1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 38532 STATE OF IDAHO,

Plaintiff

- Appellant,

v. FARON RAYMOND HAWKINS,

Defendant

- Respondent. ) ) ) ) ) ) ) ) ) ) ) ) Boise, January 2013 Term
2013 Opinion No. 49

Filed: April 17, 2013
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge
District court determination regarding mental competency, reversed a nd remanded.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for appellant. Lori A. Fleming, Deputy Attorney General argued.
Brady Law Chtd., Boise, for respondent. Eric D. Fredericksen argued.

__________________________________
BURDICK, Chief Justice
This is a permissiv e interlocutory appeal from the district court’s determination that the
law of the case doctrine prohibited it from making a retroactive determination of Faron
Hawkins ’s mental competency when he stood trial in January 2008

. I. F ACTUAL AND P ROCEDURAL B AC KGROUND In January 2008 , a jury convicted Faron Hawkins of two counts of r obbery

. He appealed his conviction and the Idaho Court of Appeals issued a decision on December 30, 2009, vacating the conviction and remanding the matter for a new trial. The Court of Appeals determined that
the district court erred by not having Hawkins undergo a mental health evaluation during his jury
trial to determine whether or not he was competent to proceed. Specificall y, the Court of Appeals
stated:2 Taking into account all of the indicia of bizarre notions demonstrated before trial started, there was enough evidence in this case to put the district court on notice that Hawkins ’ competence was in question. Even if the pretrial conduct was insufficient to call for a competenc y evaluation, certainly Hawkins ’ testimony during the trial presented compelling indicia that he was not in touch with reality. When taking the entire record into account, the district court should have entertained a reasonable doubt about Hawkins ’ mental competency either to stand trial or to represent himself. Therefore, the district court ’ s failure to sua sponte order a mental evaluation and make a determination as to Hawkins ’ competency was an abuse of discretion. Because it is not possible to retroact ively make a determination as to Hawkins ’ competency at the time he was tried, we must vacate the judgment of conviction and leave the state free to retry Hawkins if he is found to be competent to stand trial. State v. Hawkins , 148 Idaho 774, 782

– 83, 229 P .3d 379, 387

– 88 (Ct. App. 2009). On remand, the district court ordered Hawkins to undergo a competency evaluation

pursu ant to I.C. §§ 18

- 211 and 18

- 212. Licensed psychologist Dr. Chad Sombke and licensed psychiatrist Dr. Michael Estess evaluated Hawkins a nd testified that based on their interactions
with him , his responses to testing, and information regarding his social and institutional history,
Hawkins was competent to stand trial. Dr. Estes s was a consulting psychiatrist for the Ada County Jail and had a clinic there with three masters

- level social workers on staff throughout the

two

- year period Hawkins was incarcerated at the Ada County Jail

. Dr. Estes s testified that he interacted with Hawkins individually during this time period on several occasions and also spoke often with social workers and jail staff who had more frequent contact with him. Between 2006 and 2008, neither he nor his staff believed that Hawkins suffered from any mental illness. Dr.
Estes s testified a t Hawkins’s 2010 competency hearin g that
, based on the documents he reviewed, the interviews he conducted, and his interactions and his staff’s interactions with
Hawkins prior to trial, he believed Hawkins was “perfectly competent to understand the nature of the proceedings, to confer with an attorney in his own defense and understand w hat was going
on” at the time he was tried in January 2008. It is unclear whether the Court of Appeals k new of
Dr. Estes s ’s interactions with Hawkins when it reviewed his appeal from his 2008 conviction.
Base d on the totality of the evidence presented to it, “including admitted exhibits and testimony presented during the competency hearing,” the district court found that Hawkins was both presently competent to stand trial and had been competent to stand trial in January 2008

. However, the court found that the law of the case required it to retry the case.3 The S tate timely moved to file an interlocutory appeal from this decision, which the district court granted. The S tate then requested this Court ’s permissi on to appeal from the district court’s December 6, 2010 O rder, which this Court granted.
I I. A NALYSIS The State appeals the district court’s determination that the law of the case doctrine required it to follow the Court of Appeals’ s directive that Hawk ins is entitled to a new trial. In relevant part the Court of Appeals stated
, “B ecause it is not possible to retroactively make a determination as to Hawkins’ competency at the time he was tried, we must vacate the judgment
of conviction and leave the sta te free to retry Hawkins if he is found to be competent to stand
trial.” Hawkins , 148 Idaho at 783, 229 P.3d at 388

. The question before this Court is whether this language prohibits the district court from making a retroactive determination of Hawkins ’s

m ental competency when he stood trial in 2008

. Hawkins first argues that this language prohibits the district court from retroactively determining his c ompe tency and
, in the alternative, that such a determination would violate his due process rights.

