IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 49975-4-II

Respondent,

v.

SERGEY V. FEDORUK, UNPUBLISHED OPINION

Appellant.

WORSWICK, J. — Sergey Fedoruk, who has a long history of serious mental illness,

appeals his second degree murder conviction. Although prior to trial Fedoruk was deemed 

competent, he claims his mental health destabilized during the course of the trial. He argues that

the trial court erred when it proceeded with his trial after it became apparent that his mental state 

had deteriorated to the point where he was no longer competent. We agree, and we reverse and 

remand for a new trial.

1

FACTS

I. Background

In 2002, Fedoruk moved to the United States from Ukraine. While living in Ukraine, 

Fedoruk suffered a head injury in a motorcycle accident, was diagnosed with schizophrenia, and 

 

1

 Fedoruk also argues his right to be present was violated, the trial court improperly denied his 

request for a mistrial, and the trial court erred by ordering Fedoruk to be placed in restraints and 

by allowing his interpreters to move away from him. Fedoruk also filed a statement of additional 

grounds (SAG) for review. Because the first two issues are dispositive in this case and because

we reverse Fedoruk’s conviction and remand for trial, we do not consider these arguments or the 

issues in Fedoruk’s SAG.

Filed

Washington State

Court of Appeals

Division Two

June 26, 2018
No. 49975-4-II

2

was twice admitted to a psychiatric hospital. After arriving in the United States, Fedoruk lived 

with his family. Over the course of years, doctors have prescribed numerous psychotropic and 

antipsychotic medications, but Fedoruk has a history of poor compliance with the medication 

regimens. He also has a known history of rapid decompensation.

In 2007, prior to the incidents in this case, Fedoruk was charged with robbery, theft,

trespass, and four counts of assault. He underwent competency evaluations in both 2007 and 

2008. In 2007, an evaluator diagnosed Fedoruk with “Bipolar 1 Disorder . . . with psychotic 

features” but determined that he was competent to stand trial. Clerk’s Papers (CP) at 89. 

However in 2008, prior to his trial, Fedoruk was again admitted to the hospital for covering 

himself in feces while in jail. He underwent another competency evaluation and an evaluator 

found him to be competent but also opined that Fedoruk was likely insane at the time he 

committed the crimes in 2007. The jury found Fedoruk not guilty by reason of insanity for most 

of the charges; he pled guilty to other amended charges.

In September 2010, Fedoruk’s family requested that the police take him to the hospital 

because he appeared “disheveled, disorganized and had pressured speech,” and had been eating

dirt and dog food and licking water, which he claimed was holy water, off of the floor. CP at 89. 

Fedoruk had not slept and had not taken his psychotropic medication. Fedoruk was then

involuntarily detained and found to be “gravely disabled.” CP at 89. Fedoruk was admitted to

Western State Hospital (WSH). WSH discharged Fedoruk three months later and provided him 

with a discharge plan that included medication and supervision by the Department of 

Corrections.
No. 49975-4-II

3

In 2011, Fedoruk severely bit his own finger and, while in the hospital for that injury, he

“was screaming in Ukrainian and not making sense.” CP at 89. A doctor opined that Fedoruk 

was psychotic and prescribed him psychotropic medications.

In August, 2011, police found Serhiy Ischenko’s body down an embankment behind the 

property where Fedoruk lived.2 After an investigation, the State charged Fedoruk with second 

degree murder. The case went to trial and a jury found Fedoruk guilty. Fedoruk appealed, and 

this court reversed Fedoruk’s conviction because his defense counsel failed to timely retain a 

mental health expert and failed to investigate a mental health defense.

II. PRETRIAL

In May 2015, while Fedoruk was in jail awaiting his second trial for Ischenko’s murder, a 

psychiatrist evaluated Fedoruk and diagnosed him with schizoaffective disorder. During the 

evaluation, Fedoruk described many occasions of manic episodes all of which included “high 

energy, little sleep, and delusional thought content.” CP at 91.

In September 2015, the jail reported that Fedoruk was no longer taking his mood

stabilizing medication. The court ordered Fedoruk to undergo another mental health evaluation. 

Fedoruk revealed to the evaluator that he had stopped taking his mood stabilizing medication,

because he was currently in jail and could not “hurt anybody.” CP at 87. Fedoruk also reported

that he becomes “sick” when he has not slept and that he experienced episodes of mania after his 

earlier murder trial. CP 87. He stated that the prison had refused his request for sleeping pills. 

