                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   April 21, 2015
               Plaintiff-Appellant,                                9:00 a.m.

v                                                                  No. 319436
                                                                   Wayne Circuit Court
DEMOND EARL DAVIS,                                                 LC No. 13-003985-FH

               Defendant-Appellee.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

GLEICHER, J.

        Defendant is a cognitively impaired young adult. After the district court bound defendant
over on unarmed robbery and assault charges, the circuit court questioned whether defendant was
competent to stand trial. Initial examination supported defendant’s current incompetency but
revealed that defendant potentially could be rendered competent to stand trial within 15 months
if provided appropriate treatment. For the next two months, defendant remained in county jail
because no vacancies opened at an appropriate psychiatric facility. The circuit court then
determined that the delay in treatment made it impossible to have defendant ready for trial within
the statutory period and dismissed the charges against defendant without prejudice. Because the
circuit court lacked statutory authority to dismiss the case over the prosecutor’s objections, we
reverse.

                                       I. BACKGROUND

       On the afternoon of April 15, 2013, then 17-year-old defendant, along with six other
young men, “jumped” a 16-year-old autistic boy and stole his portable gaming system. Detroit
police arrested defendant three days later. Defendant waived his rights and admitted, but
minimized, his role in the attack. Following preliminary examination, the district court bound
defendant over for trial on charges of unarmed robbery and assault with intent to commit great
bodily harm less than murder.

       On June 6, 2013, the circuit court issued an “order for competency examination” to
determine whether defendant was competent to stand trial. Defendant was released on bond until
his examination at the Center for Forensic Psychiatry (CFP). On July 27, 2013, family members
transported defendant to the center, where he met with a licensed psychologist, Cathie
Zmachinski. Accepting reports that defendant was “moderately impaired,” Zmachinski noted:


                                               -1-
       [Defendant] showed limited comprehension of questions. So, I simplified my
       questions and comments which facilitated his understanding. His responses were
       relevant but brief, usually only three to four words long. His thoughts were
       coherent.     He required direct questioning in order to obtain related
       information. . . . [Defendant] demonstrated other cognitive difficulties. He
       showed limited abstract reasoning. He showed limited understanding of the world
       around him. He showed limitations in expressing himself. He demonstrated
       immature interests. . . . He also showed a tendency to agree without regard to the
       specific content of some questions. Based on his clinical presentation and
       understanding of his world, [defendant] appeared to be functioning in the mild
       mentally retarded range. Additionally, he gave the indication that he was able to
       process more information than indicated by his verbal responses.

Zmachinski described defendant’s memory deficits. In addition, she opined, “Besides his limited
insight into his cognitive abilities he showed limited insight into his affective life.”

        Zmachinski also interviewed defendant’s mother, Tiffany Davis. Davis reported that
defendant had received special education services since kindergarten, was restless and had
difficulty staying on task at home. Davis indicated that defendant had been incarcerated for two
months before being released on bond. During that time, the other inmates took advantage of
defendant and “beat [him] up.”

       In relation to defendant’s competency to stand trial, Zmachinski opined:

               It is my opinion that [defendant] has a limited understanding of the nature
       and object of the proceedings against him. He was asked some questions about
       the criminal justice system and in particular about his legal case. He
       demonstrated the following. He said he could not remember the charges against
       him. But he could acknowledge them. He was aware of the circumstances from
       which those charges arose. When asked specifically, he claimed not to know
       what happens were he to be found guilty or the maximum penalty given his
       charges. He could recall his attorney “Came to my house-asked about my job-
       same as you.” [Defendant] further indicated his mother was with him while
       talking to his attorney, “She does a lot of talking.” He said he did not know the
       jobs of the prosecutor or judge. He could not give an explanation of a plea
       bargain or the essence of a trial. He did however say if you believe the witness
       was lying, he would tell his attorney. Due to his limited expressive knowledge
       about the legal system, he was given the CAST-MR. This measure is designed
       for those with mental retardation. Individuals are asked questions about the
       criminal justice system in a multiple choice format. Also they are asked questions
       about various scenarios regarding the legal process. On this measure, [defendant]
       could correctly identify the basic job of the witness, judge but not the jury, his
       attorney and the prosecutor. He could identify such words as “Sentence, crime,
       penitentiary, felony, misdemeanor, and time served.” He knew that if found
       guilty, it would mean the prosecutor proved he did it. He could not identify plea
       bargaining. Thus, he demonstrated greater knowledge about the system than
       when asked more open ended questions. But he continued to show some limited

                                               -2-
knowledge. [Defendant] also was given various problematic scenarios related to
legal charges and arrest. He showed in his answers that he was capable of being
protective of himself in the jail and with the prosecutor. But he showed some
problems with situations requiring more than a black and white reasoning. His
overall performance suggested he knows more about the process than he was able
to express. Yet his knowledge was, in my opinion, still considered limited.

