            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 12, 2019
               Plaintiff-Appellant,

v                                                                    No. 349253
                                                                     Wayne Circuit Court
DONSHEY JONES,                                                       LC No. 19-000852-01-AR

               Defendant-Appellee.


Before: M.J. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        The prosecution appeals by leave granted1 the circuit court’s order reversing the district
court’s finding and order on competency. We reverse and reinstate the finding and order on
competency from the district court.

                                 I. FACTUAL BACKGROUND

         Defendant was charged with assault with intent to do great bodily harm, MCL 750.84,
and felonious assault, MCL 750.82, for stabbing her stepmother three times and puncturing her
lung. On January 15, 2019, Judge Michael Wagner of the 36th District Court held a competency
hearing. The parties, as well as the district court, agreed that defendant was incompetent to stand
trial at that time. The issue in front of the district court was whether, with treatment, defendant
could attain competence in the statutorily allotted time of 15 months.

        Dr. Iren Assar, who had been working as a psychologist for the Center for Forensic
Psychiatry (CFP) for three years, testified that she interviewed defendant for approximately two
hours, and on the basis of that interview and defendant’s severe intellectual disability, she did not
believe defendant would attain competence even if provided treatment. Dr. Assar also testified


1
 See People v Jones, unpublished order of the Court of Appeals, entered July 29, 2019 (Docket
No. 349253).



                                                -1-
that, of the individuals she had previously interviewed, she deemed 22% of them incompetent,
and of that 22%, she deemed 54% permanently incompetent. Most of Dr. Assar’s
determinations were made on her first evaluation.

         Despite Dr. Assar’s testimony, the district court concluded that there was a substantial
probability that defendant would attain competence within 15 months if provided a course of
treatment, and ordered defendant to submit to treatment for that purpose. Defendant appealed
the district court’s order to the circuit court, arguing that the district court abused its discretion
because there was no evidence to support its conclusion, and because the determination was
founded on a misunderstanding of the applicable law. The circuit court agreed, reversed the
district court’s order, and ordered that the prosecution initiate civil commitment proceedings in
the probate court. This appeal followed. The prosecution argues that the district court did not
abuse its discretion in concluding that there was a substantial probability that defendant could
attain competence with treatment. We agree.

                                          II. ANALYSIS

        This Court reviews for an abuse of discretion a court’s decision on a defendant’s
competence to stand trial. People v Harris, 185 Mich App 100, 102; 460 NW2d 239 (1990).
“[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of
reasonable and principled outcomes.” People v Kammeraad, 307 Mich App 98, 140; 858 NW2d
490 (2014) (citation and quotation marks omitted; alternation in original). This Court reviews a
court’s factual findings for clear error. People v Maben, 313 Mich App 545, 549; 884 NW2d
314 (2015). “A finding is clearly erroneous if this Court is left with the definite and firm
conviction that a mistake has been made.” People v Lee, 314 Mich App 266, 272; 886 NW2d
185 (2016). This Court reviews de novo issues of statutory interpretation. People v Davis, 310
Mich App 276, 286; 871 NW2d 392 (2015).

        MCL 330.2020 et seq., of the Mental Health Code governs the competence of a criminal
defendant to stand trial. Id. at 288. “As a general rule, a criminal defendant is ‘presumed
competent to stand trial.’ ” Id., quoting MCL 330.2020(1). “A criminal defendant ‘shall be
determined incompetent to stand trial only if he is incapable because of his mental condition of
understanding the nature and object of the proceedings against him or of assisting in his defense
in a rational manner.’ ” Davis, 310 Mich App at 288, quoting MCL 330.2020(1). “The statute
places this determination in the court’s hands.” Davis, 310 Mich App at 288.

        “A defendant who is determined incompetent to stand trial shall not be proceeded against
while he is incompetent.” Davis, 310 Mich App at 288, quoting MCL 330.2022(1). “Whether
the CFP opines that the defendant is competent or incompetent, the court must conduct a hearing
within five days of receiving its report.” Davis, 310 Mich App at 288, citing MCL 330.2030(1).

       On the basis of the evidence admitted at the hearing, the court shall determine the
       issue of the incompetence of the defendant to stand trial. If the defendant is
       determined incompetent to stand trial, the court shall also determine whether there
       is a substantial probability that the defendant, if provided a course of treatment,
       will attain competence to stand trial within the time limit established by [MCL
       330.2034]. [MCL 330.2030(2).]

