                                                         This opinion was flled'fonecord
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II   DATE   JAN 1 2 2017
                        /19                     ~~~ SUSAN
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Lr?t,                   L_    .                           L. CARLSON
       CHIEF JUST/Cii                                      SUPREME COURT CLERK




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON




 STATE OF WASHINGTON,
                                                     NO. 92334-5
                                  Respondent,

                v.                                   ENBANC

 ALEXANDER ORTIZ-ABREGO,
                                                      Filed         JAN 1 2 2017
                                  Petitioner.



       STEPHENS, }.-Following a trial at which the jury found Alexander Ortiz-

Abrego guilty on charges of child rape, the trial court held a contested competency

hearing. The court determined that Ortiz-Abrego was incompetent during his trial,

though various accommodations suggested by an expert who evaluated him midtrial

could have helped him follow the proceedings. The court ordered a new trial. The

Court of Appeals reversed, concluding that the trial court departed from the established

competency standard by analyzing whether Ortiz-Abrego actually understood his trial

and by injecting concepts from disability accommodations law. We hold that the trial
State v. Ortiz-Abrego, 92334-5



court did not abuse the wide discretion appropriate to competency determinations. This

case is unusual in that the competency hearing took place after the trial concluded.

Viewing the record in that context, the trial court's consideration of the defendant's

observed behavior during trial, and its discussion of whether accommodations could

have been made, do not reflect a departure from the established competency standard.

Because the trial court did not abuse its discretion, we reverse the Court of Appeals and

reinstate the trial court's ruling.

                        FACTS AND PROCEDURAL HISTORY

       In 2008, the State charged Ortiz-Abrego with two counts of child rape. Early in

the proceedings, Ortiz-Abrego's assigned public defender became concerned about her

client's competency: Ortiz-Abrego could not explain what a trial was and did not know

why he had to appear in court.        Ortiz-Abrego was also unable to relate basic

biographical information, including how he met his wife and his own birth date. Even

after numerous meetings, Ortiz-Abrego appeared unable to understand the trial process

or the gravity of the charges. Despite facing the possibility of life in prison, Ortiz-

Abrego declined a plea offer for a 15-month sentence. The case went to trial on May

10, 2010.

       At trial, defense counsel, the court, and the prosecutor all expressed concerns

about Ortiz-Abrego's understanding of the proceedings.          The court conducted a



                                           -2-
State v. Ortiz-Abrego, 92334-5



colloquy, with mixed results: Ortiz-Abrego correctly identified his attorney, the

prosecutor, and that he could "'spend the rest of[his] life in jail.'" Clerk's Papers (CP)

at 331. However, he was unable to explain what it means for a witness to testify-

despite the court having explained it to him minutes before-or the significance of the

State's decision to add a third charge. The court found that Ortiz-Abrego's responses

met the minimal requirements for competency.

       As the trial progressed, the trial judge became "increasingly concerned about

whether the defendant understood what was happening." Id. at 333. The court called

a brief recess to allow Dr. Tedd Judd, a Spanish-speaking neuropsychologist, to

evaluate Ortiz-Abrego. Dr. Judd's testing, though not a formal competency evaluation,

showed that Ortiz-Abrego had an IQ (intelligence quotient) of70 (borderline mentally

handicapped).    Ortiz-Abrego also exhibited "concrete thinking," meaning he had

difficulty thinking abstractly or hypothetically. Finally, Dr. Judd determined that Ortiz-

Abrego had an auditory comprehension learning disability. As a result, Ortiz-Abrego

struggled to understand verbal instructions and explanations. For example, "'[w]hen

asked to write a sentence about the weather in Seattle in winter, it took about six

explanations before he was able to proceed, including explaining what a sentence was."'

Id. at 334. Dr. Judd concluded that "'Ortiz-Abrego's borderline intelligence, concrete

thinking, and auditory comprehension disability will have a substantial impact on his



                                            -3-
State v. Ortiz-Abrego, 92334-5



ability to participate in a trial."' !d. at 335. Dr. Judd's report suggested a series of

accommodations to allow Ortiz-Abrego to better track the court proceedings. 1 None

were requested or implemented.

      The trial resumed, and the jury ultimately delivered a guilty verdict. The defense

moved for arrest of judgment or a new trial on the ground that Ortiz-Abrego had not

been competent to stand trial.      In response, the court ordered a formal 15-day

competency evaluation. Ortiz-Abrego was sent to Western State Hospital (WSH) on

August 30, 2010 for the evaluation.         Dr. Roman Gleyzer conducted an intake

assessment and opined that Ortiz-Abrego's level of function in society was "average"

despite cognitive and intellectual disabilities. Verbatim Report of Proceedings (VRP)

(June 9, 2011) at 52. Dr. Ray Hendrickson also evaluated Ortiz-Abrego, diagnosing an

"adjustment disorder with depressed and anxious mood with borderline intellectual

functioning." !d. at 54. Due to difficulties in obtaining a properly certified interpreter,

Ortiz-Abrego then returned to jail to await his formal competency evaluation.