“ The credibility of witnesses, the weight of their testimony, and any inferences drawn are matters resolved by the district court and will not be set aside on appeal unless clearly

erroneous. ” Stuart v. State , 136 Idaho 490, 494, 36 P.3d 1278, 1282 (2001) ( Stu art IV ) . As to questions of law, this Court exercises free review. Id. at 494

– 95 , 36 P.3d at 1282

– 83

. A. T he L anguage from State v. Hawkins Does Not P rohibit the District Court from M aking

a R etroactive D etermination of Hawkins’s Competency

. The State arg ues that the district court incorrectly determined that the law of the case prevent s the court from making a retroactive competency determination. Hawkins responds that both I.A.R. 38 and the law of the case doctrine require the district court to follow th e directive of the Court of Appeals and only allow the S tate to retry Hawkins. Additionally, Hawkins contends that the State waived any challenge to whether or not a retroactive competency evaluation is possible in his case by failing to appeal the decisio n of the Court of Appeals

. 1. The State did not waive its challenge to whether Hawkins was competent to stand trial in January 2008

. Hawkins argues that the State is precluded from now arguing that this Court should consider whether a retroactive competency determination is permissible

. He contends that because the State has already had two opportunities to address the issue of retroactive competency determination s as a remedy and neglected to do so, the State has waived any further4 challenges regarding the issue. Hawkins explains that in his first appeal he briefed the Court of Appeals on why a new trial was the proper remedy if it found that the district court erred, but the State failed to address this argument in its briefing. The Court of Appeals did add ress the issue in its decision, concluding that “[b]ecause it is not possible to retroactively make a determination as to Hawkins’ competency at the time he was tried, we must vacate the judgment of conviction and leave the state free to retry Hawkins if h e is found to be competent to stand trial.” Hawkins , 148 Idaho at 783, 229 P.3d at 388. Hawkins argues that by failing to address this conclusion in its
Petition for Review , the S tate waived any challenges as to the possibility of making a retroactive
dete rmination of Hawkins’s competency . The State responds that it is not asking the court to consider this question, just whether or not the Court of Appeals’s statement is the law of the
case. The State concedes that if this Court determines that this stateme nt is the law of the case, then a retroactive determination of Hawkins’s competency should not be allowed. Hawkins correctly cites that the law of the case doctrine “ prevents consideration on a subsequent appeal of alleged errors that might have been, but were not, raised in the earlier appeal. ” Taylor v. Maile , 146 Idaho 705, 709, 201 P.3d 1282, 1286 (2009)

. Therefore, the issue
is : could the State have raised the question of whether the Court of Appeals’s statement was the law of the case in its petitio n for review to the Supreme Court ? In its decision on Hawkins’s first appeal, the Court of Appeals never discussed with factual recitation or legal argument why a retroactive competency determination would be impossible in Hawkins’s case. W e read the conc lusion that a retroactive competency determination was impossible as indicating that such a determination could not be decided based on the record before the Court of Appeals. The State could have appealed the original Court of Appeals’s decision that a re troactive competency determination was impossible, but this is not
the issue the State is now presenting

. Therefore, the State did not waive the issue of whether a retroactive competency hearing is the law of the case for the trial court.
2. T he law of the case does not prevent the district court from making a retroactive competency determination

. The S tate argues that the Court of Appeals did not establish the law of the case in
Hawkins when it stated “[b]ecause it is not possible to retroactively make a de termination as to
H a wkins’ competency at the time he was tried, we must vacate the judgment of conviction and leave the state free to retry Hawkins if he is found to be competent to stand trial.” Hawkins , 148
Idaho at 783, 229 P.3d at 388. The State argues that this statement is not the law of the case for5 three reasons: ( 1) it was not necessary to the only issue being raised on appeal; ( 2) there is no discussion as to why a retroactive determination is impossible; and (3) the statement is contrary
to the f acts that have been developed on remand. The law of the case doctrine states that “upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal....” Stuart IV , 136 Idaho at 495, 36
P.3d at 1283 (quoting Swanson v. Swanson, 134 Idaho 512, 515, 5 P.3d 973, 976 (2000) )

