FOR PUBLICATION                                            FILED
                                                         Feb 07 2013, 8:51 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                             DARREN BEDWELL
Attorney General of Indiana                    Indianapolis, Indiana

ANDREW A. KOBE
Deputy Attorney General
Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                              )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )       No. 49A02-1206-CR-526
                                               )
WILLIAM COATS,                                 )
                                               )
       Appellee-Defendant.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Barbara Collins, Judge
                           Cause No. 49F08-1004-FD-30232



                                    February 7, 2013

                              OPINION - FOR PUBLICATION


BARNES, Judge
                                    Case Summary

       The State appeals the trial court’s denial of its motion to commit William Coats to

the Indiana Division of Mental Health and Addiction (“DMHA”). We affirm.

                                          Issue

       The State raises one issue, which we restate as whether the trial court properly

denied the State’s motion to commit Coats to the DMHA for competency restoration

services.

                                          Facts

       On April 15, 2010, the State charged Coats, who was born in 1943, with Class D

felony sexual battery against his granddaughter.       Coats had been diagnosed with

Alzheimer’s disease, and Coats’s counsel filed a motion to determine Coats’s

competency to stand trial. The trial court assigned two doctors to examine Coats. Both

doctors diagnosed Coats with dementia. Noting that dementia is a progressive disease,

both doctors found that Coats would not improve over time and that there was little

chance of Coats being restored to competency.

       At a hearing on February 7, 2012, the trial court found that Coats was incompetent

and “will not return to competency.” Tr. p. 6; see also Appellant’s App. p. 31. The trial

court noted that Coats was residing with his wife and was not a public safety risk at that

time. The State requested that Coats be committed to the DMHA, but the trial court

denied the motion.

       On February 29, 2012, the State filed a written request that Coats be committed to

the DMHA pursuant to Indiana Code Section 35-36-3-1. The State argued that Coats’s

                                            2
commitment was required due to the trial court’s finding that Coats was incompetent. On

March 20, 2012, Coats filed a motion to dismiss the charges due to his incompetency.

Coats argued that, since he could not be returned to competency, his commitment would

result in a violation of his constitutional rights.

          At another hearing on June 15, 2012, Coats’s counsel again argued that Coats was

incompetent and could not be restored to competency. Coats’s counsel asked that the

charges be dismissed. The State again asked that Coats be committed to the DMHA.

The trial court denied both motions and reset the matter for another hearing in three

months. The trial court granted the State’s motion to certify the order for interlocutory

appeal, and this court accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).

                                                  Analysis

          The issue is whether the trial court properly denied the State’s motion to commit

Coats to the DMHA.1 According to the State, the trial court failed to follow the relevant

competency statutes when it denied the State’s request to commit Coats. Coats argues

that his commitment would violate his constitutional rights.

          “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 (Ind. 2011). “In the interpretation of statutes, the trial court’s ‘goal is to

determine and give effect to the intent of the legislature in promulgating it.ʼ” Ryan v.

State, 900 N.E.2d 43, 44-45 (Ind. Ct. App. 2009) (quoting Porter Dev., LLC v. First Nat’l


1
    Coats does not appeal the denial of his motion to dismiss.


                                                       3
Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind. 2007)). Our primary resource for this

determination is the language used by the legislature. Id. Thus, “our interpretation

begins with an examination of the statute’s language.” Id. “We presume that the words

of an enactment were selected to express their common and ordinary meanings.” Id.

“Where the statute is unambiguous,” we “read each word and phrase in this plain,

ordinary, and usual sense, without having to resort to rules of construction to decipher

meanings.” Id. Statutory interpretation is a question of law reserved for the court and is

reviewed de novo. Shaffer v. State, 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003). De

novo review allows us to decide an issue without affording any deference to the trial

court’s decision. Id.

       The State sought to have Coats committed to the DMHA pursuant to Indiana Code

Chapter 35-36-3, which governs comprehension to stand trial. Indiana Code Section 35-

36-3-1 provides that, if the trial court finds the defendant lacks the ability to understand

the proceedings and assist in the preparation of his or her defense, the trial court:

              shall delay or continue the trial and order the defendant
              committed to the division of mental health and addiction.
              The division of mental health and addiction shall provide
              competency restoration services or enter into a contract for
              the provision of competency restoration services by a third
              party in the:

              (1) location where the defendant currently resides; or

              (2) least restrictive setting appropriate to the needs of the
              defendant and the safety of the defendant and others.

