State v.

• Decision Date: 29 April 2013
• Docket Number: No. 68068–4–I.,68068–4–I.
• Citation: 174 Wash.App. 590,300 P.3d 456
• Parties: STATE of Washington, Respondent, v. P.E.T. (DOB: 03/29/93), Appellant.
• Court: Washington Court of Appeals

174 Wash.App. 590

300 P.3d 456

STATE of Washington, Respondent,

v.P.E.T. (DOB: 03/29/93), Appellant.

No. 68068–4–I.

Court of Appeals of Washington,

Division 1.

April 29, 2013.

Marla Leslie Zink, Washington Appellate Project, Seattle, WA, for Appellant.

Samantha Dara Kanner, King Co. Prosecutor's Office, Seattle, WA, for Respondent.

COX, J.

[174 Wash.App. 592]¶ 1 Parish Tate appeals the juvenile court's adjudication and disposition on the charge of second degree robbery. At issue is whether the court improperly placed on him the burden of proving his incompetence at a competency hearing under former RCW 10.77.060 (2004). This statute is silent as to who bears the burden of proof at an initial competency hearing. But there is a common law presumption that one found incompetent remains so until adjudicated otherwise.¹ That presumption is applicable here.

¶ 2 In this case, Tate was found incompetent in a prior proceeding and the criminal charges there, which were unrelated to the charge in this case, were dismissed. Accordingly, the presumption of incompetence remained until the State rebutted that presumption in this case. Under the circumstances of this case, the trial court erroneously placed the burden of proving incompetence on Tate at his competency hearing. We reverse and remand with instructions.

¶ 3 The relevant facts are undisputed. In 2009, Tate was found incompetent and several charges against him were dismissed based on that finding.² That proceeding and those charges were unrelated to this case.

¶ 4 On December 15, 2010, slightly over one year after the prior dismissal, the State charged Tate with second degree robbery after an incident on a bus.

[174 Wash.App. 593]¶ 5 Because the juvenile court had reason to doubt Tate's competency, the court, pursuant to former RCW 10.77.060 (2004), ordered that Tate be admitted for evaluation at Western State Hospital to determine whether he was competent to stand trial.³ Two qualified professionals examined him. ⁴ One of these professionals, Western State Hospital Staff Psychologist Dr. Ray Hendrickson, authored a Forensic Mental Health Evaluation for Tate on April 7, 2011.⁵

¶ 6 Tate contested the findings in the report, and the court held a competency hearing.

¶ 7 At the hearing, the State presented testimony from Dr. Hendrickson, who testified that Tate (1) “[did] not currently suffer from a mental illness,” (2) “possesse[d] the ability to have a factual and rational understanding of the charges and court proceedings he faces,” and (3) “possesse[d] the capacity to communicate with his attorney to assist in his defense.” ⁶ Tate's counsel cross-examined the doctor regarding his report and findings.

¶ 8 During that hearing, the issue of which party bore the burden of proof arose. The court considered case authority and arguments of the parties on this question. Thereafter, the court concluded that Tate had to prove by a preponderance of the evidence that he was incompetent to stand trial. Based on this conclusion and the evidence at the hearing, the court found that Tate had “not proven by a preponderance of the evidence that he remains incompetent.” ⁷

¶ 9 The court proceeded to the fact-finding hearing and found Tate guilty of the crime charged. Findings, conclusions, and an order consistent with this determination followed.

[174 Wash.App. 594]¶ 10 Tate appeals.

COMPETENCY

¶ 11 Tate argues that the trial court denied him due process by placing on him the burden of proving his incompetence.⁸ We hold that the trial court improperly placed on him the burden of proving his incompetence under the circumstances of this case.

¶ 12 “[T]he Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial.” ⁹ Due process also requires that the State's procedures be adequate to protect this right.¹⁰ But the United States Supreme Court has also held that once a State provides a defendant access to procedures for making a competency evaluation, due process does not require the State to assume the burden of proving that a defendant is competent to stand trial.¹¹

¶ 13 In Washington, there is additional statutory protection.¹²RCW 10.77.050 provides that “[n]o incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.”