. Howe ver, th is Court has noted that the law of the case doctrine “directs a court ’ s discretion, it
does not limit the tribunal ’ s power.” Id. (quoting Arizona v. California, 460 U.S. 605, 618 (1983) )

. In Stuart IV , the defendant claimed that the law of the cas e prevented the district court
from admitt ing illegally obtained attorney

- client conversations under any means other than the independent origin exception. Stuart based this argument on the following language from this
Court’s decision on his previous appe al : “ [ i ] f such attorney

- client conversations are found to have been recorded, the State will be required to show that the evidence at trial had an origin independent of the eavesdropping.” Stuart v. State , 1 18 Idaho 932, 935 , 801 P. 2 d 1283 , 128 6 (2001) ( St uart III )

. Stuart took issue with the district court ’s finding on remand that under the independent origin, inevitable discovery, and attenuated basis exceptions the record ed
conversations did not lead to the discovery of evidence used at trial. Stuart IV , 136 Idaho at 49 4 , 36 P.3d at 1282

. Stuart appealed the district court’s decision arguing that because this Court only mentioned the independent origin exception in its directive to the district court , the district court could not apply any other exception s to the exclusionary rule on remand

. Id. at 495, 36 P.3d at 1283. We then concluded that the language from Stuart III was not the law of the case for two

reasons. First, because this Court “provided little discussion as to why it chose to state that the
S tate had to prove an ‘origin independent of the eavesdropping
, ’” the holding in Stuart III did not establish that the words chosen were intended to preclude other exceptions. Id. Indeed, as this Court noted, the case it cited in support of its holding in S tuart III not only discussed the independent origin exception but also the attenuated basis exception. Id. Second, at the time of
Stuart III , this Court reasoned that because there was no Idaho case law on the applicability of the various exceptions to t he exclusionary rule , “it cannot be presumed that this Court has6 decided that the inevitable discovery and attenuated basis exceptions should not be applied in
Idaho.” Id.
Both of the reasons behind this Court’s decision in Stuart IV apply to this case. While the Court of Appeals extensively discussed Hawkins’ s erratic behavior before and during the trial in 2008, it provided no discussion as to why a retroactive competency determination was impossible. Indeed, there is absolutely no discussion relating to retroactive competency
determinations at all. 1
This case is also similar to Stuart IV in that the court’s holding appears to foreclose an issue of law that ha s not been addressed in Idaho. This Court has never addressed whether retroactive competency hearings are permissible , and if so, under what circumstances . However,
like the inevitable discovery and attenuated basis exceptions the district court applied in Stuart
IV , retroactive competency determination s are allowed in many jurisdictions under ce r tain
circumstances. See, e.g. , Odle v. Woodford , 238 F.3d 1084, 1089 (9th Cir. 2001) (“ We have said that retrospective competency hearings may be held when the record contains sufficient information upon which to base a reasonable psychiatric judgment. ”); Montana v. Bostwick
, 988 P.2d 765, 77 2

– 73 ( Mont. 1999) (holding that the erroneous failure to hold a pretrial competency hearing can be “cured” by a meaningful retrospective hearing ) ; Traylor v. State
, 627 S.E.2d 594,
601 (Ga. 2006) ( remanding for retrosp ective competency hearing at which defendant was to “have the burden to show incompetency by a preponderance of the evidence” ) ; People v. Ary
, 246 P.3d 322, 329 ( Cal. 2011) cert. denied
, 132 S. Ct. 136 (2011) (holding that once the feasibility of a retrosp ective hearing is determined, requiring a criminal defendant to prove at a retrospective mental competency hearing that he was incompetent when tried earlier does not violate the defendant’s due process rights).
We hold that the language in Hawkins regar ding a retroactive competency determination
and the S tate being free to retry Hawkins if he is found presently competent
, is not the law of the

case. Because there was no legal analysis on the subject of retroactive competency
determinations and no factual discussion from the Court of Appeals as to why one would not be

