              REPORTED

  IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND


                   No. 2781

          September Term, 2015

______________________________________


        STATE OF MARYLAND

                      v.

            LARRY DIXON

______________________________________


     Berger,
     Reed,
     Shaw Geter,

                  JJ.
______________________________________

          Opinion by Berger, J.
______________________________________


     Filed: September 30, 2016
       In this case, we consider the extent to which a circuit court may dictate the

conditions of detention for an individual who is awaiting a psychological examination to

determine his or her competency to stand trial and his or her criminal responsibility for the

charged offenses under Maryland Code (2001, 2008 Repl. Vol., 2015 Supp.) §§3-105 and

3-111 of the Criminal Procedure (“C.P.”) Article.

       The State Department of Health and Mental Hygiene (“The Department”), appeals

from the January 13 and January 14, 2016 orders of the Circuit Court for Baltimore City

ordering the immediate transportation of Larry Dixon, appellant, for in-patient admission

to Clifton T. Perkins Hospital Center (“Perkins”), the psychiatric facility where his

competency and criminal responsibility evaluations would be completed. In their timely

appeal, the Department questions whether the circuit court’s orders violated the plain

language of C.P. §§3-105 and 3-111.

       Through counsel, Dixon has filed a motion to dismiss the Department’s appeal,

asserting that because the Department has already completed his competency evaluation,

found him to be incompetent to stand trial at this time, and committed him for ongoing in-

patient psychiatric care, the question presented by the Department is moot.

       A case is moot when there is “no longer an existing controversy when the case

comes before the Court or when there is no longer an effective remedy the Court could

grant.” Suter v. Stuckey, 402 Md. 211, 219–20 (2007) (citing, among other cases, Dep’t of

Human Res. v. Roth, 398 Md. 137, 143 (2007)). As a general rule, courts do not entertain

moot controversies. Suter, 402 Md. at 219. There are, however, circumstances in which
this Court will address the merits of a moot case. The first is where the controversy, even

though moot at the time of judicial review, “is capable of repetition but evading review.”

Sanchez v. Potomac Abatement, Inc., 198 Md. App. 436, 443 (2011). The second exception

“allows us to express our views on the merits of a moot case to prevent harm to the public

interest.” Id. at 443 (footnote omitted).

       Because the relevant statutes specify that competency and responsibility

examinations must be completed within a certain time after they are ordered, 1 it is most

unlikely that appellate review would ever be accomplished before a court-ordered

examination was completed in this case or in any other. C.P. §3-105(d)(2); C.P. §3-

111(c)(2). Consequently, we are persuaded that the issue presented is capable of repetition

yet evading review and is, therefore, not moot. 2 The motion to dismiss is denied.


       1
        C.P. §3-105(d)(2) requires that in cases where the defendant has not entered a plea
of not criminally responsible, the Department must complete the competency evaluation
and submit a report to the court within seven days after the court orders the evaluation. In
cases where the court orders an examination of a defendant’s criminal responsibility, C.P.
§3-111(c)(2), requires the Department to complete the evaluation and submit a report to
the court within sixty days. For good cause shown, the court may extend the time for an
examination or order any additional examination that is necessary. C.P. §3-105(d)(2); C.P.
§3-111(c)(3).
       2
          Because we conclude that the issue presented in the instant appeal is one that is
capable of repetition yet evading review, we need not address the public policy arguments
raised by the Department in support of its argument in opposition to Dixon’s motion to
dismiss. We acknowledge, however, that the ability of the Department to promptly admit
criminal defendants to hospitals for evaluation and treatment has recently been the focus
of hearings in several circuit courts and the Maryland General Assembly, multiple media
articles and commentaries, as well as the basis for a lawsuit filed against the Department
in June of 2016. See e.g., Bryan P. Sears, Md. Lawmakers Vow Bill Requiring DHMH to
Honor Court Orders, The Daily Record, September 16, 2016, available at

                                             2
                     FACTUAL AND PROCEDURAL HISTORY

       On the evening of July 3, 2015, the police responded to a report of a shooting at

3429 West Caton Avenue in Baltimore City. They were met by Dixon who, when asked

where the injured person was, appeared to be very agitated. When one of the officers

requested that Dixon calm down, Dixon responded, “How can I not be excited? I just shot

someone.”