        In regards to his ability to assist defense counsel in a rational manner,
again it is my opinion that this would be limited. To his favor, [defendant]
provided a rendition of the incident in question, one similar to that in the police
account. He could answer some questions but not others, including his
understanding of his behaviors at that time. He was aware of some important
elements about his case. For example, he kept repeating important aspects of the
assaulted boy’s testimony. Although he could not elaborate why this was
important, he seemed aware on a basic level that this testimony suggested he had
minimal involvement in the crime. [Defendant] also showed an ability to control
his behavior within the interview. He also did not demonstrate emotional
difficulties. [Defendant] showed limitations in problem-solving and decision-
making. He did better when he was given simple choices and the problem was
spelled out for him. [Defendant] was quite passive. Given his cognitive abilities
and limited knowledge of the legal process, it is my opinion [defendant] would
not communicate his concerns sufficiently to his attorney. He would not
understand what has been said if more than simple language was used. Given his
limited knowledge of the process, this would further limit his comprehension of
the process as well as communications with his attorney. It is my opinion were he
more knowledgeable about the process he may be less passive and might express
some of his concerns. But nonetheless at the current time, it is my opinion that
[defendant], due to his cognitive limitations as well as passivity would have
significant difficulty assisting his attorney to resolve the current charges.

        In summary, due to limited cognitive abilities although [defendant]
showed some knowledge about the criminal justice system, in my opinion it was
insufficient to be considered him [sic] capable of understanding the nature and
object of the proceedings against him. Additionally, again due to this limited
knowledge and limited cognitive abilities, it is my opinion that he would have
problems assisting defense counsel in a rational manner. Therefore, it is my
opinion that [defendant] was incompetent to stand trial.

        The next question becomes whether there is a substantial probability that
[defendant] could be expected to regain his competency within [the] time period
provided by statute and if he were provided with a structured, inpatient, hospital
setting with the provision of appropriate therapeutic intervention. It is my opinion
[defendant] has some skills which he can draw upon to learn more about the legal
process. So with education and treatment, he may acquire a greater knowledge of
the process. Additionally given his cognitive skills as being measured in the
moderately impaired range, I anticipate that his will take some time. But, it is my
opinion that he would be able to gain the knowledge required. With that

                                        -3-
       knowledge, it is my opinion he would likely be able, in a basic way, to work with
       his attorney to resolve the current charges.

This report was submitted to the circuit court on August 8, 2013. An August 9, 2013 letter from
the CFP director recommended that defendant be treated at Kalamazoo Psychiatric Hospital.

        At an August 22, 2013 hearing on the matter, the circuit court followed the CFP’s
recommendation. However, the court noted, “I’m not completely sold on their conclusion about
his ability to . . . attain . . . [c]omptency. And my opinion is based on the fact that they have not
received his school records and they have not received the Wayne County Jail information that
they have requested.” The court directed, “I’m going to have him placed there,” meaning the
psychiatric hospital. The court then stated its intent to schedule a hearing “within the time period
prescribed by law” to determine if defendant had attained competency. Defendant was returned
to court custody that day and was transported back to the Wayne County Jail to await transport to
the Kalamazoo Psychiatric Hospital. The court’s subsequent order provided:

       8. Commitment is necessary for the effective administration of the course of
       treatment and therefore the defendant is committed to the custody of the State
       Department of Mental Health and placed at the facility recommended by the
       [CFP].

        The court’s next scheduled hearing occurred on October 29, 2013. Defense counsel
informed the court that defendant had remained in jail since the August 22 hearing because the
Kalamazoo Psychiatric Hospital did not “anticipate a bed being available for [his] client between
six to eight weeks from today’s date.” Counsel argued that the administrative delay had
interfered with defendant’s right to be free on bond pending trial. Counsel did not request the
dismissal of the charges, only that defendant be released to his mother’s care pending treatment.
The prosecution objected to defendant’s release on bond as the underlying offense was assaultive
in nature and out of fear that defendant might “fall through the cracks if he is not there and
waiting for the bed when it becomes available.”

        The court expressed displeasure at the course of events, noting defendant “has gone
untreated, basically, for five months.” The court continued:

       I think that when a person who has been determined to not be competent is kept in
       jail and not treated, it kind of gets to cruel and unusual punishment.

               I mean, we have a place for people that are not competent. And it is in a
       state facility to help them restore them to competence. I don’t want to be a part of
       a system that jails incompetent people, that incarcerates people who don’t have
       the capacity to stay in the criminal justice system.

                To me, that’s not the way that you deal with, you know, mental health
       challenges, to jail them and not treat them. And that’s exactly where [defendant]
       is. He has been found not to be competent. And we have incarcerated a person
       that is not competent, would not have known that he was on a wait list. . . .

                                               ***

                                                -4-
       . . . But somebody believes that it’s all right to incarcerate incompetent people.
       And I don’t.

               Originally, this Court made a finding that, based on the report, that it was
       likely that he would regain competence through treatment. There has been no
       treatment. They’re projecting out that he still won’t be treated for another two
       months.

