### FILED August 16, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the MatterofthePersonal Restraint of ) ) ) LEWIS A. LAWRENCE, ) ) Petitioner. ) ) ) No. 31827-3-111

UNPUBLISHED OPINION
KORSMO,

### J. -Anincompetentpersonmay notbetried, convicted, or sentenced
as long as the incapacity continues. RCW 10.77.050. Lewis A. Lawrence seeks relief from personal restraint imposed in his 2010 Whitman County convictions ofthree counts ofattempted first degree murder. He contends hewas incompetentto standtrial and to representhimselfattrial due tohis fetal alcohol syndrome disorder (FASD). Afterthis courtremanded the matterto superior court for areferencehearing, the superior court entered findings thathe suffered from FASD atthetime oftrial and sentencing, and that this disorderrenderedhim incompetentto standtrial andto waive counsel. Accordingly,
we granthis personal restraintpetition, reversehis convictions, andremand for further proceedings.No. 31827-3-III In re Pers. Restraint of Lawrence

In March 2009, Mr. Lawrence had a disagreement with two friends over dinner plans and left their apartment. 1 Later, he returned with a shotgun, shot one friend in the face with birdshot, and fired twice into the apartment without injuring the two other people inside. When he was arrested, he told the police he wanted to kill his friends because they were part ofa Samoan gang that has threatened his family. These allegations ofa Samoan gang threat had no basis in reality. From the time he was charged, it was apparent that Mr. Lawrence's behaviorwas unusual. Based on competency evaluations by Eastern State Hospital (Eastern), the trial court initially found him incompetent to stand trial, but later ruled him competent after treatment. Mental health experts variously diagnosed him with psychosis, antisocial personality disorder with narcissistic personality features, and bipolar disorder. Mr. Lawrence requested permission to represent himself. Counsel for bothparties again questioned his competence and defense counsel advised the court that Mr. Lawrence's family believes he may have fetal alcohol syndrome. In two successive competency hearings, the trial court first found that he was incompetent and later relied on a new report from Eastern to find him competent. The trialjudge, however, denied Mr. Lawrence's request to proceedprose. Three days later, Mr. Lawrence filed an affidavit

1A full recitation ofthe facts ofMr. Lawrence's crimes and the lengthy pretrial and trial proceedings is set out in State v. Lawrence, 166 Wn. App. 378, 380-85, 271 P.3d 280, review denied, 174 Wn.2d 1009(2012). 2No. 31827-3-III In re Pers. Restraintof Lawrence

ofprejudice against thejudge, who recused himself. The new trialjudge later accepted Mr. Lawrence's waiver ofcounsel. Mr. Lawrence'sjurytrial was held in April 2010. He represented himself, served
as the sole defense witness, and testified that he was on the other side oftown robbing six
men oftheirblack diamonds at the time ofthe crimes. Thejury convicted him as charged and he represented himselfagain at sentencing. On appeal, Mr. Lawrence argued, in part, that the trial court erred in finding that he was competent to stand trial and to represent himself. This court affirmed his judgment and sentence and the Washington Supreme Court denied review. See State v. Lawrence, 166 Wn. App. 378, 271 P.3d 280, review denied, 174 Wn.2d 1009 (2012). Mr. Lawrence then filed a timely personal restraintpetition and submitted a new mental health evaluation ofhis incompetence due to FASD. The chief judge ofthis court dismissed his personal restraintpetition, concluding that the trial court's competency decision was reasonable under the circumstances. See Order, In re Pers. Restraintof Lawrence, No. 31827-3-III (Wash. Ct. App. Nov. 4, 2014). In October 2015, the Washington Supreme Court accepted review ofMr. Lawrence's petition, vacated the order dismissing it, and remanded to this court. See Amended Order, In re Pers. Restraintof Lawrence, No. 91063-4 (Wash. Sup. Ct. Oct. 12, 2015). The Supreme Court directed this court to transferthe case to the Whitman County


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# I I 1No. 31827-3-III In re Pers. Restraint of Lawrence
Superior Court for a RAP 16.12 reference hearing concerning Mr. Lawrence's competency during trial and sentencing. On October 26, 2015, we entered an order transferring the personal restraint petition to superior court for a reference hearing, and directed the superior court to enter findings on the following questions: 1. DidMr. Lawrence suffer from the effects ofFASD at the time oftrial and sentencing? 2. Ifso, what effects ofMr. Lawrence's reported FASD, ifany, would have been relevant to his competency to stand trial? 3. Taking into consideration any relevant effects ofMr. Lawrence'sreported FASD, was he competentto stand trial at the time oftrial, conviction and sentencing? 4. What effects ofMr. Lawrence's reported FASD, ifany, would have been relevant to his ability to knowingly and intelligently waive his right to counsel? 5. Taking into consideration any relevant effects ofMr. Lawrence's reported FASD, did he knowingly and willingly waive his rightto counsel at the time of trial, conviction, and sentencing? See, e.g., In re Rhome, 172 Wn.2d 654, 260 P.3d 654 (2011).

4No. 31827-3-III In re Pers. Restraintof Lawrence

In aMarch 2016 reference hearing with a newjudge, 11 witnesses testified. The judge found that (1) Mr. Lawrence suffered from FASD at the time ofhis trial, conviction, and sentencing; (2) the FASD, along with bipolar disorder, post-traumatic stress disorder, periods ofdelusional thinking, and psychotic symptoms, impaired his ability to understand and assist in his defense; (3) he was therefore incompetent at the time oftrial, conviction, and sentencing; (4) his pervasive and severe impairments due to FASD and the other disorders-impairments that caused difficulty in relating actions to consequences-interferedwith his ability to knowingly and intelligently waive the right to counsel; and (5) he did not knowingly and intelligently waive his right to counsel at the time ofhis trial, conviction, and sentencing. The State in supplemental briefing to this court does not dispute the superior court's findings and agrees that Mr. Lawrence "has met his burden to show that he was incompetent at the time oftrial and did not knowingly waive his right to counsel." Resp't's Supplemental Br. re: Reference Hearing at 4. To prevail in apersonal restraintpetition, apetitioner must show that he is unlawfully restrained due to an error ofconstitutional magnitude that substantially prejudiced him, or due to a fundamental defect ofa nonconstitutional nature that caused a complete miscarriage of justice. In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). Mr. Lawrence's trial and conviction while incompetent and his involuntary waiver ofcounsel violated his constitutional right to due process. See State v.
5No. 31827-3-III In re Pers. Restraintof Lawrence
Heddrick, 166 Wn.2d 898, 904, 215 P.3d 201 (2009) (incapacity to stand trial); In re Disciplinary Hrg. againstMeade, 103 Wn.2d 374, 380-81, 693 P.2d 713 (1985) (incompetence to appear pro se). This error substantially prejudiced his defense. Consequently, we grant his personal restraintpetition, reverse his conviction, and remand for further proceedings. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

Pennell, J.

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