PRESENT: All the Justices

LAM DANG
                                             OPINION BY
v.   Record No. 130553             JUSTICE ELIZABETH A. McCLANAHAN
                                          JANUARY 10, 2014
COMMONWEALTH OF VIRGINIA

               FROM THE COURT OF APPEALS OF VIRGINIA


      A jury convicted Lam Dang of one count each of murder and

violation of a protective order.    Relying on Code § 19.2-169.1,

Dang argues on appeal that the circuit court erred in failing to

order a second competency evaluation after his counsel

discovered new information regarding Dang's life history and

physical trauma he suffered as a child.     We reject Dang's

argument and will affirm his convictions.

                            I. BACKGROUND

      A.   Competency Evaluation Report

      After Dang was charged with murder and felony protective

order violation for the death of Nguyet Lu, the Fairfax County

Juvenile and Domestic Relations Court granted Dang's motion for

a competency evaluation pursuant to Code § 19.2-169.1.     On

January 12, 2011, Dr. Kristen A. Hudacek, a court-appointed

psychologist, submitted an evaluation of competency report in

which she found Dang competent to stand trial.     Her evaluation

was based on the background information provided to her by Dang

and his counsel as well as her own clinical observations.
Because Dang's preferred speaking language is Vietnamese, an

interpreter assisted in translation during Dr. Hudacek's

evaluation.   Dang, who was 40 years old at the time of the

evaluation, informed Dr. Hudacek that he was born in South

Vietnam and moved to Philadelphia at the age of 17.    He denied

having any prior psychological problems or history of

hospitalization for mental health related issues.    Dr. Hudacek

noted that despite her inability to gain additional information

from collateral sources, she "believes the information is an

accurate portrayal of [Dang's] current functioning as it relates

to the question of competency to stand trial."

     In evaluating whether Dang was competent to stand trial,

Dr. Hudacek considered Dang's understanding of the legal

process, appreciation of the legal process as it applied to his

case, capacity to communicate with his counsel, and capacity to

make decisions.   According to Dr. Hudacek, Dang understood he

was charged with "[m]urder, killing someone, second degree" and

could receive "up to 40 years in jail." 1   He also understood the

roles of the jury, the judge, his lawyer and the Commonwealth's

Attorney.   Dang understood his attorney was "working on his

behalf" and "the importance of relaying information about the



     1
       Although the Commonwealth ultimately pursued a conviction
for murder in the first degree, Dang gave the correct sentence
for murder of the second degree. See Code § 18.2-32.
                                 2
facts of his case."   Dang stated "he would speak to his attorney

if he wanted to relay information about any concerns he had

during a hearing or trial."   Although "Dang was mostly able to

provide a rational, logical, coherent explanation of facts that

would aid his attorney in defending him," Dr. Hudacek noted that

he "does become very focused on providing information that may

paint him in a favorable light."       According to Dr. Hudacek, Dang

"was able to discuss his legal situation in a manner that

demonstrated weighing his options and basing decisions upon the

potential best outcome given the circumstances and after

conferring with counsel."

     Dr. Hudacek stated that while Dang's speech was coherent,

"he frequently shifted topics to the time of the offense and

facts related to his relationship with the alleged victim."      For

example, prior to the start of the interview, Dang "immediately

began speaking about his case after [Dr. Hudacek] introduced

herself" and "was asked three times to stop talking until his

interpreter arrived."   The information Dang related to Dr.

Hudacek "included facts about the case that would have been best

kept for discussion with his attorney or following full

disclosure of the nature and purpose of the interview."      Finding

it necessary to repeatedly re-direct Dang to the questions

posed, Dr. Hudacek noted Dang "seemed highly focused on



                                   3
providing 'his side of the story'" and/or "worried about his

situation."

     Dr. Hudacek reported that Dang "was highly concerned about

going to trial, as he believed [his life] would be over."    He

presented "in a manner that appear[ed] related to anxiety about

the alleged charges and potential sentence he is facing."    Dr.

Hudacek explained that his situational anxiety "does not suggest

that [he] suffers from a major mental illness that would affect

abilities relevant to competency to stand trial."   Although she

noted that Dang tended to "become anxious and excitable" in

persisting to relay facts regarding his case, his impulse in

this regard "is consistent with most defendants who face legal

charges."

     In determining that Dang was competent to stand trial, Dr.

Hudacek stated that "it does not appear that [Dang] currently

suffers from a mental illness and/or cognitive or intellectual

impairment."   Furthermore, Dr. Hudacek did not believe that

"Dang's capacity to communicate with counsel is impaired by

mental illness."   Based on Dr. Hudacek's evaluation and the

information available to her, she concluded that "Dang has

sufficient, present ability to consult with his attorney with a

reasonable degree of rational understanding," "possesses a

rational as well as factual understanding of the proceedings



                                 4
against him," and "is able to assist in preparing for his own

defense."

     B.      Motion for Second Competency Evaluation Before Trial

     Dang's counsel moved for a second competency evaluation on

December 1, 2011, eleven months after the first evaluation and

four days prior to his trial, which was scheduled to begin on

December 5. 2   According to the motion, on November 30, 2011,

Dang's counsel learned "extensive information about Mr. Dang's

history, family, and childhood which dramatically differs from

the versions previously provided by Mr. Dang" giving counsel

reason to believe that Dang "has over a 30 year history of

suffering from developmental disabilities, cognitive functioning

difficulties, effects of traumatic brain injury, and mental

illness including but not limited to post-traumatic stress

disorder."