              I’m going to, based on the new information that I have, find that he would
       not be restored to competence in the allotted time that they have to treat him
       based on the fact that he is not being treated. And, therefore, I will leave the
       People to their other remedy of trying to process [defendant] through the civil
       branch. . . .

                                               ***

       . . . I can disagree with the findings that the [CFP] had said. They thought that,
       based on what they saw, that they would be able to restore him. I have the ability
       to accept their recommendations and their findings or say, you know, I don’t think
       that that’s true. I disagree with the report. And so, I can find that he is
       incompetent to stand trial and that there is not a substantial probability that
       competency will be attained within the time established by law.

       The prosecutor objected, “But doesn’t the Court need to have a hearing and have another
individual who would concur with that opinion[?]” The court disagreed with this approach:

                No. No. It’s . . . a judicial decision. It’s not a, you know, here’s one
       psychiatrist that says this. This is one psychiatrist that says that. It’s a judicial
       determination whether I want to accept their findings or to reject their findings.
       It’s not -- We’ve already -- You all have stipulated to the report, which is fine.

               But I’m finding that that report now doesn’t provide this Court with the
       information that I believe it needs in order to now look back and say: Oh. Okay.
       Well, I still agree that there’s a probability that the defendant, if provided a course
       of treatment, will attain competence to stand trial within the time limits
       established. I don’t believe that that’s true now.

Upon the prosecutor’s reiterated objection, the court continued:

               An objection already for the first thing, that he shouldn’t be released. And
       I don’t think this is a release thing. I think this is the Court can make a finding
       that, based on the inaccuracies now, that the initial report that the Court received
       back on August the 22nd, that incarcerating an incompetent person, first of all,
       isn’t what the Department of Corrections wants to be involved in. I don’t think
       justice says that we incarcerate people who are incompetent. There is a guess as
       to when [defendant] will be treated, based on the letter that we all received.



                                                -5-
                And that’s not sufficient for this Court then to say that there is a
       substantial probability that competence will be attained within the time limits
       established. So, I am changing my findings, based on the new information, and
       will leave the People to try to civilly commit [defendant], since they’re concerned
       about his mental health, as we all are. And if he returns to competence through
       the civil division, then certainly the People should, and I encourage them then, to
       refile this and let a competent person proceed through the criminal justice system.

       The circuit court subsequently entered an order dismissing the action without prejudice
on the following ground: “The court determines defendant is incompetent and likely will not
achieve competency within the prescribed time period. Prosecutor will proceed in civil court.”
The court also entered a “finding and order on competency” repeating its directives.

         The prosecutor appealed the circuit court’s dismissal of the charges against defendant. In
his appellate brief, the prosecutor contends that the circuit court “erred in at least two respects.”
First, the court improperly “determined without holding a hearing that defendant could not attain
competence within 15 months.”          While the court was permitted to change its mind, the
prosecutor posits that a hearing where the prosecutor could present “additional facts germane to
the findings” was necessary. Second, the prosecutor asserts, the court “dismissed the case before
expiration of the 15 months from the initial finding that defendant was incompetent.”

                                  II. STANDARD OF REVIEW

        The circuit court’s dismissal of the charges against defendant was based on its
interpretation of the competency-hearing statutes. We review de novo issues of statutory
interpretation. People v Plunkett, 485 Mich 50, 58; 780 NW2d 280 (2010).

       The primary goal of statutory interpretation is to ascertain and give effect to the
       Legislature’s intent. The first step in ascertaining the Legislature’s intent is to
       review the specific language of the statute. The Legislature is presumed to have
       intended the meaning it plainly expressed and, therefore, clear statutory language
       must be enforced as written. [People v Szabo, 303 Mich App 737, 741; 846
       NW2d 412 (2014) (citations omitted).]

         This case also presents constitutional issues for both sides. On the one hand, the
prosecution of a case is an executive act, and a “trial court’s authority over the discharge of the
prosecutor’s duties is limited” to situations in which a prosecutor’s actions “are unconstitutional,
illegal, or ultra vires.” People v Morrow, 214 Mich App 158, 160-161; 542 NW2d 324 (1995).
See also People v Sierb, 456 Mich 519, 533; 581 NW2d 219 (1998) (“[A]bsent a violation of the
constitution or specific statutory authority, we are not persuaded that we have the authority or the
wisdom to monitor the performance of the elected prosecutor.”). Though a trial judge “may veto
the prosecutor’s decision not to prosecute further,” the opposite is not true; a trial judge generally
may not dismiss charges sua sponte over a prosecutor’s objection. Morrow, 214 Mich App at
162. On the other side of the coin lies a criminal defendant’s constitutional liberty interest. In
this vein, the United States Supreme Court has held that a state may not hold a defendant
indefinitely “simply on account of his incompetency to stand trial on the charges filed against
him.” Jackson v Indiana, 406 US 715, 720; 92 S Ct 1845; 32 L Ed 2d 435 (1972). Such

                                                 -6-
indefinite commitment amounts to a due process violation. Id. at 731. We review de novo such
constitutional considerations. See People v Harper, 479 Mich 599, 610; 739 NW2d 523 (2007).