The evaluator noted that Fedoruk’s “inability to sleep was known to him as a precursor for a

manic episode including paranoid delusions.” CP at 88. Fedoruk reported that during a manic

 

2

Ischenko was Fedoruk’s relative by marriage. 
No. 49975-4-II

4

episode he is “[n]ot in control—brain isn’t working right.” CP at 88. Fedoruk also stated that 

during his manic episodes he believed that he had special powers and has paranoid delusions of 

harming him and his family. The evaluation also included a report on Fedoruk’s judgment and 

insight of his disorder:

Insight/Judgment: Mr. Fedoruk showed fair insight into the nature of his episodic 

mood disorder and claimed he had the ability to accurately judge when he required 

medication in the jail environment based on a change in his sleeping pattern—i.e. 

when he began not sleeping. He also stated in the community he would have to 

remain consistently medication adherent. However, by his own description, onset 

of sleep disturbance also brings with it a level of lost control of his brain and 

behaviors.

CP at 94. Ultimately, the evaluator determined that Fedoruk was competent to stand trial, but 

also noted that because he was not compliant with his medication, he was at a “higher risk” of 

having returning symptoms and being susceptible to “other factors that can destabilize symptoms 

of his major mood disorder including increased stress one would expect during a court trial.” CP 

at 95. The evaluator stated that a forced medication order may be required.

Three days after the competency evaluation Fedoruk had a psychiatric episode that led to 

an emergency hearing where the court found Fedoruk incompetent. The court ordered that 

Fedoruk be admitted to WSH and receive forced medication. During a delay in transferring

Fedoruk to WSH, he displayed unstable behavior. The jail notes state:

Fedoruk at times was showing improvement, and at other times exhibited 

deteriorated conditions, which included manic-like symptoms, with yelling and 

pounding on his cell door, throwing liquid all over floor, pacing in his cell . . . . He 

would occasionally refuse his prescribed medication . . . .

CP at 148.
No. 49975-4-II

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In December 2015, Fedoruk was finally admitted to WSH where he displayed more vacillating

behavior. At one point, Fedoruk was being loud and “extremely bossy” toward others and a 

psychiatrist described him as “disinhibited” and not taking medication. CP at 148. A few days 

later, Fedoruk’s behavior and mood began to “escalate” and he began washing himself and his

clothing in a toilet bowl and sink. CP at 148. That same day he was physically and verbally 

assaultive which resulted in Fedoruk being restrained. Fedoruk was also “agitated, loud, 

touching other patients, and instigating altercations.” CP at 149.

During the next weeks, Fedoruk continued to have “manic-like behavior” and he was 

“hard to redirect.” CP at 149. Staff reported that Fedoruk was “[u]pset about various things . . .

constantly handwashing clothing . . . taking bath in sink” and required extra medication and 

emergency response for de-escalation. CP at 149.

Fedoruk began to stabilize by January 2016 and his medications were adjusted. 

However, a week later Fedoruk denied needing medication and again became noncompliant. 

Doctors placed Fedoruk on medication watch to ensure Fedoruk’s compliance, and thereafter his

mood and behavior improved entering into February.

In February, Fedoruk underwent another competency evaluation and the evaluator

determined that Fedoruk had the ability to understand the charges against him and court 

proceedings and that he had the capacity to assist his attorney. In March, Fedoruk had a forensic 

mental health evaluation addressing his capacity at the time of the murder. An evaluator noted 

that at the time of the evaluation Fedoruk had “a moderate to high risk for reoffending and 

dangerous behavior” and that his dangerous behavior would “increase should he discontinue his

medications.” CP at 180.
No. 49975-4-II

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In April, the court held a hearing regarding the need for another forced medication order. 

The trial court noted Fedoruk’s “past history of rapid decompensation,” and ruled that the earlier 

forced medication order was still in effect. Report of Proceedings (RP) (April 12, 2016) at 77. 

At that hearing, the court and counsel discussed trial scheduling and both the State and defense 

counsel agreed that the trial would last two weeks.

In early September, the trial court held a pretrial hearing. During the hearing, defense 

counsel stated:

And at the same time, we do not want to continue this trial. There are all 

sorts of problems with that. The Court’s aware of—you know, we’ve had

competency issues that have delayed things. My client’s competent; I think 

witnesses are available, and it’s our desire to go to trial as scheduled. 

RP (Sept. 9, 2016) at 87.

III. TRIAL

Trial began on September 20. During trial, Russian interpreters assisted Fedoruk through 

electronic headsets. On Wednesday, September 28, defense counsel informed the court that 

Fedoruk was experiencing significant back pain. Defense counsel stated that Fedoruk was in so 

much pain that he was having a hard time focusing. Fedoruk requested a continuance until 

Tuesday of the following week. The State objected based on witness availability. The court then

denied Fedoruk’s request and stated:

Well, I already know that we have witness—or pardon me, jurors, who had 

commitments in the first week of October and beyond that would mean that any 

continuance would mean that we’d be starting over, and I’m just not in a position 

to grant that request.