     At the hearing on the motion, counsel stated that the new

information regarding Dang's history was discovered when plans

were being made for Dang's family to travel from Pennsylvania

for the trial.    In particular, Mrs. Hoa Pham, who identified




     2
       The motion was filed on Thursday and noticed for hearing
on the Friday before the trial's commencement on the ensuing
Monday. The motion also included a request for a second
evaluation of sanity at the time of the offense. The request
for the evaluation of sanity at the time of the offense is not
before us on appeal.
                                  5
herself as Dang's biological mother, told defense counsel that

beginning at the approximate age of 6 years, Dang was subjected

to repeated physical assaults from teenagers and young adults as

a result of "his appearance as someone who was American." 3   Mrs.

Pham said she found Dang "beaten in the head with rocks," and

"there were times when she was afraid his brain was going to

come through his skull."   By Mrs. Pham's account, the beatings

continued until Dang was in sixth or seventh grade at which

point he stopped going to school.    She believed the history of

physical trauma to Dang adversely affected his mental health and

potentially caused traumatic brain injury impairing his

cognitive functioning.   Counsel also informed the court that

Dang's sister "confirmed that she saw Mr. Dang exhibiting

symptoms of mental illness or similar trauma as well."




     3
       Defense counsel explained that Dang had informed counsel
he lived with an adoptive family and had never met his
biological mother. While he had been reluctant to share names
and contact information of any family members, he eventually
provided counsel with the name of a family member from whom
counsel obtained contact information for Mrs. Pham. Counsel
initially relied upon a family member to relay information from
Mrs. Pham, who resides in Philadelphia and speaks only
Vietnamese. However, when the defense team sentencing advocate
spoke directly to Mrs. Pham, by telephone through an
interpreter, she provided new information. According to Mrs.
Pham, Dang's father was an American serviceman, and when Dang
began attending school, he "began to appear to be more American
physically."
                                 6
     As a result of the information learned from Mrs. Pham and

Dang's sister, counsel spoke with the mental health professional

who conducted the evaluation of Dang's sanity at the time of the

offense.   According to counsel, this individual indicated that

such trauma could support a potential diagnosis of post-

traumatic stress disorder and, in a severe case, it would not be

uncommon for the patient to develop delusions of his life to

replace the actual traumatic life history.      Counsel also

informed the court that communications with Dang had been

difficult during the three months defense counsel had been

working with him, that Dang was repeatedly confused and unable

to recall recent discussions, and unable to focus conversations

on issues that are relevant.   Based on the newly reported

history of head trauma and counsel's concern that Dang might be

"operating under some delusion," counsel asked for an evaluation

to determine "whether [Dang] is able to effectively communicate

with us and assist us in preparing his defense."

     Finding no probable cause to believe that Dang "lacks

substantial capacity to understand the proceedings against him

or to assist his attorney in his own defense," the circuit court

denied the motion.   The court explained that the report of the

competency evaluation previously conducted indicated that Dang

understood the proceedings against him and was able to assist

his attorney in his own defense.       According to the court, while

                                   7
there appeared to be "an element of a lack of candor," it found

no basis in the record to grant the motion.

     C.   Plea Colloquy 4

     On the morning of trial, the circuit court conducted a plea

colloquy with Dang, in which Dang pled not guilty to the charges

of murder and violation of a protective order. 5    During the

colloquy, Dang provided his name and date of birth, denied being

under the influence of alcohol or drugs, stated that he

understood the charges against him and had discussed these

charges with his counsel.   Dang told the court he had given his

attorneys the names of any witnesses who could testify on his

behalf, that he was satisfied with the services provided by his

attorneys, and that he voluntarily made the decision to plead

not guilty.

     Dang also stated that he understood he had a right not to

testify on his own behalf or to testify if he so chose, and that

his counsel had discussed with and advised him regarding the

question of whether he should testify or not.      In response to

the court's inquiry as to his decision to have his case tried by

a jury or judge, Dang expressed his desire to be tried by a



     4
       Interpreters were present throughout the trial
proceedings.
     5
       Prior to conducting the plea colloquy, defense counsel
renewed the motion for a competency evaluation, which the
circuit court denied for the reasons given at the hearing.
                                 8
jury.    Dang acknowledged that if the jury found him guilty, the

jury would also determine the appropriate punishment.       Dang

confirmed that he understood all of the questions from the court

and had no questions of his own for the court.

        During the plea colloquy, there were instances in which

Dang responded to the court's questions by providing facts or

explanation regarding the murder. For example, when asked if

Dang had given his counsel the names of witnesses, Dang

initially replied that he had and that he "was drunk."       The

court interrupted Dang and explained that Dang was not being

asked for his defense but whether he had given the names of

witnesses to his counsel and whether they were present.       A

discussion then ensued between the court and Dang as to the

witnesses that might testify on Dang's behalf.       Additionally, in

response to the court's inquiry as to whether Dang's plea of not

guilty was voluntarily made, Dang stated that he saw "the

video," referring to a security camera recording of the murder.

He added, "I don't believe that I killed her," "I did not intend

[to kill her]," and "She hit me."        Upon being redirected by the

court to the question asked, Dang responded appropriately.

             THE COURT: Mr. Dang, that's not what I'm asking
             you. The question I'm asking you is this: You
             are pleading not guilty; is that correct?

             THE DEFENDANT:   Yes.



                                     9
            THE COURT: Are you pleading not guilty because
            you think that's what you ought to do and it's a
            voluntary decision on your part?

            THE DEFENDANT:   Yes.

     Following the colloquy, the circuit court accepted Dang's

plea of not guilty, finding it had been made freely and

voluntarily.    Because Dang told the court there was information

he still would like to share with his counsel, the circuit court

took a recess at the conclusion of the colloquy to afford Dang

an opportunity to meet with counsel and "see if there's anything

else he wants to tell you."