                                   III. STATUTORY RUBRIC

        In Michigan, the competence of criminal defendants to stand trial is governed by
provisions of the Mental Health Code. MCL 330.2020 et seq. As a general rule, a criminal
defendant is “presumed competent to stand trial.” 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.” Id. The statute places this determination in the court’s hands.
Id. (“The court shall determine the capacity of a defendant . . . .”).

       The prosecutor, defense counsel, and the trial court all hold the power to raise the issue of
a defendant’s competency. MCL 330.2024. When the issue arises, the court must order the
defendant’s examination by the CFP or other qualified facility. MCL 330.2026(1). The
defendant may remain in jail pending and even during the examination. MCL 330.2026(2).
However, a report regarding the defendant’s competence must be presented to the court within
60 days. MCL 330.2028(1).

       “A defendant who is determined incompetent to stand trial shall not be proceeded against
while he is incompetent.” MCL 330.2022(1). Once a defendant becomes competent, the
prosecution may go forward. Whether the CFP opines that the defendant is competent or
incompetent, the court must conduct a hearing within five days of receiving its report. 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).]

The time limit established under MCL 330.2034(1) is “15 months or 1/3 of the maximum
sentence the defendant could receive” if convicted as charged, “whichever is lesser.”
Defendant’s charges come with 10 and 15-year maximum sentences. See MCL 750.84(1); MCL
750.530(1). Accordingly, the 15-month period is applicable in the current case.

        In the event the court determines that the defendant cannot be rendered competent to
stand trial within 15 months, MCL 330.2031 permits the court to direct the prosecutor to pursue
civil commitment procedures:




                                                -7-
         the court may direct a prosecuting attorney to file a petition asserting that the
         defendant is a person requiring treatment as defined by [MCL 330.14011] or
         meets the criteria for judicial admission as defined by [MCL 330.15152] with the
         probate court of the defendant’s county of residence.

        If the court finds a substantial probability that the defendant could be rendered competent
to stand trial within 15 months, MCL 330.2032 governs the provision of treatment:

         (1) If the defendant is determined incompetent to stand trial, and if the court
         determines that there is a substantial probability that, if provided a course of
         treatment, he will attain competence to stand trial within the time limit established
         by [MCL 330.2034], the court shall order him to undergo treatment to render him
         competent to stand trial.

         (2) The court shall appoint a medical supervisor of the course of treatment. The
         supervisor may be any person or agency willing to supervise the course of
         treatment, or the department of mental health.

         (3) The court may commit the defendant to the custody of the department of
         mental health, or to the custody of any other inpatient mental health facility if it
         agrees, only if commitment is necessary for the effective administration of the
         course of treatment. If the defendant, absent commitment to the department of
         mental health or other inpatient facility, would otherwise be held in a jail or
         similar place of detention pending trial, the court may enter an order restricting
         the defendant in his movements to the buildings and grounds of the facility at
         which he is to be treated.

      MCL 330.2034, as discussed, creates a time limit for the provision of treatment, i.e. 15
months:

         (1) No order or combination of orders issued under [MCL 330.2032 or MCL
         330.2040], or both, shall have force and effect for a total period in excess of 15


1
 A “person requiring treatment,” as defined by MCL 330.1401(1), encompasses individuals with
mental illness, not cognitive impairments.
2
    MCL 330.1515 provides:
         A court may order the admission of an individual 18 years of age or older who
         meets both of the following requirements:

            (a) Has been diagnosed as an individual with an intellectual disability.

            (b) Can be reasonably expected within the near future to intentionally or
         unintentionally seriously physically injure himself or herself or another person,
         and has overtly acted in a manner substantially supportive of that expectation.


                                                 -8-
       months or 1/3 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.

       (2) The court shall provide for notification of defense counsel, the prosecution,
       and the medical supervisor of treatment whenever the charges against the
       defendant are dismissed and whenever an order whose stated time period has not
       elapsed is voided by the court.

       (3) If the defendant is to be discharged or released because of the expiration of an
       order or orders under [MCL 330.2032 or MCL 330.2040], the supervisor of
       treatment prior to the discharge or release may 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 [, i.e. a civil commitment].

       When a defendant has been deemed incompetent to stand trial, the medical supervisor of
treatment is required to periodically supplement his or her report to the court “at least once every
90 days.” MCL 330.2038(1)(a). Reports are also required

          (b) Whenever he is of the opinion that the defendant is no longer incompetent
       to stand trial.

          (c) Whenever he is of the opinion that there is not a substantial probability that
       the defendant, with treatment, will attain competence to stand trial within the time
       limit established by [MCL 330.2034]. [MCL 330.2038(1).]