                                                 -2-
        If the court determines that the defendant is currently incompetent to stand trial, but there
is a substantial probability that, if provided a course of treatment, the defendant will attain
competence to stand trial within the time limit established by section MCL 330.2034, “the court
shall order the defendant undergo treatment in order to attain competence to stand trial.” MCL
330.2032(1). A defendant shall not receive treatment “in excess of 15 months or ⅓ of the
maximum sentence the defendant could receive if convicted of the charges against him,
whichever is lesser; nor after the charges against the defendant are dismissed.” MCL
330.2034(1). The time limit applicable to defendant in this case is 15 months. However, if the
court determines that there is not a substantial probability that, even if provided treatment, the
defendant will be able attain competence within the established time limit, the court may direct
the prosecutor to initiate civil commitment proceedings. Davis, 310 Mich App at 289.2

        We first address the circuit court’s holding. The circuit court concluded that the district
court was biased toward Dr. Assar and discredited her opinion because she had only three years
of experience as a psychologist and rendered 54% of the individuals who were incompetent to be
permanently incompetent on the first evaluation. As will be discussed below, this is not what
occurred during the competency hearing in the district court, and there is no reason to believe
that Judge Wagner was biased toward Dr. Assar. Rather, the circuit court judge imputed onto
Judge Wagner the arguments set forth by the prosecutor during the circuit court hearing.
Therefore, the circuit court’s conclusion was founded on an erroneous understanding of what
occurred in the district court.

        During the circuit court hearing, the prosecutor asserted that the district court did not
abuse its discretion because it was not bound by Dr. Assar’s evaluation. The prosecutor further
stated that, when the court is relying on a doctor’s opinion, credibility is inevitability at issue,
and in this case, it was reasonable for Judge Wagner to question Dr. Assar’s judgment because
she had only been working for the CFP for three years, and it was “startling” that she found 54%
of the people who she rendered incompetent to be permanently incompetent on the basis of a two
hour interview. In response to this argument, the circuit court judge commented that it was
completely unfounded for Judge Wagner to find that three years of experience rendered a
person’s opinion invalid. The circuit court determined that it was simply bias on the part of
Judge Wagner to discredit an opinion on the basis of a person’s years of employment. However,
Judge Wagner never expressed concern with, nor even commented on, Dr. Assar having only
practiced psychology for three years. Rather, the prosecutor made this argument and the circuit
court judge imputed it onto Judge Wagner.

      The circuit court also considered Judge Wagner to be biased for discrediting Dr. Assar
based on the frequency at which she rendered individuals to be incompetent. Again, the


2
  MCL 330.2031 provides: “the court may direct a prosecuting attorney to file a petition asserting
that the defendant is a person requiring treatment as defined by [MCL 330.1401] or meets the
criteria for judicial admission as defined by [MCL 330.1515] with the probate court of the
defendant’s county of residence.”


                                                -3-
prosecutor argued before the circuit court that the frequency at which Dr. Assar rendered
individuals permanently incompetent was “startling.” However, Judge Wagner never gave an
opinion about this statistic. Rather, during the competency hearing, Judge Wagner asked Dr.
Assar to confirm that she deemed 22% of individuals incompetent and approximately 50% of
those individuals permanently incompetent. This was the only time Judge Wagner mentioned
this statistic. Nonetheless, the circuit court judge asserted that Judge Wagner could not find this
statistic to be startling because there was no statistical basis on which to find it startling. Thus,
the circuit court judge again imputed the prosecutor’s argument onto Judge Wagner stating,
“Well, then this is nothing but pure bias to make a determination of what’s startling because
there’s no sample size. There’s no statistical comparison that[,] for the industry[,] this is outside
of some standard.” The circuit court concluded that Judge Wagner’s opinion was made on the
basis of his bias. Because the circuit court erroneously imputed the prosecutor’s arguments onto
Judge Wagner, the circuit court’s basis for reversing the district court’s order was completely
erroneous.