       On October 14, 2010, WSH's Dr. George Nelson performed the full competency

evaluation. Ortiz-Abrego's performance had degraded noticeably since the midtrial



       1  The suggested accommodations included frequent breaks, simple summaries in
Spanish, and quizzes to check comprehension of the proceedings. CP at 118. Ortiz-Abrego
is a native Spanish speaker with a sixth grade education, and appears to have received a
certified interpreter duriug court proceedings and formal evaluations. See, e.g., Verbatim
Report ofProceedings (June 8, 2011) at 5.

                                            -4-
State v. Ortiz-Abrego, 92334-5



evaluation by Dr. Judd. Dr. Nelson found Ortiz-Abrego to be incompetent. Dr. Nelson

suggested medication and a period of commitment to treat Ortiz-Abrego's acute

emotional distress. The court ordered Ortiz-Abrego returned to WSH for 90 days of

"competency restoration classes." CP at 340.

      At the end of this period, Dr. Hendrickson and postdoctoral fellow Dr. Amber

Simpler conducted Ortiz-Abrego's final competency evaluation. Ortiz-Abrego was

largely nonresponsive, professing that he either did not know or could not remember

the answers to most questions. In his final report, Dr. Hendrickson stated that he did

not have enough information to determine Ortiz-Abrego's competency. Although Dr.

Hendrickson suspected that Ortiz-Abrego was exaggerating his symptoms, none of the

WSH doctors tested Ortiz-Abrego for malingering. 2

       Beginning on April 6, 2011, the trial court held a multiday, contested

competency hearing. The court heard testimony from Dr. Judd, Ortiz-Abrego's former

defense attorney Anna Samuels, and the three WSH doctors. The State's experts

opined that Ortiz-Abrego was competent, largely based on the evidence of

malingering. Dr. Judd testified that Ortiz-Abrego, whose attempts at dissembling

had been unsophisticated and childlike, remained legally incompetent.             After



       2
        The State alleged malingering, and Dr. Judd's examination on April 22, 2011
revealed that Ortiz-Abrego was not demonstrating his true abilities. Suppl. Br. ofResp't
at 11; VRP (June 8, 2011) at 136, 138-39.

                                          -5-
State v. Ortiz-Abrego, 92334-5



weighing the evidence, Judge Susan Craighead determined that Ortiz-Abrego "was not

competent to stand the trial we gave him'' and granted the defense motion for a new

trial. !d. at 347.

       The State appealed, and the Court of Appeals reversed, holding that the trial court

applied the wrong legal standard by inappropriately considering Ortiz-Abrego's actual

understanding at trial and by relying on accommodations law to make a competency

determination. State v. Ortiz-Abrego, No. 67894-9-1, slip op. at 8-9 (Wash. Ct. App.

Aug. 17, 2015) (unpublished), http://www.courts.wa.gov/opinions/pd£'678949.pdf.

Meanwhile, pursuant to RCW 10.77.086(3), the State commenced a separate jury trial

to adjudicate competency. The jury in that trial found Ortiz-Abrego competent to stand

trial, and the defense appealed. The cases were linked on appeal, though Division One's

opinion in this case does not reference the competency trial appeal. See id. at 1-10.

This court accepted review of the postverdict competency hearing only. State v. Ortiz-

Abrego, 185 Wn.2d 1009,367 P.3d 1084 (2015).

                                      ANALYSIS

        The State argues that the trial court applied the wrong competency standard by

considering both Ortiz-Abrego's actual understanding of his trial and the absence of

disability accommodations. We disagree. It is appropriate for courts to weigh evidence

of actual understanding because capacity may be inferred from observed performance.



                                            -6-
State v. Ortiz-Abrego, 92334-5



Courts may also accommodate the particular needs of a defendant by modifying trial

schedules and day-to-day courtroom procedures in order to make the proc~edings more

accessible to a party.       Such accommodations, when appropriate, are permissible

exercises of judicial discretion-but are distinct from the legal analysis of competency

to stand trial.

       We review a trial court's competency determination for abuse of discretion. See,

e.g., State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985) (noting trial court's

"wide discretion" in competency determinations). A court abuses its discretion only

when an "'order is manifestly unreasonable or based on untenable grounds."' In re

Pers. Restraint ofRhome, 172 Wn.2d 654, 668, 260 P.3d 874 (2011) (internal quotation

marks omitted) (quoting State v. Rafay, 167 Wn.2d 644, 655,222 P.3d 86 (2009)). A

discretionary decision is "manifestly unreasonable" or "based on untenable grounds" if

it results from applying the wrong legal standard or is unsupported by the record. !d.