        MCL 330.2040 governs the determination of a defendant’s continued incompetency to
stand trial:

       (1) The court shall forthwith hear and redetermine the issue of the incompetence
       of the defendant to stand trial and, if the defendant is redetermined incompetent to
       stand trial, shall hear and determine whether the defendant has made progress
       toward attaining competence to stand trial during his course of treatment,
       whenever the court receives a report from the supervisor of treatment, unless the
       defense waives the hearing, or whenever deemed appropriate by the court.

       (2) [MCL 330.2030] shall govern hearings held pursuant to this section.

       (3) If the defendant is not redetermined incompetent to stand trial at a hearing
       held pursuant to this section, trial shall commence as soon as practicable. If the
       defendant is redetermined incompetent to stand trial, and if the court determines
       that the defendant has made progress toward attaining competence to stand trial,
       the court may modify or continue any orders it previously issued under [MCL
       330.2032].




                                                -9-
The defendant’s time spent incarcerated or institutionalized pending competency to stand trial is
not simply wasted time; it may be credited against the defendant’s eventual sentence. MCL
330.2042.

       The dismissal of charges is governed by MCL 330.2044, which provides:

       (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.

       (2) When charges are dismissed pursuant to subsection (1), the same charges, or
       other charges arising from the transaction which gave rise to the dismissed
       charges, shall not subsequently be filed against the defendant, except as provided
       in this section.

                                              ***

       (4) The court shall grant permission to again file charges if after a hearing it
       determines that the defendant is competent to stand trial. Prior to the hearing, the
       court may order the defendant to be examined by personnel of the center for
       forensic psychiatry or other qualified person as an outpatient, but may not commit
       the defendant to the center or any other facility for the examination.

                                        IV. ANALYSIS

       The prosecutor correctly contends that the circuit court was not permitted to dismiss the
charges under the circumstances presented.

                                A. PREREQUISITE HEARING

        It is within the power of the circuit court to “determine the capacity of a defendant.”
MCL 330.2020(1). That decision, as with any judicial decision, must be based in fact. See
Demosthenes v Baal, 495 US 731, 735; 110 S Ct 2223; 109 L Ed 2d 762 (1990). The judgment
of a defendant’s competence and “whether there is a substantial probability that the defendant”
could attain competence must be based on “the evidence admitted at the hearing.” MCL
330.2030(2). The circuit court conducted such a hearing on August 22, 2013. The only evidence
at the hearing was the CFP report, which indicated that defendant’s cognitive impairment
rendered him currently incompetent to stand trial, a point with which the court agreed. The
report also included the evaluator’s opinion that education regarding the legal process could
allow defendant “in a basic way, to work with his attorney,” allowing him to potentially attain
competence within 15 months. Although the court was “not completely sold” on this conclusion,
it accepted the report and held defendant for treatment geared toward preparing him for trial.


                                              -10-
        The lack of treatment in the interim prompted the court to change its mind at the October
29 hearing. The only evidence at the hearing was that the Kalamazoo Psychiatric Hospital would
not have an open bed for other six to eight weeks. From this fact alone, the circuit court jumped
to the conclusion that defendant would not be able to attain the requisite level of competency to
stand trial within the statutory 15-month period. More is required by the Mental Health Code,
however.

        MCL 330.2030(2) demands that a competency determination be made “[o]n the basis of
the evidence admitted at the hearing” following the presentation of the CFP report. MCL
330.2040 similarly demands a hearing before a “redetermination” of competency is made. If the
defendant remains incompetent, MCL 330.2040(1) mandates that the court “hear and determine
whether the defendant has made progress toward attaining competence.” Such a hearing must be
held each time the CFP provides a supplemental report (unless waived by the defendant), or at
other times “deemed appropriate by the court.” And any hearing conducted pursuant to MCL
330.2040(1) must comport with MCL 330.2030. MCL 330.2040(2).

       Here, there was no subsequent report from the CFP. Accordingly, the October 29 hearing
was scheduled based on the circuit court’s discretionary power under MCL 330.2040(1). The
October 29 hearing had to be conducted consistent with the procedures of MCL 330.2030. MCL
330.2030(2) provides, “The defense, prosecution, and the court on its own motion may present
additional evidence relevant to the issues to be determined at the hearing.” The court denied the
prosecutor the opportunity to present additional evidence, ruling that competency is “a judicial
decision” and would be made solely on the stipulated CFP report. While the CFP report was
admissible, MCL 330.2030(3), this was not to the exclusion of other evidence the prosecutor
may have wanted to present. Absent a hearing at which the prosecutor could present evidence
regarding defendant’s ability to attain competence, the court improperly rendered any decision
regarding defendant’s continued incompetence.

                                 B. REMEDY OF DISMISSAL

        Moreover, with or without a hearing, dismissal of the charges against defendant was not
the proper remedy. MCL 330.2044 “is the procedural vehicle for enforcing a defendant’s right
not to be confined solely because of incompetency.” People v Miller, 440 Mich 631, 636; 489
NW2d 60 (1992). MCL 330.2044(1) provides only two circumstances meriting a trial court’s
dismissal of the criminal action: (a) upon notification by the prosecutor of his intent to drop the
charges, and (b) if the defendant remains incompetent to stand trial 15 months after the original
incompetency ruling. Neither of these situations existed in this case. The prosecutor repeatedly
expressed his desire to pursue the pending charges. And at the time of the October 29, 2013
hearing, 15 months had not elapsed since the original incompetency determination. Accordingly,
the circuit court lacked statutory authority simply to dismiss the matter.

