Opinion
No. 1 CA-SA 19-0083
05-21-2019
IRIS OLIGSCHLAEGER, Petitioner, v. THE HONORABLE CHRISTINE MULLENEAUX, Judge Pro Tempore of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, THE STATE OF ARIZONA, ex rel, WILLIAM MONTGOMERY, Maricopa County Attorney, Real Party in Interest.
COUNSEL Maricopa County Public Defender, Phoenix By Tammy Lynn Wray and Eric Allen Wootton Counsel for Petitioner Maricopa County Attorney, Phoenix By Juli Warzynski Counsel for Real Party in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Special Action from the Superior Court in Maricopa County
No. CR2017-118063-001
The Honorable Christine Mulleneaux, Judge Pro Tempore
REVIEW GRANTED; RELIEF GRANTED IN PART
COUNSEL Maricopa County Public Defender, Phoenix
By Tammy Lynn Wray and Eric Allen Wootton
Counsel for Petitioner Maricopa County Attorney, Phoenix
By Juli Warzynski
Counsel for Real Party in Interest
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Randall M. Howe and Judge Jennifer B. Campbell joined. McMURDIE, Judge:
¶1 Petitioner Iris Oligschlaeger seeks special action relief from the superior court's order denying her motion to dismiss the petition to revoke probation and to terminate her probation. She argues the court erred by failing to find the State was precluded from relitigating her competency and by not terminating her probation based on her continued incompetence. We accept special action jurisdiction and grant relief in part.
FACTS AND PROCEDURAL BACKGROUND
¶2 In February 2018, Oligschlaeger pled guilty to possession of drug paraphernalia—a Class 6 undesignated felony—and the court suspended the imposition of the sentence and placed her on supervised probation for 18 months. As a term of her probation, Oligschlaeger was required to report to the Adult Probation Department ("APD") within 72 hours of "sentencing, absolute discharge from prison, release from incarceration, or residential treatment." Oligschlaeger failed to report to APD within 72 hours of her initial release. Based on her failure to report, the State petitioned to revoke her probation in March 2018. Oligschlaeger was arrested on April 22, 2018, and held in custody pending the probation violation proceedings.
¶3 Two months later, the court granted Oligschlaeger's motion for a Rule 11 evaluation. Noted in the psychological assessment was that Oligschlaeger had a history of various schizophrenic disorders and had been remanded for involuntary psychiatric treatment four times since 2010. Both evaluators concluded Oligschlaeger was not competent but restorable within twenty-one months. The court ordered Oligschlaeger to undergo in-custody restoration treatment. After almost two months of treatment, however, the court found that Oligschlaeger was incompetent and "there [was] no substantial probability that [she would] be restored to competency within 21 months after the date of the original finding of incompetency." The court ordered the State to petition for civil commitment and to transport Oligschlaeger to the Desert Vista Behavioral Health Center ("Desert Vista") for evaluation within 14 days. The court dismissed the petition to revoke probation effective upon Oligschlaeger's admission to Desert Vista.
Although a finding of "no substantial probability of restoration" refers to the conditions present at the time of the evaluation and is subject to change, we use the term "not restorable" for brevity.
¶4 On October 18, 2018, the State petitioned for civil evaluation as ordered. The court handling the mental health petition granted the petition and scheduled a hearing for November 2, 2018, to determine whether Oligschlaeger needed court-ordered treatment. But at the hearing, the State moved to dismiss because they failed to produce the required witnesses. Oligschlaeger's attorney did not object, and the court ordered her released from Desert Vista. In total, Oligschlaeger spent 195 days in custody. Once released from Desert Vista, Oligschlaeger again failed to comply with the probation term by failing to report to APD within 72 hours. On December 5, 2018, the State again petitioned to revoke Oligschlaeger's probation and arrested Oligschlaeger on January 15, 2019.
The State argues that it does not have access to the records in the mental health matter and it would be inappropriate for the superior court and this court to consider the contents. "The rules of evidence allow [a] court to take judicial notice of the contents and disposition of a file, that the case exists and that allegations were made, but the court may not take notice of the truth or falsity of specific allegations except as established by final judgment." In re Pima County Mental Health No. MH-959-10-85, 149 Ariz. 7, 9 (App. 1986). Thus, we have taken judicial notice of the existence of Oligschlaeger's mental health matter and disposition.
¶5 Oligschlaeger moved to dismiss the petition to revoke and to terminate her probation. The State opposed the motion, arguing "the situation has changed" and "[t]he statutes and rules do not create a period in which a defendant is free to commit crime without fear of prosecution." The court denied Oligschlaeger's motion and ordered Oligschlaeger transferred for Rule 11 proceedings.
SPECIAL ACTION JURISDICTION
¶6 Oligschlaeger argues that the superior court erred by denying her motion to dismiss because: (1) the prior not-restorable finding precluded the State from relitigating Oligschlaeger's competency for the duration of the statutory period for which the conclusion applied; and (2) maintaining her on probation while she is incompetent violates her constitutional rights.