Mr. Fedoruk needs to talk to jail medical staff when he goes back over at 

the lunch hour, and if they have any concerns then we can re-address the matter.

RP (Sept. 28, 2016) at 8.
No. 49975-4-II

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Later that day, during a short recess, corrections officers placed Fedoruk in restraints.

3

 

The court noted that Fedoruk had “been getting more concerned about his physical situation and 

has been insistent that he be taken to the hospital.” RP (Sept. 28, 2016) at 57. Defense counsel

told the court that Fedoruk’s pain was “unbearable” and that his biggest concern was getting to a 

doctor. RP (Sept. 28, 2016) at 57. The court stated that “[g]iven witnesses, jurors who are going 

to be gone, we don’t have any choice but to go forward with your trial.” RP (Sept. 28, 2016) at 

58. The court also informed Fedoruk that he needed to maintain his composure in the courtroom 

and told Fedoruk that during the lunch recess the medical staff at the jail would be able to help

him with his pain.

The court took an extended lunch recess so that Fedoruk could seek medical attention.

After the recess, Fedoruk again requested a continuance, but this time only until the following 

morning, stating that “sleep and rest for a good chunk of the rest of the day and overnight, that

will go a long way toward making tomorrow more tolerable.” RP (Sept. 28, 2016) at 59-60. The 

court denied Fedoruk’s request citing concerns over juror availability. The court stated that if it

extended the recess, the court would lose jurors, resulting in a mistrial.

Fedoruk then requested to waive his presence at trial. The court engaged Fedoruk in a 

colloquy to confirm that he wished to waive his presence:

THE COURT: All right, Mr. Fedoruk, I just want to confirm—and you can stay 

seated if you wish, that’s fine.

I want to confirm: It’s your desire that you not be present for the balance of 

trial today; is that right?

THE DEFENDANT: I agree.

THE COURT: All right.

And you understand you have an absolute right to be here today?

THE DEFENDANT: Yes. I believe my attorney.

 

3 The exact nature of the restraints is not apparent from the record on appeal.
No. 49975-4-II

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THE COURT: Okay. You have discussed this with your attorney and this is how 

you wish to proceed; is that right?

THE DEFENDANT: Yeah. Thank you.

THE COURT: All right.

Then we’ll allow Mr. Fedoruk to return to the jail for the balance of the day. 

We will have you brought over tomorrow morning. I assume that’s [sic] your wish 

is to be back here tomorrow morning?

THE DEFENDANT: Yeah, thank you, yeah, yeah.

THE COURT: All right.

You’re comfortable with the trial proceeding without you this afternoon and 

your attorney acting on your behalf without you here?

THE DEFENDANT: Correct, correct.

RP (Sept. 28, 2016) at 62-63. The court then allowed Fedoruk to return to jail for the rest of the 

afternoon and continued the trial in his absence. The court instructed the jury that it should not 

consider Fedoruk’s absence as “evidence of anything” and that Fedoruk had a right to not be 

present. RP (Sept. 28, 2016) at 66.

The next morning, on September 29, Fedoruk returned to the courtroom. During a 

witness’s testimony, Fedoruk exclaimed, “Totally wrong. He’s lying.” RP (Sept. 29, 2016) at 8. 

As the witness continued, Fedoruk made other verbal but unintelligible outbursts and again 

claimed the witness was lying. The State then rested and defense counsel asked to address the 

court. Outside the presence of the jury, defense counsel stated:

Your Honor, I’m concerned about Mr. Fedoruk and very—he’s just very 

animated this morning, and some reactions to this last witness that the testimony 

really has been—well, reactions that I haven’t seen, up to this point. 

I believe he understands me; but, I’m concerned about his—his mood, at 

this point. I know we are very close to the end of the trial and I’m hoping he can 

keep it together.

RP (Sept. 29, 2016) at 9. Fedoruk himself then stated, “Because this is not truth. Not truth. I 

never said my [inaudible] I kill somebody; I never tell my wife; my sister over there is saying

things.” RP (Sept. 29, 2016) at 9 (alteration in original). The State asserted that it appeared that 
No. 49975-4-II

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Fedoruk was upset about the witness testimony, which was the reason for his disruptive

behavior, “not that he’s having any difficulty understanding or following the proceedings, or any 

difficulty assisting Counsel at this time.” RP (Sept. 29, 2016) at 10.

