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Document:State v. Ortiz-Abrego, 187 Wn.2d 394

State v. Ortiz-Abrego, 187 Wn.2d 394

Supreme Court of Washington

September 22, 2016, Argued ; January 12, 2017, Filed

No. 92334-5

Reporter

187 Wn.2d 394 * | 387 P.3d 638 ** | 2017 Wash. LEXIS 71 ***

THE STATE OF WASHINGTON, Respondent, v. ALEXANDER ORTIZ-ABREGO, Petitioner.

Prior History: [***1] Appeal from King County Superior Court. 08-1-12172-7. Honorable

Susan Craighead .

State v. Ortiz-Abrego, 189 Wn. App. 1034, 2015 Wash. App. LEXIS 2393 (2015)

Core Terms

competency, trial court, accommodations, disability, incompetent, proceedings, capacity to understand,

malingering, evaluations, competency determination, legal standard, sentence, blended, stand trial,

auditory, courts, competent to stand trial, wide discretion, standing trial, comprehension, observations,

conclusions, inquiries, weighed, abused, rights, unable to understand, trial proceedings, trial process,

capacity-based

Case Summary

Overview

Copy Citation



HOLDINGS: [1]-In a competency hearing held after the jury returned verdicts finding the defendant

guilty of two counts of rape of a child, the trial court did not improperly consider the defendant's

observed behavior during trial and whether accommodations could have been made for him before

deciding that he was incompetent to stand trial; [2]-The trial court did not abuse the wide

discretion appropriate to competency determinations; [3]-Viewing the record in context, the trial

court's consideration of the defendant's observed behavior during trial, and its discussion of

whether accommodations could have been made, did not reflect a departure from the capacity-

based standard for competency; [4]-It is appropriate for a court to weigh evidence of actual

understanding because capacity may be inferred from observed performance.

Outcome

The decision of the Washington Court of Appeals was reversed by the reviewing court and the trial

court's ruling was reinstated.

LexisNexis® Headnotes

Criminal Law & Procedure > Preliminary Proceedings > Pretrial Motions & Procedures >

Competency to Stand Trial

HN1 Pretrial Motions & Procedures, Competency to Stand Trial In determining the competency of a defendant to stand trial, it is appropriate for a court to weighevidence of actual understanding because capacity may be inferred from observed performance. Acourt may also accommodate the particular needs of a defendant by modifying trial schedules andday-to-day courtroom procedures in order to make the proceedings more accessible to a party.Such accommodations, when appropriate, are permissible exercises of judicial discretion--but aredistinct from the legal analysis of competency to stand trial. More like this Headnote

Shepardize - Narrow by this Headnote

Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion



HN2 Standards of Review, Abuse of Discretion An appellate court reviews a trial court's competency determination for abuse of discretion. A trialcourt has "wide discretion" in competency determinations. A court abuses its discretion only whenan order is manifestly unreasonable or based on untenable grounds. A discretionary decision ismanifestly unreasonable or based on untenable grounds if it results from applying the wrong legalstandard or is unsupported by the record. More like this Headnote




Constitutional Law > ... > Fundamental Rights > Procedural Due Process >

Scope of Protection



Criminal Law & Procedure > Trials > Defendant's Rights > Right to Due Process

HN3 Procedural Due Process, Scope of Protection Due process protects incompetent defendants from trial or conviction. More like this Headnote


Constitutional Law > ... > Fundamental Rights > Procedural Due Process >

Scope of Protection



Criminal Law & Procedure > Trials > Defendant's Rights > Right to Due Process

HN4 Procedural Due Process, Scope of Protection An accused person has a fundamental right not to stand trial unless legally competent. This right isguaranteed by the due process clause of the Fourteenth Amendment. U.S. Const. amend. XIV. In1973, Washington codified this right providing that no incompetent person shall be tried, convicted,or sentenced for the commission of an offense so long as such incapacity continues. Wash. Rev.Code § 10.77.050. More like this Headnote




HN5 Pretrial Motions & Procedures, Competency to Stand Trial The United States Supreme Court established the federal test for competency in Dusky v. UnitedStates. Under Dusky, a defendant is competent if he has the sufficient present ability to consultwith his lawyer with a reasonable degree of rational understanding and a rational as well as factualunderstanding of the proceedings against him. In Drope v. Missouri, the Court equated "ability" with"capacity," holding that a defendant is incompetent under Dusky if he lacks the capacity tounderstand the nature and object of the proceedings against him, to consult with counsel, and toassist in preparing his defense. More like this Headnote






HN6 Pretrial Motions & Procedures, Competency to Stand Trial Requiring that a criminal defendant be competent has a modest aim: it seeks to ensure that he hasthe capacity to understand the proceedings and to assist counsel. More like this Headnote




HN7 Pretrial Motions & Procedures, Competency to Stand Trial Washington competency law has adopted--and further developed--the federal capacity-basedstandard for determining a criminal defendant's competence to stand trial. More like thisHeadnote




HN8 Pretrial Motions & Procedures, Competency to Stand Trial Washington's competency law leaves the United States Supreme Court's language of Dusky v.United States largely unchanged: a defendant is incompetent if he or she lacks the capacity tounderstand the nature of the proceedings or to assist in his or her own defense as a result ofmental disease or defect. Wash. Rev. Code § 10.77.010(15). The Washington legislature has addeda series of procedural protections intended to increase consistency of competency evaluations inWashington State courts. For example, commitments are not to exceed the maximum penalsentence for the offense and defendants are entitled to have attorneys present during anyevaluation authorized by the statute. Wash. Rev. Code § 10.77.025; Wash. Rev. Code § 10.77.020.These procedural safeguards make Washington's competency standard moderately more protectivethan the federal formulation. More like this Headnote




HN9 Pretrial Motions & Procedures, Competency to Stand Trial Washington courts have compiled a list of "competency factors" that a finder of fact is encouragedto consider in evaluating the competency of a defendant. In State v. Dodd, the WashingtonSupreme Court noted that a trial judge may make the determination from many things, includingthe defendant's appearance, demeanor, conduct, personal and family history, past behavior,medical and psychiatric reports and the statements of counsel. The guiding principle is to allow thetrial court wide discretion to consider the evidence that best illuminates whether the defendant hasthe mental capacity to make the sum total of decisions that a defendant may be called upon tomake during the course of a trial. More like this Headnote






HN10 Pretrial Motions & Procedures, Competency to Stand Trial To be competent, a Washington defendant must have the capacity to (1) understand theproceedings and (2) assist in his own defense. Wash. Rev. Code § 10.77.010(15). More like thisHeadnote




HN11 Pretrial Motions & Procedures, Competency to Stand Trial There is an important distinction between considering evidence of actual understanding andrequiring proof of actual understanding to support a finding of competence. The former is anappropriate exercise of judicial discretion; the latter would be a departure from Washington'scompetency standard. More like this Headnote




Evidence > Admissibility > Circumstantial & Direct Evidence

Evidence > Inferences & Presumptions > Inferences

Evidence > Types of Evidence > Circumstantial Evidence

HN12 Pretrial Motions & Procedures, Competency to Stand Trial A defendant may be found competent in the absence of demonstrated understanding. But this doesnot mean that a trial court must simply ignore relevant evidence. Evidence that a defendant eitherdid or did not understand his trial is best understood as valid circumstantial evidence that may beconsidered in a court's competency analysis. Trial courts consider a broad range of factors todetermine competency. The Washington Supreme Court will not limit the ability of trial courts tomake this inference. More like this Headnote




