                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        December 12, 2017
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 49099-4-II

                                Respondent,                   UNPUBLISHED OPINION

         v.

    MICHAEL STEPHEN BOUGARD,

                                Appellant.

        BJORGEN, C.J. — Michael Stephen Bougard appeals from his conviction of second

degree assault, asserting that (1) the trial court erred by failing to sua sponte order a competency

reevaluation during trial and (2) his defense counsel was ineffective for failing to move for a

competency reevaluation during trial.1 We affirm.

                                              FACTS

        On July 10, 2015, the State charged Bougard with second degree assault. On July 21, the

trial court ordered Bougard to be examined at the jail for his competency to stand trial. The

mental health evaluator at the jail could not determine whether Bougard was competent to stand

trial because Bougard refused to participate in the evaluation.




1
 Bougard also requests that we exercise our discretion to waive appellate costs in this matter.
Because Bougard’s current or likely future ability to pay appellate costs may be addressed by a
commissioner of this court under RAP 14.2, we defer this matter to our commissioner in the
event that the State files a cost bill.
No. 49099-4-II


       On July 28, the trial court ordered Bougard to be admitted to Western State Hospital

(WSH) for up to 15 days for a competency evaluation.2 Bougard was admitted to WSH on

August 18, 2015. WSH staff psychologist Chadwick Dunning opined that Bougard “‘lack[ed]

the capacity to understand the proceedings against him and to assist in his own defense’” due to a

mental disorder. Clerk’s Papers (CP) at 34 (quoting RCW 10.77.010(14)). Dunning

recommended that the trial court order Bougard to be admitted for inpatient treatment at WSH to

restore his competency to stand trial.

       On September 2, the trial court entered an order committing Bougard to WSH for up to

90 days for evaluation and restoration treatment. Bougard refused to take prescribed medication

while at WSH. Bougard also refused to be formally evaluated, but he engaged in conversation

with mental health evaluators “regarding his understanding of competency and the legal process

for approximately 45 minutes.” CP at 41. The mental health evaluators noted that Bougard did

not present with any “symptoms suggestive of psychotic process,” “was focused and able to

carry on rational conversations,” and “that his willingness to communicate with his attorney is

likely influenced by his pattern of interpersonal relating and not due to psychotic symptoms.”

CP at 42, 44. The evaluators concluded:

       Bougard presents with no current symptoms of a mental disease or defect that
       significantly affect his capacity to have a factual or rational understanding of the
       charges and court proceedings he faces or his ability to consult with his attorney
       with a reasonable degree of rational understanding. He appears to have the ability
       to work with and assist his attorney in his defense if he so chooses. We therefore
       recommend that he return to court to resume adjudication of his pending criminal
       matter.



2
  On August 12, 2015, the trial court entered a second order for a competency evaluation at WSH
that included language requiring Bougard to be transported to WSH within 7 days of the order.

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No. 49099-4-II


CP at 45. The trial court held a competency hearing on December 2, after which it entered an

order finding Bougard competent to stand trial.

        At an April 13, 2016 pretrial hearing, defense counsel asked Bougard on the record

whether he had an opinion about the State’s request for a continuance, to which Bougard did not

respond. Defense counsel told the trial court that Bougard was refusing to participate in a

psychological evaluation to support a diminished capacity defense. The trial court noted the

following:

                Just to make the record complete, Mr. Bougard apparently this morning
        refused to get dressed for jail staff in civilian clothes. He’s here wearing jail attire.
        He has appeared to take a position throughout this case when—I’ve read the
        forensic evaluations from Western State. He’s not cooperated through the forensic
        process believing he didn’t need to be there, didn’t want to participate in interviews,
        and didn’t want to participate in competency restoration claiming himself to be
        competent. So he’s taken sort of an antagonistic approach to his defense from day
        one in this case, including today refusing to get dressed.

Report of Proceedings (RP) (Apr. 13, 2016) at 9-10. The matter proceeded to a jury trial before a

different trial court judge.

        While discussing pretrial motions, the trial court noted that it had read Bougard’s mental

health evaluations. The following exchange also took place during a discussion on pretrial

motions:

                 [Defense counsel]: Mr. Bougard has opted to dress in jail gray. Jail gray is
        from the Pierce County Jail. He has the opportunity to switch into civilian clothes.
        He has opted not to take advantage of that option, and he wishes to proceed wearing
        his jail clothes.
                 Is that correct, Mr. Bougard?
                 [Bougard]: (No audible response.)
                 [Defense counsel]: Mr. Bougard refuses to answer.

RP (May 17, 2016) at 22-23. The trial court advised Bougard that he could dress in civilian

clothing so the jury would not be influenced by the appearance that he was being held in custody.