After a brief recess and outside the presence of the jury, the court noted that Fedoruk was 

having a “difficult time” and that at the request of the corrections officers, Fedoruk was placed in 

leg shackles and a belly chain. RP (Sept. 29, 2016) at 11. Defense counsel told the court that he 

was concerned about Fedoruk’s ability to maintain composure in the courtroom and that he 

attempted to have a discussion with Fedoruk but was unsuccessful.

Fedoruk then raised concerns about the jury being able to see the restraints. The court 

then stated that if Fedoruk could maintain his composure, the court would have Fedoruk’s belly 

chains removed. Fedoruk affirmed that he would be able to maintain his composure.

Defense counsel objected to the restraints and stated that any rearranging of the 

courtroom to accommodate the restraints would be very prejudicial to Fedoruk. Fedoruk added,

“[Inaudible] me. Yeah, maybe I’d [inaudible] stark crazy; but, if nobody touch me, I never touch 

somebody back,” and he then apologized. RP (Sept. 29, 2016) at 14 (alteration in original). The 

court responded that it was going to keep Fedoruk in the leg shackles because his behavior was 

“very concerning to all.” RP (Sept. 29, 2016) at 14. 

Defense counsel also informed the court that the interpreters wanted to move away from 

Fedoruk. The court, over Fedoruk’s objection, allowed the interpreters to move.

Before the jury was brought in, Fedoruk asked to use the restroom, and the court 

instructed the corrections officers to escort Fedoruk to the restroom. The court reported that 

while using the restroom Fedoruk was “very loud in the back hall and was having some difficulty
No. 49975-4-II

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controlling himself.” RP (Sept. 29, 2016) at 16. The court again asked Fedoruk if he would be 

able to maintain his composure and Fedoruk responded in the affirmative.

At this time, defense counsel informed the court that he was concerned about Fedoruk’s

competency and his ability to assist in his defense. Counsel stated that before the last break 

Fedoruk was “chanting stuff that is some indecipherable Russian” and that when discussing the 

testimony of the last witness, Fedoruk’s reaction was “pure anger.” RP (Sept. 29, 2016) at 16. 

Defense counsel then said he was “concerned about [Fedoruk’s] competence, at this point. I hate 

to do that, but I think that that’s—I think we’re—I’m very concerned that I’ve known him for 

two years, I’m very concerned about his behavior.” RP (Sept. 29, 2016) at 17.

The court then responded: 

At this point, based on my observations, Mr. Fedoruk is certainly responsive 

to what he is hearing in the courtroom and can converse with his attorney; but, he’s 

also emotionally upset. But I—at least at this point I don’t see this rising to the level 

of a competency concern.

In addition, we are now at the point where Counsel advises me we are very 

close to completion of all the testimony after almost two weeks of trial. Mr. Fedoruk 

is currently calm, and I think we can continue to proceed.

I’ll leave it to Counsel and his client whether he wishes to proceed with his 

presence in the courtroom or not in the courtroom. If he is in the courtroom, he does 

need to maintain his composure, and if you can’t do that, I won’t have any choice 

but to have him removed from the courtroom; complete the balance of the 

testimony; preparation of jury instructions.

After that, we’d be providing those instructions to the jury and closing 

arguments. I know Mr. Fedoruk wants to be present for those parts of the 

proceedings, but it’s contingent on his behavior.

RP (Sept. 29, 2016) at 17-18. Fedoruk then removed his interpretive device from his head.

The proceedings continued and after one more witness, the defense then rested and the 

court inquired whether Fedoruk wanted to be present while the jury instructions were being 
No. 49975-4-II

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finalized. Fedoruk began to cry and defense counsel stated that Fedoruk would take the 

opportunity to get some rest. The court then engaged in a colloquy with Fedoruk:

THE COURT: Mr. Fedoruk, do you understand you can be here while we go over 

these instructions. It’s my understanding that you would prefer not to be; allow your 

attorneys to handle that; and you’ll take a chance to give your back a break; is that 

right?

[Fedoruk]: No more witnesses?

[DEFENSE COUNSEL]: No more witnesses.

[Fedoruk]: No, no.

Today and tomorrow; done?

[DEFENSE COUNSEL]: Done.

[Fedoruk]: Today, done?

[DEFENSE COUNSEL]: Yes.

[Fedoruk]: [lnaudible].

[DEFENSE COUNSEL]: Yes

[Fedoruk]: You’re sure? They told me tomorrow.

[DEFENSE COUNSEL]: No, I’m sure we’re going to be done today.

[Fedoruk]: Okay, if it’s done, then I like stay.

[DEFENSE COUNSEL]: You’d like to stay? Okay.

THE COURT: All right.

RP (Sept. 29, 2016) at 27-28 (alteration in original).

Fedoruk began speaking in Russian and the following exchange took place: 

THE COURT: All right.

(Defendant speaking in Russian.)