¶7 We accept special action jurisdiction because the denial of a motion to dismiss is a non-appealable order, and the issue raised is one of law and is likely to recur. Ariz. R.P. Spec. Act. 1(a); Nowell v. Rees, 219 Ariz. 399, 403, ¶ 10 (App. 2008); Levinson v. Jarrett, 207 Ariz. 472, 474, ¶ 4 (App. 2004). Thus, we have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 12-120.21(A)(4).
We decline to address the denial of the motion to terminate Oligschlaeger's probation. Oligschlaeger did not move to modify probation, and whether to terminate probation is in the superior court's discretion.
DISCUSSION
¶8 We review a motion to dismiss a criminal prosecution for an abuse of discretion, but the interpretation of statutes and rules de novo. Nowell, 219 Ariz. at 403, ¶ 11. "A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles." State v. Jackson, 208 Ariz. 56, 59, ¶ 12 (App. 2004). Here, the court abused its discretion by ordering a new competency determination without any evidence rebutting the presumption of incompetence from the previous proceeding. A. When Reasonable Grounds Exist to Question a Defendant's Competency, the Court Must Suspend the Criminal Proceedings to Determine If the Defendant Is Competent to Continue.
¶9 "A person shall not be tried, convicted, sentenced or punished for an offense if the court determines that the person is incompetent to stand trial." A.R.S. § 13-4502(A); Ariz. R. Crim. P. 11.1(b). Once "reasonable grounds exist to question the defendant's competency," the court must halt further criminal prosecution until it finds the defendant competent. State v. Silva, 222 Ariz. 457, 460, ¶ 14 (App. 2009); A.R.S. §§ 13-4505, -4510(B); Ariz. R. Crim. P. 11.3(2), 11.5, 11.6. If the court determines a defendant is incompetent, it must order restoration treatment unless there is clear and convincing evidence that competency cannot be restored within 15 months. A. R.S. § 13-4510(C). Additionally, the court cannot continue to order restoration treatment if it finds "there is no substantial probability that the defendant will regain competency within twenty-one months after the date of the original finding of incompetency." A.R.S. § 13-4517(A); see also Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future."). After making a finding of not competent and not restorable, the court may proceed by doing any or all of the following: remand the defendant for a civil commitment evaluation; appoint a guardian; or release the defendant from custody and dismiss the charges without prejudice. A.R.S. § 13-4517(A); Ariz. R. Crim. P. 11.5(3)(A).
¶10 The superior court found Oligschlaeger incompetent and not restorable on October 16, 2018. The court dismissed the petition to revoke upon Oligschlaeger's admittance to Desert Vista for evaluation but did not terminate or modify her probation.
B. Oligschlaeger Does Not Have the Burden to Reestablish Incompetency.
¶11 When Oligschlaeger failed to report to APD after Desert Vista released her on November 2, 2018, the State arrested her and again petitioned to revoke her probation. Because the court previously found Oligschlaeger incompetent, it could not proceed without making a finding regarding competency according to A.R.S. § 13-4514 and Rule 11.6. See Silva, 222 Ariz. at 461, ¶ 18 ("If the prosecution is not dismissed and the defendant is directed to receive further restoration treatment through either civil commitment or appointment of a guardian, the superior court needs to have continuing authority to rule on the issue of the defendant's competency . . . in the criminal proceeding."). The court erred, however, by ordering a hearing and new evaluations to determine competency without any evidence supporting a change in competency.
1. After an Incompetency Determination, Incompetency is Presumed Until and Unless the Court Holds a Hearing, According to A.R.S. § 13-4514 , and Finds that the Defendant is Competent.
¶12 "[A] prior adjudication of mental incompetency gives rise to a presumption of continued incompetency." State v. Hehman, 110 Ariz. 459, 460 (1974). "This presumption is consistent with the requirement of the rules that an incompetent defendant will undergo competency 'restoration' treatment, and the court shall be notified if the defendant 'regains' competency." Nowell v. Hintze, No. 1 CA-SA 06-0236, at 2 (Ariz. App. March 22, 2007) (decision order) (citing Ariz. R. Crim. P. 11.5). Rule 11.6(c) requires the court to make a finding that the defendant is competent before continuing with the regular proceedings. See A.R.S. § 13-4514; State v. Blazak, 105 Ariz. 216, 218-19 (1969) ("This statute provides that where the defendant has previously been committed to the State Hospital, the trial court 'shall conduct [a]nother hearing to determine whether the defendant is able to understand the proceedings against him and to assist in his own defense.'" (quoting A.R.S. § 13-1621(H)(4) (1968)); Hehman, 110 Ariz. at 460 ("[A]ll proceedings after a defendant's return from the State Hospital will be held invalid if the hearing required by the statute has not been held.").
