                                                                              Aug 14 2015, 6:30 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Michael J. Kyle                                            Gregory F. Zoeller
      Baldwin Kyle & Kamish                                      Attorney General of Indiana
      Franklin, Indiana
                                                                 Monika Prekopa Talbot
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Charles Gross,                                            August 14, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                41A01-1411-CR-467
              v.                                                Appeal from the Johnson Superior
                                                                Court
                                                                The Honorable Cynthia S. Emkes,
      State of Indiana,                                         Judge
      Appellee-Plaintiff,                                       Cause No. 41D02-0302-FB-1




      Robb, Judge.



                                Case Summary and Issues
[1]   Charles Gross was arrested on February 28, 2003, on charges of child

      molesting, a Class B felony, and dissemination of matter harmful to a minor, a

      Class D felony. He has never been tried on these charges, however, as he was

      found to be incompetent and has been either incarcerated in Johnson County or


      Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                      Page 1 of 19
      confined by the State Division of Mental Health and Addiction (“DMHA”)

      since his arrest. In August 2014, Gross filed a motion to dismiss the charges

      against him and a request for release from custody because he had been

      confined for a period of time equivalent to the maximum sentence he could

      have to serve if convicted. The trial court denied his motion, finding Gross was

      subject to the credit restricted felon statute and therefore had not yet been

      confined for the maximum time allowed by law.


[2]   Gross appeals the trial court’s denial of his motion to dismiss the charges

      pending against him and release him from custody. He raises two issues: 1)

      whether the trial court erred in finding he was subject to the credit restricted

      felon statute; and 2) whether the trial court abused its discretion in denying his

      motion because due process requires the charges to be dismissed. The State

      concedes that Gross is not subject to the credit restricted felon statute and has

      been confined for the maximum time allowed by law but argues the charges

      should not be dismissed. We conclude the parties are correct that Gross is not

      subject to the credit restricted felon statute and has therefore been confined for

      the equivalent of the maximum sentence he could have been ordered to serve.

      In addition, because there has been a finding that it is unlikely Gross will ever

      be restored to competency, it is a violation of due process for the underlying

      criminal charges to continue to pend against him. The trial court abused its

      discretion in denying Gross’s motion to dismiss, and we therefore reverse.




      Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015   Page 2 of 19
                             Facts and Procedural History
[3]   In early 2003, the Edinburgh Police Department investigated a report that

      Gross had molested a young male cousin and had shown the boy pornographic

      material. As a result, the State charged Gross on February 26, 2003, with child

      molesting, a Class B felony, and dissemination of matter harmful to minors, a

      Class D felony. Gross was arrested on February 28, 2003, and appeared in

      court on March 6, 2003, for an initial hearing. However, the court did not hold

      the initial hearing “due to the fact that [Gross] does not comprehend the

      Court’s advisements.” Appellant’s Appendix at 146. The trial court appointed

      a public defender to represent Gross and directed the public defender to submit

      a petition for psychiatric evaluation, which she did. The trial court appointed

      two psychiatric evaluators. After the trial court received the psychiatric

      evaluations, the court held a competency hearing and determined that “there is

      sufficient evidence that [Gross] is not capable of understanding the nature of the

      proceedings against him, and he is not able to assist in his defense based on his

      lack of competency.” Id. at 130. On November 5, 2003, Gross was committed

      to DMHA for placement.1 On January 15, 2004, his case was stayed.




      1
        Gross was originally placed at Evansville State Hospital. On March 26, 2008, Evansville State Hospital
      advised the court that Gross was being released and had the ability to understand the proceedings against
      him. Gross was transported to the Johnson County Jail awaiting trial. His counsel filed another petition for
      psychiatric evaluation in September of 2008, and in February of 2009, the trial court again found him
      incompetent to stand trial and committed him to DMHA, which placed him at Madison State Hospital
      where he has remained for the duration of these proceedings.

      Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                        Page 3 of 19
[4]   In February 2014, DMHA filed a report with the trial court indicating Gross

      “remains incompetent to stand trial and legal education suggests he may not be

      restorable to legal competence.” Id. at 49. On February 28, 2014, Gross filed a

      Motion to Dismiss. On August 6, 2014, following a hearing, the trial court

      found that the maximum sentence the trial court could impose on Gross if

      convicted of the charges against him was twenty-three years;2 that there was no

      evidence Gross was not entitled to Class I credit time, earning one day credit

      time for each day he was confined; and that he would have to serve a total of

      eleven years and 182 days at that level of credit time to have served the

      maximum amount of time allowed by law. The trial court calculated Gross

      would serve that amount of time as of August 29, 2014, and expressed a belief

      that Gross’s motion should be renewed at that time. But as that date had not

      yet been reached, the trial court denied the motion to dismiss. Id. at 4-7.


[5]   On August 26, 2014, Gross filed a Request for Hearing on Release from

      Custody referencing the trial court’s previous order. The trial court held a

      hearing on August 28, 2014, at which time the State argued that due to the

      charges against him, Gross’s credit time was restricted by Indiana Code section

      35-31.5-2-72 and he had not yet served his maximum time. The trial court

      issued the following order on September 2, 2014, denying Gross’s request for

      release from custody:




      2
       A Class B felony conviction carries a maximum sentence of twenty years, Ind. Code § 35-50-2-5, and a
      Class D felony conviction carries a maximum sentence of three years, Ind. Code § 35-50-2-7(a).

      Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                     Page 4 of 19
              7. A person’s credit time may be restricted under IC 35-31.5-2-72 if the
              offense implicates child molesting involving sexual intercourse or
              deviate sexual conduct . . . and if the offense is committed by a person
              at least twenty-one (21) years of age and the victim is less than twelve
              (12) years of age.
              8. If a person’s credit time is restricted then a person is assigned to
              class IV for purposes of credit time.
              9. “A person assigned to Class IV earns one (1) day of credit time for
              every six (6) days the person is imprisoned for a crime or confined
              awaiting trial or sentencing,” . . . while “[a] person assigned to Class I
              earns one (1) day of credit time for each day the person is imprisoned
              for a crime or confined awaiting trial or sentencing.”
              10. The Court finds that [Gross’s] time is credit restricted and is
              entitled to earn only one (1) day of credit time for every six (6) days he
              is confined while awaiting trial.
              11. Since [Gross] has not been incarcerated or committed for the
              maximum sentence allowed by law as of today’s date, [Gross’s]
              motion is DENIED.
      Id. at 2. The trial court certified this interlocutory order at Gross’s request and

      this court accepted jurisdiction of the appeal.



                                 Discussion and Decision
                                      I. Standard of Review
[6]   We review a trial court’s ruling on a motion to dismiss a charging information

      for an abuse of discretion. Matlock v. State, 944 N.E.2d 936, 938 (Ind. Ct. App.

      2011). Trial courts “have the inherent authority to dismiss criminal charges

      where the prosecution of such charges would violate a defendant’s

      constitutional rights.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). Indiana

      Code section 35-34-1-4 is legislative recognition of this authority, permitting the


      Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015            Page 5 of 19
      dismissal of an information for various reasons, including on “[a]ny other

      ground that is a basis for dismissal as a matter of law.” Ind. Code § 35-34-1-

      4(a)(11). “A violation of a defendant’s constitutional right to due process

      certainly fits in that category.” Davis, 898 N.E.2d at 285.


                              II. Gross’s Due Process Rights
                           A. Criminal Commitment Overview
[7]   Due process precludes trying a defendant while he is incompetent. Id. at 284.

      The test for determining competency in Indiana is whether the defendant “has

      sufficient present ability to consult with defense counsel with a reasonable

      degree of rational understanding, and whether the defendant has a rational as

      well as a factual understanding of the proceedings against him.” Id. (quoting

      Adams v. State, 509 N.E.2d 812, 814 (Ind. 1987)).


[8]   Indiana statutes “control the appropriate way to determine a defendant’s

      competency and, if necessary, to commit the defendant and provide restoration

      services.” Curtis v. State, 948 N.E.2d 1143, 1153 (Ind. 2011). When a criminal

      defendant is thought to lack the ability to understand court proceedings and

      assist in his own defense, the trial court sets a hearing and appoints two or three

      disinterested psychiatrists or psychologists to evaluate the competency of the

      defendant. Ind. Code § 35-36-3-1(a). If, following the hearing at which

      evidence pertaining to the defendant’s competency is presented, the trial court

      determines that the defendant lacks the ability to understand the proceedings

      and assist in the preparation of his defense, the trial will be delayed while the

      Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015   Page 6 of 19
       defendant is committed to DMHA, which “shall provide competency

       restoration services or enter into a contract for the provision of competency

       restoration services by a third party . . . .” Ind. Code § 35-36-3-1(b).