HN13 Pretrial Motions & Procedures, Competency to Stand Trial A trial court's use of the word "accommodation" to describe ways that a defendant's competencycould have been assured at trial, without more, does not demonstrate that the court applied thewrong competency standard, particularly if the court does not hold that any defendant who sharesthe defendant's disability is incompetent to stand trial in the absence of accommodations. If thetrial judge--looking back--concludes that the defendant the judge observed at trial was in factincompetent during the proceedings, the State's argument that the trial court transformeddiscretionary accommodations into a constitutional mandate is an overbroad construction of thecourt's fact-specific holding. More like this Headnote






HN14 Pretrial Motions & Procedures, Competency to Stand Trial A trial court is not prohibited from considering whether a trial could have been conducteddifferently. To be clear, a criminal defendant's competence to stand trial and the need for disabilityaccommodations at that trial are distinct, if at times overlapping, concerns. While a mentallyincompetent defendant may also be disabled, the presence of a disability does not automaticallytrigger a competency evaluation. For example, a trial court might be concerned that a defendantwith sight, hearing, mobility, or other challenges cannot have a fair trial in the absence ofaccommodations, but the court would not refer that defendant for a competency evaluation. More like this Headnote


Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion

HN15 Standards of Review, Abuse of Discretion A discretionary decision is manifestly unreasonable if it is unsupported by the record. More likethis Headnote




HN16 Pretrial Motions & Procedures, Competency to Stand Trial By nature, competency determinations are unique to each defendant. No rule of generalapplicability can effectively govern assessments of competency evaluations. They are also unique inthat the task of the trial judge is not to measure overall mental capability but rather the specificmental capacity required to understand a trial. The standard established by the United StatesSupreme Court in Dusky v. United States requires an understanding of the proceedings becausewithout it, a defendant lacks the capacity to assist in his own defense and lacks the ability to makenecessary decisions at trial. A defendant should have the capacity for reasoned choice among thealternatives available to him. Trial courts should focus on whether the defendant possesses theparticular level of mental functioning that makes possible a reasonable degree of rationalunderstanding. IQ is not the end of the inquiry. Trial courts should consider the specific mentalqualities that impact the defendant's capacity to understand a trial, including any relevant disability.

More like this Headnote




HN17 Pretrial Motions & Procedures, Competency to Stand Trial The act of malingering may be evidence in favor of finding competence, but it does not prove adefendant in fact has the capacity to understand his trial and assist in his defense. Malingering andincompetency are not mutually exclusive. More like this Headnote






HN18 Pretrial Motions & Procedures, Competency to Stand Trial A trial court cannot properly accept the competency evaluation of an appointed expert who fails toreasonably account for the need for cultural competency in his or her evaluation. More like thisHeadnote


Headnotes/Syllabus

Summary

WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: Prosecution for two counts of rape of a child.

Superior Court: After the jury returned verdicts finding the defendant guilty of both counts,following which a contested competency hearing was conducted, the Superior Court for KingCounty, No. 08-1-12172-7, Susan J. Craighead , J., on October 3, 2011, ruled that the defendantwas incompetent during his trial and granted a defense motion for a new trial.

Court of Appeals: The court reversed in an unpublished opinion noted at 189 Wn. App. 1034(2015).

Supreme Court: Holding that in light of the record, the trial court's consideration of thedefendant's observed behavior during trial, and its discussion of whether accommodations couldhave been made, constituted neither an abuse of discretion nor a departure from the capacity-based standard for competency, the court reverses the decision of the Court of Appeals andreinstates the trial court's ruling.

Headnotes

WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1] [1] Criminal Law > Insanity > Competency To Stand Trial > Determination > Following

Trial > Matters Considered > Defendant's Actual Understanding > Observed

Performance > Inferences.

In posttrial proceedings on a criminal defendant's competence to stand trial, it is appropriate for thecourt to weigh evidence of the defendant's actual understanding of the trial that was conducted. Adefendant's capacity to understand the nature of the proceedings or to assist in his or her owndefense may be inferred from observed performance.



WA[2] [2] Criminal Law > Insanity > Competency To Stand

Trial > Determination > Accessibility > Accommodation > Relationship.

A trial court may modify trial schedules and day-to-day courtroom procedures in order to makecourt proceedings more accessible. Such accommodations are appropriate exercises of judicialdiscretion and are distinct from the legal analysis of competency to stand trial.

WA[3] [3] Criminal Law > Insanity > Competency To Stand Trial > Review > Standard of

Review.

A trial court's determination of a criminal defendant's competence to stand trial is reviewed for anabuse of discretion. A trial court has wide discretion in competency determinations. A court abusesits discretion only if its order is manifestly unreasonable or is based on untenable grounds. Adiscretionary decision is manifestly unreasonable or is based on untenable grounds if it results fromapplying the wrong legal standard or is unsupported by the record.

WA[4] [4] Criminal Law > Insanity > Competency To Stand Trial > Due Process.

A criminal defendant who is legally incompetent has a fundamental right not to stand trial that isguaranteed by the due process clause of the Fourteenth Amendment.

WA[5] [5] Criminal Law > Insanity > Competency To Stand Trial > Statutory Right.

RCW 10.77.050 codifies the federal due process right of an incompetent criminal defendant not tostand trial.

WA[6] [6] Criminal Law > Insanity > Competency To Stand Trial > Determination > Federal

Test.

The federal due process test for determining a criminal defendant's competence to stand trial isstated in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). UnderDusky, a defendant is competent if the defendant has the sufficient present ability to consult withcounsel with a reasonable degree of rational understanding and has a rational as well as factualunderstanding of the criminal proceedings. In Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L.Ed. 2d 103 (1975), the Court equated “ability” with “capacity,” holding that a defendant isincompetent under the Dusky test if the defendant lacks the capacity to understand the nature andobject of the proceedings, to consult with counsel, and to assist in preparing a defense.

WA[7] [7] Criminal Law > Insanity > Competency To Stand Trial > Purpose of Requirement.

The purpose of the requirement that a criminal defendant be competent to stand trial is to ensurethat a defendant has the capacity to understand the proceedings and to assist counsel in order toreceive a fair trial.



WA[8] [8] Criminal Law > Insanity > Competency To Stand Trial > Determination > Statutory

Procedures > Relationship to Federal Standard.

The RCW 10.77.010(15) definition of “incompetency” largely leaves unchanged the language ofDusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), describing the federalcompetency standard for criminal defendants. RCW 10.77.020 and .025 add procedural protectionsintended to increase the consistency of competency evaluations in state courts, which makeWashington's competency standard moderately more protective than the federal formulation.

WA[9] [9] Criminal Law > Insanity > Competency To Stand Trial > Determination > Matters

Considered > Scope.

A trial court may consider a range of factors when evaluating a criminal defendant's competence tostand trial, including the defendant's appearance, demeanor, conduct, personal and family history,and past behavior. A trial court may also consider medical and psychiatric reports and thestatements of counsel. The guiding principle is to allow the trial court wide discretion to considerthe evidence that best illuminates whether the defendant has the mental capacity to make the sumtotal of decisions that a defendant may be called on to make during the course of a trial.