2. The Court May Hold a Hearing on a Prior Competency Determination on the State's Motion When the State Alleges Facts Supporting That the Defendant Has Been—or May Be—Restored to Competency.
¶13 Oligschlaeger asserts that the court's not-competent and not-restorable finding prevents the State from re-litigating competency until the expiration of the statutory period—May 2020—citing Crosby-Garbotz v. Fell, 246 Ariz. 54, 57, ¶¶ 11-12 (2019) (the court is not barred from applying issue preclusion in criminal cases). The State maintains that competency is fluid and issue preclusion does not apply to competency determinations. We agree with the State that competency is fluid and issue preclusion does not apply to prior findings of competency. However, incompetency is presumed unless and until new evidence rebuts the presumption. Hehman, 110 Ariz. at 460; Rider v. Garcia ex rel. County of Maricopa, 233 Ariz. 314, 317, ¶¶ 9, 12 (App. 2013); see also State v. Lewis, 236 Ariz. 336, 341, ¶ 14 (App. 2014) ("[T]he trial court cannot make a subsequent finding of competence unless some new evidence—either of restoration or malingering—is presented to rebut the presumption of continued incompetence.").
¶14 The applicable statutes and rules do not expressly contemplate how to proceed with an incompetent defendant placed on probation. In a probation violation proceeding, the underlying charge is not dismissed if the defendant is found incompetent to proceed. So, in the instant case, Oligschlaeger remained on probation even after being referred to Desert Vista. Upon release from Desert Vista, the State sought again to revoke Oligschlaeger's probation. The situation is comparable to both an ongoing proceeding where the court cannot continue without a subsequent competency determination, and when the State refiles a charge after dismissal under A.R.S. § 13-4517(A)(3). Thus, our analysis is guided by the applicable statutes, rules, and caselaw addressing both scenarios.
¶15 After a finding of incompetency, Rule 11.6 requires a court to hold another competency hearing when either the treatment facility or the defendant provide evidence supporting the assertion that the defendant has been restored to competency, or the court-ordered treatment plan has expired. Ariz. R. Crim. P. 11.6(a)(1)-(3). But a court may also hold a competency hearing "if the court determines that it is appropriate to do so," Ariz. R. Crim. P. 11.6(a)(4), and order a defendant to be re-evaluated, Ariz. R. Crim. P. 11.6(b).
¶16 The Rules do not expressly permit the State to move for a new competency determination, and once the court dismisses a charge after a not-restorable conclusion, the State may only refile the charge when evidence of subsequent events provides a reasonable belief of restoration. Rider, 233 Ariz. at 317, ¶¶ 9, 12. Therefore, to proceed with the new petition to revoke, the State needed a competency determination to rebut the court's previous finding of incompetent and not restorable. It is appropriate for a court to do so under Rule 11.6(a)(4) only when the State presents new facts that support a reasonable belief that the defendant has been or may be restored, or is malingering. State v. Hehman, 110 Ariz. 459, 460 (1974); Rider, 233 Ariz. at 317, ¶¶ 9, 12; Lewis, 236 Ariz. at 341, ¶ 14.
¶17 We are not persuaded by the State's argument that the evaluation is based only on the current conditions and any change in circumstance warrants re-litigation of a previous finding. The State implies that it was not aware whether Oligschlaeger's competency had been restored when she was released from Desert Vista. It presents the following facts: on October 16, 2018, the State stipulated that Oligschlaeger was not restorable; the court ordered Oligschlaeger transferred to Desert Vista for an evaluation to determine if a civil commitment was necessary; "[o]n October 25, 2018, the State was notified of Defendant's pending release"; and the information contained in the civil commitment record "is not available to the State and Defendant has not provided any of this information." The State argues that the not-restorable finding—to which it stipulated—was based on the conditions present at the time, and that "competency can be changed several times within the same case, let alone after a case has been dismissed, a person has received treatment, and is being released following that treatment." The State asserts that "Defendant is not in the same condition." But the State's lack of knowledge concerning Oligschlaeger's mental health does not rebut the presumption of incompetence. Likewise, Oligschlaeger's release from Desert Vista is not evidence of restoration.
¶18 The court erred by denying Oligschlaeger's motion to dismiss because the State failed to allege any facts in the petition to revoke that supported a change in Oligschlaeger's competency status. Therefore, the court lacked a basis to order Oligschlaeger to undergo continued prosecution, involuntary detention, evaluations, and hearings.
The State's response notes that after the filing of the petition for special action, two new court-ordered evaluations have been filed. Although the court may now have evidence to support restorability—which may rebut the prior finding—the court must consider whether it is "new" evidence (i.e., based on new treatment options or conditions) or whether the evaluations merely disagree with the evidence supporting the initial not-restorable finding. See Nowell, 219 Ariz. at 402, ¶ 4. --------
CONCLUSION
¶19 Accordingly, we reverse the court's denial of Oligschlaeger's motion to dismiss the petition for revocation and remand for further proceedings consistent with this decision.