Within ninety days, the superintendent of the institution where the defendant is

committed must certify to the trial court whether the defendant has a “substantial

                                              4
probability” of attaining competency “within the foreseeable future.” Ind. Code § 35-36-

3-3(a); see also Curtis, 948 N.E.2d at 1153. If a “substantial probability does not exist,”

the DMHA “shall initiate regular commitment proceedings under IC 12-26.” I.C. § 35-

36-3-3(b). If there is a substantial probability, the DMHA has six months from the

original admission or initiation of services to continue providing competency restoration

services. Id.; Curtis, 948 N.E.2d at 1153.       At the end of those six months, if the

defendant has still not attained competency, the DMHA must initiate regular commitment

proceedings. I.C. § 35-36-3-4.

       The trial court here found that Coats was incompetent, and the State does not

dispute that finding. The State argues, however, that once an incompetency finding was

made, the trial court was statutorily required to commit Coats to the DMHA. Instead, the

trial court found that Coats would not return to competency and denied the request to

commit him. The State contends that the statutory framework does not allow the trial

court to make a determination as to whether Coats can be returned to competency; rather,

that decision is left to the DMHA. Coats argues that the State’s interpretation of the

statute conflicts with Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845 (1972). According

to Coats, in light of the trial court’s finding that he cannot be returned to competency, his

commitment for competency restoration services would violate his equal protection and

due process rights.

       We begin by discussing the United States Supreme Court’s opinion in Jackson.

There, the defendant was charged with two robberies but was found to be incompetent.

He was committed to the Department of Mental Health until the Department could certify

                                             5
that he was “sane.” Jackson, 406 U.S. at 719, 92 S. Ct. at 1848. Defendant’s counsel

contended that the trial court’s order amounted to a life sentence without ever being

convicted of a crime because the defendant would never be competent. The Indiana

statutory scheme at that time made “no statutory provision for periodic review of the

defendant’s condition by either the court or mental health authorities.” Id. at 720, 92 S.

Ct. at 1849.

       The Supreme Court noted that the statute did not make the likelihood of the

defendant’s improvement a relevant factor and that the record established that the

defendant’s chances of “ever meeting the competency standards” were “at best minimal,

if not nonexistent.” Id. at 727, 92 S. Ct. at 1852. Further, the defendant’s long-term

commitment under the competency statute subjected him “to a more lenient commitment

standard and to a more stringent standard of release than those generally applicable to all

others not charged with offenses . . . .” Id. at 730, 92 S. Ct. at 1854. As a result, the

Court concluded that the defendant’s commitment deprived him of his equal protection

rights under the Fourteenth Amendment. The Court also 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. Furthermore, even if it
               is determined that the defendant probably soon will be able to
               stand trial, his continued commitment must be justified by
               progress toward that goal.


                                              6
Id. at 738, 92 S. Ct. at 1858 (footnote omitted).

       The statutes at issue here do not raise the same concerns that the court addressed

in Jackson. The current competency statutes require a report to the trial court within

ninety days regarding whether the defendant has a substantial probability of attaining

competency. I.C. § 35-36-3-3(a). If a substantial probability does not exist, the DMHA

must institute regular commitment proceedings. I.C. § 35-36-3-3(b). If a substantial

probability does exist, the DMHA must again report to the trial court within six months

of the original admission or initiation of competency restoration services. Id. If the

defendant does not attain competency during those six months, the DMHA must institute

regular commitment proceedings. I.C. § 35-36-3-4. Coats makes no argument that the

ninety day and six month reporting requirements in the current statutory scheme exceed

the “reasonable period of time necessary to determine whether there is a substantial

probability that he will attain that capacity in the foreseeable future.” Jackson, 406 U.S.

at 738, 92 S. Ct. at 1858. Thus, the concerns addressed by Jackson are not evident here.