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No. 49099-4-II


The trial court “strongly urge[d]” Bougard to wear civilian clothing but told Bougard that it was

his decision to make. RP (May 17, 2016) at 23. The trial court ordered the State and defense

counsel to “remain totally silent regarding [Bougard’s] choice of attire.” RP (May 17, 2016) at

24. Bougard continued to wear jail clothing throughout the trial.

       After the State presented its last witness and indicated it would rest its case, defense

counsel stated the following outside the presence of the jury:

                Mr. Bougard, obviously, has not really participated in the trial. He’s still in
       jail clothes. He’s not in restraints and has not been in restraints at any time that the
       jury has seen that I’m aware of; and it may give the impression when one reads the
       record, he’s kind of comatose, more or less. He is awake. He is paying attention
       as far as I can tell.
                ....
                During the introduction to the ven[ire] when we first started to pick a jury,
       when I introduced myself and Mr. Bougard, I put my left hand on his right shoulder.
       Later, I understand he complained to one of the guards that he did not like that; and
       I appreciate being advised of that and have not done it since. I bring that—I bring
       that up to show that Mr. Bougard—
                ....
       —does have the ability to object and to voice his opinion and has done so. He just
       has not done so here at counsel table, and that’s my record. Thank you.

RP (May 23, 2016) at 216-17.

       Defense counsel then addressed Bougard’s decision whether to testify, and the following

exchange took place:

              [Defense counsel]: I asked Mr. Bougard if he had decided whether he
       would testify or not. He gave me no response, so I assume he is not going to testify.
       With that, the Defense will rest.
       ....
              [Trial court]: Mr. Bougard, I realize that you’re refusing to answer or
       whatever; but at this time, the Court is going to make a request on the record if you
       wish to testify. If you do not answer, the Court will construe that as you do not
       wish to testify in this matter; so I think he’s waived that.
              [Defense counsel]: No response.
              [Trial court]: No response. Okay. We’ll bring the jury in.


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No. 49099-4-II


RP (May 23, 2016) at 218-19.

           After the trial court excused the jury to begin deliberations, defense counsel stated that he

had asked Bougard whether he wanted to be present in court if the jury chose to listen to an

admitted 911 recording, to which Bougard did not say “anything one way or the other.” RP

(May 24, 2016) at 299. The jury returned a verdict finding Bougard guilty of second degree

assault.

           At sentencing, Bougard filed a pro se motion to vacate, which the trial court denied.

When asked whether he wanted to address the court before it pronounced its sentence, Bougard

stated, “I just want to say this is—that this is, clearly, systematic deceit, unlawful conversion,

and constructive fraud; and I can’t participate in it.” RP (June 24, 2016) at 319. The trial court

thereafter imposed an exceptional 18 month sentence and 18 month community custody term

based on the jury’s finding that Bougard’s crime was an aggravated domestic violence offense.

When the trial court asked Bougard whether he would willingly provide his fingerprints,

Bougard responded, “I’m not willing to give my fingerprints. I can’t participate in fraud; but if

I’m forced and I’m obliged to, I’m not fighting against it.” RP (June 24, 2016) at 322. At the

end of the sentencing hearing, Bougard engaged in a conversation with the trial court about the

ability to defend against a mass shooting event.

           Bougard appeals from his second degree assault conviction.

                                               ANALYSIS

                                           I. LEGAL PRINCIPLES

           Due process does not allow a person to be tried or sentenced for a crime if he or she is

incompetent to stand trial. Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 125 L. Ed. 2d


                                                     5
No. 49099-4-II


321 (1993). RCW 10.77.050 similarly provides, “No incompetent person shall be tried,

convicted, or sentenced for the commission of an offense so long as such incapacity continues.”

A defendant “is competent to stand trial if he has the capacity to understand the nature of the

proceedings against him and if he can assist in his own defense.” State v. Ortiz, 104 Wn.2d 479,

482, 706 P.2d 1069 (1985); RCW 10.77.010(15). RCW 10.77.060(1)(a) requires a trial court to

sua sponte order a qualified expert or professional to evaluate and report on the defendant’s

mental condition “[w]henever . . . there is reason to doubt his or her competency.”

       A court’s ruling on whether to order a competency examination is reviewed for abuse of

discretion. State v. Heddrick, 166 Wn.2d 898, 903, 215 P.3d 201 (2009). A trial court abuses its

discretion when it acts on untenable grounds or for untenable reasons. State ex rel. Carroll v.

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). “The trial judge may make his [or her

competency] determination from many things, including the defendant’s appearance, demeanor,

conduct, personal and family history, past behavior, medical and psychiatric reports, and the

statements of counsel.” State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967). We give

considerable deference to the trial court’s competency determination “because of its personal

observation of the defendant’s behavior and demeanor that is claimed to have demonstrated

incompetency.” State v. Hicks, 41 Wn. App. 303, 309-10, 704 P.2d 1206 (1985). The trial court

should give considerable weight to the attorney’s opinion regarding a client’s competency. State

v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177 (1991). However, a trial court need not grant a

motion to determine competency merely because it has been filed; the motion must be supported

by a factual basis. Lord, 117 Wn.2d at 901.




