       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON
                                                No. 67894-9-1
                     Appellant,
                                                DIVISION ONE
       v.

                                                UNPUBLISHED OPINION
ALEXANDER ORTIZ-ABREGO,
                                                FILED: August 17, 2015
                     Respondent.


       Leach, J. — The State appeals a trial court's decision to grant Alexander

Ortiz-Abrego a new trial after finding him incompetent to stand trial or to be

sentenced.     Because the trial court applied the wrong legal standard for

competency, we reverse and remand for further proceedings consistent with this

opinion.


                                      FACTS


       In October 2008, the State charged Ortiz-Abrego with two counts of rape

of a child.   On May 10, 2010, the first day of trial, counsel and the trial court

expressed some concern about Ortiz-Abrego's competency.             After a brief

colloquy with Ortiz-Abrego, the trial court found him competent.      After Ortiz-

Abrego rejected a plea offer, the State amended the information to add a third

count of rape of a child.
NO. 67894-9-1 / 2




       The court recessed on May 17, 2010, to allow neuropsychologist Dr. Tedd

Judd to evaluate Ortiz-Abrego. Judd, a certified Hispanic mental health specialist

and cross-cultural specialist, interviewed Ortiz-Abrego in Spanish. In his report,

Judd described      Ortiz-Abrego as      having "a   borderline mentally retarded

intellectual level with concrete thinking," with an IQ [intelligence quotient] around

70.1 Judd identified a specific learning disability in auditory comprehension, with

weaknesses "in math and in quantitative thinking generally. The cause of this

disability is unknown, but it is probably lifelong." Judd performed a specific test

for memory malingering, which showed "good test effort when he fully

understood the task."2

       Judd clarified, "A specific evaluation of competence to stand trial was not

requested and a full evaluation of this capacity was not completed." However,

Judd emphasized that Ortiz-Abrego's "borderline intelligence, concrete thinking,

and auditory comprehension disability will have a substantial impact on his ability

to participate in a trial.   Most notably, he will have great difficulty in tracking,

understanding, and remembering the proceedings." Judd suggested a number of

ways to compensate for Ortiz-Abrego's limitations:



       1 Dr. Tedd Judd estimated Ortiz-Abrego's intellectual level at 70, "in the
borderline range and consistent with this achieved IQ."
       2 "Malingering" is "false or grossly exaggerated symptoms intentionally
produced for some external purpose." State v. Sisouvanh, 175 Wn.2d 607, 613,
290 P.3d 942 (2012).
                                          -2-
NO. 67894-9-1 / 3



      Adjudicative Accommodations:

              Mr. Ortiz-Abrego's       cognitive   impairments     can   be
      accommodated in the courtroom by frequent breaks to explain
      things. This explanation may be most efficiently carried out by a
      Spanish-speaking assistant who has some understanding of court
      proceedings, his case, and cognitive limitations. Simple written
      summaries in Spanish can help with his memory limitations, but
      direct translations of legal documents will be of limited use because
      of the limitations in his reading comprehension. Such summaries
      can be particularly helpful with decision-making, by summarizing
      the alternatives along with the advantages, disadvantages, and
      chances of success. To assure his comprehension, he should be
      asked to explain back what he has been told. If he is unable to
      explain, then he should be asked short answer, multiple choice or
      yes/no questions about the content, for example, "If you accept this
      plea bargain, how long will you go to prison for?" Simply asking
      him if he has understood something is almost certain to be an
      inaccurate and ineffective assurance of comprehension.

            When he is testifying, questions should be brief, simple, and
      concrete. Interruptions to his narrative should be minimized. If
      mathematical precision is required, the numbers should be written
      down for him and the discrepancies explained, and he should be
      permitted to revise his responses to try to clarify the situation.

             If challenging the testimony of others is an expected
      function, then there should be a break after the testimony that he
      could potentially challenge that would allow an assistant to explain
      the testimony to him and elicit potential challenges.

Defense counsel made no motions based on Judd's report, nor did the parties or

the court raise the competency issue again during trial.

       On May 27, 2010, a jury found Ortiz-Abrego guilty on counts I and III. On

June 3, 2010, defense counsel filed a motion to arrest judgment or for a new trial,

based on the competency issue, stating in a declaration, "[Cjounsel is concerned

that Mr. Ortiz Abrego lacked the capacity to understand the process with which
                                        -3-
NO. 67894-9-1 / 4




he was involved for three weeks," given his cognitive limitations.3 In June 2011,

following inconclusive competency reports from Western State Hospital, the court

held a contested competency hearing, ultimately finding that Ortiz-Abrego was

"not competent to stand the trial we gave him" or to be sentenced.