        In Jackson, 406 US at 717, the defendant was a deaf, mute, severely mentally impaired
man who could only communicate through rudimentary sign language. On two separate
occasions, the defendant stole property from women with a total value of $9. Id. Evidence at a
pretrial competency hearing revealed that no level of treatment could render the defendant
competent to stand trial. Id. at 718-719, 725. Even so, the trial court ordered the defendant’s
commitment “until such time as [the Indiana Department of Mental Health] should certify to the

                                               -11-
court that ‘the defendant is sane.’ ” Id. at 719. The defendant’s appeal travelled all the way to
the Supreme Court because it amounted to an indefinite commitment despite that he had never
been convicted of a criminal offense. Id.

         The Indiana statutes governing “pretrial commitment of incompetent criminal
defendants,” like those in Michigan, grant the authority to render the incompetency decision to
the trial court alone. Id. at 720. The Indiana statutes, however, authorized the court to detain the
criminal defendant indefinitely in the treatment facility until “whenever the defendant shall
become sane.” Id. Moreover, the Indiana scheme did not provide for periodic court review of
the criminal defendant’s mental condition. Id. The defendant in Jackson contended that the
court should have proceeded under the state’s civil commitment procedures to protect the
defendant’s rights. Id. at 721. Under the civil procedure, a “feeble-minded” person may be
released from confinement upon such time that the supervising agency deems that “the mental
and physical condition of the patient justifies it.” Id.

        Relevant to the current appeal, the United States Supreme Court held: “Indiana’s
indefinite commitment of a criminal defendant solely on account of his incompetency to stand
trial does not square with the Fourteenth Amendment’s guarantee of due process.” Id. at 731.
The indefiniteness of the commitment period arises because the statutes take no account of the
defendant’s likelihood of improvement, requiring institutionalization until the defendant attains
sanity. Id. at 725, 727.

        The Court pointed to the federal procedures for managing incompetent criminal
defendants as a contrast. Under 18 USC 4246, a criminal defendant could be held before trial
“until the accused shall be mentally competent to stand trial.” Federal courts had applied the
subsequent statutory provision, 18 USC 4247, to such pretrial commitments even though it
facially applied only to convicted defendants deemed incompetent while serving their sentences.
Jackson, 406 US at 731-732. Section 4247 permitted commitment of a prisoner, rather than
release at the natural end of his sentence, if deemed “insane or mentally incompetent” and a
danger to himself or others. Jackson, 406 US at 732. Under this rubric, the prisoner must be
released once he is no longer a danger. Id. The federal courts applied this statute to create “a
‘rule of reasonableness’ ” for pretrial detention. Id. at 733. Specifically, if a defendant is
deemed incompetent to stand trial, he “can be held only for a ‘reasonable period of time’
necessary to determine whether there is a substantial chance of his attaining the capacity to stand
trial in the foreseeable future. If the chances are slight, or if the defendant does not in fact
improve, then he must be released” or granted a hearing to consider whether he poses a danger.
Id.

       Later that same year, the United States Supreme Court considered the detention of
incompetent individuals beyond the expiration of their criminal sentence. In McNeil v Director,
Patuxent Institution, 407 US 245, 246; 92 S Ct 2083; 32 L Ed 2d 719 (1972), the defendant was
convicted of assault and sentenced to five years’ imprisonment. The sentencing court ordered
the defendant’s transport to Patuxent Institution, rather than prison, “to determine whether he
should be committed to that institution for an indeterminate term” as a defective delinquent. Id.
The defendant remained institutionalized after the expiration of his sentence, the Institution
alleged, because he refused to cooperate so that a valid assessment could be made. Id. The
defendant’s challenge was not to the “criteria and procedures” governing Maryland defective-

                                               -12-
delinquency hearings; no such hearing had yet been conducted. Id. at 248. Rather, the
defendant’s challenge was that “[h]is confinement rest[ed] wholly on the order committing him
for examination, in preparation for such a commitment hearing.” Id. “That order was made, not
on the basis of an adversary hearing, but on the basis of an ex parte judicial determination that
there was ‘reasonable cause to believe that the Defendant may be a Defective Delinquent,’ ” the
Court continued. Id. (citation omitted).