WA[10] [10] Criminal Law > Insanity > Competency To Stand Trial > Test.

Under RCW 10.77.010(15), a criminal defendant's competence to stand trial is determined bywhether the defendant has the capacity (1) to understand the proceedings and (2) to assist in hisor her own defense.


Trial > Matters Considered > Defendant's Actual Understanding > Validity.

In making a posttrial determination of a criminal defendant's competence to stand trial, a court mayconsider the defendant's actual understanding of the trial that was conducted. A court does notimproperly depart from the capacity-based standard for competency determination by consideringevidence of the defendant's actual understanding of the trial proceedings so long as thedetermination of competency is based on the capacity standard. There is an important distinctionbetween considering evidence of actual understanding and requiring proof of actual understandingto support a competency determination: the former is an appropriate exercise of judicial discretionwhile the latter would be a departure from the competency standard. Evidence that a defendanteither did or did not understand the trial proceedings is best understood as valid circumstantialevidence that may be considered in a court's competency analysis.


Trial > Matters Considered > Whether the Defendant Could Have Been Accommodated at

Trial > Validity.

In a posttrial competency determination, a court may properly taken note of the defendant'sapparent inability to understand the trial that just took place. If there is evidence that courtroom


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accommodations could have made the trial more accessible, then the absence of suchaccommodations is relevant to whether the defendant had the capacity to understand the natureand object of the proceedings. A court's use of the “accommodation” in the context of acompetency determination does not, without more, demonstrate that the court applied the wrongcompetency standard.

WA[13] [13] Criminal Law > Insanity > Competency To Stand Trial > Disability

Accommodation > Relationship.

A criminal defendant's competence to stand trial and the need for disability accommodation at trialare distinct, if at times overlapping, concerns. While a mentally incompetent defendant may also bedisabled, the presence of a disability does not automatically trigger a competency evaluation.


Trial > Determination > Defendant-Centric Inquiry.

Competency determinations are unique to each defendant. No rule of general applicability caneffectively govern assessments of competency evaluations. Competency determinations are alsounique in that the task of the trial court is not to measure overall mental capability but rather thespecific mental capacity required to understand a trial.

WA[15] [15] Criminal Law > Insanity > Competency To Stand Trial > Determination > Scope of

Inquiry.

In determining a criminal defendant's competence to stand trial, a court must focus on whether thedefendant possesses the particular level of mental functioning that makes possible a reasonabledegree of rational understanding and should consider the specific mental qualities that impact thedefendant's capacity to understand a trial, including any relevant disability. The standard forcompetence requires an understanding of the proceedings because without it, a defendant lacks thecapacity to assist in his or her own defense and lacks the ability to make necessary decisions attrial. A defendant should have the capacity to make a reasoned choice among the alternativesavailable.


Trial > Determination > IQ > Effect.

A criminal defendant's intelligence quotient is not dispositive of the question of competence to standtrial.

WA[17] [17] Criminal Law > Insanity > Competency To Stand Trial > Malingering > Effect.

A criminal defendant's malingering may be evidence in favor of finding competence, but it does notprove a defendant in fact has the capacity to understand trial proceedings and to assist in adefense. Malingering and incompetency are not mutually exclusive.



WA[18] [18] Criminal Law > Insanity > Competency To Stand Trial > Psychiatric

Examinations > Adequacy > Cultural Competency > In General.

A criminal defendant's competency evaluation should be culturally appropriate. A trial court cannotproperly accept the competency evaluation of an appointed expert who fails to reasonably accountfor the need for cultural competency in the evaluation.

STEPHENS, J., delivered the opinion of the court, in which JOHNSON, OWENS, WIGGINS, and GORDON MCCLOUD,JJ., concurred. MADSEN, J., filed a dissenting opinion, in which FAIRHURST, C.J., and GONZÁLEZ and YU, JJ.,concurred.

Counsel: Gregory C. Link (of Washington Appellate Project), for petitioner.

Daniel T. Satterberg , Prosecuting Attorney, and James M. Whisman and Donna L. Wise , Deputies,

for respondent.

Judges: AUTHOR: Justice Debra L. Stephens . WE CONCUR: Justice Charles W. Johnson , Justice

Susan Owens , Justice Charles K. Wiggins , Justice Sheryl Gordon McCloud . AUTHOR: Justice

Barbara A. Madsen . WE CONCUR: Chief Justice Mary E. Fairhurst , Justice Steven C. González ,

Justice Mary I. Yu .

Opinion by: Debra L. Stephens

Opinion

EN BANC

[*398] [**640]

¶1 STEPHENS, J. — Following a trial at which the jury found Alexander Ortiz-Abrego guilty on charges ofchild rape, the trial court held a contested competency hearing. The court determined that Ortiz-Abregowas incompetent during his trial, though various accommodations suggested by an expert who evaluatedhim midtrial could have helped him follow the proceedings. The court ordered a new trial. The Court ofAppeals reversed, concluding that the trial court departed from the established competency standard byanalyzing [***2] whether Ortiz-Abrego actually understood his trial and by injecting concepts fromdisability accommodations law. We hold that the trial court did not abuse the wide discretion appropriateto competency determinations. This case is unusual in that the competency hearing took place after thetrial concluded. Viewing the record in that context, the trial court's consideration of the defendant'sobserved behavior during trial, and its discussion of whether accommodations could have been made, donot reflect a departure from the established competency standard. Because the trial court did not abuseits discretion, we reverse the Court of Appeals and reinstate the trial court's ruling.



FACTS AND PROCEDURAL HISTORY

¶2 In 2008, the State charged Ortiz-Abrego with two counts of child rape. Early in the proceedings,Ortiz-Abrego's assigned public defender became concerned about her client's competency: Ortiz-Abregocould not explain [*399] what a trial was and did not know why he had to appear in court. Ortiz-Abregowas also unable to relate basic biographical information, including how he met his wife and his own birthdate. Even after numerous meetings, Ortiz-Abrego appeared unable to understand the trial [***3] process or the gravity of the charges. Despite facing the possibility of life in prison, Ortiz-Abrego declineda plea offer for a 15-month sentence. The case went to trial on May 10, 2010.

¶3 At trial, defense counsel, the court, and the prosecutor all expressed concerns about Ortiz-Abrego'sunderstanding of the proceedings. The court conducted a colloquy, with mixed results: Ortiz-Abregocorrectly identified his attorney, the prosecutor, and that he could “‘spend the rest of [his] life in jail.’”Clerk's Papers (CP) at 331. However, he was unable to explain what it means for a witness to testify—despite the court having explained it to him minutes before—or the significance of the State's decision toadd a third charge. The court found that Ortiz-Abrego's responses met the minimal requirements forcompetency.

¶4 As the trial progressed, the trial judge became “increasingly concerned about whether the defendantunderstood what was happening.” Id. at 333. The court called a brief recess to allow Dr. Tedd Judd, aSpanish-speaking neuropsychologist, to evaluate Ortiz-Abrego. Dr. Judd's testing, though not a formalcompetency evaluation, showed that Ortiz-Abrego had an IQ (intelligence quotient) of 70 (borderlinementally handicapped). [***4] Ortiz-Abrego also exhibited “concrete [**641] thinking,” meaning hehad difficulty thinking abstractly or hypothetically. Finally, Dr. Judd determined that Ortiz-Abrego had anauditory comprehension learning disability. As a result, Ortiz-Abrego struggled to understand verbalinstructions and explanations. For example, “‘[w]hen asked to write a sentence about the weather inSeattle in winter, it took about six explanations before he was able to proceed, including explaining whata sentence was.’” Id. at 334. Dr. Judd concluded that “‘Ortiz-Abrego's borderline intelligence, concretethinking, and [*400] auditory comprehension disability will have a substantial impact on his ability toparticipate in a trial.’” Id. at 335. Dr. Judd's report suggested a series of accommodations to allow Ortiz-Abrego to better track the court proceedings. 1 None were requested or implemented.

