Opinion
1905005677
07-27-2022
STATE OF DELAWARE, v. SHAWN FREEMAN Defendant.
James O. Turner, Jr., Esquire Matthew C. Buckworth, Deputy Attorney General
James O. Turner, Jr., Esquire
Matthew C. Buckworth, Deputy Attorney General
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING STATE'S MOTION FOR COMPETENCY RESTORATION
LYNNE M. PARKER COMMISSIONER
On January 21, 2022, the State renewed its request that Defendant Shawn Freeman undergo competency restoration. On March 8, 2022, Defendant filed a motion to dismiss on due process and speedy trial grounds. For the reasons discussed below, the State's motion for competency restoration is granted and Defendant's motion to dismiss is denied.
Background and Procedural History
In May 2014, Defendant was charged with two counts of unlawful sexual contact first degree in violation of 11 Del. C. §769, for charges involving a 6-year-old alleged victim. In that criminal proceeding, Criminal Action No. 1405025080, Defendant was charged with getting into bed with and sexually assaulting a six-year-old female cousin. Defendant confessed to this incident.
See, State v. Freeman, Criminal ID No. 1405025080- Court Order dated October 22, 2015, Superior Court Docket No. 21.
State v. Freeman, Criminal ID No. 1405025080- Superior Court Docket No. 1, Affidavit of Probable Cause attached as Exhibit B.
Prior to the May 2014 incident, there had been similar allegations in Philadelphia, Pennsylvania about Defendant having unlawful sexual contact with two young stepsisters. Those prior incidents resulted in counseling.
See, State v. Freeman, Criminal ID No. 1405025080- Court Order dated October 22, 2015, Superior Court Docket No. 21.
As to the May 2014 case, Defendant was deemed not competent to stand trial. Competency restoration was never attempted in that case. Instead, Defendant and the State entered into a Counseling Agreement. Pursuant to the Counseling Agreement, among other things, Defendant agreed to obtain appropriate outpatient counseling for his deviant sexual behavior and also agreed to have no unlawful contact with any child under the age of 18. The State ultimately agreed to dismiss the May 2014 charges in light of the Counseling Agreement in effect.
State v. Freeman, Criminal ID No. 1405025080- Counseling Agreement dated November 16, 2015, Superior Court Docket No. 23.
Id.
Turning to the subject case, on May 27, 2019, Defendant was arrested for sexually assaulting an eight-year-old female on multiple occasions. Defendant slept over at his 25 year-old friend's house on multiple occasions even though an eightyear-old sister of the friend was also living at the residence. The eight-year old female claimed that on multiple occasions starting in August 2018, and continuing through February 2019, Defendant would come into her bed while she was sleeping and sexually assault her. There was also an incident in which Defendant took the eight-year old female to the basement, removed his and her clothes, and sexually assaulted her in the basement.
See, Superior Court Docket No. 1, Affidavit of Probable Cause attached as Exhibit B; Superior Court Docket No. 2, Indictment dated July 13, 2020.
Id.
Defendant was arrested on May 27, 2019, and indicted on July 13, 2020, on four counts of Rape First Degree, a Class A felony, in violation of 11 Del. C. §773(a)(5), two counts of Unlawful Sexual Contact First Degree, a Class D felony, in violation of 11 Del. C. §769, and one count of Continuous Sexual Abuse of a Child, a Class B felony, in violation of 11 Del. C. §776. If convicted, Defendant faces 25 years to life on each of the four counts of the Rape First Degree charges, 2 to 25 years on the Continuous Sexual Abuse charge, and up to 8 years on the two counts of Unlawful Sexual Contact First Degree. Defendant is facing over 100 years of incarceration, if convicted of these charges.
On August 19, 2020, Defendant was ordered to undergo a psychiatric evaluation at Delaware Psychiatric Center ("DPC") to determine his competency to stand trial. On September 10, 2020, a DPC report opined that Defendant was not competent to stand trial. In follow-up communications, on October 28, 2020, Dr. Douglas S. Roberts, Psy.D., from DPC advised that Defendant's prognosis for restoration of competency was guarded.
State's Motion for Review of Bail Conditions, Exhibit B- Superior Court Docket No. 12.
On November 2, 2020, the State filed a motion requesting that Defendant be ordered to DPC to attempt competency restoration.
On March 29, 2021, while in the throes of the COVID-19 pandemic and while the Court had declared a judicial emergency as a result thereof, Defendant and the State entered into a stipulation that Defendant was not competent to stand trial, that Defendant was to participate in out-patient counseling, that the State would not seek in-patient competency restoration at the present time, and that the Defendant was to abide by all the bail conditions imposed. The State entered into the Stipulation to allow Defendant to remain in the community and not to attempt competency restoration at DPC during the COVID-19 pandemic.
Superior Court Docket No. 19- Stipulation and Order.
State's Response to Motion to Dismiss, at pgs. 3-4.
