COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Lemons and Frank Argued at Norf olk, Virginia

CATHERINE ROTH WELL, S/K/A CATHERINE C. ROTHWELL MEMORANDUM OPINION * BY v. Record No. 1342-98-1 JUDGE ROBERT P. FRANK JANUARY 4, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Joseph A. Le afe, Judge Michael J. Woods for appellant. Eugene Murphy, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Catherine C. Rothwe ll (appellant) appeals her co nvictions of two counts of ch ild endangerme nt pursuant to Co de § 40.1-103 and four counts of chil d cruelty purs uant to Code § 18.2-371.1 1 after a bench trial. On appeal, she co ntends that the trial court erred in denying her a co ntinuance for a second psychological

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.

1 The Court notes that the final sentencing order entered by the trial court erroneously reflects that the appellant was found guilty of six counts of child endangerment pursuant to Code § 40.1-103. Accordingly, this case is remanded to the trial court for the sole purpose of amending the final order to reflect that the appellant was found guilty of two counts of child endangerment pursuant to Code § 40.1-103 and four counts of child cruelty pursuant to Code § 18.2-371.1.evaluation, de nying her due proc ess. We disagr ee and affirm appellant's co nvictions. FACTS A licensed clinical psychologist, Dr. David Keen an, evaluated appellant's co mpetency to stand trial in Septembe r 1997. Keenan concluded appellant understo od the charges agains t her. He also found appellant po ssessed an adequate unde rstanding of courtroom terms and procedur es and that she had the capacity to understand the roles of the variou s courtroom pers onnel. Althou gh concerned that appellant's condit ion might deteri orate under st ress, Keenan concluded: "[G] iven the present positive relation ship with her attorney, I would says [sic] that she pres ently meets competency to stand trial crit eria at the most basic of levels." The trial cour t appointed a ne w attorney for appellant on January 23, 1998. On May 29, 19 98, counsel for appellant asked for a psychologi cal re-evaluatio n to determin e appellant's competency to st and trial. Coun sel proffered that when he spoke with appellant briefl y she seemed fine. After meet ing with appellant for a longer period of time, he stated, "B ut on my last visit, I talked with her for about tw o hours and I fo und her train of thought to be some what erratic. I don' t think she understands the seriousness of these charges." Counsel proffe red that appellant repr esented that she had evidence that wo uld assist in he r defense, but wh en he asked her for it, she said her sister had it and th at the sister would

- 2 -present it at trial. Counsel re presented that ap pellant gave him the names of six witnesses, but that all of the witnesses were unfavorable, some of them witnesses for the Common wealth. Appellant told counsel that "her case [was] in God's hands, and that God's going to look out for her." Counsel concluded: I just feel, from my pe rspective, Yo ur Honor, as her counsel, that I feel that . . . I need a second opinion on her evaluation since I am new to this case . . . . I just feel, as a safety precaution for my self and [appellant], that she should be re evaluated by another psychologist who can see if they come to the same conclusion. The trial cour t denied the appellant' s motion for a "second opinion" at a he aring on May 29, 1998. Th en, at trial, appellant renewed her moti on and requested a cont inuance to obtain the "second opinion. " The trial co urt denied the motion for a continuance and tried the case on that date. ANALYSIS "Whether to grant or deny a continuanc e of a trial is a matter that lies within the sound disc retion of a tr ial court, and its ruling will not be reversed on appeal unless it is plainly wrong." Cardwell v. Commonwealth , 248 Va. 501, 50 8, 450 S.E.2d 146, 151 (1994) (citing Lomax v. Commonwealth , 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984); Parish v. Commonwealth , 206 Va. 627, 631-32, 145 S. E.2d 192, 195 (1965)). Code § 19.2-169.1(A ) provides in part: If . . . the court fi nds, upon hearing evidence or re presentations of counsel for - 3 -the defendant or the attorney for the Commonwealth, that there is pr obable cause to believe that the defend ant lacks su bstantial capacity to understand the proceedings against him or to assist his at torney in his own defense, the cour t shall orde r that a competency evaluati on be performed. At a hearing to determine co mpetency to st and trial "the party alleging th at the defendant is inco mpetent shal l bear the burden of prov ing by a preponderance of the evidence the defendant's inco mpetency." Code § 19.2-169 .1(E). "[T]he standard for competence to stand trial is whet her the defe ndant has 'sufficient pr esent ability to consult with his lawyer with a reasonable degree of rational understanding' and has 'a rational as well as factua l understanding of the proceedings against hi m.'" Godinez v. Moran , 509 U.S. 389, 39 6 (1993) (quoting Dusky v. United States , 362 U.S. 402 (1960) ). A tria l court's determination of a defendant's co mpetency to st and trial is a question of fact. See Delp v. Commonwealth , 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939). "[A] factual find ing made by the trial court is binding on appeal unless plai nly wrong." Naulty v. Commonwealth , 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986) (citing McFadden v. Commonwealth , 225 Va. 103, 10 8, 300 S.E.2d 924, 926 (1983)). Appellant's coun sel argued the followin g as the basis for his concern. Firs t, appellant said her sister had evidence to assist with appellant's defens e but her sister did no t contact co unsel. Second, appell ant gave counsel the name s of witnesse s who were

- 4 -adverse to appellant's case. Third, appellan t indicated the case was in God's hands. Counsel further expressed concern that appellant's tr ain of thought was somewhat erratic, and he did not think appellant understood the seriou sness of the charges. During the court's co lloquy with appellant, it wa s clear that appellant was co mpetent to stand trial. She unde rstood the court's questi ons and properly responded to the questi ons. She was cogent and respon sive. During the trial, appellant's testimony was deta iled. She clearl y remembered name s, dates, and information in detail. She fully part icipated in th e trial. The trial judge had th e opportunity to observe and evaluate appellant during the trial. Appe llant's counsel made no additi onal comments on his client's competency once the tr ial began. Appellant did no t assert to th e trial court th at her mental state had deterior ated since the Septembe r 1997 evaluation, but rather argued that sh e wanted a second opin ion. Ther e was no evidence that appell ant's mental conditio n had chan ged since Keenan's evaluation. Appellant did no t satisfy the requ irement of Code § 19.2-169.1 because she did not show prob able cause that she lacked substantial capa city to unders tand the procee dings or to assist counsel in her defense. "'Probable cause, as the ve ry name implies, deals with probabilities. These are not tech nical; they are the factual and practical consid erations in every day life on whic h reasonable and

- 5 -prudent men, not legal technicians, act.'" Derr v. Co mmonwealth , 242 Va. 413, 421, 410 S.E.2d 662, 66 6 (1991) (quoting Saunders v. Commonwealth , 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)). Probable cause is "d etermined by object ive facts, " not the "subjective opin ion" of a police officer. Klinger v. United States , 409 F.2d 299, 304 (8 th Cir. 1969). Th erefore, it follows that probable cause ca nnot be based on the subjective conclusions of counsel. We cannot say, as a matter of law, th at the trial court's finding that there was no probable cause to believe that appellant was incompetent to stand trial was plainly wrong. The record supports the tr ial court's ruli ng to deny appellant's moti on for a second psychiatri c opinion. Accordingly, the trial court did not abuse it s discretion wh en it denied appellant's mo tion for a continuance. For these reas ons, we affirm the ap pellant's co nvictions. Affirmed and remanded.

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