CO Code § 16-8.5-102 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8.5 - Competency to Proceed|§ 16-8.5-102. Mental Incompetency to Proceed - How and When Raised

  While a defendant is incompetent to proceed, the defendant shall not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant. However, a determination that a defendant is incompetent to proceed shall not preclude the furtherance of the proceedings by the court to consider and decide matters, including a preliminary hearing and motions, that are susceptible of fair determination prior to trial and without the personal participation of the defendant. Those proceedings may be later reopened if, in the discretion of the court, substantial new evidence is discovered after and as a result of the restoration to competency of the defendant.    The question of a defendant's competency to proceed must be raised in only one of the following manners:   If the judge has reason to believe that the defendant is incompetent to proceed, it is the judge's duty to suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103;    If either the defense or the prosecution has reason to believe that the defendant is incompetent to proceed, either party may file a motion in advance of the commencement of the particular proceeding. A motion to determine competency shall be in writing and contain a certificate of counsel stating that the motion is based on a good faith doubt that the defendant is competent to proceed. The motion shall set forth the specific facts that have formed the basis for the motion. The motion shall be sealed by the court. If the motion is made by the prosecution, the prosecution shall provide to the defense a copy of the motion. If the motion is made by the defense, the defense shall provide to the prosecution notice of the filing of the motion at the time of filing, and if the defense requests a hearing, the defense shall provide the motion to the prosecution at the time the hearing is requested. The motion may be filed after the commencement of the proceeding if, for good cause shown, the mental disability or developmental disability of the defendant was not known or apparent before the commencement of the proceeding.    Repealed.    By the state board of parole when a board member has a substantial and good-faith reason to believe that the offender is incompetent to proceed, as defined in section 16-8.5-101 (12), at a parole hearing conducted pursuant to section 17-22.5-403.5.       Notwithstanding any provision of this article to the contrary, the question of whether a convicted person is mentally incompetent to be executed shall be raised and determined as provided in part 14 of article 1.3 of title 18, C.R.S.     History. Source: L. 2008: Entire article added, p. 1839, § 2, effective July 1. L. 2018: (2)(c) amended and (2)(d) added,(HB 18-1109), ch. 139, p. 914, § 4, effective April 23. L. 2019: IP(2) and (2)(d) amended and (2)(c) repealed,(SB 19-223), ch. 227, p. 2275, § 2, effective July 1.    Editor's note:   This section is similar to former § 16-8-110 as it existed prior to 2008.   ANNOTATION   Law reviews. For note, “Trial Procedure in Colorado Under the 1951 Amendment Relating to Insanity in Criminal Cases”, see 24 Rocky Mt. L. Rev. 223 (1952). For article, “One Year Review of Criminal Law and Procedure”, see 36 Dicta 34 (1959). For article, “Insanity and the Law”, see 39 Dicta 325 (1962). For article, “One Year Review of Criminal Law and Procedure”, see 40 Den. L. Ctr. J. 89 (1963).   Annotator's note. Since § 16-8.5-102 is similar to repealed § 16-8-110 , relevant cases construing that provision have been included in the annotations to this section.   Common-law rule. It has long been the rule of the common law that a person cannot be required to plead to an indictment or be tried for a crime while he is so mentally disordered as to be incapable of making a rational defense, and he cannot be adjudged to punishment or executed while so disordered as to be incapable of stating any reasons that may exist why judgment should not be pronounced or executed. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   The heart of the common-law doctrine has been that a suggestion of incompetency after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence. Leick v. People, 140 Colo. 564 , 345 P.2d 1054 (1959).   This section is constitutional. Leick v. People, 140 Colo. 564 , 345 P.2d 1054 (1959).   This section is not unconstitutional as depriving a convicted person of due process of law, proceedings to determine competency after conviction being purely a matter of legislative regulation and subject to such restrictions as the general assembly may impose. Leick v. People, 140 Colo. 564 , 345 P.2d 1054 (1959).   This section meets due process requirements of the fourteenth amendment. The section involves weighty governmental interest, and because of the significant consequences to due process that an error in making the determination of mental competency would have, the lower “reason to believe” standard is an appropriate threshold for commencing the determination of mental competency. Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).   No fourteenth amendment equal protection clause violation merely because of the lower “reason to believe” threshold for criminal commitment statute versus a probable cause standard of civil commitment statutes. Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).   This section does not implicate the fourth amendment. Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).   Purpose of this section is to ensure against a violation of due process that would arise if a defendant who is not mentally competent were required to stand trial or participate in other critical criminal procedures. Schwader v. District Court, 172 Colo. 474 , 474 P.2d 607 (1970); Cappelli v. Demlow, 935 P.2d 57 (Colo. App. 1996).   