Michigan Court Of Appeals Reverses Dismissal Regarding Competency

On April 21, 2015, the Michigan Court of Appeals reversed a trial court's dismissal of charges in a criminal case involving mental competency issues. The Court of Appeals ruled that the trial court's dismissal was premature in light of the fact that defendant had not begun treatment as required under Michigan's Mental Health Code to attain competency. 

In People v Davis, Docket No. 319436, the Michigan Court of Appeals addressed the issue of whether the trial court committed error when it dismissed charges against a young man who may not have been competent to stand trial. 

The Court first recited the facts of the case.

On the afternoon of April 15, 2013, then 17-year-old defendant, along with six other young men, “jumped” a 16-year-old autistic boy and stole his portable gaming system. Detroit police arrested defendant three days later. Defendant waived his rights and admitted, but minimized, his role in the attack. Following preliminary examination, the district court bound defendant over for trial on charges of unarmed robbery and assault with intent to commit great bodily harm less than murder.

On June 6, 2013, the circuit court issued an “order for competency examination” to determine whether defendant was competent to stand trial. Defendant was released on bond until his examination at the Center for Forensic Psychiatry (CFP). On July 27, 2013, family members transported defendant to the center, where he met with a licensed psychologist, Cathie Zmachinski. Accepting reports that defendant was “moderately impaired . . .”

Zmachinski described defendant’s memory deficits. In addition, she opined, “Besides his limited insight into his cognitive abilities he showed limited insight into his affective life.”

Zmachinski also interviewed defendant’s mother, Tiffany Davis. Davis reported that defendant had received special education services since kindergarten, was restless and had difficulty staying on task at home. Davis indicated that defendant had been incarcerated for two months before being released on bond. During that time, the other inmates took advantage of defendant and “beat [him] up.”

In relation to defendant’s competency to stand trial, Zmachinski opined:

. . . In summary, due to limited cognitive abilities although [defendant] showed some knowledge about the criminal justice system, in my opinion it was insufficient to be considered him [sic] capable of understanding the nature and object of the proceedings against him. Additionally, again due to this limited knowledge and limited cognitive abilities, it is my opinion that he would have problems assisting defense counsel in a rational manner. Therefore, it is my opinion that [defendant] was incompetent to stand trial.

The next question becomes whether there is a substantial probability that [defendant] could be expected to regain his competency within [the] time period provided by statute and if he were provided with a structured, inpatient, hospital setting with the provision of appropriate therapeutic intervention. It is my opinion [defendant] has some skills which he can draw upon to learn more about the legal process. So with education and treatment, he may acquire a greater knowledge of the process. Additionally given his cognitive skills as being measured in the moderately impaired range, I anticipate that his will take some time. But, it is my opinion that he would be able to gain the knowledge required. With that knowledge, it is my opinion he would likely be able, in a basic way, to work with his attorney to resolve the current charges.

At an August 22, 2013 hearing on the matter, the circuit court followed the CFP’s recommendation. However, the court noted, “I’m not completely sold on their conclusion about his ability to . . . attain . . . [c]omptency. And my opinion is based on the fact that they have not received his school records and they have not received the Wayne County Jail information that they have requested.” The court directed, “I’m going to have him placed there,” meaning the psychiatric hospital. The court then stated its intent to schedule a hearing “within the time period prescribed by law” to determine if defendant had attained competency. Defendant was returned to court custody that day and was transported back to the Wayne County Jail to await transport to the Kalamazoo Psychiatric Hospital. The court’s subsequent order provided:

8. Commitment is necessary for the effective administration of the course of treatment and therefore the defendant is committed to the custody of the State Department of Mental Health and placed at the facility recommended by the [CFP].

The court’s next scheduled hearing occurred on October 29, 2013. Defense counsel informed the court that defendant had remained in jail since the August 22 hearing because the Kalamazoo Psychiatric Hospital did not “anticipate a bed being available for [his] client between six to eight weeks from today’s date.” Counsel argued that the administrative delay had interfered with defendant’s right to be free on bond pending trial. Counsel did not request the dismissal of the charges, only that defendant be released to his mother’s care pending treatment. The prosecution objected to defendant’s release on bond as the underlying offense was assaultive in nature and out of fear that defendant might “fall through the cracks if he is not there and waiting for the bed when it becomes available.”

The court expressed displeasure at the course of events, noting defendant “has gone untreated, basically, for five months . . . .”

I can disagree with the findings that the [CFP] had said. They thought that, based on what they saw, that they would be able to restore him. I have the ability to accept their recommendations and their findings or say, you know, I don’t think that that’s true. I disagree with the report. And so, I can find that he is incompetent to stand trial and that there is not a substantial probability that competency will be attained within the time established by law.