       Upon entering the residence, the police discovered a man (later identified as Keith

Glascoe), lying on the floor in the kitchen. He had been shot in the left side. Glascoe was

transported by ambulance to Shock Trauma Center, but later died as a result of his injuries.

The police recovered a shotgun from a second-floor bedroom of the residence and a

shotgun pellet from the kitchen floor.

       Dixon was arrested and charged with first and second degree murder and first degree

assault. From July of 2015 to January of 2016, Dixon was incarcerated in general

population housing at the detention center. While in detention, Dixon was seen four times

by a mental health clinician. Dixon reported that he was experiencing depression, anxiety,



2016 WLNR 28803928; Bryan P. Sears, Lawmakers Assess Lack of Mental Health
Services, The Daily Record, September 11, 2016, available at 2016 WLNR 28030174;
Editorial, In Jail Instead of in Treatment, The Washington Post, August 12, 2016, available
at 2016 WLNR 24582707; Josh Hicks, Mental-Health Experts Urge State to Hire Hospital
Staff to Trim Exam Backlog, The Washington Post, August 9, 2016, available at 2016
WLNR 24173826; Editorial, The Problem with Jailing the Mentally Ill, The Daily Record,
July 13, 2016, available at 2016 WLNR 21882010; Dan Morse, A Push to Help Mentally
Ill in Jail, The Washington Post, June 11, 2016, available at 2016 WLNR 17913606; Dan
Morse, Jails Under Stress as the Mentally Ill Wait for a Spot in Hospitals, The Washington
Post, June 9, 2016, available at 2016 WLNR 17443773.

                                             3
and interrupted sleep and that he had stopped taking his prescribed medication. Dixon’s

family told Dixon’s attorney that Dixon “minimized his mental health issues, was paranoid

about correctional officers . . . [and] his court proceedings, and had unrealistic beliefs about

the criminal justice system.” Dixon’s wife said that, prior to his arrest, he had become

increasingly paranoid and was hearing voices.

       On December 16, 2015, the circuit court entered an order requiring the Department

to examine Dixon for criminal responsibility and competency to stand trial. A psychologist

employed by the Department performed an initial evaluation of Dixon pursuant to the

court’s order. In a letter dated January 8, 2016, the Department psychologist requested an

additional sixty days to allow the Department to conduct a more extensive evaluation of

Dixon’s competency and criminal responsibility. The Department psychologist stated that

she had “made arrangements with the Pretrial Evaluation Unit of the Clifton T. Perkins

Hospital Center for Mr. Dixon’s further evaluation” and noted that “[d]epending on the

hospital’s assessment of the defendant’s clinical condition and need for inpatient

psychiatric care, the evaluation may be conducted on an inpatient or outpatient basis.”

       The circuit court considered the psychologist’s letter at a hearing on January 13,

2016. As required by C.P. §3-105(d), the court found good cause to extend the time for

the Department to conduct its examination of Dixon’s competency to stand trial. The court

also issued two orders on January 13, 2016. The first order, issued in accordance with

C.P. §3-105, extended the period for Dixon’s competency examination and provided, in

pertinent part, “because of the apparent severity of the mental disorder . . . the Court has


                                               4
found that the Defendant would be endangered by confinement in a correctional facility.”

The order required the Department of Public Safety and Correctional Services (“DPSCS”)

to immediately transport Dixon to Perkins, where he “shall be admitted as an inpatient and

remain hospitalized until further order of [the] Court.”

       The second order, issued in accordance with C.P. §3-111, extended the period for

Dixon’s criminal responsibility examination and required the Department to immediately

transport Dixon to Perkins. In an order signed on January 14, 2016, the court clarified that

DCPSS was to transport Dixon to Perkins on “Tuesday, January 19, 2016 at 10:00 for

admission and treatment[,]” and that Dixon was to remain at Perkins “until further order of

this Court.” The Department timely filed a notice of appeal on February 12, 2016. In a

report dated April 8, 2016, the Department concluded that Dixon was not competent to

stand trial.