Subsection (1) of former § 16-8-110 declared unconstitutional as violation of due process to the extent that it allowed an accused to be tried on the issue of insanity notwithstanding a judicial finding that the accused is incompetent to proceed. Coolbroth v. District Court, 766 P.2d 670 (Colo. 1988).   Subsection (2)(b) requires a trial court to consider defense counsel's motion raising competency without disclosing that motion to the prosecution. People v. Roina, 2019 CO 20, 437 P.3d 919.   The plain language of the statute provides that the trial court may consider the defense's ex parte competency motion when the defense raises competency and seeks a preliminary finding as to competency. People v. Roina, 2019 CO 20, 437 P.3d 919.   Defense counsel's sealed motion raising defendant's competency was a request for the court to order an initial competency evaluation of the defendant. Subsection (2)(b) requires trial courts to consider these motions even though they may be characterized as ex parte communications. The trial court erred in determining that it could review the defense's motion only if it provided a copy to the prosecution. People v. Roina, 2019 CO 20, 437 P.3d 919.   The general assembly made clear in § 16-8.5-103 that there is a distinction between the preliminary finding as to competency and the competency hearing. People v. Roina, 2019 CO 20, 437 P.3d 919.   Subsection (2)(b) requires the defense to provide the prosecution a copy of a sealed motion raising competency only when defense counsel requests a competency hearing, not a preliminary finding as to competency. People v. Roina, 2019 CO 20, 437 P.3d 919.   Trial court fulfilled its duty to inquire about defendant's mental health and did not abuse its discretion in allowing defendant to waive his right to counsel and proceed with trial without a mental health evaluation to determine his competency to do so. The fact that defendant has had mental health counseling or treatment in the past, without more, is not sufficient to trigger an inquiry into a defendant's competency to stand trial. People v. Woods, 931 P.2d 530 (Colo. App. 1996).   Court needs not await a specific request from defense. People v. Thomas, 962 P.2d 263 (Colo. App. 1997).   Trial court acted properly in ordering competency evaluation based on a pretrial motion that raised doubts as to defendant's competency, then allowing testimony by evaluating doctor to rebut defendant's claim of lack of mental capacity. People v. Thomas, 962 P.2d 263 (Colo. App. 1997).   Court met the low “reason to believe” standard in ordering competency evaluation. Court did not order the evaluation solely because the defendant exercised his right to represent himself. The court's interactions with defendant supported the court's doubts about defendant's competency. Because the court did not abuse its discretion in ordering the competency evaluation, the period during which the defendant was under observation is excluded from the speedy trial calculation. People v. Nagi, 2014 COA 12 , 396 P.3d 60, aff'd, 2017 CO 12, 389 P.3d 875.   An accused may not plead guilty, be tried, or sentenced while he is incompetent. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   A proceeding against an insane person in a criminal matter is a violation of his rights under the due process clause of the fourteenth amendment. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   An incompetent person may not be tried for a crime, nor may he be sentenced where his incompetency occurs and continues after the return of a verdict, nor may he be executed where incompetency occurs and continues after the sentence of death has been imposed. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958).   This section provides that a person sentenced to death who becomes and remains incompetent after judgment but, of necessity, before the sentence is carried out, shall not be executed until his recovery. Garrison v. People, 151 Colo. 388 , 378 P.2d 401 (1963).   This statute requires that the person charged shall not be tried while his incompetency continues. Schwader v. District Court, 172 Colo. 474 , 474 P.2d 607 (1970).   Because of the nature of a preliminary hearing, the right to counsel at a preliminary hearing reaches constitutional proportions, but the right to counsel is a meaningless right unless the accused has the capacity to confer with counsel regarding the accusation, the nature of the proceedings, and the testimony of the witnesses. Schwader v. District Court, 172 Colo. 474 , 474 P.2d 607 (1970).   The prohibition against prosecuting an incompetent defendant attaches at the commencement of formal criminal proceedings and continues throughout the execution and satisfaction of the sentence. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Although court is permitted to use the same competency standard to determine whether defendant is competent to stand trial and competent to proceed pro se, it is not required to do so under Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). People v. Wilson, 397 P.3d 1090 (Colo. App. 2011), aff'd, 2015 CO 37, 349 P.3d 257.   Trial of incompetent violates due process. Subjecting an accused to trial when he or she is incompetent violates due process of law. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).   Insane persons are not necessarily incompetent to stand trial because of the fact of their insanity. People v. Lopez, 640 P.2d 275 (Colo. App. 1982).   Amnesia, in and of itself, does not constitute incompetency. The trial court should engage in a fact-specific inquiry that encompasses a review of the totality of the circumstances of a particular case. Although the review may include considerations as to a defendant's memory loss, no particular set of factors is determinative. If a defendant's amnesia renders him or her unable to understand the proceedings against him or her or to assist in his or her own defense, then the defendant must be found incompetent. People v. Palmer, 31 P.3d 863 (Colo. 2001).   