The circuit court subsequently entered an order dismissing the action without prejudice on the following ground: “The court determines defendant is incompetent and likely will not achieve competency within the prescribed time period. Prosecutor will proceed in civil court.” The court also entered a “finding and order on competency” repeating its directives.

The prosecutor appealed the circuit court’s dismissal of the charges against defendant. In his appellate brief, the prosecutor contends that the circuit court “erred in at least two respects.” First, the court improperly “determined without holding a hearing that defendant could not attain competence within 15 months.” While the court was permitted to change its mind, the prosecutor posits that a hearing where the prosecutor could present “additional facts germane to the findings” was necessary. Second, the prosecutor asserts, the court “dismissed the case before expiration of the 15 months from the initial finding that defendant was incompetent.”

The Court's analysis of whether the trial court erred in dismissing the charges against defendant followed.

The prosecutor correctly contends that the circuit court was not permitted to dismiss the charges under the circumstances presented . . . .

The lack of treatment in the interim prompted the court to change its mind at the October 29 hearing. The only evidence at the hearing was that the Kalamazoo Psychiatric Hospital would not have an open bed for other six to eight weeks. From this fact alone, the circuit court jumped to the conclusion that defendant would not be able to attain the requisite level of competency to stand trial within the statutory 15-month period. More is required by the Mental Health Code, however.

MCL 330.2030(2) demands that a competency determination be made “[o]n the basis of the evidence admitted at the hearing” following the presentation of the CFP report. MCL 330.2040 similarly demands a hearing before a “redetermination” of competency is made. If the defendant remains incompetent, MCL 330.2040(1) mandates that the court “hear and determine whether the defendant has made progress toward attaining competence.” Such a hearing must be held each time the CFP provides a supplemental report (unless waived by the defendant), or at other times “deemed appropriate by the court.” And any hearing conducted pursuant to MCL 330.2040(1) must comport with MCL 330.2030. MCL 330.2040(2).

Here, there was no subsequent report from the CFP. Accordingly, the October 29 hearing was scheduled based on the circuit court’s discretionary power under MCL 330.2040(1). The October 29 hearing had to be conducted consistent with the procedures of MCL 330.2030. MCL 330.2030(2) provides, “The defense, prosecution, and the court on its own motion may present additional evidence relevant to the issues to be determined at the hearing.” The court denied the prosecutor the opportunity to present additional evidence, ruling that competency is “a judicial decision” and would be made solely on the stipulated CFP report. While the CFP report was admissible, MCL 330.2030(3), this was not to the exclusion of other evidence the prosecutor may have wanted to present. Absent a hearing at which the prosecutor could present evidence regarding defendant’s ability to attain competence, the court improperly rendered any decision regarding defendant’s continued incompetence.

Moreover, with or without a hearing, dismissal of the charges against defendant was not the proper remedy. MCL 330.2044 “is the procedural vehicle for enforcing a defendant’s right not to be confined solely because of incompetency.” People v Miller, 440 Mich 631, 636; 489 NW2d 60 (1992). MCL 330.2044(1) provides only two circumstances meriting a trial court’s dismissal of the criminal action: (a) upon notification by the prosecutor of his intent to drop the charges, and (b) if the defendant remains incompetent to stand trial 15 months after the original incompetency ruling. Neither of these situations existed in this case. The prosecutor repeatedly expressed his desire to pursue the pending charges. And at the time of the October 29, 2013 hearing, 15 months had not elapsed since the original incompetency determination. Accordingly, the circuit court lacked statutory authority simply to dismiss the matter . . . .

[T]he circuit court in this case dismissed the charges against defendant because he had yet to begin treatment geared toward attaining competency, and treatment would likely be delayed another two months. The court did not dismiss the charges because the 15- month statutory period had expired. Indeed, defendant’s period of incompetency had lasted nowhere near this limitation period. Based on the delay, the circuit court reversed its initial determination and found that defendant would not likely attain competence within the 15-month statutory period. However, the delay in beginning defendant’s treatment was an insufficient basis to support that defendant was unlikely to attain competence. The circuit court’s focus must be “whether, if provided a course of treatment, a substantial probability exists that a defendant found to be incompetent will attain competence within the time limit established.” Id. at 637- 638 (emphasis added). Once the circuit court initially determined that defendant could attain competence, the Kalamazoo Psychiatric Hospital had a full “15 months within which to treat defendant.” Bowman, 141 Mich App at 400. The hospital notified the court that it would be unable to treat defendant for another six to eight weeks, amounting to a total four-month delay between being adjudged incompetent to stand trial and beginning treatment. Though such a delay is not preferable and should be avoided if at all possible, it is mere speculation that defendant would remain incompetent for the entire 15 months provided by statute. MCL 330.2034(1). Therefore, the circuit court lacked statutory authority to dismiss the charges and its error was not harmless under Miller.