                                        ANALYSIS

       The Department contends that the court’s orders usurped the role of the Department

by dictating the timing and conditions of Dixon’s confinement before, during, and after the

Department’s evaluations of his competency and criminal responsibility. The Department

asserts that the plain language of the relevant statutes requires that, as a default, criminal

defendants will be confined in a correctional facility until the Department is able to conduct

the ordered competency and responsibility examinations. The Department maintains that

the statutes commit to the discretion of the Department all determinations regarding when

and where court-ordered examinations will be performed and grant the Department the


                                              5
discretion to determine whether to retain a criminal defendant after he or she is examined

or to return the defendant to the court or a correctional facility. The Department concludes

that the circuit court overstepped its authority and violated the plain language of the

relevant statutes.

       “The interpretation of a statute is a question of law, which we consider de novo.”

Harrison–Solomon v. State, 442 Md. 254, 265 (2015)). The Court of Appeals, specifically

addressing the application of Title 3 of the Criminal Procedure Article, has provided the

following guidance regarding the applicable rules of statutory construction:

                     The cardinal rule of statutory interpretation is to
              ascertain and effectuate the real and actual intent of the
              Legislature. A court’s primary goal in interpreting statutory
              language is to discern the legislative purpose, the ends to be
              accomplished, or the evils to be remedied by the statutory
              provision under scrutiny.

                      To ascertain the intent of the General Assembly, we
              begin with the normal, plain meaning of the statute. If the
              language of the statute is unambiguous and clearly consistent
              with the statute’s apparent purpose, our inquiry as to the
              legislative intent ends ordinarily and we apply the statute as
              written without resort to other rules of construction. We
              neither add nor delete language so as to reflect an intent not
              evidenced in the plain and unambiguous language of the
              statute, and we do not construe a statute with forced or subtle
              interpretations that limit or extend its application.

                      We, however, do not read statutory language in a
              vacuum, nor do we confine strictly our interpretation of a
              statute’s plain language to the isolated section alone. Rather,
              the plain language must be viewed within the context of the
              statutory scheme to which it belongs, considering the purpose,
              aim, or policy of the Legislature in enacting the statute. We
              presume that the Legislature intends its enactments to operate
              together as a consistent and harmonious body of law, and, thus,

                                             6
              we seek to reconcile and harmonize the parts of a statute, to the
              extent possible consistent with the statute’s object and scope.
              Where the words of a statute are ambiguous and subject to
              more than one reasonable interpretation, or where the words
              are clear and unambiguous when viewed in isolation, but
              become ambiguous when read as part of a larger statutory
              scheme, a court must resolve the ambiguity by searching for
              legislative intent in other indicia, including the history of the
              legislation or other relevant sources intrinsic and extrinsic to
              the legislative process. In resolving ambiguities, a court
              considers the structure of the statute, how it relates to other
              laws, its general purpose and relative rationality and legal
              effect of various competing constructions.

                     In every case, the statute must be given a reasonable
              interpretation, not one that is absurd, illogical or incompatible
              with common sense.

Merchant v. State, 448 Md. 75, 94–95 (2016) (quoting Gardner v. State, 420 Md. 1, 8–9

(2011) (citing, in turn, State v. Johnson, 415 Md. 413, 421–22 (2010))).

       In this case, the court ordered that Dixon was to be examined for both his

competency to stand trial and his criminal responsibility. The test for competency to stand

trial and the test for criminal responsibility at the time of the commission of the offense are

separate and distinct. Jolley v. State, 282 Md. 353, 373 (1978). See also C.P. §3-105

(addressing determinations of competency to stand trial); C.P. §3-111 (addressing

determinations of criminal responsibility).

       An individual is “not competent to stand trial” if he or she is not able “(1) to

understand the nature or object of the proceeding; or (2) to assist in [his] defense.” C.P. §3–

101(f). Conversely, “to be competent to stand trial” means that a defendant has the “present

ability to consult with his lawyer with a reasonable degree of rational understanding” and


                                              7
a “rational as well as factual understanding of the proceedings against him.” Thanos v.

State, 330 Md. 77, 85 (1993) (internal citation omitted). 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 Trimble v. State, 321 Md. 248, 254 (1990) (“If a state fails to observe

procedures adequate to protect a defendant’s right not to be tried or convicted while

incompetent, it denies him due process.”).