        The Institution in McNeil raised two grounds to support its indefinite commitment of the
defendant: “that a commitment for observation need not be surrounded by the procedural
safeguards (such as an adversary hearing) that are appropriate for a final determination of
defective delinquency,” id. at 249, and that the defendant’s commitment was akin to a civil
contempt because his obstreperous behavior prevented examination. Id. at 250. The Supreme
Court rejected both contentions. In relation to the first, the Court held, “A confinement that is in
fact indeterminate cannot rest on procedures designed to authorize a brief period of observation.”
Id. at 249. Citing Jackson, 406 US at 738, the McNeil Court further held:

       If the commitment is properly regarded as a short-term confinement with a limited
       purpose, as the respondent suggests, then lesser safeguards may be appropriate,
       but by the same token, the duration of the confinement must be strictly limited.
       “Due process requires that the nature and duration of commitment bear some
       reasonable relation to the purpose for which the individual is committed.” Just as
       that principle limits the permissible length of a commitment on account of
       incompetence to stand trial, so it also limits the permissible length of a
       commitment “for observation.” [McNeil, 407 US at 249-250.]

The Court declined to “set a precise time limit” as the Maryland statute actually included a six-
month observation period. Id. at 250. The state had violated the intention of this protection by
permitting repeated extensions. Id.

         In relation to the second ground, the Court noted, “if confinement is to rest on a theory of
civil contempt, then due process requires a hearing to determine whether petitioner has in fact
behaved in a manner that amounts to contempt.” Id. at 251. The hearing would permit the trial
court to determine whether the defendant’s contemptuous conduct was actually caused by mental
illness, or whether it was a willful violation of court orders. Id. In McNeil, the defendant had
essentially been confined on the basis of contempt “potentially for life, although he ha[d] never
been determined to be in contempt by a procedure that comports with due process.” Id. The
meat of McNeil is that a defendant is entitled to a hearing and resolution of his competency
within a reasonable time to ensure he is not held without just cause.

        Just as stated in McNeil, in Michigan, a criminal defendant may not be held indefinitely.
The statutes provide a 15-month period in which the defendant must be rendered competent to
stand trial. If the defendant cannot be so rendered, the prosecutor must pursue civil commitment
measures to maintain the defendant in care. This Court has upheld detainment in the face of this
statutorily-designated reasonable-delay period.

       In People v Davis, 123 Mich App 553, 557; 332 NW2d 606 (1983), a two-year delay
separated “the original order for commitment for forensic examination and the administration of

                                                -13-
the examination.” During that time, the defendant had been the subject of a civil commitment
and absconded for approximately seven months from the psychiatric institution. Id. at 556. The
defendant contended that the circuit court was required to dismiss the charges against him
pursuant to MCL 330.2044(1)(b) because 15 months had elapsed since he was first deemed
incompetent and he had yet to attain competency to stand trial. Davis, 123 Mich App at 557.
This Court disagreed with the defendant’s calculation of the confinement period following the
initial competency determination. Id. Citing Jackson and McNeil, this Court held “that an
individual may not be committed to a psychiatric institution for an extended period except after a
due process hearing.” Id. at 558. In Davis, however, the defendant was held in the psychiatric
facility for a fixed period as a result of his guilty plea, so that no due process violation occurred.
Id. Ultimately, however, the Davis Court remanded for further consideration of the defendant’s
speedy trial claim. Id. at 560.

         In People v Bowman, 141 Mich App 390, 393-396; 367 NW2d 867 (1985), the defendant
was repeatedly found incompetent to stand trial in both state court and a previous federal court
prosecution. He eventually stood trial in state court when the administration of psychotropic
medications rendered him competent to understand the proceedings. Id. at 397. The question in
Bowman was the start date of the 15-month period for purposes of MCL 330.2044. Id. at 398.
This Court’s analysis, however, bears relevance to this appeal. The Bowman Court noted that
“procedures for determining a criminal defendant’s competence to stand trial are ultimately
rooted in principles of due process.” Id. at 399. The statutes therefore must “be interpreted in a
manner that protects incompetent defendants from indefinite denials of liberty.” Id. Construing
various provisions together, this Court held that the mental health department has only 15
months to treat the defendant so he can attain competency. Id. at 399-400. MCL 330.2044
protects a defendant from an indefinite wait after being found incompetent to stand trial, this
Court adjudged. “In order to protect defendants from an indefinite suspension of their right to
trial, as opposed to an indefinite suspension of their right to liberty, [MCL 330.2044] requires
that charges be dismissed 15 months after the determination of incompetency.” Bowman, 141
Mich App at 400.

        The circuit court exaggerated the delay that arguably could be attributed to the
prosecution in this case. Defendant was released on bond two months after his arrest, and
remained free until the August 22 hearing. He was held in the Wayne County Jail from August
22 through October 29, a period of two months and one week. The waiting list for the
Kalamazoo Psychiatric Hospital would have extended defendant’s jail confinement for
approximately four months total after the issue of competency had been raised, but defendant
had in fact been detained for only two months at the relevant time. This delay bears no similarity
to the indefinite confinements in Jackson, 406 US 715, and McNeil, 407 US 245. Moreover,
neither statutory nor constitutional grounds supported dismissal of the charges based on the
delay. We do not suggest that the circuit court’s concern for incarcerating a cognitively-
impaired 17-year-old boy was misplaced, only that the court chose an impermissible remedy.
Ordering defendant’s segregation in the jail or releasing defendant to his family’s care on house
arrest would have served the same purpose without violating the statutory provisions.

