People v. Ong

• Decision Date: 19 August 2021
• Docket Number: Court of Appeals No. 19CA2230
• Citation: 2021 COA 113,499 P.3d 375
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Earl Joseph ONG, Defendant-Appellee.
• Court: Colorado Court of Appeals

499 P.3d 375

2021 COA 113

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

v.Earl Joseph ONG, Defendant-Appellee.

Court of Appeals No. 19CA2230

Colorado Court of Appeals, Division II.

Announced August 19, 2021

Clifford E. Riedel, District Attorney, Joshua D. Ritter, Deputy District Attorney, Fort Collins, Colorado, for Plaintiff-Appellant

Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE DAVIDSON^*

¶ 1 The People appeal the district court's order finding Earl Joseph Ong incompetent without likelihood of recovery, terminating the criminal proceedings, dismissing the charges against him, and staying the order of dismissal for twenty-one days to facilitate the transition of the case from criminal to civil mental health proceedings. Ong moved to dismiss the People's appeal as untimely filed. We grant Ong's motion.

I. Background and Procedural Facts

¶ 2 On November 28, 2016, Ong was charged with sexual assault on a child (pattern of abuse), sexual assault on a child (victim incapable of appraising conduct), sexual assault on a child, sexual exploitation of children, and sexual exploitation of a child. Ong was released on bond. Although he was subsequently charged in another case with violation of bail bond conditions and violation of a protective order, he remained out on bond.

¶ 3 Section 16-8.5-116(4), C.R.S. 2020, provides that a court, after four prior reviews finding a defendant incompetent,

shall review the competency of the defendant every sixty-three days until the defendant is restored to competency or the court determines, based on available evidence, that there is not a substantial probability that the defendant will be restored to competency in the foreseeable future and in that case, the court shall dismiss the case.

¶ 4 Section 16-8.5-116(10) allows the court, after finding incompetency and ordering the case dismissed under subsection (4), to stay the order dismissing the criminal charges for up to twenty-one days "so as to provide the department and the county attorney or district attorney with the opportunity to pursue certification proceedings or the provision of necessary services."

¶ 5 On May 8, 2017, Ong's defense counsel requested a competency evaluation. The district court made a preliminary finding that Ong was incompetent to proceed and, following a hearing, found Ong to be incompetent. Because Ong was out on bond, the district court ordered him to undergo outpatient competency restoration therapy.

¶ 6 The doctor evaluating Ong submitted progress reports to the court on June 18, 2018; November 12, 2018; and February 25, 2019. Each time, she reported that Ong's mental or developmental disability rendered him incompetent to proceed. In the February 25 report, she reported that Ong is "permanently incompetent to proceed."

¶ 7 On April 12, 2019, Ong's counsel filed a motion to terminate the proceedings and dismiss the criminal case under section 16-8.5-116. On June 4, 2019, the evaluating doctor submitted a fourth report with the same findings and again opined that Ong was "permanently incompetent to proceed." Once more, defense counsel requested that the court terminate the proceedings and dismiss the criminal case under section 16-8.5-116. However, this time the district attorney objected, arguing that this portion of the competency statute does not apply to Ong because he was not in custody — either in jail or another facility.

¶ 8 The court held additional competency review hearings and heard argument and briefing on the legal issue the district attorney had raised. On September 21, 2019, the court entered an order granting defense counsel's motion to terminate the proceedings, and dismissed the criminal charges, as provided under section 16-8.5-116(4). In addition, the court stayed the dismissal order for twenty-one days as permitted under section 16-8.5-116(10).

¶ 9 Specifically, the court ordered:

Pursuant to C.R.S. § 16-8.5-116, the Court finds that the Defendant is incompetent and there is not a substantial probability that he will be restored to competency in the reasonably foreseeable future. The Court also finds that the Defendant meets the requirements for certification pursuant to article 65 of title 27 of the Colorado Revised Statutes because he is a danger to others based upon the allegations in the offenses here charged. The Court commences a mental health case and refers the same to the Larimer County Attorney. Pursuant to C.R.S. § 16-8.5-116(4), (10), the Court dismisses the criminal case but stays the dismissal for 21 days from today.

¶ 10 The court's order was duly entered into the court registry the same day. The twenty-one day stay of the dismissal of the criminal charges expired on October 12, 2019. A clerical notation in the registry of actions dated October 15, 2019, reflects that Ong's cases were "closed-dismissed" and the mandatory protection order vacated. The People filed their notice of appeal on December 3, 2019 — seventy-three days after entry of the September 21 order and fifty-two days after the stay expired.