THE INTERPRETER: (After translation communication with the Defendant:) He 

says that everybody knows [inaudible].

THE COURT: I’m sorry, I couldn’t hear the interpreter?

THE INTERPRETER: He just said—

(Defendant continues speaking in Russian.)

THE INTERPRETER:—the relatives they were testifying if they will come to the 

courtroom [inaudible].

THE COURT: Okay, so, Mr. Fedoruk—

(Defendant speaking in Russian.)

THE COURT: Mr. Fedoruk, I need you to be quiet while we’re doing this; you 

understand?

RP (Sept. 29, 2016) at 28-29 (alterations in original). The court ordered that Fedoruk be placed 

back in restraints at a corrections officer’s request.
No. 49975-4-II

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While the court and counsel were discussing jury instructions, Fedoruk requested to use 

the restroom and said that he had a strain in his back. The court informed Fedoruk that he would 

need to stay until the court had finished with jury instructions but that Fedoruk would soon be 

able to go back to the jail for lunch. Fedoruk then said “I—actually, I refuse to go to lunch” but 

then said he understood and was just “confused.” RP (Sept. 29, 2016) at 32-33. After preparing 

the jury instructions, the court took a lunch recess.

After the recess, the court continued to finalize the instructions and Fedoruk continued 

speaking in Russian and also saying unintelligible things. The corrections officers restrained 

Fedoruk again, chaining him to the table. The court then reported that Fedoruk had some

problems over the lunch hour in that he had taken his cell apart, but that he had received 

medication and appeared to be doing “somewhat better.” RP (Sept. 29, 2016) at 38. Fedoruk 

stated the name of the medication he took. Fedoruk then pointed to his head and stated “I’ve got 

this beeping . . . instead.” RP (Sept. 29, 2016) at 38.

With the jury present, the court began to read the instructions to the jury. Soon 

thereafter, Fedoruk collapsed onto the floor. The court removed the jury from the courtroom. 

Fedoruk began speaking unintelligibly, crying, and not responding. Defense counsel informed 

the court that Fedoruk slid down his chair and hit his head on the table. Fedoruk then stated that

he wanted to go to sleep and then began shouting in Russian. He stated that he lost 

consciousness and stated that he could not get up and that he was “done.” RP (Sept. 29, 2016) at 

49.

The court stated that it was “willing to give Mr. Fedoruk one more opportunity to sit 

through the balance of the trial.” RP (Sept. 29, 2016) at 50. Fedoruk then began singing and 
No. 49975-4-II

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chanting in an unintelligible language. The trial court ordered Fedoruk’s removal from the 

courtroom and ordered the officers to hold him in an area outside the courtroom to see if he 

improved. Fedoruk continued to speak and chant, at one point stopping to apologize. Fedoruk 

asked for a wheelchair and stated that he could not walk and then began to yell unintelligibly.

As corrections officers were attempting to get Fedoruk off the floor, a spectator began 

speaking to Fedoruk in Russian and Fedoruk began yelling in Russian. Fedoruk continued 

yelling until he was removed from the courtroom. The interpreter then informed the court of 

what Fedoruk had been saying:

Well, first he was praying in poems, so it’s not any language, it’s just a 

made-up language which he prays in, and that’s according to his sisters. We 

couldn’t make sense of it.

And then he was saying I’m going to call FBI [(Federal Bureau of 

Investigation)]you were not getting to help me, you broke my back, it hurts. That’s 

pretty much the gist of it.

RP (Sept. 29, 2016) at 53. The spectator, identified by the interpreter as Fedoruk’s sister, stated 

that every time Fedoruk starts “losing it, that’s how he behaves.” RP (Sept. 29, 2016) at 53.

The State then asserted that Fedoruk, through his behavior, had “effectively waived his 

presence” at trial for the remainder of day. RP (Sept. 29, 2016) at 53. Defense counsel 

responded that Fedoruk was not competent and that Fedoruk’s behavior was not something the 

“Court should base exclusion on” and stated that the attorney was unable to “redirect” Fedoruk’s 

behavior. RP (Sept. 29, 2016) at 54. The court then stated:

Well, obviously we were at a point a little more than halfway through the 

giving of instructions and closing argument. It’s a point where the Defendant’s 

participation, if any, obviously is minimal. 

Mr. Fedoruk has demonstrated that at this point he’s either won’t or can’t, 

and I don’t say that in any pejorative fashion I just don’t know which, maintain his 
No. 49975-4-II

14

composure sufficient to allow the case to go forward with him still in the room. So, 

I would find that he’s waived his presence at this time; and that there’s no 

meaningful participation from him going forward.