¶5 The trial resumed, and the jury ultimately delivered a guilty verdict. The defense moved for arrest ofjudgment or a new trial on the ground that Ortiz-Abrego had not been competent to stand trial. Inresponse, the court ordered a formal 15-day competency evaluation. Ortiz-Abrego was sent to WesternState Hospital (WSH) on August 30, 2010 for the [***5] evaluation. Dr. Roman Gleyzer conducted anintake assessment and opined that Ortiz-Abrego's level of function in society was “average” despitecognitive and intellectual disabilities. Verbatim Report of Proceedings (VRP) (June 9, 2011) at 52. Dr.Ray Hendrickson also evaluated Ortiz-Abrego, diagnosing an “adjustment disorder with depressed andanxious mood with borderline intellectual functioning.” Id. at 54. Due to difficulties in obtaining aproperly certified interpreter, Ortiz-Abrego then returned to jail to await his formal competencyevaluation.

¶6 On October 14, 2010, WSH's Dr. George Nelson performed the full competency evaluation. Ortiz-Abrego's performance had degraded noticeably since the midtrial evaluation by Dr. Judd. Dr. Nelsonfound Ortiz-Abrego to be incompetent. Dr. Nelson suggested medication and a period of commitment totreat Ortiz-Abrego's acute emotional distress. The court ordered Ortiz-Abrego returned to WSH for 90days of “competency restoration classes.” CP at 340.

¶7 At the end of this period, Dr. Hendrickson and postdoctoral fellow Dr. Amber Simpler conducted Ortiz-Abrego's final competency evaluation. Ortiz-Abrego was largely [*401] nonresponsive, professing thathe either did not know or could not remember the answers to most questions. In [***6] his final report,Dr. Hendrickson stated that he did not have enough information to determine Ortiz-Abrego'scompetency. Although Dr. Hendrickson suspected that Ortiz-Abrego was exaggerating his symptoms,none of the WSH doctors tested Ortiz-Abrego for malingering. 2

¶8 Beginning on April 6, 2011, the trial court held a multiday, contested competency hearing. The courtheard testimony from Dr. Judd, Ortiz-Abrego's former defense attorney Anna Samuels, and the threeWSH doctors. The State's experts opined that Ortiz-Abrego was competent, largely based on theevidence of malingering. Dr. Judd testified that Ortiz-Abrego, whose attempts at dissembling had beenunsophisticated and childlike, remained legally incompetent. After weighing the evidence, Judge SUSAN CRAIGHEAD determined that Ortiz-Abrego “was not competent to stand the trial we gave him” andgranted the defense motion for a new trial. Id. at 347.

¶9 The State appealed, and the Court of Appeals reversed, holding that the trial court applied the wronglegal standard by inappropriately considering Ortiz-Abrego's actual understanding at trial and by relyingon accommodations law to make a competency determination. State v. Ortiz-Abrego, No. [**642] 67894-9-I, [***7] slip op. at 8-9 (Wash. Ct. App. Aug. 17, 2015) (unpublished),http://www.courts.wa.gov/opinions/pdf/678949.pdf. Meanwhile, pursuant to RCW 10.77.086(3), the

http://www.courts.wa.gov/opinions/pdf/678949.pdf



State commenced a separate jury trial to adjudicate competency. The jury in that trial found Ortiz-Abrego competent to stand trial, and the defense appealed. The cases were linked on appeal, thoughDivision One's opinion in this case does not reference the competency trial appeal. See id. at 1-10. Thiscourt accepted review of the [*402] postverdict competency hearing only. State v. Ortiz-Abrego, 185Wn.2d 1009, 367 P.3d 1084 (2015).

ANALYSIS

WA[1,2] [1, 2] ¶10 The State argues that the trial court applied the wrong competency standard byconsidering both Ortiz-Abrego's actual understanding of his trial and the absence of disabilityaccommodations. We disagree. HN1 It is appropriate for courts to weigh evidence of actualunderstanding because capacity may be inferred from observed performance. Courts may alsoaccommodate the particular needs of a defendant by modifying trial schedules and day-to-day courtroomprocedures in order to make the proceedings more accessible to a party. Such accommodations, whenappropriate, are permissible exercises of judicial discretion—but are distinct from the legal analysis ofcompetency to stand trial.

WA[3] [3] ¶11 HN2 We review a trial court's competency determination for abuse of discretion.See, e.g., State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985) (noting trial [***8] court's “widediscretion” in competency determinations). A court abuses its discretion only when an “‘order ismanifestly unreasonable or based on untenable grounds.’” In re Pers. Restraint of Rhome, 172 Wn.2d654, 668, 260 P.3d 874 (2011) (internal quotation marks omitted) (quoting State v. Rafay, 167 Wn.2d644, 655, 222 P.3d 86 (2009)). A discretionary decision is “manifestly unreasonable” or “based onuntenable grounds” if it results from applying the wrong legal standard or is unsupported by the record.Id.HN3

A. Due Process Protects Incompetent Defendants from Trial or Conviction

WA[4,5] [4, 5] ¶12 HN4 An accused person has a fundamental right not to stand trial unless legallycompetent. State v. Wicklund, 96 Wn.2d 798, 800, 638 P.2d 1241 (1982) (citing Drope v. Missouri, 420U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. [*403] 2d 103 (1975)). This right is guaranteed by the dueprocess clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV; State v. Coley, 180 Wn.2d543, 551, 326 P.3d 702 (2014), cert. denied, 135 S. Ct. 1444 (2015). In 1973, Washington codified thisright, providing that “[n]o incompetent person shall be tried, convicted, or sentenced for the commissionof an offense so long as such incapacity continues.” RCW 10.77.050.

WA[6,7] [6, 7] ¶13 HN5 The United States Supreme Court established the federal test forcompetency in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). UnderDusky, a defendant is competent if he has the “‘sufficient present ability to consult with his lawyer with areasonable degree of rational understanding … [and] a rational as well as factual understanding of theproceedings against him.’” Id. at 402. In Drope, the Court equated “ability” with “capacity,” holding thata defendant [***9] is incompetent under Dusky if he “lacks the capacity to understand the nature andobject of the proceedings against him, to consult with counsel, and to assist in preparing his defense.”420 U.S. at 171; see also Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 125 L. Ed. 2d 321(1993) (HN6 “Requiring that a criminal defendant be competent has a modest aim: It seeks to ensurethat he has the capacity to understand the proceedings and to assist counsel.”). HN7 Washingtoncompetency law has adopted—and further developed—this capacity-based standard.