         Having concluded that the circuit court’s basis for reversing the district court was
erroneous, the next question is whether reversal may have been warranted regardless. That is,
whether the district court abused its discretion in concluding that there was a substantial
probability that defendant could attain competence within 15 months if provided treatment.
Defendant has two primary arguments as to why the district court abused its discretion: (1) the
district court violated defendant’s due-process rights by ordering her to be confined to treatment
for 15 months because this order was founded on the district court’s misunderstanding of the
law, and (2) there was no evidence to support the district court’s conclusion that defendant could
attain competence with treatment. These arguments are without merit.

       Looking to the first argument, the district court comprehended the law and the legal
options available. During the competency hearing, defense counsel requested that the charges be
dismissed and that the district court order defendant to continue her community based treatment
with Team Wellness. The district court correctly explained to defense counsel that, at that
juncture, only the prosecution had the power to dismiss the charges, and that, if the prosecution
so decided, civil commitment proceedings would be initiated and the district court would have
no power to decide where defendant would undergo treatment.

      MCL 330.2044 governs the dismissal of charges upon a finding that a defendant is
incompetent. MCL. 330.2044 provides, in relevant part:

       (1) The charges against a defendant determined incompetent to stand trial shall be
       dismissed:

       (a) When the prosecutor notifies the court of his intention not to prosecute the
       case; or

       (b) Fifteen months after the date on which the defendant was originally
       determined incompetent to stand trial. [MCL 330.2044(1)(a) and (b).]

Thus, charges may be dismissed if the prosecution chooses not to prosecute or after 15 months
from the date the defendant was determined not competent to stand trial. Neither of these

                                                -4-
situations applied here. Thus, the district court was correct in stating that it did not have the
power to dismiss the charges against defendant. Moreover, pursuant to MCL 330.2031, as stated
above, if a district court finds that there is not a substantial probability that a defendant will attain
competence within 15 months, the court may direct the prosecutor to initiate civil commitment
proceedings. See Davis, 310 Mich App at 289. Thus, had the district court found that defendant
would not attain competence within 15 months, civil commitment proceedings would have
commenced and the district court would not have had control over defendant’s treatment.

         Defendant also contends that the district court misunderstood that it had the option to
order the prosecution to initiate civil commitment proceedings. However, as stated above, the
district court explained to defense counsel more than once that, if the charges were dismissed,
civil commitment proceedings would be initiated. Thus, the district court understood the legal
options available and defendant’s contention that the district court abused its discretion by
misunderstanding the law is without merit.

        As to defendant’s second argument, that there was no evidence to support the district
court’s conclusion that defendant could attain competence with treatment, we again disagree.
There was evidence admitted at the competency hearing to allow the district court to make its
determination. Dr. Assar testified that defendant completed the eleventh grade and did not
receive special education courses other than accommodations for her speech and language
impairments. Defendant also appeared to be literate, although she struggled with reading. Dr.
Assar spoke to defendant’s father, who reported that she could read the Bible. Defendant also
maintained employment for at least two years. Although Dr. Assar believed that defendant could
not attain competence because of her intellectual disability, she suggested that, if defendant were
to receive treatment, she should receive treatment at the Kalamazoo Psychiatric Hospital because
the hospital had a specific unit designed to help teach individuals with developmental and
intellectual disabilities. On the basis of this information, the district court may have found that,
despite defendant’s inability to retain basic legal information during the two hour meeting,
defendant could attain a level of competence to stand trial with specialized treatment designed to
help individuals with developmental and intellectual disabilities. Thus, the district court did not
abuse its discretion.

         Finally, defendant also argues that the district court never actually made a determination
as to whether there was a substantial probability that defendant would attain competence within
15 months if provided treatment. However, at the conclusion of the competency hearing, the
district court stated the following:

                [Defendant’s] going to be placed in the Department of Community Health
        with the medical supervision of treatment [sic] where they, the doctors,
        professionals, can develop a course of treatment and try to have her restored to
        competency. That is what I would love to see happen. That is what I think would
        be best for her. . . .

                Court has indicated she’s found incompetent. There is going to be an
        effort to restore her competency and sometime prior to the expiration of the
        statutory authority, there will be another assessment, where she will regain


                                                  -5-
       competency or she will not and at that point, the People would have to dismiss the
       case or not.

The district court’s determination as to whether there was a substantial probability that defendant
would retain competence is clear from its statement.

      Reversed and remanded for reinstatement of the district court’s finding and order on
competency. We do not retain jurisdiction.



                                                            /s/ Michael J. Kelly
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Brock A. Swartzle




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