SUMMARY 

July 12, 2018 

2018COA96

No. 15CA1368 People v. Lindsey — Criminal Law — 

Competency to Proceed — Retrospective Competency Hearings 

In this direct criminal appeal, a division of the court of appeals 

considers the proper remedy where a trial court fails to follow the 

applicable statutory procedure when a defendant’s competency is 

raised by motion before trial. In People v. Presson, 2013 COA 

120M, ¶ 26, the division ordered a remand for the trial court to 

determine the defendant’s current competency and conduct a new 

trial if the defendant was found currently competent. Division in 

this case departs from the Presson decision because the trial court 

is better positioned than the court of appeals to first determine if a 

retrospective competency determination is feasible. Thus, this 

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. 
2 

division vacates and remands for such a determination and for 

further proceedings based on that threshold inquiry. 
COLORADO COURT OF APPEALS 2018COA96

Court of Appeals No. 15CA1368 

Jefferson County District Court No. 12CR1487 

Honorable Todd L. Vriesman, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

William Arthur Lindsey, 

Defendant-Appellant. 

JUDGMENT VACATED AND CASE 

REMANDED WITH DIRECTIONS 

Division III 

Opinion by JUDGE FOX 

Webb and Richman, JJ., concur 

Announced July 12, 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 
1 

¶ 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 twentyfour years in the Department of Corrections’ custody. 
2 

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. 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. 

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 
3 

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 (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. 

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. 
4 

¶ 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. 
5 

¶ 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). 
6 

¶ 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. 

 

1 The judge explained how a competency evaluation would proceed 

and asked Lindsey if he wanted to join the motion to determine 

competency, to which Lindsey replied, “No.” Under the statute, the 

defendant is not required to join a competency motion, and the 

defendant’s preferences do not dictate whether a competency 

evaluation will be conducted. § 16-8.5-105(2), C.R.S. 2017 (the 

defendant is required to cooperate with the competency evaluator); 

cf. § 16-8.5-106(1), C.R.S. 2017 (the defendant may move to be 

examined “by a competency evaluator of his or her own choice in 

connection with any proceeding under this article”). The judge also 

asked Lindsey, “Do you believe you have that mental competence to 

understand what’s going on today?” Lindsey replied, “I honestly 

don’t know because I’ve never been — I’ve never had an evaluation.” 
7 

¶ 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.” 
8 

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. 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 
9 

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 Lindsey lacked the ability to 

consult with him to assist in his own defense. Tyler’s allegations 

that Lindsey avoided communication with him, lied about procuring 

funds and expert witnesses, attempted to fire him, and seemed to 

be operating under “significant delusions about the reality and the 

status of this matter” raised legitimate doubts about Lindsey’s 

competence. At trial, the difficulties with Lindsey that Tyler 

described came to light: 

[Prosecutor]: Do you have any more 

information on [your witnesses] like date of 

birth or address or anything? . . . 

[Tyler]: I really, frankly, don’t. . . . I’m trying to 

determine . . . I have to talk with Mr. Lindsey 

about exactly how we’re going to proceed to 

put on his testimony . . . . I don’t know that 

yet. . . . 
10 

[The Court]: I’ve heard . . . that your client 

supposedly isn’t communicating with you . . . 

and I won’t go off on that again. There is no: 

[m]y client refuses to communicate with me, so 

I don’t have to comply with the rules of 

procedure or exception to the criminal rules of 

procedure. . . . So I know that you’re doing 

your best, but I need for you to explain, as 

fully as you possibly can, the names and 

identifying information of the witnesses that 

you are calling in your defense. 

¶ 18 The possibility that an incompetent person, incapable of 

rationally assisting in his own defense, may have been forced to 

stand trial could have infected the fairness of the trial proceedings. 

See Nagi, ¶ 15 (considering a trial court raising the issue of 

competency on its own initiative under section 16-8.5-102(2)(a) and 

stating that “the standard of ‘reason to believe’ presents a low 

threshold”). While we do not condone counsel filing a motion on the 

eve of trial raising concerns that had been ongoing for months, the 

trial court’s failure to comply with section 16-8.5-103 requires the 

judgment to be vacated and the case to be remanded for further 

proceedings. 