     D.      Renewed Motion for Competency Evaluation and Second
          Colloquy

     Upon returning from the recess, Dang's counsel renewed,

again, the motion for an evaluation of Dang's competency to

stand trial.    According to counsel, Dang expressed feeling that

"he is not normal right now," is "forgetting things," and "only

understands a little bit about what is happening."        In addition,

counsel told the court that Dang expressed "for the first time

ever in our communications with him that he believes he is

facing capital punishment."    Counsel believed that Dang's

"mental status is deteriorating, which is not unusual for people

who suffer from mental illness."         Counsel stated that "as of

just a few minutes ago – during this recess – in counsel's

opinion, there's probable cause to believe that Mr. Dang both


                                    10
does not understand the nature of the proceedings against him

and is unable to effectively communicate with counsel in order

to assist in his defense and is, in fact, unable to participate

in his defense in several critical ways."

     In response to counsel's motion, the circuit court stated:

               But I also have the advantage of additional
          information now [than at the hearing], and that
          is that I've done the not-guilty colloquy with
          your client, and what strikes me is that he
          certainly was able to understand my questions –
          in some cases I had to explain them, but that's
          not unusual – and his responses were intelligent.
          And, it is true, he wanted to tell me more than I
          was asking him, but that's also not unusual.

               So, I also have the benefit of having now
          heard from your client directly for the first
          time, and what strikes me is that he came across
          to me as entirely rational. There was something
          he wanted to tell you, which I gave him the
          opportunity to do, so you could talk with him.

     At defense counsel's request, 6 the circuit court conducted

an additional colloquy with Dang:

          THE COURT:   Do you understand who I am?

          THE DEFENDANT:     Why?

          THE COURT:   No.    Do you understand who the judge
          is?




     6
       Before the circuit court conducted the colloquy, it
expressed concern to Dang's counsel regarding the risk that
statements made by Dang could be used by the Commonwealth during
trial. While acknowledging that risk, Dang's counsel confirmed
the request for an inquiry "into Mr. Dang's appropriateness for
an evaluation of his competency to stand trial."
                                    11
THE DEFENDANT:   Yes, I do.

THE COURT:   And what role does the judge play in
the case?

THE DEFENDANT:   To listen to the case.

THE COURT:   And what do I do after I listen to
the case?

THE DEFENDANT:   I don't know.

THE COURT: Do you understand that you're on
trial today?

THE DEFENDANT:   Yes, I know.

THE COURT:   Do you know what you're charged with?

THE DEFENDANT:   Yes.   Murder.

THE COURT: And do you know what else you're
charged with?

THE DEFENDANT:   No.

THE COURT: Do you know what the sentence is that
if you're found guilty that a jury might impose
in this case or might decide was the appropriate
sentence for murder?

THE DEFENDANT:   Yes, but it was not my intention
–

THE COURT: No, but I'm asking you, what is the
most sentence that a jury could impose in this
case? Do you know?

THE DEFENDANT: Yes. My lawyer did mention to me
that maybe thirty years.

THE COURT:   Who are your lawyers?

THE DEFENDANT:   Right here next to me.

THE COURT:   Do you know their names?


                        12
            THE DEFENDANT:   Sarah.

            THE COURT:   And what about the other attorney?

            THE DEFENDANT:   Robert. 7

            THE COURT: Okay. And do you know that there is
            also a prosecutor in the courtroom who is
            involved in the case?

            THE DEFENDANT:   I have never heard the word
            "prosecutor."

            THE COURT: What about the Commonwealth Attorney?
            Have you ever heard that phrase?

            THE DEFENDANT:   No.

            THE COURT:   Now, how are you feeling today?

            THE DEFENDANT: I feel okay, but since I've been
            here I haven't been normal. I feel kind of
            weird. I feel sometimes I'm okay, but I'm not
            crazy. But my mind sometimes is not here in some
            situations. It doesn't seem right to me.

                 I just want you to know that I do kind of
            understand, but I just don't feel okay today.
            I've never known about the law or anything. I
            just know I go to work, I go home to my family
            and take care of myself. Other than that, I
            never, like, know anything about the law.

            THE COURT: Do you know that the maximum penalty
            for murder is life in prison if the Commonwealth
            is not seeking the death penalty?

            THE DEFENDANT: I don't know.    I don't know why I
            even kill people.

            THE COURT:   You don't know what?




     7
         Dang's trial attorneys were Lysandra Pachuta and Robert
Frank.
                                   13
          THE DEFENDANT: I don't know why I even kill.      I
          don't know why.

          THE COURT: Do you know that you're also charged
          with violating a protective order?

          THE DEFENDANT:   I don't know.   I didn't know.

          THE COURT: Well, when I asked you questions a
          little while ago, you said you were aware of the
          fact that you were charged with violating a
          protective order. You pled not guilty to it.

          THE DEFENDANT: I know I killed someone, but I
          plead not guilty because it was not my intention
          – because they hit me, they attacked me, and I
          couldn't take it no more. And I have evidence –
          I have the work from the doctor, that I had stab
          wounds.

               And I was drunk, and then I had a knife and
          I just went after her. And I stabbed and I threw
          the knife away. I put the knife down, and I
          don't know what else happened. And then the
          police took me to the hospital, and then the next
          day is when I realized that I killed someone.

          THE COURT:   Okay.   Have a seat.

     Following the colloquy, the circuit court denied the

renewed motion for a second competency evaluation, explaining,

          certainly the answers the Defendant gave were not
          by any means a showing of perfect clarity, but I
          believe he understands why he's here today and he
          understands what we're doing.

               He certainly has a – he articulates a
          defense to the offenses – the principal offense
          with which he's charged, which is the first-
          degree murder. In the colloquy he both pled not
          guilty and confirmed that he was the person
          charged with that event.

               And when I combine everything I've heard
          today from the Defendant, I do not see a basis to

                                 14
          order the competency exam – in other words, to
          change the decision that I made last Friday – and
          that will remain my decision.