       A.         Due Process Protects Incompetent Defendants from Trial or Conviction

       An accused person has a fundamental right not to stand trial unless legally

competent. Statev. Wicklund, 96 Wn.2d 798,800,638 P.2d 1241 (1982) (citingDrope

v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)). This right is

guaranteed by the due process clause of the Fourteenth Amendment. See U.S. CONST.

amend. XIV; State v. Coley, 180 Wn.2d 543, 551, 326 P.3d 702 (2014). In 1973,



                                             -7-
State v. Ortiz-Abrego, 92334-5



Washington codified this right providing that "[n]o incompetent person shall be tried,

convicted, or sentenced for the commission of an offense so long as such incapacity

continues." RCW 10.77.050.

      The United States Supreme Court established the federal test for competency in

Dusky v. United States, 362 U.S. 402, 80S. Ct. 788, 4 L. Ed. 2d 824 (1960). Under

Dusky, a defendant is competent if he has the "'sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding . . . [and] a rational as

well as factual understanding of the proceedings against him."' !d. at 402. In Drope,

the Court equated "ability'' with "capacity," holding that a defendant is incompetent

under Dusky if he "lacks the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in preparing his defense."

420 U.S. at 171; see also Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 125

L. Ed. 2d 321 (1993) ("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."). Washington competency law has adopted-and further developed-

this capacity-based standard.

       Washington's competency law leaves the language of Dusky largely unchanged:

a defendant is incompetent if he or she "lacks the capacity to understand the nature of

the proceedings ... or to assist in his or her own defense as a result of mental disease



                                           -8-
State v. Ortiz-Abrego, 92334-5



or defect." RCW 10.77.010(15). The legislature has added a series of procedural

protections intended to increase consistency of competency evaluations in our state's

courts. 3   These procedural safeguards make Washington's competency standard

moderately more protective than the federal formulation.

       Additionally, Washington courts have compiled a list of "competency factors"

that the finder of fact is encouraged to consider. In State v. Dodd, this court noted that

the "trial judge may make his determination from many things, including the

defendant's appearance, demeanor, conduct, personal and family history, past behavior,

medical and psychiatric reports and the statements of counsel." 70 Wn.2d 513, 514,

424 P.2d 302 (1967). The guiding principle is to allow the trial court wide discretion

to consider the evidence that best illuminates whether the defendant has the mental

capacity to make the "sum total of decisions that a defendant may be called upon to

make during the course of a trial." Godinez, 509 U.S. at 398.

        The question in this case is whether the trial court correctly applied this capacity-

based standard, or instead departed from it by considering Ortiz-Abrego's actual

understanding of his trial and by blending competency and disability accommodation

law.



        3
        For example, commitments are not to exceed the maximum penal sentence for the
offense and defendants are entitled to have attorneys present during any evaluation
authorized by thestatute. RCW 10.77.025, .020.

                                             -9-
State v. Ortiz-Abrego, 92334-5



      B.      The Trial Court Applied the Correct Legal Standard

      The State argues that the trial court departed from Washington's capacity-based

standard by considering whether Ortiz-Abrego actually understood his trial. Suppl. Br.

ofResp't at 24-25. The State further argues that the court created a "hybrid" standard

by incorporating disability law into its competency determination. !d. at 15, 24.

Considering the entire record in context, we conclude that the trial court properly

considered the relevant factors and acted within its wide discretion.

       (1)   The Trial Court Did Not Apply a Heightened Competency Standard

      To be competent, a Washington defendant must have the capacity to (1)

understand the proceedings and (2) assist in his own defense. RCW 10.77.010(15).

Here, the trial court found that Ortiz-Abrego was incompetent at the time of his trial.

CP at 347. It entered the following conclusions oflaw (CL):

       2. . .. [T]he 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
          fmd he lacked the capacity to assist his attorney in the absence of the
          accommodations outlined by Dr. Judd....
       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 of the trial proceeding or rationally
          assisting his legal counsel.

Id. at 346-47 (emphasis added).          The State interprets the italicized phrase as

"substantially rais[ing] the bar of competency" by "[r]equiring some (indeterminate)

showing of actual understanding." Suppl. Br. ofResp't at 25. The Court of Appeals


                                             -10-
State v. Ortiz-Abrego, 92334-5



agreed, holding that Washington law "does not require proof that a defendant has an

actual or a 'proper' understanding" ofthe trial process. Ortiz-Abrego, slip op. at 8. The

trial court's conclusions, however, imposed no such requirement.

      Instead, the trial court correctly applied the capacity-based standard. The court

found Ortiz-Abrego to be incompetent because he was "not capable" of understanding

the nature of his trial. CP at 347 (emphasis added). This tracks Washington's statutory

requirement that a defendant must have the capacity to understand the "proceedings."

RCW 10.77.010(15). The court's conclusion that Ortiz-Abrego was "not capable" of

understanding allows CL 3 to be read naturally alongside CL 2, which also tracks the

capacity test. See CP at 346-47 (finding that the defendant was "unable" to understand

the trial process, testimony, and arguments). The State does not explain how we can

reasonably read the trial court's mling as using the correct standard in one paragraph

but not the next.