1 It appears that Hawkins did brief the court on the appropriate remedy should it find that the district court erred by not sua sponte ordering a competency evaluation. Specifically, Hawkins argued: At this point, as in [ Drope v. Mi ssouri , 420 U.S. 162 (1975)], it is not possible to make an evaluation of Mr. Hawkins’ competency at the time he was tried. The only remedy that will fulfill the state and federal constitutional due process guarantees is to reverse the judgment of convicti on leaving the state free to retry Mr. Hawkins if he is now competent to stand trial.7 possible in this case
, we read t he court’s conclusory statement as an acknowledgement that it had
no record on which to base a retroactive competency d etermination. Moreover, the language re garding a retroactive competency determination being impossible does not appear to be “necessary to the decision.” See Stuart IV , 136 Idaho at 495, 36
P.3d at 1283 (stating that “ upon an appeal, the Supreme Court, in deciding a case presented
states in its opinion a principle or rule of law necessary to the decision, such pronouncement
becomes the law of the case ”)

. If the statement is not necessary to decide the issue presented to the appellate court, it is considered to be dictum and not controlling. See Petersen v. State , 87 Idaho 361, 365, 393 P.2d 585, 587 (1964) (finding that statements in the court’s opinion that did not appear “ to have played a role in the ultimate decision of the court” are dicta). The question before the Court of Appeals in Hawkin s was whether the district court’s
failure to sua sponte order a psychiatric evaluation and to conduct a hearing to determine
Hawkins’s competence to stand trial was an abuse of discretion. In relevant part the Court of Appeals concluded: When taking the e ntire record into account, the district court should have entertained a reasonable doubt about Hawkins ’ mental competency either to stand trial or to represent himself. Therefore, the district court ’ s failure to sua sponte order a mental evaluation and mak e a determination as to Hawkins ’ competency was an abuse of discretion. Hawkins , 148 Idaho at 783, 229 P.3d at 388

. The Court of Appeals then vacated the judgment of conviction leaving the State free to retry Hawkins if he was found presently competent. I d

. Whether a retroactive competency determination was possible was not necessary to the court’s
decision and therefore it is not the law of the case.
3. Idaho Appellate Rule 38 does not prohibit the district court from making a retroactive competency determi nation in this case

. Hawkins argues that pursuant to I.A.R. 38, the district court only had the authority to order a new trial. The State responds that I.A.R. 38 is merely the codification of the law of the
case doctrine. The State is correct. Idaho Appe llate Rule 38 (c) provides that: When the opinion filed has become final in accordance with this rule, the Clerk of the Supreme Court shall issue and file a remittitur with the district court or administrative agency appealed from and mail copies to all pa rties to the appeal and to the presiding district judge or chairman of the agency. The remittitur shall advise the district court or administrative agency that the opinion has become final and that the district court or administrative agency shall forthwit h comply wit h the directive of the opinion.8 In his brief Hawkins focuses on the rule ’ s language that the district court “shall forthwith comply with the directive of the opinion.” Thus, Hawkins ’s argument asks whether the Court of Appeals’s statement is a controlling “directive” or, as the S tate contends, merely dictum that did
not bind the district court to order a retrial. This is the same question posed under the law of t he case issue discussed above. Thus, for the purposes of this case, Rule 38 and its use of the word
“directive” does not require additional analysis of this issue.
B. Whether the D istrict C ourt E rred in D etermining that Hawkins W as R etro ac tively
C ompetent I s N ot an I ssue P resently B efore this Court

. Hawkins argues that if this Court fi nds that the district court is not barred by the holding of the Court of Appeals from retroactively determin ing Hawkins’s competency, then this Court should find that the district court’s determination violated Hawkins’s due process rights.
Whether a retr oactive competency determination is appropriate in Hawkins’ s case is not the issue
before t his court on permissive appeal and is not the type of issue allowed on appeal under I.A.R.
12. This Court granted the State “leave to appeal by permission under I. A.R. 12 from the district court’s Order Regarding Competence to Stand Trial.” Idaho Appellate Rule 12 (a) provides the following criteria for permissive appeals: Permission may be granted by the Supreme Court to appeal from an interlocutory order or judgmen t of a district court in a civil or criminal action, or from an interlocutory order of an administrative agency, which is not otherwise appealable under these rules, but which involves a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal from the order or decree may materially advanc e the orderly resolution of the litigation.
W e did not grant a permissive appeal as to wh ether a retroactive competency determination is appropriate i n Hawkins’ s case . This question is not a controlling question of law nor is it an issue that requires an immediate appeal. Th erefore
, we need not address this issue.
I II. C ONCLUSION Neither the law of the case doctrine nor I.A.R. 38 prevent s the district court from making a retroactive competency determination as to Hawkins in this case. Therefore, we reverse the
decision of the district court and remand this case for further proceedings consistent with this opinion

. Justices EISMANN, J. JONES, W. JONES , and HORTON CONCUR.