       It is clear that the competency statute required the trial court to commit Coats to

the DMHA for competency restoration services once the trial court found Coats

incompetent. See I.C. § 35-36-3-3. However, it is also clear that, in this case, those

competency restoration services would be ineffective given Coats’s progressive

dementia. Our supreme court addressed the competency statutes in Curtis v. State, 948

N.E.2d 1143 (Ind. 2011). There, the defendant was diagnosed with dementia, and one

doctor concluded that he would “never be restored” to competency and another

concluded that it was “unlikely” he would be restored to competency. Curtis, 948 N.E.2d

                                              7
at 1146. The trial court stated that the defendant would “never become competent,” but

the trial court then denied the State’s request to commit him to the DMHA and denied the

defendant’s motion to dismiss the charges. Id.

       The defendant appealed the denial of his motion to dismiss. In discussing the

defendant’s due process rights, our supreme court noted that the statutory procedures

“establish a comprehensive method that balances the various interests at stake.” Id. at

1153. “Involuntary commitment is a clear deprivation of the defendant’s liberty that can

be justified only on the basis of legitimate state interests.” Id.

              The State has dual interests in committing an incompetent
              defendant: (1) to restore the accused to competency due to the
              “right of the public and the defendant to the prompt
              disposition of criminal charges pending against him” and (2)
              to protect the defendant “against being required to answer to
              charges that she lacks the capacity to understand or assist her
              attorney in defending against.”

Id. at 1154 (quoting State v. Davis, 898 N.E.2d 281, 289 (Ind. 2008)). “Of course, the

State’s interests cannot be realized if there is a finding that a defendant cannot be restored

to competency.”      Id.   Noting that the trial court had never found the defendant

incompetent nor committed him, our supreme court held: “There is no viable

fundamental-fairness argument when [the defendant] has not been involuntarily

committed and when there has been no appropriate finding that he will never be restored

to competency.” Id. at 1154.

       This court’s opinion in State v. J.S., 937 N.E.2d 831 (Ind. Ct. App. 2010), trans.

denied, is also relevant here. There, a sixteen-year-old juvenile had multiple social and

developmental disorders. The State filed a delinquency petition alleging that the juvenile

                                               8
had committed various sex offenses, and the trial court eventually found that he was

incompetent. The trial court then dismissed the delinquency petition.

       The appeal concerned the dismissal of the delinquency petition, not the failure to

commit the juvenile. This court noted that, although the trial court did not make a finding

regarding whether the juvenile would regain competency, the record showed that he was

“unlikely to regain competency before he reaches the age of eighteen, if ever.” J.S., 937

N.E.2d at 834. After reviewing the circumstances and the purposes of the juvenile justice

system, this court held that “it is clear that J.S. is receiving the care, protection, treatment,

and rehabilitation that he needs.” Id. at 835. This court found that the juvenile court’s

decision to dismiss the delinquency petition did not unduly endanger the public.

       Although neither Curtis nor J.S. addressed the exact situation and issues here, both

emphasized the purposes of the relevant statutes. Our supreme court has also emphasized

the purposes of the competency statutes in Davis, where it noted:

              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, Strunk v. United States, 412 U.S. 434,
              439 n. 2, 93 S. Ct. 2260, 37 L.Ed.2d 56 (1973), 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. Drope [v. Missouri, 420
              U.S. 162, 171, 95 S. Ct. 896 (1975)]. Commitment of an
              accused thus focuses on the State’s interest in the accused’s
              restoration to competency and necessarily entails a finding of
              probability that the accused can be so restored.

Davis, 898 N.E.2d at 289.



                                               9
        Here, the trial court expressly found that restoration to competency is improbable

and unlikely, and the report supports that finding. Although the better practice in most

cases is to follow the statutory commitment procedures, given Coats’s progressive

dementia and the trial court’s finding that he will not be restored to competency, the

purposes of the competency restoration process cannot be met by following those

procedures here. It is clear that Coats’s dementia will progress, and there simply is no

hope nor medical reason to believe that competency will be restored. The discussion in

Curtis informs and instructs us that “the State’s interests cannot be realized if there is a

finding that a defendant cannot be restored to competency.” Curtis, 948 N.E.2d at 1154.