     At trial, the evidence proved Dang entered into a

restaurant in Fairfax County where Nguyet Lu was eating with her

boyfriend and another individual.      Dang approached Lu and

stabbed her with a knife.   Lu died from stab wounds to her neck

and abdomen, and was pronounced dead at the scene.      Upon

completion of the three-day trial, the jury found Dang guilty of

first-degree murder and violation of the protective order.       In

accordance with the verdict, the circuit court imposed sentences

of life and five years' imprisonment on the two convictions.

Dang appealed his convictions to the Court of Appeals, which

denied his petition for appeal by per curiam order and again by

a three-judge panel.

                            II.     ANALYSIS

     On appeal, Dang argues the Court of Appeals erred in

denying his appeal because there was probable cause to believe

he was incompetent to stand trial under Code § 19.2-169.1(A).

     A.   Code § 19.2-169.1(A)

     "It is well established that the Due Process Clause of the

Fourteenth Amendment prohibits the criminal prosecution of a

defendant who is not competent to stand trial."      Medina v.

California, 505 U.S. 437, 439 (1992); see also Drope v.

Missouri, 420 U.S. 162, 171-72 (1975); Pate v. Robinson, 383

                                  15
U.S. 375, 385(1966).   Therefore, due process requires that

states provide criminal defendants "access to procedures for

making a competency evaluation."     Medina, 505 U.S. at 449. 8

     The General Assembly has provided criminal defendants

access to such procedures in Code § 19.2-169.1.     Pursuant to

this statute, "the court shall order that a competency

evaluation" of the defendant be performed by a mental health

expert if "there is probable cause to believe that the defendant

. . . lacks substantial capacity to understand the proceedings

against him or to assist his attorney in his own defense."        Code

§ 19.2-169.1(A).   This language reflects the standard for

competency articulated by the Supreme Court of the United

States, which is "whether the defendant has 'sufficient present

ability to consult with his lawyer with a reasonable degree of

rational understanding' and has 'a rational as well as factual

understanding of the proceedings against him.'"     Godinez v.

Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States,

362 U.S. 402, 402 (1960)).   See Orndorff v. Commonwealth, 271



     8
       The Supreme Court of the United States has held that a
state procedure requiring a hearing on competency where the
evidence raises a "bona fide doubt" as to the defendant's
competency is constitutionally adequate, as is a state procedure
requiring an examination where there is "reasonable cause" to
believe that the defendant is incompetent. Drope, 420 U.S. at
172-73.



                                16
Va. 486, 500, 628 S.E.2d 344, 351 (2006) (discussing ultimate

determination of whether defendant is competent pursuant to Code

§ 19.2-169.1(E) in light of constitutional standard of

competency).

     When the defendant has already been afforded a competency

evaluation in which he is found competent, the circuit court

need not order a second evaluation unless it is presented with a

substantial change in circumstances.   See Drope, 420 U.S. at 181

(trial court required to order competency examination when there

were "circumstances suggesting a change that would render the

accused unable to meet the standards of competence to stand

trial"); Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993) (no

constitutional requirement for additional competency hearing

where there is "no substantial change" in defendant's

condition); People v. Kelly, 822 P.2d 385, 412 (Cal. 1992)

(where defendant has already been found competent, it is

unnecessary to conduct a second hearing on competency unless the

court is presented with a "substantial change of circumstances"

or new evidence "casting a serious doubt on the validity of that

finding"); State v. Lafferty, 20 P.3d 342, 360 (Utah 2001)

(same); State v. Sanders, 549 S.E.2d 40, 52 (W. Va. 2001)(same).

     B.   Standard of Review

     The statutory mandate, that an evaluation be ordered if

there is "probable cause to believe" that the defendant is

                               17
incompetent to stand trial, Code § 19.2-169.1(A), involves the

exercise of discretion by the circuit court in weighing the

facts presented on the question of competency.   See Orndorff,

271 Va. at 500, 628 S.E.2d at 351 (determination of competency

is a question of fact that will not be disturbed on appeal

unless plainly wrong); see also Johnson v. Commonwealth, 53 Va.

App. 79, 93, 669 S.E.2d 368, 375 (2008) ("We review a circuit

court's decision not to order a competency evaluation only for

abuse of discretion.").   This is so because the circuit court

"will often prove best able to make more fine-tuned mental

capacity decisions, tailored to the individualized circumstances

of a particular defendant."   Indiana v. Edwards, 554 U.S. 164,

177 (2008); see also United States v. Mason, 52 F.3d 1286, 1289

(4th Cir. 1995) (whether "reasonable cause" to believe a

defendant may be incompetent exists under 18 U.S.C. § 4241(a) is

a question left to the discretion of the trial court). 9



     9
       See also Denes v. State, 508 N.E.2d 6, 9-10 (Ind. 1987)
(decision of whether to order competency hearing reviewed for
abuse of discretion); State v. Barnes, 262 P.3d 297, 309 (Kan.
2011) (decision of whether to order competency evaluation
reviewed for abuse of discretion); State v. Hewett, 538 A.2d
268, 269 (Me. 1988) (decision of whether to order competency
hearing reviewed for abuse of discretion); Morales v. State, 992
P.2d 252, 254 (Nev. 2000) (decision of whether to order
competency evaluation reviewed for abuse of discretion); People
v. Morgan, 662 N.E.2d 260, 261 (N.Y. 1995) (same); State v.
Drayton, 243 S.E.2d 458, 459 (S.C. 1978) (same); Garza v. State,
522 S.W.2d 693, 694 (Tex. Crim. App. 1975) (decision of whether
to order competency hearing reviewed for abuse of discretion);
                                18
     We have held that a circuit court abuses its discretion

"when a relevant factor that should have been given significant

weight is not considered; when an irrelevant or improper factor

is considered and given significant weight; and when all proper

factors, and no improper ones, are considered, but the court, in

weighing those factors, commits a clear error of judgment."