WA[8] [8] ¶14 HN8 Washington's competency law leaves the language of Dusky largelyunchanged: a defendant is incompetent if he or she “lacks the capacity to understand the nature of theproceedings … or to assist in his or her own defense as a result of mental disease or defect.” RCW10.77.010(15). The legislature has added a series of procedural protections [**643] intended toincrease consistency of competency [*404] evaluations in our state's courts. 3 These proceduralsafeguards make Washington's competency standard moderately more protective than the federalformulation.

WA[9] [9] ¶15 Additionally, HN9 Washington courts have compiled a list of “competency factors”that the finder of fact is encouraged to consider. In State v. Dodd, this court noted that the “trial judgemay make his determination [***10] from many things, including the defendant's appearance,demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and thestatements of counsel.” 70 Wn.2d 513, 514, 424 P.2d 302 (1967). The guiding principle is to allow the



trial court wide discretion to consider the evidence that best illuminates whether the defendant has themental capacity to make the “sum total of decisions that a defendant may be called upon to make duringthe course of a trial.” Godinez, 509 U.S. at 398.

¶16 The question in this case is whether the trial court correctly applied this capacity-based standard, orinstead departed from it by considering Ortiz-Abrego's actual understanding of his trial and by blendingcompetency and disability accommodation law.

B. The Trial Court Applied the Correct Legal Standard

¶17 The State argues that the trial court departed from Washington's capacity-based standard byconsidering whether Ortiz-Abrego actually understood his trial. Suppl. Br. of Resp't at 24-25. The Statefurther argues that the court created a “hybrid” standard by incorporating disability law into itscompetency determination. Id. at 15, 24. Considering the entire record in context, we conclude that thetrial court properly considered the relevant factors [***11] and acted within its wide discretion.

[*405] (1) The Trial Court Did Not Apply a Heightened Competency Standard

WA[10,11] [10, 11] ¶18 HN10 To be competent, a Washington defendant must have the capacityto (1) understand the proceedings and (2) assist in his own defense. RCW 10.77.010(15). Here, the trialcourt found that Ortiz-Abrego was incompetent at the time of his trial. CP at 347. It entered the followingconclusions of law (CL):

2. … [T]he defendant was unable to understand the trial process, the testimony ofwitnesses, and argument as a result of the combination of his borderline intellectualfunctioning and his auditory processing disability. Therefore, I find he lacked the capacity toassist his attorney in the absence of the accommodations outlined by Dr. Judd. …

3. I find by a preponderance of the evidence that the defendant was not competent to standthe trial we gave him, because he was not capable of properly understanding the nature ofthe trial proceeding or rationally assisting his legal counsel.

Id. at 346-47 (emphasis added). The State interprets the italicized phrase as “substantially rais[ing] the

bar of competency” by “[r]equiring some (indeterminate) showing of actual understanding.” Suppl. Br. of

Resp't at 25. The Court of Appeals agreed, holding that [***12] Washington law “does not require proof

that a defendant has an actual or a ‘proper’ understanding” of the trial process. Ortiz-Abrego, slip op. at

8. The trial court's conclusions, however, imposed no such requirement.

¶19 Instead, the trial court correctly applied the capacity-based standard. The court found Ortiz-Abregoto be incompetent because he was “not capable” of understanding the nature of his trial. CP at 347(emphasis added). This tracks Washington's statutory requirement that a defendant must have thecapacity to understand the “proceedings.” RCW 10.77.010(15). The court's conclusion thatOrtiz- [*406] Abrego was “not capable” of understanding allows CL 3 to be read naturally alongside CL2, which also tracks the capacity test. See CP at 346-47 (finding that the defendant was “unable” tounderstand the [**644] trial process, testimony, and arguments). The State does not explain how wecan reasonably read the trial court's ruling as using the correct standard in one paragraph but not thenext.

¶20 The State's misunderstanding may be due to the more detailed language in the trial court'sextensive findings of fact (FF). These findings discuss Ortiz-Abrego's actual level of understanding: forexample, the court notes that the defendant did not know his own birth [***13] date (FF 9), and statesthat he “simply did not appreciate what was going on in the courtroom” (FF 55). Id. at 329, 346.However, HN11 there is an important distinction between considering evidence of actualunderstanding and requiring proof of actual understanding to support a finding of competence. Theformer is an appropriate exercise of judicial discretion; the latter would be a departure fromWashington's competency standard.



¶21 A more commonsense reading of the trial court's findings shows that the court was aware of thisdistinction, and was careful to separate factual observations from the legal standard. After noting thedefendant's difficulty recalling his own biographical details, the court explained, “[I]n and of itself, thedefendant's [memory] difficulty … does not make the defendant incompetent; what is relevant is theextent to which these observations are consistent with Dr. Judd's evaluation and the evaluations of theWSH experts.” Id. at 329. In other words, the court used this evidence to aid it in weighing the relativecredibility of expert testimony—not as its basis for finding Ortiz-Abrego incompetent.

¶22 The State argues that trial courts cannot consider evidence of actual understandingbecause [***14] “[e]vidence that a defendant understood elements of the trial is evidence that he hadthe capacity to understand, but the converse is not [*407] necessarily true.” Suppl. Br. of Resp't at 25.The State notes that a lack of understanding could instead indicate inattentiveness or malingering. Id.This argument may be a valid critique of the reliability of such evidence, but it does not follow that theevidence should be categorically excluded from competency determinations. Even assuming it is actuallypossible for a judge to “ignore her own observations of the trial,” 4 the State's approach wouldencroach on the trial court's discretion. See, e.g., Ortiz, 104 Wn.2d at 482 (noting the broad discretion oftrial courts to conduct competency determinations).

¶23 Furthermore, the State's argument appears to rest on an overly narrow interpretation of the Duskystandard, as discussed above. Yes, HN12 a defendant may be found competent in the absence ofdemonstrated understanding. See, e.g., Godinez, 509 U.S. at 402. But this does not mean that a trialcourt must simply ignore relevant evidence. 5 Evidence that a defendant either did or did notunderstand his trial is best understood as valid circumstantial evidence that may be considered in acourt's competency analysis. [***15] See, e.g., Dodd, 70 Wn.2d at 514 (noting that trial courtsconsider a broad range of factors to determine competency). We decline to limit the ability of trial courtsto make this inference.

(2) The Trial Court's Discussion of Possible Accommodations Did Not Alter Its Application of the

Underlying Legal Test

WA[12,13] [12, 13] ¶24 This case is unusual in that the contested hearing to determine if Ortiz-Abrego was competent to stand trial occurred after the trial itself. With the benefit of having observedthe proceedings, the trial court found that Ortiz-Abrego was unable to understand his trial “in theabsence [*408] of the accommodations outlined by Dr. Judd.” CP at 347. In essence, the court foundthat Ortiz-Abrego was incompetent during the trial he received, but had things been done differently, hecould have been competent under the right circumstances. Id.; see also VRP (Aug. 11, 2011) at 24(noting that “chang[ing] how we do a trial” might restore Ortiz-Abrego to [**645] competence moreeffectively than committing him to WSH). The court noted that Dr. Judd's evaluation identified Ortiz-Abrego's particular learning disability—an auditory comprehension disorder—as one of the key barriers tohis ability to understand the trial as it unfolded. See CP at 335 (“‘Mr. [***16] Ortiz-Abrego's … auditorycomprehension disability will have a substantial impact on his ability to participate in a trial.’”). None ofthe several accommodations Dr. Judd suggested were implemented at trial. Id. at 336. Looking back atthe events that unfolded, the judge concluded that Ortiz-Abrego was incompetent “to stand the trial wegave him.” Id. at 347.