      On October 3, 2011, the trial court entered extensive findings of fact and

conclusions of law. The court found by a preponderance of the evidence that at

the time of trial, Ortiz-Abrego understood the charges against him. The court

expressed doubt about Ortiz-Abrego's ability to appreciate his peril but declined

to make a finding that he lacked such ability "because it is possible that a more

skilled attorney utilizing the type of accommodations suggested by Dr. Judd

could have helped the defendant understand this." The court found Ortiz-Abrego

incompetent to be sentenced:

             2. However, because none of the accommodations Dr. Judd
      suggested were made, I find by a preponderance of the evidence
      that the defendant was unable to understand the trial process, the
      testimony of witnesses, and argument as a result of the
      combination of his borderline intellectual functioning and his
      auditory processing disability. Therefore, I find that he lacked the
      capacity to assist his attorney in the absence of the
      accommodations outlined by Dr. Judd, as set forth in Exhibit 4.

            3. I find by a preponderance of the evidence that the
      defendant was not competent to stand the trial we gave him,
      because he was not capable of properly understanding the nature



      3 Counsel stated in her declaration that she had attempted to explain
sentencing options "at least more than 15 times."
                                       -4-
NO. 67894-9-1 / 5



       of the trial proceeding or rationally assisting his legal counsel in the
       defense of his cause.


               4. I find that the defendant is not competent to be sentenced
       because even if the Court were to adopt the accommodations
       recommended by Dr. Judd, he did not understand the proceeding
       that [led] to his conviction.

       The trial court granted defense's motion for a new trial.           The State

appeals.

                              STANDARD OF REVIEW


       We review trial court competency decisions for abuse of discretion.4 A

court abuses its discretion when its decision is manifestly unreasonable or based

on untenable grounds or reasons.5 An abuse of discretion standard also applies

to a trial court's decision granting a motion for a new trial.6

       A trial court's wide discretion allows it to operate within "a 'range of

acceptable choices.'"7 The reviewing court retains authority to "clarify and refine

the outer bounds of the trial court's available range of choices and, in particular,

to identify appropriate legal standards."8 We review de novo whether the trial




       4 Sisouvanh. 175 Wn.2d at 620, 622 n.3; State v. Ortiz, 104 Wn.2d 479,
482, 706 P.2d 1069 (1985); State v. Lawrence, 108 Wn. App. 226, 232, 31 P.3d
1198 (2001), abrogated on other grounds by State v. Delgado, 148 Wn.2d 723,
63 P.3d 792 (2003).
      5 State v. Magers, 164Wn.2d 174, 181, 189P.3d 126(2008).
      6 See Palmer v. Jensen, 132 Wn.2d 193, 197-98, 937 P.2d 597 (1997).
       7 Sisouvanh, 175 Wn.2d at 623 (internal quotation marks omitted) (quoting
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
       8 Sisouvanh, 175 Wn.2d at 623.
                                          -5-
NO. 67894-9-1 / 6




court applied the correct legal standard.9 When a court applies an erroneous

legal standard, it abuses its discretion as a matter of law.10

                                     ANALYSIS


       "It is fundamental that no incompetent person may be tried, convicted, or

sentenced for the commission of an offense so long as the incapacity

continues."11    Courts presume a person's competency, and Washington's

competency statutes, found in chapter 10.77 RCW, place the burden on the party

challenging competency to prove by a preponderance of the evidence any

alleged incompetency.12

       In Dusky v. United States,13 the United States Supreme Court stated the

test for competency as "whether [the defendant] has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding—and

whether he has a rational as well as factual understanding of the proceedings



       9 McClearv v. State. 173 Wn.2d 477, 514, 269 P.3d 227 (2012) (citing
Sunnvside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003)).
       10 Sisouvanh, 175 Wn.2d at 623 (trial court makes decision "'for untenable
reasons'" and thus abuses discretion when it applies wrong legal standard)
(internal quotation marks omitted) (quoting Rohrich, 149 Wn.2d at 654).
       11 State v. Wicklund, 96 Wn.2d 798, 800, 638 P.2d 1241 (1982); U.S.
Const, amend. XIV, § 1; RCW 10.77.050.
       12 State v. Colev, 180 Wn.2d 543, 556-57, 326 P.3d 702 (2014); see also
State v. Harris, 114 Wn.2d 419, 435-36, 789 P.2d 60 (1990). In Colev. our
Supreme Court clarified that the presumption of competence and burden remain
on the party challenging competency even following a previous determination of
incompetency. Colev, 180 Wn.2d at 555, 557-58.
       13 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
                                         -6-
NO. 67894-9-1 / 7