An incompetent cannot waive his constitutional rights and a trial judge must carefully safeguard such rights should the judge have a reasonable doubt as to a criminal defendant's competency. People v. Lopez, 640 P.2d 275 (Colo. App. 1982).   Standards for assessing competency. An accused's competency must be assessed with specific reference to the nature of the proceeding with which he is confronted and the appropriate level of understanding necessary for meaningful cooperation with his attorney. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   The determination of competency of accused to stand trial must be made before issues raised by insanity plea are tried. Parks v. Denver District Court, 180 Colo. 202 , 503 P.2d 1029 (1972).   Insanity at the time of the commission of the offense is not a mitigating factor that relieves the accused of punishment, but is a complete defense to the criminal charge, and therefore the determination of sanity at the time of the offense requires a full hearing, and the accused must be able to understand and assist his counsel in his defense. Parks v. Denver District Court, 180 Colo. 202 , 503 P.2d 1029 (1972).   Determination prior to preliminary hearing. The right to counsel is a meaningless right unless the defendant has the capacity to confer with his attorney regarding the pending charges and the testimony presented at the preliminary hearing, thus, a defendant is entitled to have a determination made as to his competency prior to a preliminary hearing. People v. Fletcher, 37 Colo. App. 173, 546 P.2d 980 (1975), rev'd on other grounds, 193 Colo. 314 , 566 P.2d 345 (1977).   But denial may not require reversal. Unless a defendant demonstrates that he was prejudiced by his inability to obtain a competency hearing prior to the preliminary hearing, the denial of such a hearing does not require reversal of a subsequent conviction. People v. Fletcher, 37 Colo. App. 173, 546 P.2d 980 (1975), rev'd on other grounds, 193 Colo. 314 , 566 P.2d 345 (1977).   Trial court's failure to make preliminary finding of competency on the record is not necessarily reversible error. People v. Green, 658 P.2d 281 (Colo. App. 1982).   Defendant must comply with section. An attempt to aver incompetency subsequent to an alleged offense is ineffectual when not in compliance with this section. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958).   This section spells out the procedures to be followed in a proceeding to determine if a defendant is incompetent after the alleged offense. Garrison v. People, 151 Colo. 388 , 378 P.2d 401 (1963).   Showing necessary to “raise the issue” of a defendant's competency after trial has commenced. Where trial court had an opportunity to observe defendant during first day of trial and noted that defendant understood her competency was being addressed and, without prompting, stated she wanted to continue the trial, defense counsel's assertion of defendant's condition of methadone withdrawal did not create a reason to presume mental incompetency. People v. Morino, 743 P.2d 49 (Colo. App. 1987).   Mere statement at time of sentencing that defendant's behavior at the time of the offense was “bizarre” was insufficient to trigger the requirement that the court suspend the proceedings and make a competency hearing. People v. Kilgore, 992 P.2d 661 (Colo. App. 1999).   Court correctly ruled that the issue of competency had not been properly raised where defense counsel refused to give specific reasons to support his opinion that the defendant was incompetent and refused the court's offer of an in camera hearing on the issue, the court had ample opportunity to observe the defendant, and the defendant ably assisted in his case. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).   And alleged condition arose after trial where issue was found against him. Where, after conviction, defendant asserts that he is incompetent and asks that sentence be postponed, his application should show that such incompetency arose subsequent to conviction, especially where the question as to defendant's insanity was at issue and found against him in the main trial. People v. Eldred, 103 Colo. 334 , 86 P.2d 248 (1938).   But court may initiate determination on its own motion. A trial court may on its own motion, where it entertains a reasonable doubt of a defendant's competence, initiate a determination thereof, notwithstanding a failure to plead such incompetency in accordance with this section. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958).   If the court, at any stage of the proceedings, has a reasonable doubt whether the defendant is so mentally disordered, it should suspend the criminal proceedings and hold an inquiry on the matter. Hampton v. Tinsley, 240 F. Supp. 213 (D. Colo. 1965 ), rev'd on other grounds, 355 F.2d 470 (10th Cir. 1966).   And it is duty bound to do so when competency doubtful. When the trial court has a doubt as to the mental competence of a defendant, then the court is duty bound upon its own motion to hold a competency hearing on the matter. Bresnahan v. People, 175 Colo. 286 , 487 P.2d 551 (1971).   It is not only the duty of defense counsel and the prosecution, but also the obligation of the court, to raise the issue of the competency of an accused to stand trial when facts dictate that such a hearing should be held. Parks v. Denver District Court, 180 Colo. 202 , 503 P.2d 1029 (1972).   A trial court has an independent obligation to raise the issue of a defendant's competency at any stage of a criminal proceeding if the court has reason to believe that he or she is incompetent. People v. Hendricks, 972 P.2d 1041 (Colo. App. 1998), rev'd on other grounds, 10 P.3d 1231 (Colo. 2000).   