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346,

352, 717 S.E.2d 134, 137 (2011) (quoting Kern v. TXO Production

Corp., 738 F.2d 968, 970 (8th Cir. 1984)); see also Drope, 420

U.S. at 179 (reviewing whether state courts failed "to give

proper weight" to evidence regarding competency to stand

trial). 10

     C.      Circuit Court's Finding of No Probable Cause



In re Fleming, 16 P.3d 610, 615 (Wash. 2001) (decision of
whether to order competency evaluation reviewed for abuse of
discretion); United States v. Davis, 61 F.3d 291, 304 (5th Cir.
1995) (decision of whether to order competency hearing under 18
U.S.C. § 4241 reviewed for abuse of discretion); Zapata v.
Estelle, 588 F.2d 1017, 1020-21 (5th Cir. 1979) (decision by
state court of whether to order competency hearing reviewed for
abuse of discretion); United States v. Andrews, 469 F.3d 1113,
1121 (7th Cir. 2006) (decision to hold hearing or order
examination under 18 U.S.C. § 4241 reviewed for abuse of
discretion).
     10
       Although the dissent agrees that a circuit court's
finding that probable cause did not exist to order a competency
evaluation should be reviewed for an abuse of discretion, it
seems to review the circuit court's decision here de novo. Under
an abuse of discretion standard of review, it is neither our
function to “consider” the evidence, nor to determine that “the
facts here are sufficient to meet the probable cause standard
fixed by Code § 19.2-169.1(A).”
                                  19
     Applying these principles, we do not believe the circuit

court abused its discretion in finding that there was no

probable cause to believe that Dang "lack[ed] substantial

capacity to understand the proceedings against him or to assist

his attorney in his own defense."   Code § 19.2-169.1(A).

     1.   Family Information and Past Trauma

     First, Dang argues that the circuit court failed to give

due weight to the information regarding Dang's family history

that came to light shortly before trial.

     According to Dang, "[t]he most significant factor in this

case that established probable cause for a competency evaluation

was that Mr. Dang appeared to have constructed a completely

false life history, or at least one that significantly deviated

from his mother's recollection as expressed to defense counsel."

Because Dang failed to disclose the history of serious head

trauma suffered during his childhood in Vietnam and the

existence of his biological family in Philadelphia, defense

counsel suggests Dang may have constructed "an entire delusion

about his past life to replace his real, traumatic life."

Relying on defense counsel's conversation with the evaluator who

performed Dang's sanity at the time of the offense evaluation,

Dang contends that such a delusion would not be unusual if he

had suffered post-traumatic stress disorder, and the trauma



                               20
reportedly experienced by him could support such a potential

diagnosis.

     Furthermore, citing treatises discussing the relationship

between traumatic brain injury and violent criminal behavior,

Dang argues this information may have "substantiated an

evaluation" of Dang for traumatic brain injury or another form

of organic brain injury.    Thus, according to Dang, while his

failure to communicate about his life history could have been

characterized as a lack of candor, it could also have been "a

symptom of an underlying mental illness or organic brain injury

that was affecting his competence."

     We disagree that the circuit court failed to give proper

weight to the information learned by defense counsel from Mrs.

Pham and Dang's sister.    In response to defense counsel's

argument that Dr. Hudacek made note of the fact that she did not

have access to collateral sources, the circuit court pointed to

Dr. Hudacek's conclusion that despite her inability to gain

additional information from collateral sources, she "believes

the information is an accurate portrayal of [Dang's] current

functioning as it relates to the question of competency to stand

trial."   As the circuit court explained at the hearing, it

reviewed Dr. Hudacek's report, noting that the evaluation was

"thorough" and the report "goes into great detail as to the



                                 21
defendant's understanding of the proceedings against him and his

ability to assist his attorney in his own defense."

     As the circuit court properly recognized, the issue before

it was Dang's present ability to understand the proceedings and

assist his counsel as was addressed in Dr. Hudacek's report.     A

history of mental illness does not necessarily render a

defendant incompetent to stand trial.   See Bramblett v.

Commonwealth, 257 Va. 263, 273, 513 S.E.2d 400, 407

(1999)(defendant diagnosed as presently suffering from

delusional disorder competent to stand trial).   As the Fourth

Circuit Court of Appeals has explained, "neither low

intelligence, mental deficiency, nor bizarre, volatile, and

irrational behavior can be equated with mental incompetence to

stand trial."   Walton v. Angelone, 321 F.3d 442, 460 (4th Cir.

2003) (citation omitted).   Rather, as noted above, the legal

test for competency is "whether the defendant has 'sufficient

present ability to consult with his lawyer with a reasonable

degree of rational understanding' and has 'a rational as well as

factual understanding of the proceedings against him.'"

Godinez, 509 U.S. at 396 (quoting Dusky, 362 U.S. at 402)

(emphasis added).   Therefore, the evidence supporting probable

cause must be directed to the question of defendant's competency

at the time of trial.



                                22
    Thus, even if Dang's failure to disclose an accurate history

to his counsel and his evaluator was, as he posits, an

indication of an underlying mental illness or brain injury,

there was no information before the circuit court to relate any

possible mental illness or injury to Dang's present competence.

In light of Dr. Hudacek's opinion that was addressed to Dang's

"current functioning," the circuit court appropriately inquired:

          Focusing on his competency today, is it not fair
          to say that what you're identifying is that your
          client has not been candid with you, which does
          not seem to me to be a competency issue, and then
          beyond that, you're just speculating about what
          effect it could – it might have?

(Emphasis added.)

     The circuit court was properly focused on the issue of

Dang's present competence.   The information gained from Mrs.

Pham related to injuries reportedly sustained by Dang decades

prior to the murder and did not provide evidence of a

substantial change in Dang's competence.   With nothing more than

counsel's speculation that the information from Mrs. Pham and

Dang's sister could potentially change Dr. Hudacek's opinion or

otherwise bear on Dang's present ability to understand the

proceedings or assist in his defense, we do not believe the

circuit court failed to give proper weight to such information.