Given those two facts, I’ll allow the case to proceed without Mr. Fedoruk 

present. After I complete instructions, I’d ask that the officer advise us if he’s 

improved or not, or advise me and if at any point you think he’s calmed down 

sufficiently to come back into court please let me know. 

RP (Sept. 29, 2016) at 54-55 (emphasis added). A corrections officer informed the court that 

Fedoruk was lying down in the holding cell not saying anything.

Defense counsel then stated that “under the circumstances” he was moving for a mistrial. 

RP (Sept. 29, 2016) at 55. The court denied the motion and reasoned that “to the extent there’s 

been any error or problem, it’s certainly has come from the behavior of the Defendant, whether 

he can or can’t control that, whichever situation it is, I don’t think it can form the basis for a 

mistrial.” RP (Sept. 29, 2016) at 55. 

After closing arguments, the court provided an update on Fedoruk and stated that 

Fedoruk “was lying down on the floor in the holding cell, refusing to get up; speaking in a very 

loud voice, indicating that he wished to return to the jail.” RP (Sept. 29, 2016) at 94. The court 

then discussed whether Fedoruk could be present during the presentation of the verdict. The 

court stated that once the jury reached a verdict, a corrections officer would check on Fedoruk 

and advise the court of Fedoruk’s situation and the court would then make a “decision based on 

that whether or not to bring him over.” RP (Sept. 29, 2016) at 95-96. Before the recessing for 

the day, a corrections officer informed the court that when Fedoruk was transported to the jail, 

smelling salts were needed to “wake” Fedoruk up and to get him out of the vehicle. RP (Sept. 

29, 2016) at 96.
No. 49975-4-II

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The next morning, the jury reached a verdict. The court asked the jail to bring Fedoruk 

back to the courthouse and the jail advised that Fedoruk spent the night without sleeping and 

“mostly practicing boxing moves.” RP (Sept. 30, 2016) at 99. The court then took testimony 

from an officer who testified that, “[w]e had officers go to his cell, let him know that there was a 

verdict we needed to bring him over for court. He’s basically refusing to come over and he’s not 

following directions at all this morning.” RP (Sept. 30, 2016) at 98. The officer also informed

that force would need to be used to bring Fedoruk to the courtroom.

The court then took the verdict in Fedoruk’s absence. The State again asserted that 

Fedoruk “waived his presence by his inability to follow directions; his unwillingness to follow 

directions; and unwillingness to maintain behavior as appropriate.” RP (Sept. 30, 2016) at 100. 

Defense counsel disagreed and asserted that he did not think Fedoruk was competent and that he 

was concerned for Fedoruk’s safety. The court explained that there was no purpose in bringing 

Fedoruk back to the courtroom and that “he wouldn’t otherwise have any active participation in 

this process and would have no basis or opportunity to assist in his own defense in the course of 

accepting the verdict, in any event.” RP (Sept. 30, 2016) at 100-101.

The jury found Fedoruk guilty of second degree murder. After the jury exited the 

courtroom, the court questioned counsel as to the next steps. Defense counsel stated, “[W]e’re

still questioning competency. I think sentencing is a critical proceeding. I’m asking that he be 

evaluated.” RP (Sept. 30, 2016) at 106-107. The court responded:

As kind of a recap, while Mr. Fedoruk was having difficulties over the 

course of the last couple days of the trial, it ultimately led to putting the leg shackles 

on him as kind of a last resort, and making sure the jury couldn’t see those.

Conduct that might have caused me to question his competency at all really 

didn’t occur until we were reading jury instructions. At that point, I didn’t have a 
No. 49975-4-II

16

basis to think that he was not competent. Based on his behavior subsequent, 

including his behavior overnight in the jail and given the need for him to be able to 

consult with his attorneys pending sentencing, I think we have enough information, 

at this point, to question competence.

And I don’t think it’s in the Defendant’s or the State’s or the County’s best 

interest to delay until another hearing starting that process. So, at this point in time 

I am going to order an evaluation to determine the Defendant’s competence to 

continue to stand trial and to be sentenced.

RP (Sept. 30, 2016) at 107. Thereafter the court ordered that Fedoruk undergo a competency 

evaluation and entered a forced medication order.

During the week immediately following trial, a psychologist evaluated Fedoruk at the 

jail. The psychologist noted that he saw Fedoruk through his cell because he was too, “acutely 

impaired and mentally ill.” CP at 381. The psychologist reported that Fedoruk had not slept and 

not taken medication. During the evaluation Fedoruk muttered with pressured speech and stated 

that he had seen Jesus. The psychologist concluded that Fedoruk was, “in an acute psychotic, 

agitated and confused state, and at that point not competent to proceed with his sentencing.” CP 

at 381. 