       Given the lack of a proper hearing and the short duration of the delay, the court was not
permitted to dismiss the charges over the prosecutor’s objection. We must therefore reverse.


                                                -14-
                      C. ALTERNATE GROUNDS FOR AFFIRMANCE

        Defendant characterizes the legal arguments placed before this Court differently and we
will consider them as alternate grounds for affirming the circuit court’s decision. Defendant
asserts that the circuit court actually dismissed the charges because “the court ordered
examination regarding Defendant’s competency to stand trial did not take place within the
statutorily mandated 60 days.” In this regard, defendant relies upon MCL 330.2028(1), which
directs that when a court orders a forensic examination of a defendant’s competency to stand trial
under MCL 330.2026, the initial CFP report must be submitted within 60 days. This deadline
was not relevant at the October 29 hearing. The court ordered defendant’s examination on June
6, and the CFP had 60 days from that date to submit its initial report. The CFP submitted its
report to the court on August 8 without objection. After the August 22 hearing, the examining
authority had 90 days to submit a follow-up treatment report. MCL 330.2038(1)(a). Less than
90 days elapsed between the August and October hearings and defendant raises no challenge
based on MCL 330.2038.

        Defendant also claims that any error in dismissing the charges was harmless because the
court’s order was entered without prejudice. In this regard, defendant cites Miller, 440 Miller
631, for the proposition that “failure to adhere to the statutory requirements regarding dismissal,
which allow for the refiling of charges, is merely a procedural error resulting in harmless error
and does not require reversal.” Miller is inapposite.

        In Miller, 440 Mich at 634-635, a defendant was found incompetent to stand trial,
attained competency through treatment, but then regressed. The defendant was deemed
incompetent to stand trial for a total period greater than 15 months. Further treatment returned
the defendant to competency, he stood trial, and was convicted of first-degree criminal sexual
conduct. Id. at 635. Once the total period of the defendant’s incompetency to stand trial spanned
15 months, the defendant repeatedly sought dismissal of the charges against him under MCL
330.2044, but the trial court rejected his attempts. Id. This Court reversed the defendant’s
convictions, holding that dismissal was required because the defendant was incompetent at the
time he filed his motion and more than 15 months had elapsed since he was first adjudged
incompetent to stand trial. Id.

        The Supreme Court reversed this Court’s opinion and reinstated the defendant’s
convictions. The Court cited MCL 330.20144(3) and (4), which permit the prosecution to refile
charges against a defendant once he regains competency. Because the charges could be refiled,
the failure to dismiss the charges during the period of incompetency was harmless:

       A violation of [MCL 330.2044(1)(b)] predicated solely on the erroneous denial of
       a motion to dismiss constitutes a ground for reversal only where it is claimed that
       the failure to dismiss denied defendant a substantive right, to wit: the barring of
       the charge or prejudice caused by the delay resulting from a violation of [MCL
       330.2044(1)(b)]. Failure to dismiss after expiration of a total period of fifteen
       months is not error on which reversal can be predicated. [Miller, 440 Mich at
       636.]



                                               -15-
The Court continued:

       Although hardly a model of clarity, the structure of the act and the legislative
       history suggest that [MCL 330.2044(3) and (4)] are limitation provisions and that
       reversal of a conviction would be warranted in respect to nonlife offenses only
       where the time lapse from initial adjudication of incompetence exceeds one third
       of the maximum sentence or causes prejudice to the defendant’s substantive
       rights. [Id. at 637.]

        Unlike in Miller, the circuit court in this case dismissed the charges against defendant
because he had yet to begin treatment geared toward attaining competency, and treatment would
likely be delayed another two months. The court did not dismiss the charges because the 15-
month statutory period had expired. Indeed, defendant’s period of incompetency had lasted
nowhere near this limitation period. Based on the delay, the circuit court reversed its initial
determination and found that defendant would not likely attain competence within the 15-month
statutory period. However, the delay in beginning defendant’s treatment was an insufficient
basis to support that defendant was unlikely to attain competence. The circuit court’s focus must
be “whether, if provided a course of treatment, a substantial probability exists that a defendant
found to be incompetent will attain competence within the time limit established.” Id. at 637-
638 (emphasis added). Once the circuit court initially determined that defendant could attain
competence, the Kalamazoo Psychiatric Hospital had a full “15 months within which to treat
defendant.” Bowman, 141 Mich App at 400. The hospital notified the court that it would be
unable to treat defendant for another six to eight weeks, amounting to a total four-month delay
between being adjudged incompetent to stand trial and beginning treatment. Though such a
delay is not preferable and should be avoided if at all possible, it is mere speculation that
defendant would remain incompetent for the entire 15 months provided by statute. MCL
330.2034(1). Therefore, the circuit court lacked statutory authority to dismiss the charges and its
error was not harmless under Miller.

        We reverse and remand for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Karen M. Fort Hood




                                               -16-