     2.   Dang's Responses at Trial




                                23
     Dang also contends the circuit court neglected to afford

due weight to the answers given by him during the colloquies

conducted by the court on the morning of trial.   According to

Dang, throughout the plea colloquy and the subsequent colloquy

conducted by the court at defense counsel's request, Dang gave

nonresponsive answers indicating his lack of comprehension of

the criminal proceedings against him.

     While many of Dang's responses to the circuit court's

questions were indeed nonresponsive, as the circuit court

recognized, Dang's tendency to shift focus to the facts

regarding the murder and explain "his side of the story" was

addressed extensively by Dr. Hudacek in her report.   According

to Dr. Hudacek, Dang's behavior in this regard was "related to

anxiety about the alleged charges and potential sentence he is

facing," "does not suggest that [he] suffers from a major mental

illness that would affect abilities relevant to competency to

stand trial," and "is consistent with most defendants who face

legal charges."   In other words, the responses Dang gave to the

circuit court were consistent with the behavior he exhibited

during his evaluation.   Despite this behavior, Dr. Hudacek

concluded that "Dang has sufficient, present ability to consult

with his attorney with a reasonable degree of rational

understanding," "possesses a rational as well as factual



                                24
understanding of the proceedings against him," and "is able to

assist in preparing for his own defense."

     During the plea colloquy, Dang certainly gave appropriate

and rational answers to the court's initial inquiry regarding

his understanding of the charges against him, the role of

defense counsel, his discussions with counsel regarding possible

witnesses on his behalf, his right to testify and be tried by a

jury, and the voluntariness of his plea.    Although Dang

attempted to interpose his explanation for the murder, when

redirected to the question, he gave appropriate responses.

     During the subsequent colloquy, Dang's propensity to

interject and explain his actions became more pronounced.    This

was entirely in accord with Dr. Hudacek's opinion that Dang's

inclination toward nonresponsive answers reflected apprehension

"about going to trial" and the "potential sentence he is

facing."   As Dang told the court during the second colloquy, "I

feel okay, but since I've been here I haven't been normal."

Dang also stated, "I just want you to know that I do kind of

understand, but I just don't feel okay today."    Dang's increase

in anxiety after the plea colloquy was evidenced by defense

counsel's observation that Dang's mental status had deteriorated

"as of just a few minutes ago – during this recess."    It was

reasonable, therefore, to conclude that Dang's responses during

the second colloquy were a reflection of heightened apprehension

                                25
of going to trial, rather than a sudden deterioration in his

understanding of the nature of the proceedings on the morning of

trial. 11   In fact, as the circuit court remarked, Dang was

sufficiently competent to "articulate[] a defense" to the murder

charge.

      Recognizing that circuit courts "are in the best position

to make competency determinations, which at bottom rely not only

on a defendant's behavioral history and relevant medical

opinions, but also on the [circuit] court's first-hand

interactions with, and observations of, the defendant and the

attorneys at bar, we appropriately afford them wide latitude."

United States v. Bernard, 708 F.3d 583, 593 (4th Cir. 2013).      In

light of Dr. Hudacek's opinion that Dang's inclination to shift

focus represented situational anxiety regarding the proceedings

and potential punishment, we do not believe the circuit court




      11
       Given Dang's difficulty with the English language, it is
not surprising that he referred to his counsel, Lysandra
Pachuta, as "Sarah." Likewise, we do not find it remarkable
that Dang was unable to articulate the charge of violation of a
protective order or was unfamiliar with the terms "prosecutor"
and "Commonwealth Attorney." Based on Dang's responses during
the plea colloquy, he knew he was charged with murder and
violation of a protective order, understood he was in court to
be tried for those charges, and was well aware that he faced
substantial punishment if found guilty by the jury. It is also
evident from the record that Dang knew his defense counsel and
their role in assisting him with his defense.
                                  26
failed to properly consider and weigh Dang's responses to the

court.

     3.     Defense Counsel's Concerns

     Dang also argues that the circuit court failed to give

sufficient weight to defense counsel's concerns regarding his

competency.

     As the Supreme Court of the United States has recognized,

due process does not require courts to "accept without

question[ing] a lawyer's representations concerning the

competence of his client."    Drope, 420 U.S. at 177 n.13.   "[A]n

expressed doubt" by defense counsel "is unquestionably a factor

which should be considered."     Id.   While "counsel's

representations deserve serious consideration" by the circuit

court, they "cannot, however, assume an importance not merited

by their content, particularly in those situations in which the

[circuit] court has had an opportunity to make its own

observations."    People v. Morino, 743 P.2d 49, 52 (Colo. App.

1987).    "We must also bear in mind the [circuit] court's

institutional advantage over [this Court] in evaluating the

demeanor of the defendant and the statements of counsel about

the defendant's mental state."     United States v. Rickert, 685

F.3d 760, 767 (8th Cir. 2012).

     Based on our review of the record, we believe the circuit

court gave defense counsel's concerns serious consideration.

                                  27
During the hearing on the motion for a second evaluation,

defense counsel told the court that communications with Dang had

been "extremely difficult," that Dang was "repeatedly confused,"

and was "unable to focus conversations on the issues that are

relevant at the moment."   After hearing argument, the circuit

court acknowledged its consideration of the "representations

made by [defense counsel]," but noted it did not have "any

evidence" or "any testimony" before it to find probable cause in

light of Dr. Hudacek's report that "goes into great detail as to

the defendant's understanding of the proceedings against him and

his ability to assist his attorney in his own defense."