       The State's misunderstanding may be due to the more detailed language in the

trial court's extensive findings of fact (FF). These findings discuss Ortiz-Abrego's

actual level of understanding: for example, the court notes that the defendant did not

know his own birth date (FF 9), and states that he "simply did not appreciate what was

going on in the courtroom" (FF 55). !d. at 329, 346. However, there is an important

distinction between considering evidence of actual understanding and requiring proof



                                           -11-
State v. Ortiz-Abrego, 92334-5



of actual understanding to support a finding of competence.           The former is an

appropriate exercise of judicial discretion; the latter would be a departure from

Washington's competency standard.

      A more commonsense reading ofthe trial court's findings shows that the court

was aware ofthis distinction, and was carefiJl to separate factual observations from the

legal standard. After noting the defendant's difficulty recalling his own biographical

details, the court explained, "[I]n and of itself, the defendant's [memory] difficulty ...

does not make the defendant incompetent; what is relevant is the extent to which these

observations are consistent with Dr. Judd's evaluation and the evaluations of the WSH

experts." I d. at 329. In other words, the court used this evidence to aid it in weighing

the relative credibility of expert testimony-not as its basis for finding Ortiz-Abrego

incompetent.

       The State argues that trial courts cannot consider evidence of actual

understanding because "[e]vidence that a defendant understood elements of the trial is

evidence that he had the capacity to understand, but the converse is not necessarily

true." Suppl. Br. ofResp't at 25. The State notes that a lack of understanding could

instead indicate inattentiveness or malingering. Id. This argument may be a valid

critique of the reliability of such evidence, but it does not follow that the evidence

should be categorically excluded from competency determinations. Even assuming it



                                           -12-
State v. Ortiz-Abrego, 92334-5



is actually possible for a judge to "ignore her own observations ofthe trial,"4 the State's

approach would encroach on the trial court's discretion. See, e.g., Ortiz, 104 Wn.2d at

482 (noting the broad discretion of trial courts to conduct competency detenninations).

      Furthermore, the State's argument appears to rest on an overly narrow

interpretation of the Dusky standard, as discussed above. Yes, a defendant may be

found competent in the absence of demonstrated understanding. See, e.g., Godinez, 509

U.S. at 402. But this does not mean that a trial court must simply ignore relevant

evidence. 5 Evidence that a defendant either did or did not understand his trial is best

understood as valid circumstantial evidence that may be considered in a court's

competency analysis. See, e.g., Dodd, 70 Wn.2d at 514 (noting that trial courts consider

a broad range of factors to determine competency). We decline to limit the ability of

trial courts to make this inference.

       (2) The Trial Court's Discussion of Possible Accommodations Did Not Alter
           Its Application of The Underlying Legal Test

       This case is unusual in that the contested hearing to determine if Ortiz-Abrego

was competent to stand trial occurred after the trial itself With the benefit of having

observed the proceedings, the trial court found that Ortiz-Abrego was unable to



       4
         Suppl. Br. of Pet' r at 19.
       5
         As Ortiz-Abrego argues, "To suggest a demonstrated lack of understanding cannot
support a finding of incompetency is to suggest a prediction of ability must trump observed
inability." Suppl. Br. ofPet'r at 19.

                                           -13-
State v. Ortiz-Abrego, 92334-5



understand his trial "in the absence of the accommodations outlined by Dr. Judd." CP

at 347. In essence, the court found that Ortiz-Abrego was incompetent during the trial

he received, but had things been done differently, he could have been competent under

the right circumstances.    Id.; see also VRP (Aug. 11, 2011) at 24 (noting that

"chang[ing] how we do a trial" might restore Ortiz-Abrego to competence more

effectively than committing him to WSH). The court noted that Dr. Judd's evaluation

identified Ortiz-Abrego's particular learning disability-an auditory comprehension

disorder-as one of the key barriers to his ability to understand the trial as it tmfolded.

See CP at 335 ('"Mr. Ortiz-Abrego's ... auditory comprehension disability will have a

substantial impact on his ability to participate in a trial."'). None of the several

accommodations Dr. Judd suggested were implemented at trial. Id. at 336. Looking

back at the events that unfolded, the judge concluded that Ortiz-Abrego was

incompetent "to stand the trial we gave him." Id. at 347.

       The Court of Appeals criticizes the trial court for '"design[ing] a way of

conducting a trial"' to render the defendant competent, suggesting this improperly

blends competency and disability accommodation law. Ortiz-Abrego, slip op. at 9. But,

the trial court's use of the word "accommodation" to describe ways that Ortiz-Abrego's

competency could have been assured at trial, without more, does not demonstrate that

the court applied the wrong competency standard. The court did not hold that any



                                           -14-
State v. Ortiz-Abrego, 92334-5



defendant who shares Ortiz-Abrego's disability is incompetent to stand trial in the

absence of accommodations. See CP at 346-47. Instead, the trial judge-looking

back-concluded that the defendant she observed in the trial she conducted was in fact

incompetent during the proceedings. !d. at 347. The State's argument that' the trial

court transformed "discretionary accommodations into a constitutional mandate" is an

overbroad construction ofthe court's fact-specific holding. Suppl. Br. ofResp't at 26.