Bail was set at $500,000 unsecured with conditions of home confinement except for medical appointments, pretrial reporting, appointments with legal counsel and other legal-related appointments; must be supervised by stepfather/mother whenever leaving residence; counseling; GPS monitoring, Pretrial Supervision; no contact direct or indirect with the alleged victim; no contact direct or indirect with any child under the age of 18; cooperate with competency evaluations and treatment; and cannot access websites relating to sexual contact with children.
At a status hearing, on January 21, 2022, the State renewed its request for Defendant to report to DPC to undergo competency restoration. The State was not satisfied with the outpatient therapy Defendant had been receiving.
State's Response to Motion to Dismiss, at pgs. 3-4.
There does not presently exist, and there never was, any remote options or outpatient options for competency restoration in Delaware. In order to attempt competency restoration, Defendant must be admitted to DPC.
On March 8, 2022, Defendant filed a motion to dismiss the pending charges on due process and speedy trial grounds.
Discussion
11 Del. C. §404(a) allows the State to hold an accused person, who by reason of mental illness or serious mental disorder, is not competent to stand trial, at DPC for competency restoration, until the person is capable of standing trial.
The State invoked its right to admit Defendant to DPC for treatment in November 2020, less than two months following the September 2020 report opining that Defendant was not competent to stand trial. The State's request to admit Defendant to DPC was made in the throes of the COVID-19 pandemic and while the Court had declared a judicial emergency.
On March 13, 2020, the Delaware Supreme Court had issued an Order Declaring a Judicial Emergency and tolling speeding trial considerations due to the COVID- 19 pandemic. The judicial emergency and the tolling of speedy trial considerations were extended from month-to-month from March 2020 until July 13, 2021. During the COVID-19 pandemic, DPC was on lockdown. All reasonable efforts were being made to accommodate the requests of defendants to remain in the community and not in institutions during the COVID-19 pandemic.
Order Declaring a Judicial Emergency (Del. March 13, 2020)(ORDER).
See, COVID-19 Precautionary Measures (Del. June 29, 2021) (ORDER).
At Defendant's insistence, on March 29, 2021, the State agreed to withdraw its request for Defendant to be admitted to DPC to undergo competency restoration at that time. The parties agreed that Defendant would participate in counseling in the community for his inappropriate sexual behavior in the first instance and a determination would be made at a later time as to whether such counseling was a suitable alternative to inpatient DPC admission. The State reserved its right to renew its request for admission to DPC for competency restoration.
The State received periodic updates as to Defendant's therapy in the community and did not believe that the out-patient treatment was adequately addressing its concerns. On January 21, 2022, the State renewed its request for Defendant to undergo competency restoration at DPC.
Defendant has objected to the State's renewed request to require him to undergo competency restoration at DPC on due process and speedy trial grounds.
There is no due process or speedy trial violations in this case. Defendant has been found not competent to stand trial. It is undisputed that the burden is on the State to establish competency. The State is permitted the right to attempt to restore competency. 11 Del C. §404(a) permits the State to seek admission to DPC for competency restoration. There is no due process violation for the State to invoke its right to do so.
See, State v. Simmons, 2005 WL 3007808, * 1 (Del.Super.); State v. Williamson, 2020 WL 2790488, *9 (Del.Super.).
As long as there is a possibility that competency may be restored, it is reasonable to attempt competency restoration. DPC opined that competency restoration may be possible. The State's request to attempt competency restoration is reasonable. There has never been any attempt at restoring Defendant's competency. Defendant is facing very serious charges, and what amounts to a life sentence, if convicted of the charges. He has a history of sexually assaulting young females. An important government interest is at stake- the continued prosecution of Defendant. The governmental interest surely includes protecting the public, promoting the respect for law, and imposing just punishment for these offenses, if convicted.
State v. Goldsberry, 2000 WL 710090, *3 (Del.Super.); State v. Draughn, 2016 WL 7105933, *4 (Del.Super.).
The State initially sought to admit Defendant for competency restoration within less than two months of his evaluation finding him not competent to stand trial. The State attempted to find an alternative solution at Defendant's insistence during the COVID-19 pandemic. The State, not being satisfied with the outpatient counseling alternative Defendant has been receiving, has now renewed its request for admission to DPC for competency restoration.
Defendant cannot have it both ways- request that the State not seek competency restoration at DPC in the first instance and allow Defendant to participate in outpatient therapy as a potential alternative and then seek dismissal of the case because the State granted Defendant's request and delayed its right to seek admission to DPC for competency restoration.
There is no due process violation for allowing the State the opportunity to attempt competency restoration at DPC.
Defendant also argues that his right to a speedy trial has been violated. For this determination, the four-factor test established by the United States Supreme Court in Barker v. Wingo, is utilized. These factors include: (1) the length of delay; (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) prejudice to the defendant. No individual factor is conclusive. Instead, the four factors are related and must be considered together with such other circumstances as may be relevant. Each reason for delay will be weighed on a case-by-case basis.