       With respect to criminal responsibility, C.P. §3–109 provides that “[a] defendant is

not criminally responsible for criminal conduct if, at the time of that conduct, the defendant,

because of a mental disorder or mental retardation, lacks substantial capacity to: (1)

appreciate the criminality of that conduct; or (2) conform that conduct to the requirements

of law.” C.P. §3-109(a). “The purpose of [what once was called] the insanity defense is

to ensure that the criminal sanction is imposed only on those who had the cognitive and

volitional capacity to comply with the law.” Robey v. State, 54 Md. App. 60, 73, cert.

denied, 296 Md. 224 (1983) (citations omitted). “Persons whose mental disorders deprive

them of this capacity are neither culpable nor deterrable, and thus ‘ought not to be subject

to the same penalties or treatment as are justly meted out to those who are sane.’” Id.

(quoting Devilbiss v. Bennett, 70 Md. 554, 556 (1889)). “This rationale for exemption

from the criminal sanction extends only to those who are mentally incapacitated during

commission of the offense; only insanity at the time of the crime can excuse a defendant.”

Id.


                                              8
       The plain language of the statutes at issue in the instant case is not ambiguous. The

plain language of C.P. §3-105(a)3 provides that the court has the responsibility, in

appropriate cases, to order that a competency evaluation be performed, and to “set . . . the

conditions under which the examination is to be made.” C.P. §3-105(a)(2). C.P. §3-

105(b)4 directs that the court is to determine whether the examination shall be conducted

on an inpatient or outpatient basis. C.P. §3-105(b)(1). And C.P. §3-105(c)5 provides that


       3
           C.P. §3-105(a) provides:

                (a)    (1) For good cause and after giving the defendant an
                       opportunity to be heard, the court may order the Health
                       Department to examine the defendant to determine
                       whether the defendant is incompetent to stand trial.

                       (2)    The court shall set and may change the
                       conditions under which the examination is to be made.
       4
           C.P. §3-105(b) provides:

                (b)    On consideration of the nature of the charge, the court:

                       (1)    may require or allow the examination to be done
                       on an outpatient basis; and

                       (2)    if an outpatient examination is authorized, shall
                       set bail for the defendant or authorize release of the
                       defendant on recognizance.
       5
           C.P. §3-105(c) provides:

                (c)    (1)    If a defendant is to be held in custody for
                       examination under this section, the defendant may be
                       confined in a correctional facility until the Health
                       Department can conduct the examination. If the court
                       finds it appropriate for the health or safety of the

                                               9
while “the defendant may be confined in a correctional facility” for the period until the

Department is able to conduct the examination, C.P. §3-105(c)(1) (emphasis added), when

the court determines that “because of the apparent severity of the mental disorder . . . a

defendant in custody would be endangered by confinement in a correctional facility,” the

court may order that the Department “confine the defendant, pending examination, in a




                    defendant, the court may order confinement in a
                    medical wing or other isolated and secure unit of the
                    correctional facility.

                    (2)    (i)     If the court finds that, because of the
                           apparent severity of the mental disorder or
                           mental retardation, a defendant in custody would
                           be endangered by confinement in a correctional
                           facility, the court may order that the Health
                           Department, in the Health Department’s
                           discretion:

                                  1.    confine the defendant, pending
                                  examination, in a medical facility that the
                                  Health Department designates as
                                  appropriate; or

                                  2.    immediately       conduct       a
                                  competency examination of the defendant
                                  by a community forensic screening
                                  program or other agency that the Health
                                  Department finds appropriate.

                           (ii)   Unless the Health Department retains the
                           defendant, the defendant shall be promptly
                           returned to the court after the examination.



                                           10
medical    facility   that   the   Health   Department    designates    as   appropriate[.]”

C.P. §3-105(c)(2)(i)(1).