¶ 19 The harder question is how to deal with Lindsey’s competency 

on remand. After all, he has not been determined to be 

incompetent. And at oral argument, his appellate counsel conceded 
11 

that absent a retrospective determination of incompetency or a new 

motion questioning competency, the issue of Lindsey’s competency 

need not be addressed on remand. 

¶ 20 The Presson division held that “[o]n remand, the court shall 

conduct further competency proceedings, in accordance with 

applicable statutory procedures and this opinion, to ascertain 

whether defendant is properly oriented to time, place, and person, 

and her perceptions are rational and grounded in reality.” ¶ 26 

(citing People v. Mondragon, 217 P.3d 936, 940 (Colo. App. 2009)). 

The record evidence on Lindsey’s mental state is sparse — no 

witnesses testified about Lindsey’s competency, and no relevant 

medical records were included in our record. Thus, we adopt the 

remedy other states and United States v. Bergman, 599 F.3d 1142, 

1148 (10th Cir. 2010), have employed: the case is remanded for the 

trial court to determine if a retrospective competency hearing, 

including the opportunity to present additional evidence, on 

Lindsey’s competency at the time of the 2015 trial is feasible. See, 

e.g., State v. Bostwick, 988 P.2d 765, 772-73 (Mont. 1999); see also

Odle v. Woodford, 238 F.3d 1084, 1090 (9th Cir. 2001) (discussing, 

in the context of defendant’s request for habeas corpus relief, the 
12 

propriety of allowing the state court to cure its omission of a 

competency hearing by conducting one retroactively if the record 

contained sufficient evidence to make one feasible); People v. Ary, 

246 P.3d 322, 329 (Cal. 2011). 

¶ 21 “Retrospective competency hearings are generally ‘disfavored’ 

but are ‘permissible whenever a court can conduct a meaningful 

hearing to evaluate retrospectively the competency of the 

defendant.’” McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir. 

2001) (quoting Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 

1999)); see also Pate v. Robinson, 383 U.S. 375, 387 (1966); People 

v. Pendleton, 2015 COA 154, ¶¶ 11-12, 17 (approving of the 

postconviction court conducting a retrospective competency hearing 

and determining that a five-year gap between the trial and the 

hearing did not invalidate the court’s findings); Edwards v. State, 

902 N.E.2d 821, 825 n.3 (Ind. 2009) (collecting cases). But see

Greene v. State, 264 S.W.3d 271, 273 (Tex. App. 2008) (declining to 

order a retrospective competency hearing because the defendant 

had possessed no meaningful level of competency since being 

convicted). 
13 

¶ 22 On remand, the trial court must weigh four factors when 

considering whether a meaningful retrospective competency hearing 

can be held: 

(1) the passage of time, (2) the availability of 

contemporaneous medical evidence, including 

medical records and prior competency 

determinations, (3) defendant’s statements in 

the trial record, and (4) the availability of 

individuals and witnesses who interacted with 

the defendant before and during trial, 

including the trial judge, both counsel, and jail 

officials. 

People v. Corichi, 18 P.3d 807, 811 (Colo. App. 2000); see also

Clayton, 199 F.3d at 1169. 

¶ 23 If the court determines (1) it is not able to make a retrospective 

competency determination, or (2) it can make a retrospective 

competency determination and finds Lindsey was not competent 

during the 2015 trial, then the judgment shall remain vacated and 

a new trial will be required. Bergman, 599 F.3d at 1149; Bostwick, 

988 P.2d at 773. If a new trial is warranted because the court is 

unable to make a retrospective competency determination, the 

court on its own or either counsel may question Lindsey’s 

competency at that new trial, thus triggering the statutory 

procedures discussed above. If a new trial is warranted because 
14 

the court finds that Lindsey was not competent during the 2015 

trial, the prosecution must prove that Lindsey has been restored to 

competency before he can be retried. 

¶ 24 If the court concludes a retrospective competency 

determination is feasible and further finds Lindsey was competent 

during trial in 2015, then the court shall reinstate the judgment of 

conviction, subject to his right to appeal that determination. See 

Bostwick, 988 P.2d at 773. But cf. Bergman, 599 F.3d at 1149 

(even if the defendant was competent at the time of the original 

trial, “the court may still, in its discretion, vacate [the defendant’s] 

conviction and conduct a new trial”). 