After another competency evaluation in January 2017, an evaluator stated that nothing 

impaired Fedoruk’s capacity to consult with his attorney or his understanding and recommended

that Fedoruk return to court for sentencing. The court then entered an order of competency and 

conducted a sentencing hearing. The court sentenced Fedoruk to 216 months of confinement. 

Fedoruk appeals.

ANALYSIS

Fedoruk argues that the trial court failed to order a competency evaluation when there 

was reason to doubt his competency. Fedoruk argues that he was not competent and could not
No. 49975-4-II

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assist in his own defense and asserts that the trial court failed to consider his mental health 

history and failed to give deference to his counsel’s concerns about his competence. Fedoruk

also argues that the trial court applied the wrong standard in determining whether he needed to 

be evaluated for competency. We agree and hold that the trial court abused its discretion when it 

failed to order a competency evaluation.

I. COMPETENCY

A. Legal Principles

Criminal defendants have a constitutional right not to be tried while incompetent. In re 

Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001). RCW 10.77.050 codifies this right by 

preventing an incompetent person from being tried, convicted, or sentenced so long as the 

incapacity continues. A defendant is “incompetent” if he or she “lacks the capacity to 

understand the nature of the proceedings against him . . . or to assist in his . . . own defense as a 

result of mental disease or defect.” RCW 10.77.010(15). The test for competency to stand trial 

has two parts: (1) whether the defendant understands the nature of the charges and (2) whether he 

is capable of assisting in his defense. Fleming, 142 Wn.2d at 861-62. The mere existence of a 

mental disorder or the existence of delusions does not prevent a defendant from being competent. 

See State v. Smith, 74 Wn. App. 844, 850, 875 P.2d 1249 (1994).

The trial court is required to order a competency evaluation when there is reason to doubt 

a defendant’s competency. RCW 10.77.060(1)(a). We differentiate the determination of a 

reason to doubt competency from an actual determination of competency. City of Seattle v. 

Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985). The court must make the threshold 
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determination that there is a reason to doubt competency before a hearing to determine 

competency is required. Gordon, 39 Wn. App. at 441.

We review a trial court’s decision on whether to order a competency examination for an 

abuse of discretion. Fleming, 142 Wn.2d at 863. The trial court abuses its discretion when its 

decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. 

State v. Walker, 185 Wn. App. 790, 800, 344 P.3d 227 (2015). Once the trial court makes a 

determination that a defendant is competent, it need not revisit competency unless “new 

information” exists that shows the defendant’s mental condition has changed since being found 

competent to stand trial. State v. Ortiz, 119 Wn.2d 294, 301, 831 P.2d 1060 (1992).

There are no fixed signs which require a competency hearing, but the factors the court 

may consider include, medical and psychiatric reports, personal and family history, defendant’s 

appearance, demeanor, conduct, and past behavior. Fleming, 142 Wn.2d at 863. The trial court 

should also give considerable weight to the defense counsel’s opinion regarding a defendant’s 

competency. State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004).

Here, Fedoruk had been found competent to stand trial. Thus, our examination focuses 

on the signs that his mental condition had so changed since being found competent to stand trial 

so as to require another competency evaluation. Ortiz, 119 Wn.2d at 301. To do so, we examine 

the same factors the trial court considers when initially determining if it has reason to doubt a 

defendant’s competency.

B. Medical and Psychiatric Reports

Fedoruk’s medical and psychiatric reports showed that his mental illness spanned years. 

The reports also showed that Fedoruk had a history of rapid decompensation and medication 
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noncompliance. The trial court was aware of Fedoruk’s lengthy medical history which detailed 

certain behaviors Fedoruk exhibited during psychotic breaks, such as screaming in another 

language, not being redirectable, and not making sense. Moreover, Fedoruk’s medical reports 

contained information that Fedoruk’s “inability to sleep was known to him as a precursor for a 

manic episode including paranoid delusions.” CP at 88. Fedoruk’s available psychiatric reports 

documented that Fedoruk experienced a manic episode after a period of not sleeping and not 

taking medication. Fedoruk was under a forced medication order and twice during trial Fedoruk 

brought the issue of his lack of sleep to the court’s attention.

C. Family History

In 2002 Fedoruk’s family reported him to the police on account of Fedoruk threatening 

them. After the threats, a doctor evaluated Fedoruk and prescribed him antipsychotic 

medication. Fedoruk’s family again reported him to the police in 2010 and WSH then admitted 

Fedoruk for psychiatric treatment.

D. Conduct and Demeanor

Starting on the second to last day of trial, Fedoruk exhibited extreme behavior that was 

similar to behavior he displayed in past mental breakdowns. His behavior became increasingly 

questionable as the trial proceeded and Fedoruk eventually stopped responding to his attorney 

altogether.

