People v. Lindsey

• Decision Date: 12 July 2018
• Docket Number: Court of Appeals No. 15CA1368
• Citation: 461 P.3d 553
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Arthur LINDSEY, Defendant-Appellant.
• Court: Colorado Court of Appeals

461 P.3d 553

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.William Arthur LINDSEY, Defendant-Appellant.

Court of Appeals No. 15CA1368

Colorado Court of Appeals, Division III.

Announced July 12, 2018

Rehearing Denied August 9, 2018

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Ridley, McGreevy & Winocur, PC, Robert T. Fishman, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 William Arthur Lindsey appeals the judgment of conviction entered on jury verdicts finding him guilty of eight counts of securities fraud and four counts of theft. We vacate and remand the case for proceedings consistent with this opinion.

I. Background

¶ 2 Over a thirteen-month period, Lindsey persuaded six individuals to invest $3 million in new technology that would allegedly use algae-based bioluminescent energy to light signs and panels. Lindsey told his investors he had contracts to sell his lighted signs and panels to the United States Department of Defense, U-Haul, PetSmart, and the Super Bowl. As it turns out, neither the technology nor the contracts ever existed, and Lindsey allegedly spent the money on repaying other investors and on personal expenses.

¶ 3 The People charged Lindsey with eight counts of securities fraud and four counts of theft. After lengthy pretrial proceedings that included multiple changes in Lindsey’s counsel, a jury convicted him as charged. The judge sentenced Lindsey to twenty-four years in the Department of Corrections’ custody.

II. Competency

¶ 4 Lindsey’s primary contention is that the trial court erred in refusing to order a competency evaluation where the issue was raised by his counsel’s motion before trial. Because the trial court failed to follow the applicable statutory procedure and the trial court is better positioned to first determine if a retrospective competency determination is feasible, we vacate the judgment and remand for such a determination and for further proceedings based on that threshold inquiry.

A. Applicable Law and Standard of Review

¶ 5 We review a trial court’s determination of a defendant’s competency for an abuse of discretion. People in Interest of W.P. , 2013 CO 11, ¶ 10, 295 P.3d 514. A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, id. , or it misapplies the law, People v. Garrison , 2017 COA 107, ¶ 30, 411 P.3d 270. Whether the court should have ordered a competency evaluation is a question of law we review de novo. See W.P. , ¶ 10.

¶ 6 The People’s primary argument on appeal is that the standard to determine competency is whether the judge has a "reason to believe" the defendant is incompetent. Lindsey responds that the applicable statute provides different ways to raise competency—under section 16-8.5-102(2)(a), C.R.S. 2017, the judge may raise competency if he has reason to believe the defendant is incompetent, or under section 16-8.5-102(2)(b), the defense or prosecution, having reason to believe the defendant is incompetent, may raise competency. The plain language of section 16-8.5-102(2)(b) does not require that the judge have a reason to believe the defendant is incompetent. See People v. Nagi , 2014 COA 12, ¶¶ 9, 14, 396 P.3d 60 (using "reason to believe" as the applicable standard in a case where the judge raised the issue of the defendant’s competency after the defendant chose to proceed pro se), aff’d , 2017 CO 12, 389 P.3d 875. But, as discussed below—and as the prosecution conceded at trial—the motion the People now challenge on appeal was facially valid and raised Lindsey’s competency.

¶ 7 A defendant is incompetent to proceed if, "as a result of a mental disability

or developmental disability," he lacks "sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding in order to assist in the defense, or ... does not have a rational and factual understanding of the criminal proceedings." § 16-8.5-101(11), C.R.S. 2017.

¶ 8 When the question of a defendant’s competency is raised, the court makes a preliminary finding of competency. § 16-8.5-103(1), C.R.S. 2017. The preliminary finding becomes a final determination unless a party objects within fourteen days. Id. If the court lacks the information necessary to make a preliminary finding of competency or incompetency, or if either party objects to the court’s preliminary finding, the court must order a competency evaluation. § 16-8.5-103(2) ; W.P. , ¶ 16 (discussing the 2008 statutory amendments that now "mandate[ ] that a court order a competency evaluation upon either party’s timely objection to its preliminary finding of competency or incompetency").