¶25 The Court of Appeals criticizes the trial court for “‘design[ing] a way of conducting a trial’” to renderthe defendant competent, suggesting this improperly blends competency and disability accommodationlaw. Ortiz-Abrego, slip op. at 9. But, HN13 the trial court's use of the word “accommodation” todescribe ways that Ortiz-Abrego's competency could have been assured at trial, without more, does notdemonstrate that the court applied the wrong competency standard. The court did not hold that anydefendant who shares Ortiz-Abrego's disability is incompetent to stand trial in the absence ofaccommodations. See CP at 346-47. Instead, the trial judge—looking back—concluded that thedefendant she observed in the trial she conducted was in fact incompetent during the proceedings. Id. at347. The State's argument that the trial court transformed “discretionary accommodations into aconstitutional mandate” [***17] is an overbroad construction of the court's fact-specific holding. Suppl.Br. of Resp't at 26.

¶26 HN14 The trial court was not prohibited from considering whether the trial could have beenconducted differently. To [*409] be clear, a criminal defendant's competence to stand trial and theneed for disability accommodations at that trial are distinct, if at times overlapping, concerns. While amentally incompetent defendant may also be disabled, the presence of a disability does not automaticallytrigger a competency evaluation. For example, a trial court might be concerned that a defendant withsight, hearing, mobility, or other challenges cannot have a fair trial in the absence of accommodations,but the court would not refer that defendant for a competency evaluation. Given the unique posture of



this case, in which the court retroactively examined Ortiz-Abrego's competency after a completed trial,the distinction between accommodations and competency may seem blurred in the trial court's findings.Nevertheless, the language used in the court's CL demonstrate that the trial court kept the Duskystandard firmly in mind. See CP at 346-47. The court applied the correct competency test to determinethat Ortiz-Abrego [***18] was “not competent to stand the trial we gave him” because he “lacked thecapacity to assist his attorney” and “was not capable of properly understanding the nature of the trialproceeding.” Id. at 347. The court's discussion of Dr. Judd's proposed accommodations—none of whichwere implemented—was not integral to the competency determination, and may have simply reflectedthe court's post hoc evaluation of how things could have been done differently. Insofar as thecompetency standard is concerned, this discussion may be regarded as surplusage. 6 We hold that thetrial court did not abuse its discretion by discussing due process concerns beyond the baselinerequirement of competency when, in the ultimate analysis, the court applied the correct Dusky standard.

[*410] C. The Trial Court's Determination That Ortiz-Abrego Was Incompetent at Trial Is Reasonably

Supported by the Record

¶27 The State also challenges the trial court's determination of incompetence as unsupported by therecord. Suppl. Br. of Resp't at 18-23; see also Rhome, 172 Wn.2d at 668 (HN15 a discretionarydecision is “‘manifestly unreasonable’” if it is unsupported [**646] by the record) (internal quotationmarks omitted) (quoting Rafay, 167 Wn.2d at 655)). On this record, we conclude [***19] that theevidence reasonably supports the trial court's determination that Ortiz-Abrego was legally incompetent atthe time of his trial.

WA[14-16] [14-16] ¶28 HN16 By nature, competency determinations are unique to eachdefendant. See, e.g., State v. Sisouvanh, 175 Wn.2d 607, 622, 290 P.3d 942 (2012) (noting that “norule of general applicability” can effectively govern assessments of competency evaluations). They arealso unique in that the task of the trial judge is not to measure overall mental capability but rather thespecific mental capacity required to understand a trial. See Dusky, 362 U.S. at 402. The Dusky standardrequires an understanding of the proceedings because without it, a defendant lacks the capacity to assistin his own defense and lacks the “ability to make necessary decisions at trial.” State v. Jones, 99 Wn.2d735, 746, 664 P.2d 1216 (1983); Godinez, 509 U.S. at 397 (noting the defendant should have the“capacity for ‘reasoned choice’ among the alternatives available to him”). Trial courts should focus onwhether the defendant possesses the “particular level of mental functioning” that makes possible “‘areasonable degree of rational understanding.’” Godinez, 509 U.S. at 404 (Kennedy, J., concurring inpart). IQ is not the end of the inquiry. Trial courts should consider the specific mental qualities thatimpact the defendant's capacity to understand a trial, including any relevant disability.

¶29 In this [***20] context, Ortiz-Abrego's measured IQ of 70 (CP at 128), his inability to recall his ownbirth date (id. at [*411] 329), and the fact that he did not know what a sentence was (id. at 334) areall causes for concern—but not definitive proof of incompetence. Appropriately, the trial court alsoconsidered Ortiz-Abrego's specific mental limitations relevant to his capacity to understand the trialproceedings.

¶30 Dr. Judd's evaluation report showed that Ortiz-Abrego exhibited markedly concrete thinking,reflecting a limited capacity to engage in abstract thought or hypothetical reasoning. Id. at 118. As Dr.Judd explained, if a witness told the jury Ortiz-Abrego had been in place A when in reality he had been inplace B, Ortiz-Abrego could not process the disconnect between the testimony and his concrete reality.VRP (June 8, 2011) at 125-26. The trial court recognized the significance of Ortiz-Abrego's cognitivelimitations. He would be unable to imagine that a jury might believe the witness and thus be incapable ofresponding logically or strategically to that possibility. CP at 335. A defendant who struggles withabstract thought is also likely to have difficulty making decisions such as evaluating a plea offer orunderstanding the impact [***21] of additional charges on the potential length of his sentence. Id. at331-33 (noting Ortiz-Abrego's problems with these tasks). The record here contained substantialevidence that concrete thinking detrimentally impacted the defendant's “ability to make necessarydecisions at trial.” Jones, 99 Wn.2d at 746; see, e.g., CP at 332.

¶31 Furthermore, Ortiz-Abrego's auditory comprehension disability cast serious doubt on his capacity tounderstand trial proceedings. As the Godinez Court noted, “[T]he crucial component of the [Dusky]inquiry is the defendant's possession of ‘a reasonable degree of rational understanding.’” 509 U.S. at404. The trial court concluded from the testimony that Ortiz-Abrego's limited capacity to understandverbal instructions and explanations would inhibit his ability to understand the proceedings. CP at 335(“‘Most notably, [Ortiz-Abrego] will have great difficulty in tracking, understanding, and remembering theproceedings. He [*412] will do worst with rapid speech, abstract concepts, and unfamiliar material.’”).



WA[17] [17] ¶32 The FF show that the trial court carefully considered the testimony and also weighedevidence contrary to its ruling. In particular, the court noted evidence that Ortiz-Abrego eventuallybegan to exaggerate his limitations (i.e., [***22] malinger), demonstrating that he is capable of at leastsome abstract thought. Id. at 346. However, the State's argument—that “[d]eliberate malingering …inherently contradicts any claim that a defendant is not competent”—goes too far. Suppl. Br. of Resp't at25. HN17 The act of malingering [**647] may be evidence in favor of finding competence, but itdoes not prove the defendant in fact has the capacity to understand his trial and assist in his defense.The trial court correctly recognized that malingering and incompetency are not mutually exclusive:“[T]he defendant has been exaggerating his lack of understanding since at least the fall of 2010, but Iam not persuaded that this exaggeration is sufficiently sophisticated to undermine the results of Dr.Judd's evaluation or the observations of Ms. Samuel and the Court.” CP at 346. It appears that theState's argument outstrips even the support of its own experts, who were careful to note that Ortiz-Abrego's apparent malingering “does not mean that Mr. Ortiz-Abrego has no cognitive impairments.” Id.at 153 (WSH Forensic Mental Health Report (Feb. 24, 2011)).