      The trial court was not prohibited from considering whether the trial could have

been conducted differently. To be clear, a criminal defendant's competence to stand

trial and the need for disability accommodations at that trial are distinct, if at times

overlapping, concerns. While a mentally incompetent defendant may also be disabled,

the presence of a disability does not automatically trigger a competency evaluation. For

example, a trial court might be concerned that a defendant with sight, hearing, mobility,

or other challenges cannot have a fair trial in the absence of accommodations, but the

court would not refer that defendant for a competency evaluation. Given the nnique

posture of this case, in which the court retroactively examined Ortiz-Abrego's

competency after a completed trial, the distinction between accommodations and

competency may seem blurred in the trial court's findings. Nevertheless, the language

used in the court's CL demonstrate that the trial court kept the Dusky standard firmly in

mind. See CP at 346-47. The court applied the correct competency test to determine



                                          -15-
State v. Ortiz-Abrego, 92334-5



that Ortiz-Abrego was "not competent to stand the trial we gave him" because he

"lacked the capacity to assist his attorney" and "was not capable of properly

understanding the nature of the trial proceeding." Id. at 347. The court's discussion of

Dr. Judd's proposed accommodations-none of which were implemented-was not

integral to the competency determination, and may have simply reflected the court's

post hoc evaluation of how things could have been done differently. Insofar as the

competency standard is concerned, this discussion may be regarded as surplusage. 6 We

hold that the trial court did not abuse its discretion by discussing due process concerns

beyond the baseline requirement of competency when, in the ultimate analysis, the court

applied the correct Dusky standard.

       (C)    The Trial Court's Detennination That Ortiz-Abrego Was Incompetent at
              Trial Is Reasonably Supported by the Record

      The State also challenges the trial court's determination of incompetence as

unsupported by the record. Suppl. Br. ofResp't at 18-23; see also Rhome, 172 Wn.2d

at 668 (a discretionary decision is '"manifestly lmreasonable"' if it is unsupported by

the record) (internal quotation marks omitted) (quoting Rafay, 167 Wn.2d at 655)). On




       6
          We need not identify the threshold at which due process might require
acconunodations for a defendant's disability. That is not at issue here. As the Court of
Appeals acknowledged, discretionary accommodations of the type proposed by Dr. Judd
fall within the trial court's authority. Ortiz-Abrego, slip op. at 8-9 ("the trial court has
discretion to accommodate a defendant with cognitive difficulties").

                                           -16-
State v. Ortiz-Abrego, 92334-5



this record, we conclude that the evidence reasonably supports the trial court's

determination that Ortiz-Abrego was legally incompetent at the time of his trial.

      By nature, competency determinations are unique to each defendant. See, e.g.,

State v. Sisouvanh, 175 Wn.2d 607, 622, 290 P.3d 942 (2012) (noting that "no rule of

general applicability" can effectively govern assessments of competency evaluations).

They are also unique in that the task of the trial judge is not to measure overall mental

capability but rather the specific mental capacity required to understand a trial. See

Dusky, 362 U.S. at 402.       The Dusky standard requires an understanding of the

proceedings because without it, a defendant lacks the capacity to assist in his own

defense and lacks the "ability to make necessary decisions at trial." State v. Jones, 99

Wn.2d 735,746,664 P.2d 1216 (1983); Godinez, 509 U.S. at 397 (noting the defendant

should have the "capacity for 'reasoned choice' among the alternatives available to

him"). Trial courts should focus on whether the defendant possesses the "particular

level of mental functioning" that makes possible '"a reasonable degree of rational

understanding."' Godinez, 509 U.S. at 404. IQ is not the end of the inquiry. Trial

courts should consider the specific mental qualities that impact the defendant's capacity

to understand a trial, including any relevant disability.

       In this context, Ortiz-Abrego's measured IQ of 70 (CP at 128), his inability to

recall his own birth date (id. at 329), and the fact that he did not know what a sentence



                                            -17-
State v. Ortiz-Abrego, 92334-5



was (id. at 334) are all causes for concern-but not definitive proof of incompetence.

Appropriately, the trial court also considered Ortiz-Abrego's specific mental limitations

relevant to his capacity to understand the trial proceedings.

