SUMMARY

August 19, 2021

2021COA113

No. 19CA2230, People v. Ong — Criminal Law — Competency to 

Proceed — Certification, Reviews, and Termination of 

Proceedings; Appeals — Final Appealable Order

A division of the court of appeals determines that an order 

issued pursuant to section 16-8.5-116, C.R.S. 2020, finding a 

defendant incompetent with no probability of restoration and 

dismissing the criminal charges, is a final, appealable order. The 

division clarifies that the stay of the dismissal order issued under 

section 16-8.5-116(10) does not extend the finality of the order for 

the purposes of timely appeal. The division concludes that the 

People’s appeal was untimely filed because the stay did not extend 

the finality of the order.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA113

Court of Appeals No. 19CA2230

Larimer County District Court Nos. 16CR2625 & 17CR1635

Honorable Thomas R. French, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Earl Joseph Ong,

Defendant-Appellee.

APPEAL DISMISSED

Division II

Opinion by JUDGE DAVIDSON*

Harris and Lipinsky, JJ., concur

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 DefendantAppellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
1

¶ 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 
2

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.” 
3

¶ 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 
4

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. 
5

¶ 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. 
6

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 
7

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

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 (in juvenile delinquency proceedings, the 

1 In their briefs on appeal, the People contend that district court 

had no authority to dismiss the charges against Ong because he

was not in custody of the department or otherwise confined under 

section 16-8.5-116(4), C.R.S. 2020, but was receiving outpatient 

competency restoration treatment. We do not address the merits of 

this contention but presume, solely for the purposes of determining 

jurisdiction, that the trial court had the proper authority to dismiss 

the charges.
9

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 substantial probability that a 

defendant will be restored to competency in the foreseeable future 

required that the defendant be released); Parks v. Denver Dist. Ct., 

180 Colo. 202, 207, 503 P.2d 1029, 1032 (1972) (“If it becomes 

apparent that the defendant is unlikely to ever regain competency 

to stand trial, then civil commitment proceedings should be 

instituted.”). 

¶ 21 Contrary to the People’s suggestion that the court may have 

retained continuing jurisdiction to resolve certain, limited issues

arising during Ong’s transition to civil proceedings, e.g., 

enforcement of the mandatory protection order, such continuing 

jurisdiction did not affect the appealability of the September 21 

order. C.Y., ¶ 31 (order determining that juvenile cannot be 
10

restored to competency is final and appealable even though the 

court maintains jurisdiction to establish and monitor a 

management plan); Galves, 955 P.2d at 583-84 (where a court 

enters a final, appealable order adjudicating a defendant not guilty 

by reason of insanity, that court retains jurisdiction to resolve 

questions relating to the defendant’s care and treatment); cf.

Strepka v. People, 2021 CO 58, ¶ 1 (a trial court retains jurisdiction 

to rule on a motion for return of unlawfully obtained property after 

a case is dismissed so long as the motion is filed before the appeal 

deadline expires). 

B. The Stay of the September 21 Order Had No Impact On Its

Finality 

¶ 22 To the extent that the People suggest that the September 21 

order did not become final and appealable until the expiration of the 

twenty-one day stay granted by the court under section 16-8.5-

116(10), we disagree. To the contrary, because the order 

terminating the proceedings and dismissing the criminal charges 

was final and appealable when entered on September 21, the 

court’s stay of that order merely suspended its enforcement and

had no effect on its finality for purposes of filing a timely appeal. 
11

See People v. Gabriesheski, 262 P.3d 653, 657 (Colo. 2011) (“The

dismissal of all charges in a criminal prosecution clearly ends the 

particular action in which the order of dismissal is entered and 

therefore constitutes a final judgment for purposes of the People’s 

request for appellate review of any ruling in the case” on a question 

of law.); see also People v. Collins, 32 P.3d 636, 638 (Colo. App. 

2001) (the dismissal of criminal charges is analogous to a final 

judgment because the dismissal of a charge effectively terminates 

prosecution of the charge); § 16-12-102(1) (the entry of an order 

dismissing all charges in a criminal case is “immediately 

appealable”); cf. People v. Figueroa-Lemus, 2020 CO 59, ¶ 10 (a 

statutorily sanctioned deferred judgment and sentence is not a final 

judgment; until and unless it is revoked, it is not subject to 

appellate review); Kazadi v. People, 2012 CO 73, ¶ 18 (in deferring 

judgment and sentence, the trial court has not yet imposed the 

sentence and, therefore, a judgment of conviction has not entered 

that is subject to postconviction or appellate review until the 

deferred judgment is revoked and sentence is imposed); Ellsworth v. 

People, 987 P.2d 264, 266 (Colo. 1999) (until a sentence is imposed 

there can be no final judgment); see also C.A.R. 8.1(a)(4) (an order 
12

placing an offender on probation remains in effect pending review 

by an appellate court unless the court grants a stay of probation);

2

see generally State v. Bachman, 675 S.W.2d 41, 44-45 (Mo. Ct. App. 