     On the morning of trial, when counsel requested that the

court conduct a colloquy with Dang to inquire into his

competency, the circuit court did not dismiss counsel's concerns

but granted counsel's request.   In fact, seeking direction as to

counsel's specific concerns, the circuit court inquired of

counsel as to "what questions you want [the court] to ask him,"

commenting that "[i]t may strike you as obvious, but it doesn't

strike me as obvious."   After defense counsel supplied the court

with suggested questions, the court conducted the colloquy in

accord with defense counsel's suggestions.

     Furthermore, the concerns advanced by defense counsel at

the hearing and trial were the same concerns dating back to

previous counsel's representation and were, therefore, present

                                 28
when Dr. Hudacek performed her evaluation.    In Dang's initial

motion for a competency evaluation, which was granted, defense

counsel asserted that Dang spoke and understood "limited

English" and communicated to defense counsel with assistance of

an interpreter.   According to the motion, Dang "was unable to

express an understanding of important aspects of the proceedings

against him and his rights related thereto, notwithstanding

defense counsel's efforts to inform him."    Dr. Hudacek's report

addressed Dang's tendency to shift focus and give nonresponsive

answers, but concluded his behavior was a symptom of situational

anxiety not incompetence.

     In sum, the record reflects that the circuit court

carefully considered the representations made by counsel both at

the hearing and at trial.   However, the circuit court also had

the benefit of Dr. Hudacek's report addressing the issues of

concern to counsel and the opportunity to observe Dang and his

interaction with defense counsel.     We cannot conclude that the

circuit court committed an abuse of discretion in weighing the

significance of these factors.

     4.   Timing of Dang's Motion

     Finally, Dang argues that the circuit court erred in

placing significant weight on the timing of the motion for the

second competency evaluation.



                                 29
     At the December 2 hearing, when defense counsel explained

that the new information from Mrs. Pham was gained when counsel

used an interpreter to speak with her rather than relying on

family, the circuit court asked whether an interpreter could

have been used earlier.   Specifically, the circuit court stated:

"[T]his matter has been continued several times and here we are,

literally on the eve of trial – trial is set for Monday – and

you're bringing things to my attention that there's just no

reason that I can see why they weren't raised in September or

October."   Again, the circuit court asked, "If you had problems

communicating with your client back in October or September, why

were you not back in court then seeking a new competency

evaluation? Why now?"   In response to the court's comments,

defense counsel explained that while it might have been possible

to discover the information earlier, counsel had not, and the

information learned from Mrs. Pham indicated potential causes

for counsel's concerns regarding Dang's mental health.   This

discussion between the circuit court and counsel continued

intermittently throughout the hearing.

     After defense counsel concluded argument in support of the

motion for a second competency evaluation, the circuit court

noted that it had "focused considerably on the fact that this is

occurring on the eve of trial" and "whether the information that

was brought to my attention yesterday could have been available

                                30
months ago."   Nevertheless, the circuit court acknowledged that

defense counsel was "correct that the focus is on whether or not

there's probable cause at this time, regardless of whether it

could have been produced to the [c]ourt at an earlier point in

time."(Emphasis added.)   The circuit court then proceeded to

discuss the standard set forth in Code § 19.2-169.1 and, in

particular, whether there was probable cause to conclude that

Dang lacked substantial capacity to understand the proceedings

or assist his counsel.

     It is clear, then, that while the circuit court was

understandably concerned about the timing of the motion and why

counsel had not obtained the information at an earlier time if

communications had, in fact, been difficult, it was properly

focused on the question of Dang's competency as of the date of

trial.   Furthermore, the circuit court made no comment regarding

the timing of the motion when it was renewed at trial.

Therefore, we reject Dang's underlying premise that the circuit

court placed significant weight on the timing of his motion.

                          III.    CONCLUSION

     In sum, we conclude the circuit court did not abuse its

discretion in finding there was no probable cause to order a

second competency evaluation.    Accordingly, we will affirm the

judgment of the Court of Appeals.

                                                           Affirmed.

                                 31
JUSTICE MIMS, dissenting.

     The majority determines that the circuit court did not

abuse its discretion when it failed to order a second competency

evaluation for a defendant with possible organic brain injury

who displayed signs of confusion and incoherence at trial.    In

my view, that conclusion does not comport with the evidence in

the record and the controlling precedent in Drope v. Missouri,

420 U.S. 162 (1975).   I therefore must dissent.


     A court is required to order a competency evaluation if it

finds “at any time after the attorney for the defendant has been

retained or appointed and before the end of trial . . . that

there is probable cause to believe that the defendant . . .

lacks substantial capacity to understand the proceedings against

him or to assist his attorney in his own defense.”   Code § 19.2-

169.1(A) (emphasis added). *




*
  The statutory mandate coincides with defendants’ Fourteenth
Amendment due process rights. See Medina v. California, 505
U.S. 437, 439 (1992); compare Code § 19.2-169.1(A) with Godinez
v. Moran, 509 U.S. 389, 396 (1993) (stating the inquiry for
competency “is whether the defendant has sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding and has a rational as well as a factual
understanding of the proceedings against him.”) (internal
quotation marks omitted).
     We review a trial court’s ruling whether such probable

cause exists for abuse of discretion.   Johnson v. Commonwealth,

53 Va. App. 79, 93, 669 S.E.2d 368, 375 (2008).   A court abuses

its discretion in three principal ways:   “when a relevant factor

that should have been given significant weight is not

considered; when an irrelevant or improper factor is considered

and given significant weight; and when all proper factors, and

no improper ones, are considered, but the court, in weighing

those factors, commits a clear error of judgment.”     Lawlor v.

Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 861 (2013)

(quoting Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va.

346, 352, 717 S.E.2d 134, 137 (2011)), cert. denied ___ U.S.