III. Lindsey’s Other Contentions 

¶ 25 We address Lindsey’s other contentions to the extent that 

similar issues may arise in the event of retrial. People v. Rios, 2014 

COA 90, ¶ 39. Because we remand on the competency issue, we 

need not address Lindsey’s arguments on the prosecutor’s crossexamination or merger because the issues were not raised at trial 

and they are unlikely to arise on remand — particularly the merger 

issue, on which the parties agree. If Tyler represents Lindsey on 

remand, the court must take up Lindsey’s argument that his right 
15 

to conflict-free counsel is violated if Lindsey’s competency is raised 

and Tyler discloses confidential information that could impeach 

Lindsey’s trial testimony without Lindsey being advised of and 

waiving the conflict.2 

¶ 26 Lindsey next argues that the trial court erred by (1) instructing 

the jury that “any note” constitutes a security and (2) giving an 

improper unanimity instruction. Lindsey did not preserve this 

issue so we review for plain error. People v. Carter, 2015 COA 24M2, ¶¶ 50, 52 (“A court’s improper instruction ‘does not constitute 

plain error if the relevant instruction, read in conjunction with 

other instructions, adequately informs the jury of the law.’” (quoting 

People v. Garcia, 28 P.3d 340, 344 (Colo. 2001))). 

¶ 27 As to the first contention, Lindsey’s trial was conducted before 

People v. Mendenhall, 2015 COA 107M, was decided. The trial 

court and parties now have the benefit of that case and can apply 

 

2 According to Tyler’s motion on competency, counsel was semiretired as of 2015, so it would seem unlikely he would represent 

Lindsey once more, especially since he will likely be called on to 

testify at any competency hearing. See People v. Delgadillo, 2012 

COA 33, ¶ 14 (discussing the conflict of interest created where 

counsel testified, in a case where he was representing the 

defendant, about communications he had with the defendant). 
16 

the four-factor test in crafting new jury instructions. See People v. 

Thompson, 2018 COA 83, ¶¶ 14-17. 

¶ 28 As to the second contention, we conclude the instructions as 

to counts 1, 2, 4, 9, and 10 were proper because each count was 

based on its own individual transaction.3 The instruction as to 

count 6 was improper because the pertinent investments involved 

three separate transactions. 

When evidence of many acts is presented, any 

one of which could constitute the offense 

charged, the trial court must take one of two 

actions to ensure jury unanimity: (1) require 

the prosecution to elect the transaction on 

which it relies for the conviction, or (2) if there 

is not evidence to differentiate between the 

acts and there is a reasonable likelihood that 

jurors may disagree on the act the defendant 

committed, instruct the jury that to convict it 

must agree unanimously that the defendant 

committed the same act or that the defendant 

committed all of the acts included within the 

period charged. 

People v. Greer, 262 P.3d 920, 925 (Colo. App. 2011). But, when “a 

defendant is charged with crimes occurring in a single transaction, 

 

3 While the payment at issue in count 10 was made in four separate 

transfers, those transfers constituted one payment for a single 

transaction induced by a single statement. 
17 

the prosecutor need not elect among the acts, and the trial court 

need not give a modified unanimity instruction.” Id. 

¶ 29 Here, the unmodified jury instruction provided: 

In order to convict a defendant in each count 

of Securities Fraud based upon a material 

untrue statement or omission you must be 

unanimous in finding that the defendant made 

at least one specific material untrue statement 

or omission on or about the dates charged, in 

each count. 

Each of counts 1, 2, 4, 9, and 10, was based on a unique 

transaction, so this unmodified unanimity instruction was 

sufficient. But, the three transactions in count 6 were induced 

through different statements: the first was based on Lindsey’s claim 

he needed money to buy equipment to fulfill his Super Bowl 

contracts, and the second and third were based on separate claims 

that he needed cash to make payroll and meet other regular 

operating expenses. To be proper, the instruction needed to specify 

that the jury “must agree unanimously that the defendant 

committed the same act or that the defendant committed all of the 

acts included within the period charged.” Id. In the event of retrial, 

we direct that the instructions be modified accordingly. If Lindsey’s 

convictions are reinstated following a retrospective competency 
18 

hearing, the conviction on count 6 must remain vacated and the 

mittimus corrected accordingly because the jury instruction did not 

adequately inform the jury of the law. Carter, ¶ 52. 

IV. Conclusion 

¶ 30 The judgment is vacated, and the case is remanded for further 

proceedings consistent with this opinion. 

JUDGE WEBB and JUDGE RICHMAN concur.