¶ 14 A person is defined as incompetent under the statute if he or she “lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.” ¹³

¶ 15 We review a trial court's determination of competency for abuse of discretion.¹⁴ Whether the State or a defendant bears the burden of proof at a competency hearing is a question of law that we review de novo. ¹⁵

Burden of Proof

¶ 16 The parties argue that Washington law either places the burden of proof entirely on the State or on the defendant alleging incompetence. But neither argument is persuasive.

¶ 17 Chapter 10.77 RCW sets out “the procedures for the evaluation and treatment of those alleged to be incompetent to stand trial.” ¹⁶ And this chapter is “generally applicable to juvenile competency determinations.” ¹⁷ Former RCW 10.77.060 (2004) provides when and how a criminal defendant's competency should be evaluated. Former RCW 10.77.084 (2007) provides the procedures for staying the proceedings and restoring competency. But neither of these statutes assigns to either party the burden of proof at a defendant's competency hearing.¹⁸

¶ 18 Division Three of this court recently stated with respect to these statutes that “[i]t is a bit murky as to who bears the burden of proof” at a defendant's competency hearing.¹⁹ Notwithstanding this uncertainty under the statutes, in State v. Coley, Division Three addressed the burden of proof issue based on the common law presumption of incompetence. ²⁰ There, the trial court decided to place the burden of proving Coley's incompetence on him at his competency hearing.²¹ This decision was based on the trial court's erroneous belief that the most recent previous court order found Coley competent.²²

¶ 19 On review, a majority of a divided court concluded that this decision was incorrect.²³ The majority explained that “[t]here is a presumption that an incompetent person remains incompetent until adjudicated otherwise.” ²⁴ Since the most recent previous court order found that Coley was incompetent, the presumption of incompetence should have been in effect, and the burden of proof should have “shifted to the State to prove that [Coley] was competent.” ²⁵

¶ 20 We agree with Division Three's rationale in Coley. In the absence of any statement in the statutes of who bears the burden of proof at a competency hearing, it is logical to apply the common law presumption to the statutes to fill this gap. Doing so here, we conclude that the prior finding that Tate was incompetent, leading to the dismissal of the charges against him, raised the common law presumption that he remained incompetent. Thus, it was the burden of the State at the initial competency hearing in this case to rebut that presumption. But the trial court determined, as its order reflects, that Tate failed to prove “by a preponderanceof the evidence that he remains incompetent.” ²⁶ This was error.

¶ 21 This approach makes sense, as The Washington Practice treatise explains. The treatise discusses the general process when a criminal defendant's competency is at issue:

When the issue of the defendant's competency to stand trial is raised, the issue is determined by the court, and if neither the prosecutor nor defense counsel contests the findings contained in the report, the judge may make his determination on the basis of the report. However, if the report of the court-appointed experts is contested, the court must hold a hearing.

An accused has the burden of showing that he or she is incompetent to stand trial by a preponderance of the evidence. This proof requirement is based upon the presumption of sanity.²⁷

¶ 22 But the treatise also explains that a defendant may not bear the burden of proof when a court has previously adjudicated that the defendant was incompetent:

Commitments on previous occasions to an institution for mental illness are not determinative of present competency to stand trial for a criminal offense. A person who has been previously adjudicated to be incompetent, however, is presumed to remain in that condition until a proper hearing is held and he is declared mentally competent. The presumption is rebuttable.²⁸

¶ 23 Thus, a common law presumption of incompetence arises when a court has previously determined that the accused was incompetent and there is no intervening court determination otherwise.²⁹ The party who wants to overcomethis presumption has the burden of proof at the competency hearing.³⁰

¶ 24 This latter situation was the case here. A court previously determined that Tate was incompetent in 2009. That determination created a common law rebuttable presumption that he remained so at the time of the initial competency hearing in this case in 2011. The trial court incorrectly placed the burden of proof on Tate to prove that he remained incompetent. The burden should have been placed on the State to rebut the presumption of incompetency that arose from the prior adjudication of incompetency.

¶ 25 At the initial competency hearing in this case, the juvenile court relied on State v. Harris when it erroneously ruled that the burden of proof was on Tate.³¹ But Harris does not control this case.

¶ 26 There, Harris was convicted of aggravated murder and sentenced to death. ³² Our supreme court addressed several issues in that capital case, including who bears the burden of showing whether the petitioner is competent to be executed.³³ The supreme court adopted a rule that “places the burden on the petitioners to make a substantial showing that they are...