       Dr. Judd's evaluation report showed that Ortiz-Abrego exhibited markedly

concrete thinking, reflecting a limited capacity to engage in abstract thought or

hypothetical reasoning. !d. at 118. As Dr. Judd explained, if a witness told the jury

Ortiz-Abrego had been in place A when in reality he had been in place B, Ortiz-Abrego

could not process the disconnect between the testimony and his concrete reality. VRP

(June 8, 2011) at 125-26. The trial court recognized the significance of Ortiz-Abrego's

cognitive limitations. He would be unable to imagine that a jury might believe the

witness and thus be incapable of responding logically or strategically to that possibility.

CP at 335. A defendant who struggles with abstract thought is also likely to have

difficulty making decisions such as evaluating a plea offer or understanding the impact

of additional charges on the potential length ofhis sentence. !d. at 331-33 (noting Ortiz-

Abrego's problems with these tasks). The record here contained substantial evidence

that concrete thinking detrimentally impacted the defendant's "ability to make

necessary decisions at trial." Jones, 99 Wn.2d at 746; see, e.g., CP at 332.

       Furthermore, Ortiz-Abrego's auditory comprehension disability cast serious

doubt on his capacity to understand trial proceedings. As the Godinez Court noted,



                                           -18-
State v. Ortiz-Abrego, 92334-5



"[T]he crucial component of the [DuskY] inquiry is the defendant's possession of 'a

reasonable degree of rational understanding."' 509 U.S. at 404. The trial court

concluded from the testimony that Ortiz-Abrego's limited capacity to understand verbal

instructions and explanations would inhibit his ability to understand the proceedings.

CP at 335 ("'Most notably, [Ortiz-Abrego] will have great difficulty in tracking,

understanding, and remembering the proceedings. He will do worst with rapid speech,

abstract concepts, and unfamiliar material."').

      The FF show that the trial court carefully considered the testimony and also

weighed evidence contrary to its ruling. In particular, the court noted evidence that

Ortiz-Abrego eventually began to exaggerate his limitations (i.e., malinger),

demonstrating that he is capable of at least some abstract thought. !d. at 346. However,

the State's argument-that "[d]eliberate malingering ... inherently contradicts any

claim that a defendant is not competent"-goes too far. Suppl. Br. ofResp't at 25. The

act of malingering may be evidence in favor of finding competence, but it does not

prove the defendant in fact has the capacity to understand his trial and assist in his

defense. The trial court correctly recognized that malingering and incompetency are

not mutually exclusive: "[T]he defendant has been exaggerating his lack of

understanding since at least the fall of 2010, but I am not persuaded that this

exaggeration is sufficiently sophisticated to undermine the results of Dr. Judd's



                                          -19-
State v. Ortiz-Abrego, 92334-5



evaluation or the observations of Ms. Samuel and the Court." CP at 346. It appears

that the State's argument outstrips even the support of its own experts, who were careful

to note that Ortiz-Abrego's apparent malingering "does not mean that Mr. Ortiz-Abrego

has no cognitive impairments." Id. at 153 (WSH Forensic Mental Health Report (Feb.

24, 2011)).

       The trial court also appropriately weighed the relative credibility of expert

testimony and evidence. Of the four experts who testified, "the Court found Dr. Judd

to be the most credible." Id. at 345. Dr. Judd was the "foremost expert in Washington

on Spanish-speaking neuropsychological testing" and had experience conducting

culturally appropriate evaluations ofLatino/a defendants. Id. at 330, 334 (noting the

importance of developing rapport through '"personalismo, "' or small talk). By contrast,

none of the State's experts spoke Spanish-their reports were based on analyzing the

responses of various interpreters and were thus potentially less reliable. See, e.g., id. at

341 ("It is apparent that the defendant struggled with the dynamic ofbeing questioned

through an interpreter"). Moreover, WSH doctors made no attempt to evaluate Ortiz-

Abrego in a culturally appropriate fashion: Ortiz-Abrego's formal competency

evaluation was a "two hour interrogation" adopting the "opposite [approach] to the one

Dr. Judd would have recommended." Id. This is concerning because in Sisouvanh, this

court explicitly addressed the need for culturally appropriate competency evaluations.



                                            -20-
State v. Ortiz-Abrego, 92334-5



175 Wn.2d at 624-25 ("[A] trial court could not properly accept the competency

evaluation of an appointed expert who ... failed to reasonably account for the need for

cultural competency in his or her evaluation."). Accordingly, the trial court reasonably

gave greater weight to Dr. Judd's report.

      In summary, the record contains sufficient evidence to support the trial court's

conclusion that Ortiz-Abrego was incompetent at the time of his trial. While evidence

of later malingering suggested a level of competence, the weight of the evidence in this

case---including the testimony of the most qualified expert, the nature of Ortiz-

Abrego's disability, and the trial court's own observations-supports the trial court's

finding of incompetence.