[9]    Within ninety days of a defendant’s admission to a state institution, the

       superintendent of the institution must certify to the court “whether the

       defendant has a substantial probability of attaining the ability to understand the

       proceedings and assist in the preparation of the defendant’s defense within the

       foreseeable future.” Ind. Code § 35-36-3-3(a). If that probability does not exist,

       the state institution must initiate regular commitment proceedings. Ind. Code §

       35-36-3-3(b). If a substantial probability does exist, then the state institution

       must retain the defendant until the defendant attains the necessary ability and is

       returned to court for trial or for six months after admission to the institution,

       whichever occurs first. Id. If the defendant has not attained that ability within

       six months, the state institution must institute regular commitment proceedings

       under Indiana Code 12-26. Ind. Code § 35-36-3-4.


                                   B. Due Process Implications
[10]   In Jackson v. Indiana, the United States Supreme Court held:

               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. If it is determined that this is not the
               case, then the State must either institute the customary civil
               commitment proceeding that would be required to commit indefinitely
               any other citizen, or release the defendant.

       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015         Page 7 of 19
       406 U.S. 715, 738 (1972).3 Although noting that dismissal of charges “has

       usually been thought to be justified” by either the Sixth/Fourteenth

       Amendment right to a speedy trial or by the “denial of due process inherent in

       holding pending criminal charges indefinitely over the head of one who will

       never have a chance to prove his innocence[,]” the Jackson court declined to

       decide whether dismissal of the pending charges was required because the issue

       had not been squarely presented to the Indiana courts. 406 U.S. at 740.


[11]   In Davis, our supreme court took up that undecided issue. The court noted that

       the deprivation of the defendant’s liberty through commitment must be justified

       on the basis of a legitimate state interest. 898 N.E.2d at 288.

               Justification for the commitment of an incompetent accused is found
               in the State’s interest in the restoration of the accused to competency
               because of the right of the public and the defendant to the prompt
               disposition of criminal charges pending against him, and the
               protection of the accused against being required to answer to charges
               that she lacks the capacity to understand or to assist her attorney in
               defending against.
       Id. at 289 (citation omitted). The defendant, charged with Class D felony

       criminal recklessness, had been confined since May 2004 under a commitment

       order. Doctors found there was no substantial probability she would ever attain

       competency. Her counsel filed a motion to dismiss the charge against her in

       March 2007. The court noted that even if she were to recover competency and




       3
         Jackson was decided under a previous version of our criminal commitment statute which did not provide for
       regular civil commitment proceedings and periodic review of the defendant’s competence as part of the
       process. The statute was amended in 1974 in apparent response to Jackson. See Davis, 898 N.E.2d at 286 n.4.

       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                      Page 8 of 19
       be tried and convicted, she had become immune from being sentenced to

       further confinement in November 2005 when she had been confined for half of

       the maximum term of imprisonment for a Class D felony. Thus, the

       defendant’s pretrial confinement had extended beyond the maximum period of

       any sentence that could be imposed for a conviction. The court also noted that

       there might be circumstances in which the State’s interest in determining guilt

       even though the accused had already been punished would be sufficiently

       important to overcome the accused’s substantial liberty interest. Id.

               For example, a conviction would be required to enhance a sentence for
               a felony committed as a member of a criminal gang, to prohibit
               possession of a firearm, to require registration as a sex offender, or to
               prove status as a habitual offender, a habitual substance offender, or a
               habitual traffic offender.
       Id. (citations omitted). However, the State had advanced no argument that its

       interests outweighed the defendant’s substantial liberty interest, and the court

       concluded that “it is a violation of basic notions of fundamental fairness as

       embodied in the Due Process Clause of the Fourteenth Amendment to hold

       criminal charges over the head of . . . an incompetent defendant, when it is

       apparent she will never be able to stand trial.” Id. at 290. Therefore, the

       dismissal of the charge was affirmed.