¶ 11 Ong filed a motion to dismiss the appeal as untimely. We granted his request that we consider his motion as a threshold matter before consideration of the merits of the appeal.

¶ 12 He asserts that the appeal is untimely because the September 21, 2019, order was a final, appealable order, and because the People's notice of appeal was filed seventy-three days after the entry of that order. In response, while acknowledging that the order was issued and entered on September 21, the People claim that the court's stay extended the finality of the order for purposes of appeal until, according to the People, October 15, 2019, when the administrative entry in the registry of actions noted that the case was closed. Alternatively, even if the stay did not extend the People's deadline to file an appeal, the People request that we find good cause to excuse their untimely filing.

¶ 13 We agree with Ong. We conclude that the September 21 order was a final order and that the stay of the order did not impact its finality. We also find no good cause for the untimely filing. Because the timely filing of a notice of appeal is a prerequisite to our jurisdiction, e.g. , Estep v. People , 753 P.2d 1241, 1246 (Colo. 1988), we dismiss the appeal.

II. The People's Appeal was Untimely Filed Because the September 21 Order was a Final, Appealable Order and its Finality was Unaffected by the Twenty-One Day Stay

¶ 14 The People are authorized to appeal questions of law arising from a final order entered in a criminal proceeding. C.A.R. 1(a)(1) ; § 16-12-102(1), C.R.S. 2020. A prosecution appeal must be filed in the court of appeals within forty-nine days after the entry of judgment or order being appealed. C.A.R. 4(b)(2). "A judgment or order is entered within the meaning of this section (b) when it is entered in the criminal docket." C.A.R. 4(b)(1). Any such appeal must follow the procedural requirements of C.A.R. 4(a), including that it be timely filed.

¶ 15 With exceptions not relevant here, see, e.g. , C.A.R. 4.1 ; § 16-12-102 (permitting interlocutory appeals in limited and specific situations), only final judgments or orders are appealable. Prosecution appeals, like appeals by other parties, are subject to the final judgment requirement of C.A.R. 1.

A. The September 21 Order Terminating the Competency Proceedings and Dismissing the Charges was a Final, Appealable Order Because It Ended the Controversy and Left the District Court with Nothing Further to do to Determine the Rights of Ong and the Prosecution

¶ 16 A judgment is final for purposes of appeal when it is entered "leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved." People v. Guatney , 214 P.3d 1049, 1051 (Colo. 2009). A judgment or order in a criminal case is final when "the defendant is acquitted, the charges are dismissed, or the defendant is convicted and sentence is imposed." Id.

¶ 17 A judgment of dismissal in a criminal case is final and immediately appealable.

Dike v. People , 30 P.3d 197, 201 (Colo. 2001).

¶ 18 We agree with Ong that the September 21 order terminating the competency proceedings and dismissing the charges was a final, appealable order.

¶ 19 Pursuant to section 16-8.5-116, the controversy before the district court was whether Ong was incompetent with no probability of restoration. If it so determined, the court was required to order dismissal of all pending criminal charges pursuant to section 16-8.5-116(4).¹ In addition, the court had the discretion to delay the dismissal for twenty-one days to enable the transition to civil mental health proceedings (the effect of which would keep Ong in custody or on bond during that transition). § 16-8.5-116(10). Ultimately, the court found Ong incompetent with no probability of recovery and consequently, as mandated, issued an order dismissing the criminal charges. In addition, finding Ong to be dangerous to others, the court opened a mental health case and stayed execution of the order of dismissal of the criminal charges for the statutorily prescribed twenty-one days.

¶ 20 From these facts, it is apparent that there was nothing more for the district court to do in the competency proceedings to determine the rights of the parties before it. See People in Interest of C.Y. , 2012 COA 31, ¶ 31, 275 P.3d 762 (in juvenile delinquency proceedings, the court's finding that competency could not be restored and order for a management plan ended the controversy and therefore was a final, appealable order); People v. Galves , 955 P.2d 582, 583 (Colo. App. 1997) (determining that a finding of not guilty by reason of insanity, while not technically a judgment of conviction, ended the controversy and, therefore, was the functional equivalent of a final judgment of conviction); cf. People v. Zapotocky , 869 P.2d 1234, 1240-41 (Colo. 1994) (finding of no...