                                     CONCLUSION

       Vested with wide discretion, a trial court may consider a defendant's actual

understanding (or lack thereof) in determining whether the defendant has the requisite

capacity to stand trial.         The trial court's discussion of possible disability

accommodations, which were never implemented in this case, did not alter the legal

competency standard applied. The trial court carefully weighed the evidence for and

against a fmding of incompetence, including evidence that Ortiz-Abrego was

malingering. Supported by observations during trial and the testimony of a credible

expert witness, the trial court reasonably determined that Ortiz-Abrego was



                                            -21-
State v. Ortiz-Abrego, 92334-5



incompetent during his trial.         This determination was properly grounded in

Washington's capacity-based competency standard. We reverse the Court of Appeals

and reinstate the trial court's ruling.




                                           -22-
State v. Ortiz-Abrego, 92334-5




WE CONCUR:




                                 -23-
State v. Ortiz-Abrego (Alexander)




                                        No. 92334-5


       MADSEN, J. (dissenting)-The majority correctly articulates the competency

standard and emphasizes that an inquiry into competence is distinct from an inquiry into

disability accommodations. Nonetheless, the majority concludes that the trial court did

not blend these two inquiries. I respectfully disagree. In this case, the trial court

erroneously evaluated Alexander Ortiz-Abrego's competency and need for disability

accommodations as one and the same. To be sure, our courts must ensure both that a

defendant is competent to stand trial and that he has the necessary accommodations to

allow him to exercise his constitutional rights, but these are two separate legal inquiries.

Because the trial court blended the two inquiries together, it applied the wrong standard

for competency and thus abused its discretion.

       We review a trial court's competency decision for an abuse of discretion. State v.

Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985). A court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds or reasons. State v.

Sisouvanh, 175 Wn.2d 607,623,290 P.3d 942 (2012). Although this wide discretion

permits a trial court to operate within a range of acceptable choices, the reviewing court

retains authority to "clarity and refine the outer bounds of the trial court's available range
No. 92334-5
Madsen, J., dissenting


of choices, and, in particular, to identity appropriate legal standards." I d. We review de

novo whether a court applied the correct legal standard, and when a court applies an

erroneous legal standard, it abuses its discretion as a matter of law. I d.

       As the majority explains, the due process clause of the Fourteenth Amendment

guarantees a fundamental right not to stand trial unless one is legally competent. State v.

Wicklund, 96 Wn.2d 798, 800, 638 P.2d 1241 (1982) (citing Drape v. Missouri, 420 U.S.

162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)); U.S. CaNST. amend. XIV. In

Washington, a person is competent to stand trial if he or she has the capacity to

understand the nature of the proceedings and assist in his or her defense. Ortiz, 104

Wn.2d at 482 (citing RCW 10.77.010(6), .050). "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." Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct.

2680, 125 L. Ed. 2d 321 (1993).

       Disability accommodations, on the other hand, are not aimed at a defendant's

capacity to understand. Rather, accommodations serve to safeguard a defendant's rights

under the Sixth Amendment to confront witnesses and be present during trial and

preserve a defendant's equal protection rights under the Americans with Disabilities Act

of 1990 (ADA), 42 U.S.C. §§ 12101-12213. See State v. Gonzalez-Morales, 138 Wn.2d

374, 379, 979 P.2d 826 (1999) (citing U.S. CONST. amend. VI); 42 U.S.C. § 12101(b)(4)

(Congress invoking its power to enforce the Fourteenth Amendment to address

discrimination against persons with disabilities through the ADA). As to the Sixth



                                               2
No. 92334-5
Madsen, J., dissenting


Amendment right, one federal court has explained, "[T]he Sixth Amendment right to

participate in one's own trial encompasses the right to reasonable accommodations for

impairments to that participation." United States v. Crandall, 748 F.3d 476, 481 (2d Cir.

2014) (concerning hearing impairments). But even then, "the Sixth Amendment does not

create an absolute right to the elimination of all difficulties or impairments that may

hinder a criminal defendant's capacity to perfectly comprehend, and participate in, court

proceedings. Perfect participation by a criminal defendant is optimal, but perfection is

not required by the Sixth Amendment." !d. (citing McDonough Power Equip., Inc. v.

Greenwood, 464 U.S. 548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)).

       The ADA provides that "no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity." 42 U.S.C. § 12132. State and local courts are public entities under the ADA.

See 42 U.S.C. § 12131(1 ). If a person with a qualifying disability requests an

accommodation, a public entity must provide it unless it will fundamentally alter the

nature of the service or create an undue financial or administrative burden on the public

entity. 28 C.P.R.§§ 35.150(a)(3), 35.164.

       In this case, the trial court used neither the Sixth Amendment nor the ADA to

address the proposed accommodations for Ortiz-Abrego's learning disability. Instead, it

blended its concerns about disability accommodations into its competency evaluation.

By erroneously blending these legal inquiries, the trial court necessarily abused its



                                              3
No. 92334-5
Madsen, J., dissenting


discretion. Further, we must emphasize that not only are these separate legal inquiries,

but keeping them separate ensures that defendants with disabilities are accorded their

rights under the Sixth Amendment and the ADA and treated with respect in our judicial

system.