[12]   In subsequent cases, our supreme court has refined the Davis holding. In Curtis,

       948 N.E.2d at 1153-54, the court noted that the statutory procedures for

       criminal commitment balance the various interests at stake: the defendant’s

       liberty interest versus the State’s interests in restoring the accused to

       competency and protecting the defendant against proceedings he cannot
       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015       Page 9 of 19
understand. The court also noted that “[o]f course, the State’s interests cannot

be realized if there is a finding that a defendant cannot be restored to

competency.” Id. at 1154. In Curtis, the procedures of Indiana Code chapter

35-36-3 had not been followed in that the trial court had not found the

defendant incompetent and he had not been committed to the DMHA;

therefore, the defendant had no valid due process claim and there was no cause

to dismiss the charges against him on fundamental fairness grounds. Id. at

1154.4 And in State v. Coats, 3 N.E.3d 528, 534 (Ind. 2014), the court stressed

that although the State’s interest in the restoration of an accused to competency

cannot be realized if there is a finding that such restoration is not substantially

probable in the foreseeable future, such a finding must be properly made

pursuant to the statutory procedure. In Coats, the trial court made the initial

finding that the defendant was not competent based upon the court-appointed

doctors’ reports, but did not commit him to DMHA because it further found

based on those reports that the defendant could not be restored to competency.

Our supreme court remanded to the trial court with instructions to commit the

defendant to DMHA for competency restoration services because the trial court

does not have the discretion to refuse to order commitment under these

circumstances. “Only by following the strict statutory framework set forth by

the legislature in Ind. Code chapter 35-36-3 can both the interests of the State




4
 The charges were nonetheless dismissed because Indiana Criminal Rule 4(C) had been violated. Id. at
1151.

Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                   Page 10 of 19
       and [the defendant] be protected.” Id. at 535. That framework includes clear

       and separate duties and responsibilities for the trial court and the

       superintendent of the institution to which the defendant is committed: Indiana

       Code section 35-36-3-1 gives the trial court the responsibility of initially

       determining whether a defendant is competent to stand trial, but section 35-36-

       3-3 vests only the superintendent with the authority to make a finding regarding

       the defendant’s future competency to stand trial. Id. at 532.


                    C. Has Gross Served the Maximum Sentence?
[13]   The trial court declined to dismiss the charges against Gross upon finding that

       he would be a credit restricted felon based upon his charge of child molesting

       and had therefore not yet served his maximum possible sentence.


[14]   The credit restricted felon statute became effective on July 1, 2008, and applied

       only to persons convicted after June 30, 2008. P.L. 80-2008, sec. 6. At the time

       it was enacted, the statute defined a credit restricted felon as one who has been

       convicted of child molesting involving sexual intercourse or deviate sexual

       conduct if the offender is at least twenty-one years old and the victim is less

       than twelve years old. Ind. Code § 35-41-1-5.5 (2008). A credit restricted felon

       is initially assigned to Class IV, Ind. Code § 35-50-6-4(b) (2008), and earns one

       day of credit time for every six days of confinement, Ind. Code § 35-50-6-3(d)

       (2008). Gross argues the trial court abused its discretion in finding that he was

       a credit restricted felon because such a finding represents an ex post facto

       application of the statute. See Appellant’s Brief at 5.


       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015   Page 11 of 19
[15]   In Upton v. State, 904 N.E.2d 700 (Ind. Ct. App. 2009), trans. denied, the

       defendant committed several child molesting offenses between 2003 and 2007.

       When he was sentenced, the trial court ordered that he would receive Class IV

       pre-sentencing credit time pursuant to the newly-enacted credit restricted felon

       statute. We reversed the trial court’s classification of the defendant as a credit

       restricted felon because it was an ex post facto violation. Id. at 706. An ex post

       facto law is retrospective—that is, it applies to events occurring before its

       enactment and disadvantages the offender affected by it. Id. at 705.

       Application of the credit restricted felon statute to the defendant was an ex post

       facto violation because it was applied to a crime committed before it was

       enacted and disadvantaged the defendant because at the time he committed his

       offenses, the law did not so restrict the credit time he could earn. Id. at 705; see

       also Gaby v. State, 949 N.E.2d 870, 883 (Ind. Ct. App. 2011) (same).


[16]   Based upon this precedent, the State agrees with Gross that the trial court

       erroneously ruled that he is a credit restricted felon and has not yet been

       confined for the maximum time permitted by law. See Brief of Appellee at 6.