Court and counsel to raise issue whenever competency in doubt. When a doubt is entertained about the mental competence of an accused, both the court and counsel are duty bound to raise the issue and seek a reliable determination of it before further proceedings are held. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   And court's refusal to inquire possible abuse of discretion. Where defense attorney's representation to the court raised a substantial issue on the defendant's competency to stand trial, the trial court's refusal to make any inquiry into that issue or to receive any evidence in that regard constituted an abuse of discretion. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Failure to hold hearing on claimed incompetence violates due process. Due process is violated when a trial court does not afford an accused an adequate hearing on his claimed incompetency to stand trial. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).   But, when a court can conduct a meaningful hearing retrospectively to evaluate the competency of a defendant, such competency hearings do not violate due process principles. In determining whether a meaningful hearing can be held, a court should consider: (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 (Colo. App. 2000).   Even where competence issue raised by court. That the issue of defendant's competency is raised by the trial court, and not by the defendant's counsel, or by his advisory counsel, does not result in a weakening of the imperative that he be afforded an adequate hearing on his competency. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).   And retrospective determination of competency does not cure the failure. The trial court's noncompliance with those statutory procedures set forth in this section and § 16-8-111 , which provide those safeguards necessary to insure against the prosecution of an incompetent defendant, constitutes error so prejudicial as to be characterized as one of constitutional deprivation. Retrospective determination of the defendant's mental competency during his trial will not cure the error. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983).   Motions to determine competency must include threshold requirements and trial courts retain sufficient discretion to reject the rare competency motion that rests on counsel's inadequate proffer. Under the totality of the circumstances, including the competency motion filed by defendant's counsel that was bereft of specific facts supporting a good-faith doubt regarding defendant's competency, the trial court did not abuse its discretion in rejecting the motion as inadequate. People v. Lindsey, 2020 CO 21, 459 P.3d 530.   When duty to suspend proceeding arises. The duty in subsection (2)(a) to suspend the proceedings arises even if no more than a “doubt” is entertained as to a defendant's competency. People v. Scherrer, 670 P.2d 18 (Colo. App. 1983).   Determination may be initiated at any time. Where no proper allegation of incompetency relating to a time subsequent to the alleged offense is entered, and nothing in the record prompts the court to move in the matter, no prejudice results to a defendant, since such proceedings may be initiated at any time. Leick v. People, 136 Colo. 535 , 322 P.2d 674 (1958).   Question of competency may be raised at any time, but, if possible, it should be brought to the court's attention prior to the commencement of a particular proceeding. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Prohibition proper to prevent criminal proceedings in violation of section. When a trial court and county court, before preliminary hearing, plea or arraignment, lose authority under this section to proceed further with criminal proceedings due to incompetency of defendant, for a district court to certify the cause back to the county court for further criminal proceedings is to act in excess of its jurisdiction, and the remedy of prohibition is appropriate to prevent further proceedings. Gomez v. District Court, 179 Colo. 299 , 500 P.2d 134 (1972).   Prohibition against prosecuting incompetent defendant is not restricted to trial and post-trial stages of the case. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Competency hearing was unnecessary. Where the results of commitment indicated that defendant was sane, though quite emotionally disturbed, that his intelligence level was above average, and that his thinking processes were clear and logical, and defendant's testimony at the rule 35(b), Crim. P. hearing and his letters to his attorney and to his relatives pending disposition of the case in the trial court show that defendant's thoughts and expression of the same were above average in quality and content for a person of his years, there is no reason for the trial court to have had any doubt as to defendant's competency and to have held a competency hearing on its own motion. Bresnahan v. People, 175 Colo. 286 , 487 P.2d 551 (1971).   A defendant's suicide attempt during trial alone is not necessarily sufficient to establish a “bona fide doubt” as to defendant's competency. People v. Price, 240 P.3d 557 (Colo. App. 2010).   A person need not be adjudged incompetent to proceed where the person has made numerous statements that, although they may appear somewhat delusional on their face, are reflective of a larger, yet atypical, anti-government system of beliefs shared by others in the country, such as “sovereign citizenship” beliefs. People v. Anderson, 2020 COA 56 , 465 P.3d 98.   Applied in Massey v. District Court, 180 Colo. 359 , 506 P.2d 128 (1973); People v. Chavez, 629 P.2d 1040 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981).