       The majority recognizes that a defendant's competence to stand trial and the need

for disability accommodations at trial are distinct. But it reasons that the trial court's

discussion of the proposed accommodations were not "integral" to its finding of

incompetence, so such discussion was simply surplus. Majority at 16. The trial court's

conclusions of law, however, demonstrate that we cannot separate the discussion of

accommodations from the court's conclusion of incompetency:

       1. I find by the preponderance of the evidence that at the time of trial, the
          defendant understood the charges made against him. I have significant
          doubts about the defendant's ability to appreciate his peril, but I cannot
          make the finding that he lacks this 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.
       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 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 lead to his conviction.




                                               4
No. 92334-5
Madsen, J., dissenting


Clerk's Papers at 346-47 (emphasis added). Three of the four conclusions oflaw

explicitly gave the lack of accommodations as the reason for the court's competency

decision. I cannot read these conclusions and find, as the majority does, that the lack of

accommodations was not integral to the court's decision. Instead, these conclusions

demonstrate that the trial court-motivated by concerns about Ortiz-Abrego's learning

disability-erroneously relied on competency to address its concerns.

       Rather than focusing on capacity to understand and assist, as is required under a

competency analysis, the trial court found that looking back, accommodations would

have increased Ortiz-Abrego's ability to "properly" understand and "rationally" assist his

legal counsel. This again evidences that the trial court did not apply the traditional

competency standard. In evaluating competency, the question is not whether a defendant

has a proper understanding or can rationally assist counsel; the question instead modestly

asks whether that defendant has the bare capacity to understand and assist. See Godinez,

509 U.S. at 402. Under the ADA and the Sixth Amendment, it may be well within the

trial court's discretion to provide accommodations that allow a defendant a higher level

of understanding and participation-and we should encourage trial courts to conduct

these inquiries. But trial courts must use those legal avenues, rather than heightening the

modest aim of competency to meet those same needs.

       I do not intend to discount the concerns that the trial court had for Ortiz-Abrego

and preserving his rights. Instead, my focus is on the vehicle by which the court

addressed those concerns: the competency standard. Perhaps under the Sixth



                                              5
No. 92334-5
Madsen, J., dissenting


Amendment or ADA, accommodations would have aided Ortiz-Abrego in having a fairer

trial. But that does not mean he was incompetent under our current standards. It is, in

fact, of questionable utility to a defendant with a disability for a court to apply a

competency standard to disability. See Keri K. Gould, And Equal Protection for

All ... The Americans with Disabilities Act in the Courtroom, 8 J.L. & HEALTH 123, 142-

45 (1993-1994). A defendant with a disability may unnecessarily be declared

incompetent and confined to a psychiatric center until found competent-a diagnosis that

may never materialize-when accommodations, rather than competency restoration,

would have helped preserve that defendant's right to a fair and speedy trial. !d. at 144-

45.

       I am also concerned about the harmful, systemic effect that utilizing competency

to address the needs of defendants with disabilities may have in our judicial system. We

do not want to make the statement that defendants with disabilities do not have the

capacity to understand and assist. Rather, we must examine how, in line with the ADA,

we can structure court proceedings to allow for the maximum participation and fairness

to defendants, jurors, and community members with disabilities. In looking at the trial

court's decision below, this appears to be consistent with what it intended. In a

proceeding to consider how to "restore" Ortiz-Abrego's competency, the court opined

that it could perhaps create circumstances where Ortiz-Abrego would be competent:

"Unlike a lot of situations, we may not be in a situation of changing the defendant; we

may be in a situation of changing us." Report of Proceedings (Aug. 11, 2011) at 13-14;



                                               6
No. 92334-5
Madsen, J., dissenting


see also id. at 22 ("he was not competent to stand the trial we gave him"), 23 ("we are

going to have to examine how we could design a trial for which he could be competent to

stand"), 25 ("[m]y concern is that restoration is assuming that we can change the

defendant when we have evidence before the court that we ... could change how we do

trial"). This is just further evidence that the trial court blended its concerns about

disability accommodations into its evaluation of Ortiz-Abrego's competence when it

should have evaluated the two separately under the distinct legal principles.

       A review of the record in this case leaves no doubt that the trial court thoughtfully

considered a variety of factors and strove to give Ortiz-Abrego a fair trial. And

determining optimal accommodations for a wide variety of learning disabilities would be

within a trial court's discretion and could be necessary to preserve a defendant's rights

under the ADA and the Sixth Amendment. But the absence of such accommodations

cannot be the reason a defendant is incompetent to stand trial because the

accommodations do not address whether he has the capacity to understand and assist.

Because the trial court in this case blended its consideration of disability accommodations

with the question of competence, it applied the wrong legal standard. We must therefore

hold that it abused its discretion.

       Accordingly, I respectfully dissent.




                                               7
No. 92334-5
Madsen, J., dissenting




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