B. Additional Background

¶ 9 The attorney who ultimately represented Lindsey at trial, David G. Tyler, entered his appearance in the case in May 2014, just days before Lindsey’s trial setting. The court granted Tyler a continuance to allow him time to prepare. At the end of the continuation period, Tyler filed a motion to withdraw, which the court denied. With Lindsey’s trial set to start on April 20, Tyler filed the competency motion at issue on April 16, 2015.

¶ 10 The motion alleged that Lindsey displayed "irrational" behavior and that Lindsey was unable to appreciate the nature and consequences of the trial and could not assist Tyler in defending him. Tyler later added that on numerous occasions

I have repeatedly been assured with regard to this matter about testimony, witnesses, the furnishing of new witnesses, money for the hiring of experts, expert names, addresses, assured that this will be furnished to me.

None of it has happened. I’ve been told a number of things which are contradictory.... [Lindsey] cannot help me, and has not helped me. I believe it’s delusional....

[T]here are elements to this that are just not what a normal person would do. And as a result of that, I am in a position where I cannot rely on what Mr. Lindsey tells me[.]

¶ 11 Tyler’s motion alleged that Lindsey lacked "sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding in order to assist in the defense." § 16-8.5-101(11).

¶ 12 At the hearing concerning Tyler’s motion, the court determined Lindsey was competent to proceed.¹ But, the judge also determined that the motion did not fall under section 16-8.5-101(11) :

I hereby find that the motion ... does not fall within that definition. I am emphasizing the words "present ability to consult with the defendant’s lawyer." In fact, [what] is being alleged here is that there hasn’t been a consultation, but what is extremely important for any motion under this statute, to come up, is to talk about the ability, and the present ability, to understand not simply because ... there has been some lack of communication or non-preparation, as much as defense counsel would like. Defense counsel cannot make a claim of alleging competency of his client based upon a client’s refusal to cooperate with his counsel. That doesn’t go to the issue of present ability to understand, with a reasonable degree of rational understanding in the proceedings that are before us.

¶ 13 Tyler then tried to proceed to the second step of the statute—objecting to the court’s finding and prompting an evaluation. § 16-8.5-103(1) - (2). The prosecution agreed to this reading of the statute:

[Prosecutor]: So after the preliminary finding is made, the [c]ourt would go on to the second step. Does the [c]ourt agree with me?

The court disagreed, stating,

It does not. Did you not hear what I said? I said that your motion was not filed on a proper basis under the statute itself.

So apparently your mistake is that you presumed by simply following the procedures in this statute, that you, in your mind, have questioned the present ability of your client to proceed here today, is wrong. So the motion is being dismissed.

So now we’re going to have a trial. Do you understand that, sir?

¶ 14 After a week of trial, Tyler renewed his competency motion, but the court’s ruling remained unchanged: "I’m denying your renewed motion to consider incompetency. I’m not going to hear any more of this. If you believe that I’m wrong under the statute ... then you have the ability to go over my head after whatever verdicts are rendered."

C. Analysis

¶ 15 In misapplying the law, the court abused its discretion. See Garrison , ¶ 30. The plain language of the statute requires the court to order a competency evaluation if, within fourteen days of the court’s preliminary finding, either party objects to its preliminary determination of competency. § 16-8.5-103(1) - (2) ; W.P. , ¶ 16. Although counsel filed his motion on the eve of trial, thus giving the court grounds for reasonable skepticism on the underlying motivation, counsel met the statutory requirements for the motion—including providing the court and prosecutor with copies of the motion, § 16-8.5-102(2)(b), so the motion was facially valid. The court further abused its discretion in concluding that a facially valid motion on competency did not fall under the competency statute.

¶ 16 Having determined there was error, we now consider what remedy is required. Lindsey argues that this error constitutes a violation of his right to due process, thus requiring a new trial. See People v. Presson , 2013 COA 120M, ¶ 16, 315 P.3d 198. The People assert that there was no error because the trial court has discretion in deciding whether to grant a competency hearing. We need not resolve whether this is constitutional or nonconstitutional trial error, because under either standard vacating the conviction and remand is appropriate. See id. at ¶ 17. However, and for reasons explained below, we prescribe a different remedy than that ordered in Presson , ¶ 26. See People v. Thomas , 195 P.3d 1162, 1164 (Colo. App. 2008) (one division of this court is not bound by another division’s decision).

¶ 17 Tyler’s motion alleged that...