Barker v. Wingo, 407 U.S. 514 (1972).
Barker, 407 U.S. at 530.
State v. Malachi, 2021 WL 4805515, *2 (Del.Super.); Barker, 407 U.S. at 533.
Id.
In this case, the length of the delay and the reason for the delay is attributable to the COVID-19 pandemic and for the State agreeing to accommodate the Defendant's request that he be allowed to remain in the community and pursue outpatient counseling in the first instance. Although over three-years has elapsed since the time of Defendant's arrest to the present, Defendant has been allowed to remain in the community the entire time as an accommodation to him during the COVID-19 pandemic and at his insistence to allow him to attempt outpatient counseling
At the time Defendant was deemed incompetent to stand trial in September 2020, the time for speedy trial purposes was stopped. Moreover, during the pendency of this case, a judicial emergency was also in effect tolling all speedy trial considerations from March 2020 until July 13, 2021, due to the COVID-19 pandemic.
State v. Hester, 2011 WL 664073, *2 (Del.Super.).
Once a defendant is deemed incompetent to stand trial, the speedy trial clock must be stopped because a trial cannot be scheduled when a defendant is not competent to stand trial. A trial cannot be scheduled unless and until competency is restored. The only competency restoration program in Delaware is as an admitted patient at DPC. Although an incompetent defendant cannot be held indefinitely at DPC while awaiting a return to competency, as long as there is a possibility that competency may be restored, it is reasonable to attempt competency restoration.What constitutes a reasonable period of time is a fact-sensitive analysis that will vary greatly from case to case.
State v. Goldsberry, 2000 WL 710090, *3 (Del.Super.); State v. Draughn, 2016 WL 7105933, *4 (Del.Super.).
State v. Goldsberry, 2000 WL 710090, *3 (Del.Super.); State v. Draughn, 2016 WL 7105933, *4 (Del.Super.).
Here, competency restoration was never attempted due to the safety considerations of the COVID-19 pandemic and to accommodate Defendant's request to explore outpatient counseling in the first instance. Having afforded Defendant, the opportunity to attempt outpatient counseling, the State has now renewed its request for admission to DPC for competency restoration. That request is reasonable under the facts and circumstances of this case.
Defendant first asserted his speedy trial rights on March 8, 2022, by the filing of the subject motion. Defendant never raised speedy trial issues prior to March 8, 2022. Had he done so, the State could have immediately sought competency restoration instead of agreeing to allow Defendant to remain in the community during the COVID-19 pandemic and explore outpatient therapy. COVID-19 related safety considerations are reasonable and good-faith justifications for delay and are not attributable to the State.
See, State v. Malachi, 2021 WL 4805515, *2-3 (Del.Super.).
As to the fourth factor, prejudice, Defendant has not argued any prejudice other than the inconveniences any criminal defendant experiences when he faces criminal liability for his actions. He has not been incarcerated. He does not claim that alibi witnesses have been lost or that evidence has been lost. He has suffered no actual prejudice and does not cite to any.
State v. Johnson, 564 A.2d 364 (Del.Super. 1989)(dismissal is unwarranted where delay, while rather lengthy, was not unnecessary and because any prejudice encountered by defendant was no different than that which would normally be expected from one charged with serious offenses).
After balancing the Barker factors, this Court finds that Defendant's right to a speedy trial has not been violated. Dismissal is not warranted. Here, Defendant's failure to show how he has been prejudiced, together with the fact that the delay resulted, in part, from the COVID-19 pandemic and, in part, from Defendant's insistence that the State allow him to remain in the community and engage in outpatient therapy counseling as an alternative to hospitalization, and not from any improper or unjustifiable action of the State, the Court finds Defendant's request for dismissal of this case unwarranted. Defendant's motion is denied.
See, State v. Williamson, 2020 WL 2790488, *9 (Del.Super.); Butler v. State, 974 A.2d 857, 2009 WL 1387610, at *2 (Del. May 19, 2009)(a defendant who prolongs a matter cannot then blame the result on the prosecution).
Defendant's reliance on State v. Dorsey, and State v. Hinton is misplaced. Every case must be considered in accordance with its unique set of facts and circumstances. Those cases did not arise during the COVID-19 pandemic. In those cases, the State did not make an immediate request to admit the defendant for competency restoration. In those cases, the State did not agree to withdraw its immediate request for competency restoration at the Defendant's insistence to allow the Defendant the opportunity to first seek outpatient therapy.
State v. Dorsey, Cr. ID No. 1211020711- Order dated March 24, 2015.
State v. Hinton, Cr. ID Nos. 1508019137 & 1508014324- Commissioner's Report and Recommendation dated November 27, 2017.
Conclusion
The State's renewed request that Defendant undergo competency restoration at DPC is hereby granted. Defendant shall be admitted to DPC where he is to be confined and treated until he is capable of standing trial and/or until such time as the Court deems appropriate.
Defendant's motion to dismiss is DENIED.
IT IS SO ORDERED.