1984) (explaining that a stay of imposition of a sentence and a stay 

of execution of a sentence “are not the same thing,” as they do not 

cause a trial court to continue its performance, and hence 

jurisdiction, in the same way). 

2 We are not persuaded by the cases the People cite in their 

response to the motion to dismiss to support their assertion that,

because the order was stayed, the September 21 order was not final 

and appealable. In those cases, unlike here, the trial courts’ rulings 

did not end the actions leaving nothing further to be done in 

determining the rights of the parties involved; in each case, there 

remained unresolved claims or parties who were still a part of the 

litigation. Berry v. Westknit Originals, Inc., 145 Colo. 48, 49-50, 357 

P.2d 652, 653 (1960) (court’s order dismissing some but not all 

parties was not a final, appealable order because it did not 

determine the action as to all parties); Dist. 50 Metro. Recreation 

Dist. v. Burnside, 157 Colo. 183, 186-87, 401 P.2d 833, 835 (1965) 

(trial court’s order granting defendants’ motion to dismiss not a 

final, appealable order when the court did not enter a final 

judgment after granting the motion); Things Remembered, Inc. v. 

Fireman’s Ins. Co., 924 P.2d 1089, 1091 (Colo. App. 1996) (court 

order staying proceedings pending resolution of another case 

involving similar issues was not final where not all the parties in the 

cases were the same and it was disputed whether the other 

proceeding would resolve the claims in this case).
13

¶ 23 Therefore, just as an imposed sentence or a probationary 

sentence that has been stayed constitutes a final judgment, but a 

deferred judgment does not, the entry of the September 21 order 

was the event that created finality and triggered the time for filing a 

notice of appeal. The dismissal entered on September 21 did not 

need to be re-entered to take effect after the expiration of the stay. 

That is why it is of no moment that the stay expired on October 12, 

but the minute order noting the closure of the case was not entered

until October 15. The minute order did not re-enter the dismissal 

order; it simply closed the case because the charges had been 

dismissed. 

¶ 24 Indeed, as Ong points out, if the September 21 order was not 

appealable until the expiration of the stay, by granting the stay, the 

district court would effectively have extended the time for appeal for 

an additional forty-nine days past the entry of a final order, 

something it had no authority to do. See P.H. v. People in Interest of 

S.H., 814 P.2d 909, 912 (Colo. 1991) (finding that, under C.A.R. 

4(a), a trial court is without authority to grant an extension of time 

to file the notice of appeal; unlike the former version of C.A.R. 4(a), 

such power is now vested in the appellate court); Estep, 753 P.2d at 
14

1247 (trial court has no authority to extend the time for filing an 

appeal); cf. People v. Retallack, 804 P.2d 279, 279-80 (Colo. App. 

1990) (a motion filed after the entry of the order challenged on 

appeal does not extend the time for the prosecution to file its notice 

of appeal).3 

¶ 25 We conclude that the September 21 order was final and 

appealable and, because the stay of that order did not affect its 

finality, the People’s notice of appeal, filed seventy-three days later, 

was untimely.

III. We Find No Good Cause to Accept the Appeal Out of Time

¶ 26 In the alternative, the People argue that, if we determine that 

the order entered on September 21 was final, good cause exists to 

accept the appeal out of time because of their good-faith reliance on 

the trial court’s imposition of the stay of the order of dismissal. We 

disagree.

3 Indeed, nothing in section 16-8.5-116(10) can be understood to 

grant the trial court the discretion to extend the time to file an 

appeal. To the contrary, the statute allows the court to enter a stay 

of a dismissal order solely to facilitate the safe transition of a 

permanently incompetent but dangerous defendant from criminal to 

civil commitment proceedings, that is, to allow time for the proper 

agency to begin civil commitment proceedings and allow for the 

transfer of jurisdiction without losing oversight of Ong. 
15

¶ 27 C.A.R. 4(b)(2), unlike C.A.R. 4(b)(1), does not include language 

providing additional time to file a notice of appeal upon a showing 

of excusable neglect or justifiable excuse. Rather, the People must 

demonstrate good cause for the late filing of a notice of appeal. 

People v. Gilmore, 97 P.3d 123, 128 (Colo. App. 2003). 

¶ 28 Good cause under C.A.R. 26(b) requires a showing that 

surrounding circumstances would cause a reasonably prudent 

person similarly to overlook a required act in the performance of 

some responsibility. Farm Deals, LLLP v. State, 2012 COA 6, ¶ 20.

¶ 29 The People do not claim that they were unaware of the 

September 21 order. And, as discussed, the dismissal order was a 

final, appealable order stayed, per the statute, not to allow further 

proceedings as to the underlying case or Ong’s competency, but 

simply to allow for the commencement of civil commitment 

proceedings. Because the stay did not affect the finality of the order 

dismissing the case, the People’s reliance on the court’s entry of the 

stay does not constitute good cause for their failure to timely file the 

notice of appeal. 

IV. Conclusion

¶ 30 The appeal is dismissed.
16

JUDGE HARRIS and JUDGE LIPINSKY concur.