initial postconviction motion although the same issues could have been effectively raised on direct appeal. See People v. Rodriguez, 914 P.2d 230 (Colo. 1996)

.

A defendant is entitled to judicial review of a Crim. P. 35 motion as long as the motion states a claim cognizable under that rule and the claim has not been fully and finally resolved in a prior judicial proceeding. White v. Denver District Court, 766 P.2d 632 (Colo.1988). The fact that a defendant did not raise a constitutional claim on direct appeal does not preclude him or her either from raising the claims in a Crim. P. 35(c) motion or from seeking appellate review of the trial court's denial of the motion. People v. Diaz, 985 P.2d 83 (Colo.App.1999).

Whether a person is competent to proceed presents a constitutional issue. Jones v. District Court, 617 P.2d 803 (Colo. 1980).

Here, defendant raised the issue of her competency in her first and only postconviction motion. Accordingly, we will address her contentions upon their merits.

II.

Defendant first contends the trial court violated her right to due process when it postponed a hearing on her competency until fifteen months following trial. We disagree.

A person is incompetent to stand trial when such person "is suffering from a mental disease or defect which renders [her] incapable of understanding the nature and course of the proceedings against [her] or of participating or assisting in [her] defense or cooperating with [her] defense counsel." Section 16-8-102(3), C.R.S.1999.

Putting an accused on trial while he or she is incompetent violates due process of law. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Jones v. District Court, supra. See

§ 16-8-110(1)(b), C.R.S.1999 (no person shall be tried if he or she is incompetent to proceed).

Similarly, due process is violated when a trial court refuses to accord an accused an adequate hearing concerning his or her competency. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Jones v. District Court, supra.

These principles are so basic to the concept of fundamental fairness that a claim of incompetence to stand trial on the issue of guilt cannot be waived. Drope v. Missouri, supra; Jones v. District Court, supra.

In short, an incompetent person cannot be tried until that condition has abated. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

When the question of a defendant's competency is raised, the court must make a preliminary finding whether the defendant is competent to proceed. After making the preliminary finding, the court must immediately notify defense counsel and the prosecuting attorney of the preliminary finding. If neither the prosecuting attorney nor defense counsel submits a written request for a competency hearing, the court's preliminary determination becomes final. Section 16-8-111(1), C.R.S.1999.

When a timely request for a hearing is made, the court must hold a hearing and may commit the defendant for a competency examination prior to the hearing if adequate psychiatric information is not already available. At the conclusion of the hearing, the court must make a final determination. Section 16-8-111(2), C.R.S.1999.

Defendant relies upon People v. Matthews, 662 P.2d 1108 (Colo.App.1983) to support her contention that holding the competency hearing post-trial violated her right to due process. In that case, a division of this court held that there had been a violation of the defendant's due process rights when the trial court denied a hearing on the defendant's competency. The division, relying upon Pate v. Robinson, supra,

also stated in dictum that a post-trial determination of a defendant's mental competency during trial does not cure a due process violation.

In Pate v. Robinson, supra,

the Supreme Court stated that holding a retrospective hearing six years after trial would aggravate the difficulties in determining competency, and would undermine the need for a contemporaneous determination of competency. Accordingly, it held that no retrospective hearing could be conducted in that case. The Court did not, however, rule that retrospective hearings may not be held where such hearings are feasible, and has never so held despite the opportunity to do so in subsequent cases. See Bryan v. State, 935 P.2d 338 (Okl.Cr.App.1997).

Although retrospective competency hearings are disfavored, they are permissible whenever a court can conduct a meaningful hearing. A meaningful post-trial competency determination is possible when the state of the record, together with additional evidence as may be relevant and available, permits an accurate assessment of the defendant's mental competency at the time of the trial. Reynolds v. Norris, 86 F.3d 796 (8th Cir. 1996).

In determining whether a meaningful hearing can be held, a court should consider: (1) the passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) defendant's statements in the trial record, and (4) the availability of individuals and witnesses who interacted with the defendant before and during trial, including the trial judge, both counsel, and jail officials. Clayton v. Gibson, 199 F.3d 1162 (10th Cir.1999).

We agree with the rationale of these cases and, accordingly, hold that, when a court can conduct a meaningful hearing retrospectively to evaluate the competency of a defendant, such competency hearings do not violate due process principles. Nor do we read Jones v. District Court, supra,

or People v. Matthews, supra, to require that a competency hearing be held immediately when the issue of competency is raised during the trial.

Generally, it is true that the determination of whether there is sufficient evidence to render a retrospective hearing meaningful must be made before the actual hearing. See Bryan v. Oklahoma, supra. Here, no such preliminary determination was made. Nevertheless, the record before us includes the evidence and testimony that was presented both at trial and at the competency hearing. Hence, we can independently ascertain whether the competency determination was meaningful, and we therefore need not remand for further findings.

Here, the hearing began approximately fifteen months after defendant's conviction. However, a mere lapse of...