against him."     In Godinez v. Moran,14 the Court reiterated, "Requiring that a

criminal defendant be competent has a modest aim: It seeks to ensure that he

has the capacity to understand the proceedings and to assist counsel." This

standard applies "from the time of arraignment through the return of a verdict"

and through sentencing.15

      Washington law states "incompetency" means a person "lacks the

capacity to understand the nature of the proceedings against him or her or to

assist in his or her own defense as a result of mental disease or defect."16

Courts have related the first part of the inquiry to a defendant's appreciation of

his peril and basic understanding of trial, the charges, and the roles of those

involved in the proceedings.17      For the second part of the inquiry, which our

Supreme Court has called a "minimal requirement,"18 courts have focused on a

defendant's ability to recall past facts which would be useful to the defense and

relate those facts to his or her attorney.19 However, a defendant need not be

able to suggest any particular trial strategy or even to choose among alternative


          14 509 U.S. 389, 402, 113 S. Ct. 2680, 125 L Ed. 2d 321 (1993).
          15 Moran. 509 U.S. at 403 (Kennedy, J., concurring); Wicklund. 96 Wn.2d
at 800.
          16 RCW 10.77.010(15); Ortiz. 104 Wn.2d at 482; Wicklund. 96 Wn.2d at
800; Lawrence. 108 Wn. App. at 232.
      17 Harris. 114 Wn.2d at 427-28; Ortiz. 104 Wn.2d at 482-83; Lawrence.
108 Wn. App. at 232.
          18 Harris. 114 Wn.2d at 429.
          19 Harris, 114 Wn.2d at 428; Lawrence. 108 Wn. App. at 232-33; Ortiz.
104Wn.2dat483.
                                         -7-
NO. 67894-9-1 / 8




defenses.20 Nor does an inability to recall past events establish incompetency.21

And establishing low intellectual functioning, without more, does not show

incompetence.22     A trial court may consider many factors in making its

competency determination, "including the defendant's appearance, demeanor,

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

reports and the statements of counsel."23

      The State contends that the trial court used the wrong test to determine

competency and asks us to reverse the trial court and remand with instructions to

apply the correct standard. We agree and reverse and remand accordingly.

      In its findings of fact, the trial court noted that Dr. Tedd Judd's approach

emphasizing educational accommodations "differs conceptually" from the

approach to competency evaluation taken by Western State Hospital doctors.

Washington law requires that a defendant have the capacity to understand the

nature of the proceedings against him and have a basic understanding of trial.

Unlike the standard the trial court used, it does not require proof that a defendant

has an actual or a "proper" understanding of "the trial process, the testimony of

witnesses, and argument."        And while the trial court has discretion to


      20 Harris. 114 Wn.2d at 428; Ortiz, 104 Wn.2d at 483.
      21 Harris. 114 Wn.2d at 428.
       22 Ortiz. 104 Wn.2d at 482-84; Lawrence. 108 Wn. App. at 232; State v.
Minnix. 63 Wn. App. 494, 498-99, 820 P.2d 956 (1991).
       23 State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967).
                                        -8-
NO. 67894-9-1 / 9




accommodate a defendant with cognitive difficulties, the court's finding of

incompetence due to a lack of accommodations conflicts with the standard stated

in the statute and case law.    In relying on Dr. Judd's approach to find Ortiz-

Abrego incompetent because of a lack of accommodations, the court strayed

from well-established Washington law, adopting a hybrid standard blending

Washington     competency      law   with     the   "reasonable   accommodations"

requirements of the ADA (Americans with Disabilities Act).24

      The court's colloquies with counsel during hearings about the court's

findings support our conclusion.     The court discussed the possibility "that we

could design a way of conducting a trial for which [Ortiz-Abrego] would be

competent."    The court admitted to struggling with "this whole concept of

reasonable accommodations" and considered whether "we may not be in a

situation of changing the defendant; we may be in a situation of changing us" by

using Dr. Judd's recommended accommodations.

      Although the trial court thoughtfully considered many factors and weighed

the evidence of a voluminous record covering three years of complicated

proceedings, the court used a test that differs from Washington's two-part test for

determining competency. Thus, the court abused its discretion.




      24 Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(b)(5)(A).
                                        -9-
NO. 67894-9-1/10




                                 CONCLUSION


      We reverse the trial court's 2011 competency decision and order for a new

trial. We remand for further proceedings consistent with this opinion.




WE CONCUR:




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