       As Gross committed his alleged offenses in 2003 at which time he would have

       been entitled to one-for-one credit time, he had been confined for the length of

       his maximum possible sentence as of August 29, 2014. However, the State does

       not agree that this necessitates dismissal of the charges against Gross.




       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015   Page 12 of 19
                              D. Is Gross Entitled to Dismissal?
[17]   Gross contends that because he has been confined for the maximum time

       allowed by law, the trial court abused its discretion by failing to dismiss the

       charges pending against him. The State argues that we should not order the

       charges to be dismissed. Relying on the language in Davis referencing possible

       instances in which the State could have a legitimate interest in determining guilt

       or innocence besides punishment, see 898 N.E.2d at 289, the State asks that we

       remand to the trial court to “give the State an opportunity to determine if any

       such interests are present[,]” Brief of Appellee at 8. Specifically, the State

       argues that, unlike the situation in Davis, some of the collateral consequences of

       a conviction could be present here, such as sex offender registration

       requirements or status as an habitual offender.


[18]   The State may indeed have a legitimate interest in obtaining a conviction in this

       case. However, it was determined as long ago as 2011 by the superintendent of

       the institution where Gross was confined that there was a substantial

       probability that he would never be competent to stand trial. See App. at 77

       (competency-to-stand trial report from superintendent dated February 21, 2011

       stating that “at present Mr. Gross remains incompetent to stand trial and there

       is a substantial probability that he will never be competent.”); see also id. at 70

       (annual report from superintendent dated February 17, 2012 stating that “Mr.

       Gross remains incompetent to stand trial and is not likely to ever be competent

       due to level of mental retardation.”); id. at 61 (annual report from

       superintendent dated January 28, 2013 stating defendant is “not likely to ever

       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015   Page 13 of 19
       be competent . . .”); id. at 49 (annual report from superintendent dated February

       6, 2014 stating “Mr. Gross remains incompetent to stand trial and legal

       education suggests he may not be restorable to legal competence.”). Gross’s

       pretrial criminal confinement has extended beyond the maximum period he

       could be ordered to serve if convicted and a finding has been made (repeatedly)

       by the superintendent of the institution where Gross is confined that there is a

       substantial probability that he will never be restored to competency and able to

       stand trial. Therefore, any interest the State might have in a conviction cannot

       be realized, and it is a violation of the basic notions of fundamental fairness

       embodied in the due process clause to continue to hold criminal charges over

       his head indefinitely. See Davis, 898 N.E.2d at 286 (“Jackson made it clear that a

       state cannot continue to confine the defendant under its criminal commitment

       statutes if it is unlikely that the defendant ever will attain competency.”).


[19]   The State also argues we should not order the charges to be dismissed because

       the State “will most likely wish to file for a civil commitment” and “should

       have the opportunity to make [the] determination” whether Gross is mentally ill

       and dangerous to other children. Brief of Appellee at 8. Gross is already under

       a regular civil commitment order,5 which, pursuant to Indiana Code section 12-



       5
          Indiana Code chapter 35-36-3 provides that under certain circumstances and within certain timeframes, the
       state institution shall initiate regular commitment proceedings under Indiana Code article 12-26 with regard
       to a defendant found incompetent to stand trial. Although there is no information in this record regarding
       the civil commitment proceedings leading to Gross’s continued confinement at Madison State Hospital, it is
       likely that such proceedings are being conducted in Jefferson County. See App. at 115 (letter to the trial court
       from superintendent of Evansville State Hospital following Gross’s first incompetency stating “[w]e wish to
       petition the Court for a Regular Commitment at this time because we do not feel he will become competent
       to stand trial in the foreseeable future. . . . A Petition for Regular Commitment will be filed in Vanderburgh

       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                         Page 14 of 19
       26-7-5(b) continues until such time as he has been discharged from the

       institution and the trial court which entered the original commitment order

       enters an order terminating the commitment. Moreover, if the State believes it

       needs an additional civil commitment order for some reason, the trial court’s

       order of August 6, 2014, indicating the trial court’s belief that Gross’s motion to

       dismiss should be renewed as of August 29, 2014, should have prompted the

       State to begin the process of determining whether that was appropriate. Given

       that Gross has been confined for over twelve years at this point, the State has

       had ample opportunity to do so. We will not further prolong Gross’s criminal

       confinement on account of these criminal charges.