Fedoruk began chanting and screaming in an unintelligible language and had to be 

physically restrained, in increasing fashion, for him to maintain composure. He slid out of his 

chair, collapsed onto the floor, screamed at a spectator, and referenced calling the FBI, all the 

while continuing to chant in a fake language. Fedoruk’s sister stated that the type of behavior 
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Fedoruk displayed was the same type of behavior Fedoruk displayed before “losing it.” RP

(Sept. 29, 2016) at 53.

Additionally, immediately after trial, Fedoruk underwent an evaluation. The evaluating

psychologist was unable to gain access to Fedoruk outside of his jail cell because Fedoruk was 

“acutely impaired and mentally ill.” CP at 381. The psychologist deemed Fedoruk not 

competent to undergo sentencing.

E. Counsel’s Opinion

At trial, defense counsel informed the court of his concern with Fedoruk’s “mood” and 

competency multiple times toward the end of the trial. RP (Sept. 29, 2016) at 9. Defense 

counsel also expressed that he was concerned about Fedoruk’s ability to assist in his defense. On 

September 29, defense counsel voiced his concern about Fedoruk’s competence and stated that 

he had known Fedoruk for two years and was worried about his behavior. Counsel reported that 

Fedoruk was, “chanting stuff that is some indecipherable Russian.” RP (Sept. 29, 2016) at 16. 

Later that same day, after Fedoruk slid off the chair in the courtroom and began singing in an 

unintelligible language, counsel again told the court about his concerns and stated that Fedoruk 

was not competent and that he could not be “redirect[ed].” RP (Sept. 29, 2016) at 54.

Although each of the four factors above may not individually have required the court to 

order a competency evaluation, taken together, a combination of the above factors create reason 

to doubt Fedoruk’s competency. Fleming, 142 Wn.2d at 863. In light of Fedoruk’s mental 

health history, his family history, his conduct at trial, his counsel’s opinion and other information 

properly before the court, it is clear that Fedoruk showed signs of mounting decompensation 

enough to create doubt as to his competency.
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F. Trial Court Did Not Consider Correct Factors

In evaluating the need for a competency evaluation, the trial court must consider (1) 

whether the defendant understands the nature of the charges and (2) whether he is capable of 

assisting in his defense. Fleming, 142 Wn.2d at 861-62. As noted above, in evaluating the need 

for a competency evaluation, the trial court may consider the statements of counsel, medical and 

psychiatric reports, personal and family history, defendant’s appearance, demeanor, conduct, and 

past behavior. Fleming, 142 Wn.2d at 863.

Here, as Fedoruk’s behavior deteriorated, and despite Fedoruk’s mental health history,

the trial court failed to consider whether Fedoruk was competent. Instead, the trial court focused 

on whether Fedoruk had waived his presence at trial due to his disruptive behavior. Multiple 

times throughout trial, the court warned Fedoruk that he needed to maintain his composure to 

remain in the courtroom. After Fedoruk first started chanting in an indecipherable language the 

court placed him in restraints, opining that Fedoruk was not having competency issues but was

“emotionally” upset. RP (Sept. 29, 2016) at 17. The court also stated that Fedoruk’s presence in 

the courtroom was contingent on his behavior. The court additionally gauged Fedoruk’s 

behavior by whether he was “calm” rather than whether he was exhibiting signs of mental 

decompensation. RP (Sept. 29, 2016) at 17. Also, after Fedoruk’s removal from the courtroom, 

the court expressly stated that it was unclear as to whether Fedoruk won’t “or can’t” control his 

behavior. RP (Sept. 29, 2016) at 55 (emphasis added). Rather than address any competency 

concerns based on that uncertainty, the court decided that it would continue to check on Fedoruk 

to see if his behavior stabilized such that he would not disrupt the remainder of his trial.
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It is apparent that the trial court reviewed Fedoruk’s behavior under the standard for 

determining whether Fedoruk waived his right to be present at trial rather than analyzing whether 

a competency evaluation was necessary. Because there were clear signs that Fedoruk’s mental 

condition had significantly deteriorated since being found competent to stand trial, and because 

the trial court applied the wrong standard in evaluating Fedoruk’s behavior, the court abused its 

discretion when it failed to order a competency evaluation during trial.

Because the trial court failed to order a competency evaluation when there was reason to 

doubt Fedoruk’s competency and because the court applied the wrong standard to assess 

Fedoruk’s behavior, the trial court abused its discretion.

We reverse and remand to the trial court for further proceedings consistent with this 

opinion.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Worswick, P.J.

We concur:

Bjorgen J.

Sutton, J.