We conclude that the trial court properly denied the State’s motion to commit Coats. 2

                                              Conclusion

        The trial court properly denied the State’s motion to commit Coats to the DMHA.

We affirm.

        Affirmed.

BAKER, J., concurs.

RILEY, J., dissents with opinion.


2
  We also note Coats’s argument that the denial of the motion to commit Coats under the competency
restoration statute does not prevent the prosecutor from bringing regular commitment proceedings under
Indiana Code Chapter 12-26-7. That chapter applies to the commitment of an individual alleged to be
mentally ill and either dangerous or gravely disabled whose commitment is expected to last more than
ninety days. I.C. § 12-26-7-1. The chapter contains a list of those that may file regular commitment
procedures, including a health officer, police officer, friend, relative, spouse, or guardian of the
individual, the superintendent of the facility where the individual is present, or the prosecuting attorney
under certain circumstances. I.C. § 12-16-7-2. Those circumstances are not present here, and the State
correctly notes that the prosecuting attorney would be unable to file for a regular commitment. However,
the temporary commitment procedures do not have the same requirements as to who may file. See I.C. §
12-26-6-2(b) (noting that a petitioner must be at least eighteen years old). Thus, if appropriate, a
prosecutor could file for temporary commitment.
                                                    10
                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                 )
                                                  )
       Appellant-Plaintiff,                       )
                                                  )
              vs.                                 )    No. 49A02-1206-CR-526
                                                  )
WILLIAM COATS,                                    )
                                                  )
       Appellee-Defendant.                        )


RILEY, Judge, dissenting


       I respectfully dissent from the majority’s decision to affirm the trial court’s denial

of the State’s motion to commit Coats to the Department of Mental Health and Addiction

(DMHA).      The statutory scheme does not allow the trial court discretion over the

statutory commitment procedures. If the trial court finds that a defendant lacks the ability

to understand the proceedings and assist with the preparation of his defense, “it shall

delay or continue the trial and order the defendant committed” to the DMHA. Ind. Code

§ 35-36-3-1(b) (emphasis added). Consequently, the statute does not give the trial court

discretion to decline to order commitment even where it concludes that the defendant

could never be returned to competency.




                                             11
       In support of its conclusion, the majority latches on to one sentence in Curtis v.

State, 948 N.E.2d 1143 (Ind. 2011). There, the supreme court noted that the State’s dual

interests of competency restoration and protection of the accused “cannot be realized if

there is a finding that a defendant cannot be restored to competency.” Id. at 1159. From

this premise, the majority reasons that if “the purposes of the competency restoration

process cannot be met” there is no need to follow the statutory commitment procedures.

Slip Op. at *10. Yet, it is a stretch to conclude that the process itself must be abandoned

where the trial court has determined that the defendant lacks competency.

       Indeed, that result is expressly foreclosed by I.C. § 35-36-3-1(b), which requires

the trial court to take the additional step of ordering commitment following its

determination that the defendant lacks competency. Following commitment, the DMHA

superintendent or authorized third party contractor has ninety days to observe and provide

treatment to an incompetent defendant.      I.C. § 35-36-3-3.    If there is a substantial

probability that the defendant will attain the ability to understand and assist with his

defense, DMHA has up to six months to provide further competency restoration services.

I.C. § 35-36-3-3(b). However, if substantial probability does not exist, whether at the

outset or after a six month interim provision of competency restoration services, DMHA

must institute regular commitment proceedings under I.C. art. 12-26. I.C. § 35-36-3-3(b);

-4.

       The majority concedes as much. Its admission that “[a]lthough the better practice

in most cases is to follow the statutory commitment procedures” is nothing more than a

concession that procedures should be followed.        Slip Op. *10.     Indeed, there are

                                            12
compelling reasons why this is so. Foremost is the clear duties assigned to the trial court

and the DMHA. The trial court determines whether the defendant is incompetent in the

first instance, but the statutory scheme entrusts the ultimate determination on competency

to the superintendent, who has not only the skills to make such observations but also the

time within which to do so.           In sum, the express statutory directive and the

comprehensive nature of the statutory commitment scheme overcome even those cases

where a progressive illness renders no hope nor medical reason to believe competency

will be restored. I would therefore reverse the trial court’s denial.




                                             13