                                                Conclusion
[20]   The trial court abused its discretion in finding that Gross was subject to the

       credit restricted felon statute and denying Gross’s motion to dismiss on that

       ground. Because Gross has been confined in excess of the maximum time he

       could be incarcerated if found guilty of the charges against him and because the

       superintendent at the facility at which he is confined has made a finding that

       there is a substantial probability he will never be restored to competency, due

       process requires that the charges against him be dismissed. The order of the

       trial court denying Gross’s motion to dismiss is reversed.




       County Superior Court.”). The fact that Gross may no longer be held under criminal charges does not
       necessarily mean he is no longer subject to his regular commitment order.

       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015                    Page 15 of 19
[21]   Reversed.


       May, J., concurs.


       Mathias, J., concurs in result with opinion.




       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015   Page 16 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Charles Gross,
       Appellant-Defendant,
                                                                  Court of Appeals Case No.
               v.                                                 41A01-1411-CR-467


       State of Indiana,
       Appellee-Plaintiff.




       Mathias, Judge, concurring.

[22]   I concur wholeheartedly in Judge Robb’s well-reasoned opinion. I write

       separately for two reasons.


[23]   First, I wish to emphasize that there is little reason to believe that dismissal of

       the criminal charges against Gross will lead to his release into society. Instead,

       Gross mostly likely faces a lifetime of civil commitment as a result of his mental

       illness. See supra, slip op. at 14 n.5.


[24]   Secondly, I wish to repeat what I wrote in concurring in Habibzadah v. State, 904

       N.E.2d 367, 370 (Ind. Ct. App. 2009):



       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015              Page 17 of 19
               A large and ironic lapse in the logic of our criminal justice system is
               that its initial imperative is to determine the competency of defendants
               prospectively, to assist counsel at trial. And the courts can determine
               whether the defendant is able to assist in his or her own defense at any
               time, whether relatively soon after arrest, or long thereafter, sometimes
               years after arrest. Only after a defendant is determined competent is
               the issue of competency at the time of the crime raised, and only along
               with the trial of the facts of the offense alleged.
       Id. at 370 (Mathias, J., concurring).


[25]   I continue to believe that our criminal procedure should permit a psychiatric

       examination of a defendant who likely suffers from serious mental illness very

       early after arrest to determine whether the defendant could have possibly had

       the requisite scienter or mens rea at the time of the crime. As I noted in

       Habibzadah:

               Our criminal justice system has a mechanism to deal with temporary
               incompetence as it pertains to criminal culpability, or scienter, but fails
               miserably when faced with the likely long-term or permanent mental
               illness of a criminal defendant. Even Davis acknowledges that
               confinement of an incompetent person may be a violation of due
               process, but only after the defendant has been civilly committed for the
               maximum sentence allowed under the charges filed, when the State
               does not have an interest that outweighs the defendant's liberty
               interest.

               Our criminal justice system needs an earlier and intervening procedure
               to determine competency retroactively to the time of the alleged crime.
               Perhaps we as a society need to consider the concept of a defendant
               being unchargeable because of mental illness under Indiana Code
               section 35-41-3-6, and not just guilty but mentally ill under Indiana
               Code section 35-36-2-1, et. seq. In either case, the commitment
               proceedings provided for in Indiana Code section 35-36-2-4 would
               both protect society and best care for the defendant involved.




       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015        Page 18 of 19
               Whether such a procedure is promulgated by the Indiana Supreme
               Court through its rule-making process or by the Indiana General
               Assembly through statute, it is time for the truly long-term, incompetent
               criminal defendant to have an earlier and intervening opportunity for a
               determination of his or her competency at the time of the crime alleged. Such a
               procedure convened soon after arrest, rather than years later when
               stale evidence and dim or non-existent memories are all that are left, or
               never, would best serve society and the defendant.
       Id. at 371 (emphasis added); see also A.J. v. Logansport State Hosp., 956 N.E.2d

       96, 118 (Ind. Ct. App. 2011) (Mathias, J., concurring) (expressing the same

       concerns where, despite earliest expert opinions establishing that the defendant

       would never attain competency, the defendant was sent off to competency

       restoration services and held there for over two years).


[26]   With the additions of these observations, I fully concur.




       Court of Appeals of Indiana | Opinion 41A01-1411-CR-467 | August 14, 2015           Page 19 of 19