WA[18] [18] ¶33 The trial court also appropriately weighed the relative credibility of expert testimonyand evidence. Of the four experts who [***23] testified, “the Court found Dr. Judd to be the mostcredible.” Id. at 345. Dr. Judd was the “foremost expert in Washington on Spanish-speakingneuropsychological testing” and had experience conducting culturally appropriate evaluations of Latino/adefendants. Id. at 330, 334 (noting the importance of developing rapport through “‘personalismo,’” orsmall talk). By contrast, none of the State's experts spoke Spanish—their reports were based onanalyzing the responses of various interpreters [*413] and were thus potentially less reliable. See,e.g., id. at 341 (“It is apparent that the defendant struggled with the dynamic of being questionedthrough an interpreter.”). Moreover, WSH doctors made no attempt to evaluate Ortiz-Abrego in aculturally appropriate fashion: Ortiz-Abrego's formal competency evaluation was a “two hourinterrogation” adopting the “opposite [approach] to the one Dr. Judd would have recommended.” Id. Thisis concerning because in Sisouvanh, this court explicitly addressed the need for culturally appropriatecompetency evaluations. 175 Wn.2d at 624-25 (HN18 “[A] trial court could not properly accept thecompetency evaluation of an appointed expert who … failed to reasonably account for the need forcultural competency in [***24] his or her evaluation.”). Accordingly, the trial court reasonably gavegreater weight to Dr. Judd's report.

¶34 In summary, the record contains sufficient evidence to support the trial court's conclusion that Ortiz-Abrego was incompetent at the time of his trial. While evidence of later malingering suggested a level ofcompetence, the weight of the evidence in this case—including the testimony of the most qualifiedexpert, the nature of Ortiz-Abrego's disability, and the trial court's own observations—supports the trialcourt's finding of incompetence.

CONCLUSION

¶35 Vested with wide discretion, a trial court may consider a defendant's actual understanding (or lackthereof) in determining whether the defendant has the requisite capacity to stand trial. The trial court'sdiscussion of possible disability accommodations, which were never implemented in this case, did notalter the legal competency standard applied. The trial court carefully weighed the evidence for andagainst a finding of incompetence, including evidence that Ortiz-Abrego was malingering. Supported byobservations during trial and the testimony of a credible expert witness, the trial court reasonablydetermined that [*414] Ortiz-Abrego [***25] was incompetent during his trial. This determination wasproperly grounded in Washington's capacity-based competency standard. We reverse the Court ofAppeals and reinstate the trial court's ruling.

JOHNSON, OWENS, WIGGINS, and GORDON MCCLOUD, JJ., concur.

Dissent by: Barbara A. Madsen

Dissent

¶36 MADSEN, J. (dissenting) — The majority correctly articulates the competency standard and emphasizesthat an inquiry into competence is distinct from an inquiry into disability accommodations. Nonetheless,the majority concludes that the trial court did not blend these two inquiries. I respectfully disagree. Inthis case, the trial [**648] court erroneously evaluated Alexander Ortiz-Abrego's competency and need



for disability accommodations as one and the same. To be sure, our courts must ensure both that adefendant is competent to stand trial and that he has the necessary accommodations to allow him toexercise his constitutional rights, but these are two separate legal inquiries. Because the trial courtblended the two inquiries together, it applied the wrong standard for competency and thus abused itsdiscretion.

¶37 We review a trial [***26] court's competency decision for an abuse of discretion. State v. Ortiz,104 Wn.2d 479, 482, 706 P.2d 1069 (1985). A court abuses its discretion when its decision is manifestlyunreasonable or based on untenable grounds or reasons. State v. Sisouvanh, 175 Wn.2d 607, 623, 290P.3d 942 (2012). Although this wide discretion permits a trial court to operate within a range ofacceptable choices, the reviewing court retains authority to “clarify and refine the outer bounds of thetrial court's available range of choices and, in particular, to identify appropriate legal standards.” Id. Wereview de novo whether a court applied the correct legal standard, and when a court applies anerroneous legal standard, it abuses its discretion as a matter of law. Id.

[*415]

¶38 As the majority explains, the due process clause of the Fourteenth Amendment guarantees afundamental right not to stand trial unless one is legally competent. State v. Wicklund, 96 Wn.2d 798,800, 638 P.2d 1241 (1982) (citing Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103(1975)); U.S. CONST. amend. XIV. In Washington, a person is competent to stand trial if he or she has thecapacity to understand the nature of the proceedings and assist in his or her defense. Ortiz, 104 Wn.2dat 482 (citing RCW 10.77.010(6), .050). “Requiring that a criminal defendant be competent has amodest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assistcounsel.” Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993).

¶39 Disability accommodations, on the other hand, are not aimed at a defendant's capacity [***27] tounderstand. Rather, accommodations serve to safeguard a defendant's rights under the SixthAmendment to confront witnesses and be present during trial and preserve a defendant's equalprotection rights under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213.See State v. Gonzalez-Morales, 138 Wn.2d 374, 379, 979 P.2d 826 (1999) (citing U.S. CONST. amend.VI); 42 U.S.C. § 12101(b)(4) (Congress invoking its power to enforce the Fourteenth Amendment toaddress discrimination against persons with disabilities through the ADA). As to the Sixth Amendmentright, one federal court has explained, “[T]he Sixth Amendment right to participate in one's own trialencompasses the right to reasonable accommodations for impairments to that participation.” UnitedStates v. Crandall, 748 F.3d 476, 481 (2d Cir. 2014) (concerning hearing impairments). But even then,“the Sixth Amendment does not create an absolute right to the elimination of all difficulties orimpairments that may hinder a criminal defendant's capacity to perfectly comprehend, and participate in,court proceedings. Perfect participation by a criminal defendant is optimal, but perfection is not requiredby the Sixth Amendment.” [*416] Id. (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S.548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)).

¶40 The ADA provides that “no qualified individual with a disability shall, by reason of such disability, beexcluded from participation in or denied the benefits of the services, programs, or activities of a publicentity, or be subjected to discrimination by any [***28] such entity.” 42 U.S.C. § 12132. State and localcourts are public entities under the ADA. See 42 U.S.C. § 12131(1). If a person with a qualifyingdisability requests an accommodation, a public entity must provide it unless it will fundamentally alterthe nature of the service or create an undue financial or administrative burden on the public entity. 28C.F.R. §§ 35.150(a)(3), 35.164.

¶41 In this case, the trial court used neither the Sixth Amendment nor the ADA to address the proposedaccommodations for Ortiz-Abrego's learning disability. Instead, it blended its concerns about disabilityaccommodations into its competency evaluation. By [**649] erroneously blending these legal inquiries,the trial court necessarily abused its discretion. Further, we must emphasize that not only are theseseparate legal inquiries, but keeping them separate ensures that defendants with disabilities areaccorded their rights under the Sixth Amendment and the ADA and treated with respect in our judicialsystem.