___, 134 S. Ct. 427 (2013).

     In Drope, the Supreme Court of the United States set forth

the factors relevant to a court’s consideration of whether an

inquiry into a defendant’s competency is necessary.    They

include “evidence of [his] irrational behavior, his demeanor at

trial, and any prior medical opinion on competence to stand

trial.”   420 U.S. at 180.   “[E]ven one of these factors standing

alone may, in some circumstances, be sufficient.”     Id.   The

Court also made clear that when the signs of incompetency

manifest themselves is not an appropriate factor for



                                 33
consideration.    See id. at 181 (“Even when a defendant is

competent at the commencement of his trial, a trial court must

always be alert to circumstances suggesting a change that would

render the accused unable to meet the standards of competence to

stand trial.”).

     The majority determines that the circuit court did not

abuse its discretion when it declined to order a second

competency evaluation because the report following the first

evaluation concluded that Dang was competent.    It holds that a

new evaluation was necessary only if there was a substantial

change in circumstances after the initial evaluation.    In my

view, there was a substantial change in circumstances and the

circuit court therefore abused its discretion in its application

of the Drope factors.

          On the surface, the circuit court’s consideration of the

report corresponds to the third Drope factor.     However, the

value of the report was substantially undermined by the

subsequent revelation that Lang had endured physical abuse

during childhood, which may have resulted in organic brain

injury.    This information was not known at the time of the

evaluation.    Thus, the report could not take it into account.

Moreover, the fact that Dang was unable or unwilling to disclose


                                  34
it to the evaluator may itself have been symptomatic of an

underlying disorder impacting his competence to stand trial.

Similarly, the discovery that Dang had misrepresented his family

history and relationships may have been clinically significant.

     Courts commonly have no mental health training and

consequently are ill-prepared to reach competency conclusions

without the assistance of professional mental health clinicians.

Code § 19.2-169.1(A) requires a competency evaluation precisely

for the purpose of providing such assistance.   In sum, we simply

do not know the clinical relevance of this new information.

However, the record establishes that Dang’s possible brain

injury and his failure to disclose both it and his true family

history and relationships were sufficient to give at least one

mental health practitioner pause.

     Accordingly, in my view, these new facts amounted to a

substantial change in circumstances by calling into question the

accuracy of the conclusions in the competency evaluation report.

Therefore, the value of the report’s conclusions to satisfy the

third Drope factor was diminished.

     Dang’s failure to disclose his possible brain injury and

his family history and relationships also may constitute

evidence of irrational behavior under the first Drope factor.


                               35
We again do not know whether the behavior was symptomatic of an

underlying disorder and, if so, whether that disorder may have

affected his competency to stand trial.

     Perhaps most compelling, however, is Dang’s behavior during

the circuit court’s colloquy, which goes to the second Drope

factor.   As the majority emphasizes, the competency inquiry

turns on the defendant’s “present ability to consult with his

lawyer with a reasonable degree of rational understanding.”

Godinez v. Moran, 509 U.S. 389, 396 (1993) (emphasis added)

(internal quotation marks omitted).   Dang’s behavior during the

colloquy is possibly the best indicator of his “present

ability.”   Yet, in addition to being generally nonresponsive

when his answers did not correspond to the court’s questions,

his answers revealed that he did not understand the charges

against him, did not understand the potential sentences that

would follow from conviction, did not understand what a

prosecutor was, and did not know the names of his attorneys.

Dang’s failure to understand this information during the

colloquy calls into question his competency at that time.

     The circuit court and the majority dismiss this behavior as

being consistent with the evaluation report’s findings.    But,

again, that report was predicated on incomplete and inaccurate


                                36
information.   In the absence of professional guidance, neither

we nor the circuit court can ascertain whether the report’s

conclusions would have been the same if the evaluator had known

all the relevant facts.    Similarly, we cannot know whether

Dang’s behavior during the colloquy was consistent with what the

report described as anxiety, or whether it was consistent with,

for example, an irrational panic or some other underlying mental

disturbance which may or may not have affected his legal

competence.

     In short, the majority considers the first report in

isolation, without considering the information Dang failed, for

whatever reason, to disclose.    It similarly considers Dang’s

behavior during the colloquy to be consistent with the flawed

report.   But under Drope, neither the report nor Dang’s behavior

can be considered in isolation.    Rather, the circuit court, and

this Court on review, is obligated to consider all the facts to

determine whether probable cause existed to justify a second

competency evaluation.    In my view, the facts here are

sufficient to meet the probable cause standard fixed by Code §

19.2-169.1(A).

     Finally, the circuit court was improperly influenced by the

fact that the deficiencies in the report were not known until


                                  37
“the eve of trial.”   Although the majority attempts to minimize

the effect of this influence, the court itself admitted that it

“focused considerably on the fact that this is occurring on the

eve of trial . . . and whether the information that was brought

to my attention yesterday could have been available months ago.”

Both Drope and Code § 19.2-169.1(A) make clear that information

calling the defendant’s competence into question is to be

considered without regard to when or how the information is made

known to the trial court.   The question was not whether the

information could have been presented earlier, or even whether

it was withheld for tactical advantage (an assertion made by

neither the Commonwealth nor the circuit court).   The

defendant’s constitutional right to due process and the

statutory procedure that safeguards it are preeminent.    Rather,

the question is whether the information, whenever made known to

the trial court, calls into doubt the defendant’s competence at

that time.

     I therefore must conclude that the circuit court abused its

discretion.   It gave improper weight to the flawed competency

report, the third Drope factor.    It failed to consider possible

evidence of Dang’s irrational behavior, namely his failure to

disclose possible brain injury and his family history and



                                  38
relationships during the competency evaluation, the first Drope

factor.   It failed to consider the possible deficiencies in the

competency report when it concluded that Dang’s behavior during

the colloquy was consistent with the report, the second Drope

factor.   It improperly considered the timing of the information

raising new questions about Dang’s competence.   Accordingly, I

must dissent from the majority’s opinion affirming its judgment.




                                39