                                                 6
No. 49099-4-II


        Once the trial court makes an initial competency determination, it need not revisit the

issue unless “‘new information presented has altered the status quo ante.’” State v. Ortiz, 119

Wn.2d 294, 301, 831 P.2d 1060 (1992) (plurality opinion),3 disapproved on other grounds by

State v. Condon, 182 Wn.2d 307, 323-24, 343 P.3d 357 (2015). In other words, a trial court does

not abuse its discretion by failing to order a competency reevaluation where there is no

indication that the defendant’s mental condition has changed since being found competent to

stand trial.

                                         II. RCW 10.77.060

        Bougard first contends that the trial court abused its discretion by failing to sua sponte

order a competency evaluation under RCW 10.77.060(1)(a).4 We disagree.

        Bougard points to three instances at trial where his conduct should have alerted the trial

court for the need to sua sponte order a reevaluation of his competency to stand trial. First,

Bougard identifies his wearing of jail-issued clothing and his failure to respond to the trial

court’s inquiry and advice against wearing such clothing at trial. Second, Bougard notes his

failure to respond to inquiries by defense counsel and the trial court regarding whether he would

testify at trial, which inquiries were made after the State announced it would rest its case-in-

chief. Finally, Bougard identifies his failure to respond to defense counsel’s question of whether



3
  Although Ortiz is a plurality opinion, the concurring opinion, and thus a majority of the
justices, approved of its competency analysis. The dissenting opinions did not take issue with
the plurality’s competency analysis.
4
 On pages 6 and 7 in his opening brief, Bougard recites the federal constitutional rules about
competency to stand trial, but does not argue specifically from them. Because Bougard did not
present argument from the federal standards, he has waived challenges based on them. State v.
Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012).

                                                  7
No. 49099-4-II


he wanted to be present in the courtroom if the jury chose to listen to an admitted 911 recording

during its deliberations.

       When viewed in isolation, these instances of Bougard’s conduct may have presented a

sufficient factual basis requiring the trial court to order a reevaluation of Bougard’s competency

to stand trial. However, because the trial court was not limited to its observations of Bougard’s

conduct and could consider several factors beyond that conduct, including his prior competency

evaluation and statements from defense counsel, we cannot conclude that the trial court abused

its discretion in failing to order a competency reevaluation. Dodd, 70 Wn.2d at 514.

       Bougard’s prior evaluation determining his competence to stand trial concluded that he

had the ability to assist in his defense if he chose to do so and that his unwillingness to

communicate with counsel was not due to any psychiatric symptom.5 Similarly, defense counsel

stated to the trial court his opinion that Bougard “does have the ability to object and to voice his

opinion and has done so,” but that Bougard has chosen not to communicate with him during the

trial. RP (May 23, 2016) at 217. In light of these considerations, we cannot conclude that the

trial court abused its considerable discretion in declining to sua sponte order a competency

reevaluation. Moreover, because Bougard had previously been evaluated and deemed competent

to stand trial, the trial court was not required to revisit the issue absent new information showing

a change in Bougard’s condition. Ortiz, 119 Wn.2d at 301. Bougard does not identify, and we

have not located, any indication in the record that information showing such a change of




5
 Contrary to the assertion in Bougard’s reply brief, the record clearly shows that the judge
presiding over his trial had reviewed his competency evaluations.

                                                  8
No. 49099-4-II


condition was presented to the trial court. Accordingly, we hold that Bougard has not

demonstrated error on this ground.

                            III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Bougard contends that his defense counsel was ineffective for failing to move for a

competency reevaluation. Again, we disagree.

       To demonstrate ineffective assistance, Bougard must show (1) that defense counsel’s

conduct was deficient and (2) that the deficient performance resulted in prejudice. State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Performance is deficient if it falls below

an objective standard of reasonableness. In re Det. of Moore, 167 Wn.2d 113, 122, 216 P.3d

1015 (2009). Prejudice occurs where there is a reasonable probability that, but for the deficient

performance, the outcome of the proceedings would have been different. State v. McFarland,

127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

       As addressed above, for Bougard to be entitled to a competency reevaluation, there must

have been a showing that his competency had changed sometime after he had been deemed

competent to stand trial. Bougard does not argue, let alone demonstrate, that his counsel was

aware of any change in his competency to stand trial. Accordingly, Bougard cannot show that

defense counsel’s performance was deficient for failing to move for a competency reevaluation.

In addition, Bougard cannot show any prejudice resulting from defense counsel’s decision not to

move for a competency reevaluation, because there is not a reasonable probability that the trial

court would have granted such a motion for the reasons set forth in the analysis above.

Accordingly, Bougard’s claim of ineffective assistance cannot succeed.




                                                9
No. 49099-4-II


        We affirm Bougard’s conviction.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 JOHANSON, J.




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