¶42 The majority recognizes that a defendant's competence to stand trial and the need for disabilityaccommodations at trial are distinct. But it reasons that the trial court's discussion of the proposedaccommodations were not “integral” to its finding of incompetence, so such discussion was simplysurplus. [***29] Majority at 409. The trial court's conclusions of law, however, demonstrate that wecannot separate the discussion of accommodations from the court's conclusion of incompetency:

1. I find by the preponderance of the evidence that at the time of trial, the defendantunderstood the charges made against him. I have significant doubts about the defendant's [*417] ability to appreciate his peril, but I cannot make the finding that he lacks thisability because it is possible that a more skilled attorney utilizing the type ofaccommodations suggested by Dr. Judd could have helped the defendant understand this.



2. However, because none of the accommodations Dr. Judd suggested were made, I find bya preponderance of the evidence that the defendant was unable to understand the trialprocess, the testimony of witnesses, and argument as a result of the combination of hisborderline intellectual functioning and his auditory processing disability. Therefore, I findthat he lacked the capacity to assist his attorney in the absence of the accommodationsoutlined by Dr. Judd, as set forth in Exhibit 4.

3. I find by a preponderance of the evidence that the defendant was not competent to standthe trial we gave him, because [***30] he was not capable of properly understanding thenature of the trial proceeding or rationally assisting his legal counsel in the defense of hiscause.

4. I find that the defendant is not competent to be sentenced because even if the Courtwere to adopt the accommodations recommended by Dr. Judd, he did not understand theproceeding that lead to his conviction.

Clerk's Papers at 346-47 (emphasis added). Three of the four conclusions of law explicitly gave the lack

of accommodations as the reason for the court's competency decision. I cannot read these conclusions

and find, as the majority does, that the lack of accommodations was not integral to the court's decision.

Instead, these conclusions demonstrate that the trial court—motivated by concerns about Ortiz-Abrego's

learning disability—erroneously relied on competency to address its concerns.

¶43 Rather than focusing on capacity to understand and assist, as is required under a competencyanalysis, the trial court found that looking back, accommodations would have increased Ortiz-Abrego'sability to “properly” understand and “rationally” assist his legal counsel. This again evidences that thetrial court did not apply the traditional competency [*418] standard. In [***31] evaluatingcompetency, the question is not whether a defendant has a proper understanding or can rationally assistcounsel; the question instead modestly asks whether that defendant has the bare capacity to understandand assist. See Godinez, 509 U.S. at 402. Under the ADA and the Sixth Amendment, it may be wellwithin the trial court's discretion to provide accommodations that allow a defendant a higher level ofunderstanding and participation—and we should encourage trial courts to conduct these inquiries. Buttrial courts must use those legal avenues, rather than heightening the modest aim of competency tomeet those same needs.

¶44 I do not intend to discount the concerns that the trial court had for Ortiz-Abrego and preserving hisrights. Instead, my focus is on the vehicle by which the court addressed those concerns: the competencystandard. Perhaps under the Sixth Amendment or ADA, accommodations would have aided Ortiz-Abregoin having a fairer trial. But that does not mean he was incompetent under our current standards. It is, infact, of [**650] questionable utility to a defendant with a disability for a court to apply a competencystandard to disability. See Keri K. Gould, And Equal Protection for All … The Americans with DisabilitiesAct [***32] in the Courtroom, 8 J.L. & HEALTH 123, 142-45 (1993-1994). A defendant with a disabilitymay unnecessarily be declared incompetent and confined to a psychiatric center until found competent—a diagnosis that may never materialize—when accommodations, rather than competency restoration,would have helped preserve that defendant's right to a fair and speedy trial. Id. at 144-45.

¶45 I am also concerned about the harmful, systemic effect that utilizing competency to address theneeds of defendants with disabilities may have in our judicial system. We do not want to make thestatement that defendants with disabilities do not have the capacity to understand and assist. Rather, wemust examine how, in line with the ADA, we can structure court proceedings to allow for themaximum [*419] participation and fairness to defendants, jurors, and community members withdisabilities. In looking at the trial court's decision below, this appears to be consistent with what itintended. In a proceeding to consider how to “restore” Ortiz-Abrego's competency, the court opined thatit could perhaps create circumstances where Ortiz-Abrego would be competent: “Unlike a lot ofsituations, we may not be in a situation of changing the defendant; we may be in a situation [***33] ofchanging us.” Report of Proceedings (Aug. 11, 2011) at 13-14; see also id. at 22 (“he was not competentto stand the trial we gave him”), 23 (“we are going to have to examine how we could design a trial forwhich he could be competent to stand”), 25 (“[m]y concern is that restoration is assuming that we canchange the defendant when we have evidence before the court that we … could change how we dotrial”). This is just further evidence that the trial court blended its concerns about disabilityaccommodations into its evaluation of Ortiz-Abrego's competence when it should have evaluated the twoseparately under the distinct legal principles.

¶46 A review of the record in this case leaves no doubt that the trial court thoughtfully considered avariety of factors and strove to give Ortiz-Abrego a fair trial. And determining optimal accommodationsfor a wide variety of learning disabilities would be within a trial court's discretion and could be necessaryto preserve a defendant's rights under the ADA and the Sixth Amendment. But the absence of suchaccommodations cannot be the reason a defendant is incompetent to stand trial because the



1

2

3

4

5

accommodations do not address whether he has the capacity to understand and [***34] assist. Becausethe trial court in this case blended its consideration of disability accommodations with the question ofcompetence, it applied the wrong legal standard. We must therefore hold that it abused its discretion.

¶47 Accordingly, I respectfully dissent.

FAIRHURST, C.J., and GONZÁLEZ, and YU, JJ., concur with MADSEN , J.

References

Annotated Revised Code of Washington by LexisNexis

Footnotes

The suggested accommodations included frequent breaks, simple summaries in Spanish, andquizzes to check comprehension of the proceedings. CP at 118. Ortiz-Abrego is a native Spanishspeaker with a sixth grade education, and appears to have received a certified interpreter duringcourt proceedings and formal evaluations. See, e.g., Verbatim Report of Proceedings (June 8,2011) at 5.

The State alleged malingering, and Dr. Judd's examination on April 22, 2011 revealed thatOrtiz-Abrego was not demonstrating his true abilities. Suppl. Br. of Resp't at 11; VRP (June 8,2011) at 136, 138-39.

For example, commitments are not to exceed the maximum penal sentence for the offenseand defendants are entitled to have attorneys present during any evaluation authorized by thestatute. RCW 10.77.025, .020.

Suppl. Br. of Pet'r at 19.

As Ortiz-Abrego argues, “To suggest a demonstrated lack of understanding cannot support afinding of incompetency is to suggest a prediction of ability must trump observed inability.”Suppl. Br. of Pet'r at 19.



Content Type: Cases

Terms: 187 Wash.2d 394

Narrow By: -None-

Date and Time: Oct 04, 2017 12:47:56 p.m. EDT

6We need not identify the threshold at which due process might require accommodations for a

defendant's disability. That is not at issue here. As the Court of Appeals acknowledged,discretionary accommodations of the type proposed by Dr. Judd fall within the trial court'sauthority. Ortiz-Abrego, slip op. at 8-9 (“the trial court has discretion to accommodate adefendant with cognitive difficulties”).

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