Opinion
No. 94CA1470
Decided May 30, 1996 Petition for Rehearing DENIED July 11, 1996. Certiorari Denied March 31, 1997
Appeal from the District Court of Fremont County, Honorable Julie G. Marshall, Judge, Nos. 87CR170 88CR44.
ORDER AFFIRMED
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Anthony Jones, appeals the trial court's denial of his motion for release from commitment. We affirm.
On September 23, 1987, defendant was charged with the offenses of second degree assault, possession of contraband, and as an habitual criminal. He entered a plea of not guilty by reason of insanity to the charges. The court subsequently found him not guilty by reason of insanity (NGI) and committed him to the custody of the department of institutions as required by the statute then in effect. Colo. Sess. Laws 1972, ch. 44, § 39-8-105(4) at 226 (now codified as § 16-8-105(4), C.R.S. (1995 Cum. Supp.)).
On August 21, 1989, defendant filed a motion for a release hearing under § 16-8-115(1), C.R.S. (1986 Repl. Vol. 8A). At a hearing on the motion and during the following release proceeding, physicians testified as expert witnesses that, in their opinion, defendant was sane, but that he was suffering from an antisocial personality disorder. The experts stated that, although an antisocial personality disorder is not a mental disease or defect, it is an abnormal mental condition. Further, the experts opined that defendant would pose a danger to himself or the community if he were released from commitment. As a result, they considered defendant ineligible for release according to the requirements of § 16-8-120(3), C.R.S. (1986 Repl. Vol. 8A). In response to a specific query by the trial court, one of the expert witnesses also testified that defendant's condition was treatable.
Following the hearing, the trial court, relying on People v. Parrish, 879 P.2d 453 (Colo.App. 1994), determined that § 16-8-120(3) requires continued confinement upon a finding that a person seeking release from commitment has a mental illness and poses a threat of danger to self or the community. The court also decided that, according to Parrish, an "abnormal mental condition," under § 16-8-120(3), was equivalent to mental disease or defect for purposes of release from confinement provided the defendant's mental condition was treatable. As a result, the court determined that the presence of a mental disease or defect as manifested by defendant's treatable abnormal mental condition in conjunction with the continuing threat to his own safety and the safety of the community rendered him ineligible for release.
Defendant contends that his continued confinement based on the diagnosis of a treatable "abnormal mental condition" violates his due process rights. He argues that if People v. Parrish, supra, equates "abnormal mental condition" with "mental disease or defect," then § 16-8-120(3) should be narrowly construed to include only those abnormal mental conditions that are also mental diseases or defects. We disagree.
Defendant raises an issue similar to that addressed in People v. Parrish, supra, and thus, we find that holding persuasive here. Defendant urges us not to follow Parrish because the person seeking release in that case had other mental disorders in addition to an antisocial personality disorder, while defendant has only an antisocial personality disorder. This we decline to do. Rather, we read Parrish as requiring continued confinement under § 16-8-120(3) for a person who is diagnosed with an abnormal mental condition and who is also determined to be dangerous to self or to others, regardless whether other disorders may be present.
In Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), the Supreme Court struck down a Louisiana statute that allowed a person committed pursuant to an NGI plea to be denied release so long as he remained a danger to self or others, irrespective of his or her mental condition. While the defendant in Foucha also suffered from an antisocial personality disorder, no evidence as to the nature of that condition or its treatability was presented because it would have been irrelevant under the Louisiana statute.
In Parrish v. Colorado, 78 F.3d 1473 (10th Cir. 1996), the United States Court of Appeals distinguished our statutory scheme from that involved in Foucha v. Louisiana, supra, and upheld the constitutionality of § 16-8-120(1), C.R.S. (1986 Repl. Vol. 8A), against an attack based upon Foucha. The court defined the mental state a person committed under an NGI plea must have as a legal concept, rather than a medical one and, on that basis, determined that the test for release from confinement is not whether such a person's mental state is medically definable, but whether he or she has a mental condition that fits the legal definition. The court further reasoned that, because § 16-8-120(1) makes the existence of a mental disease or an abnormal mental condition a necessary requirement for continued confinement, the Colorado statute survives the challenge that was presented in Foucha, supra.
Section 16-8-120(1) and § 16-8-120(3), use the same mental state, the presence of an abnormal mental condition, as the mental standard for determining release. Thus, we find the reasoning in Parrish v. Colorado, supra, persuasive here. And, because the application for release was made and ruled upon by the trial court prior to the adoption of § 16-8-102(4.7), C.R.S. (1995 Cum. Supp.), we do not here consider the effect of that statute.
We hold that so long as a person confined pursuant to a not guilty by reason of insanity plea remains under the effects of a treatable abnormal mental condition rendering him or her dangerous and such person continues to receive appropriate treatment for that abnormality, then that person may not be released from confinement under the Colorado statutes applicable here.
The order is affirmed.
JUDGE JONES concurs.
JUDGE CRISWELL specially concurs.