       In this case, the circuit court specifically found that because of the severity of his

mental disorder, Dixon’s health and safety would be endangered if he was confined in a

correctional facility for the period before his competency evaluation. Reports from the

detention center’s medical personnel indicate that, during his confinement, Dixon reported

experiencing depression, anxiety, and interrupted sleep and that he had stopped taking his

prescribed psychiatric medication. Dixon’s family also reported to his attorney that prior

to his arrest, Dixon was suffering from increased paranoia and auditory hallucinations. 6

Accordingly, we conclude that the circuit court’s finding that Dixon needed to be confined

in a psychiatric facility for his own safety pending his psychiatric evaluations was not

clearly erroneous.

       To implement its factual findings, the court ordered that Dixon be held at Perkins,

which is the only secure medical facility in the State that the Department has designated to

receive patients who have been accused of felonies. Indeed, Perkins was the facility

expressly identified as appropriate by the Department’s psychologist in her letter to the

court requesting additional time to complete Dixon’s evaluations. In her letter, the

psychologist goes so far as to state that she had already “made arrangements with the




       6
        During his confinement at Perkins, the medical personnel confirmed that Dixon
continued to suffer from auditory hallucinations, delusions, paranoia, depression, isolation
from peers, problems sleeping, and irritability, all of which he tended to deny or minimize
when speaking with clinical staff.
                                             11
Pretrial Evaluation Unit of the Clifton T. Perkins Hospital Center for Mr. Dixon’s further

evaluation.” Thus, by specifying Perkins as the facility where Dixon should be confined

prior to his evaluation, the court facilitated the implementation of the plan that had already

been set in motion by the Department’s psychologist.

       Except for requiring that a report of the evaluation be submitted to the court within

sixty days of the court’s order, the court placed no other restrictions on when or how the

Department was to conduct the evaluation of Dixon’s competency. Thus, the order

requiring the Department to conduct a competency evaluation of Dixon was fully in

accordance with the plain language of C.P. §3-105.

       We acknowledge that the language of C.P. §3-111(b),7 addressing where a criminal

defendant should be held pending an examination of his or her criminal responsibility, is




       7
           C.P. §3-111(b) provides:

                (b)   (1)    If a defendant is to be held in custody for
                      examination under this section, the defendant shall be
                      confined in a correctional facility until the Health
                      Department can do the examination. If the court finds
                      it appropriate for the health or safety of the defendant,
                      the court may order confinement:

                             (i)    in a medical wing or other isolated and
                             secure unit of the correctional facility; or

                             (ii)   if a medical wing or other secure unit is
                             not available, in a medical facility that the
                             Secretary of the Health Department designates as
                             appropriate.



                                             12
more restrictive, expressly providing that “the defendant shall be confined in a correctional

facility” until the Department is able to do the required examination. C.P. §3-111(b)(1).

The plain language of subsequent provisions of the statute, however, grants the court the

discretion, when it is necessary to protect the health or safety of the defendant, to order that

a defendant be confined in a “medical wing or other isolated and secure unit of the

correctional facility” or, if no such facility is available, in an appropriate medical facility

designated by the Department. C.P. §3-111(b)(2). The circuit court determined that such

a special accommodation was necessary in the instant case.

       Moreover, while the language of the court’s initial order of January 13, 2016,

directing that the Department was required to transport Dixon to Perkins may have violated

the express requirements of the statute which provide that “a court unit” shall provide

transportation to the psychological evaluation, C.P. §3-111(c)(2)(1), the court

subsequently corrected that provision in the January 14, 2016 order, and required DPSCS

to transport Dixon to Perkins, instead. Thus, as corrected, the court’s orders did not violate

the express language of C.P. §3-111.




                      (2)    (i)   When the Health Department can do the
                             examination, a court unit shall take the defendant
                             to the evaluation facility that the Health
                             Department designates.

                             (ii)   After the examination, unless the Health
                             Department retains the defendant, a court unit
                             shall return the defendant to the place of
                             confinement.
                                              13
       In conclusion, the plain language of C.P. §3-105 and C.P. §3-111 permits the circuit

court, in its discretion, to define the conditions of a defendant’s incarceration necessary to

protect the defendant’s safety while the defendant is awaiting competency and criminal

responsibility evaluations by the Department. We discern no violations of either the letter

or the spirit of C.P. §3-105 and C.P. §3-111 in the circuit court’s orders of January 13 and

January 14, 2016, ordering Dixon’s immediate transportation to the only facility designated

by the Department where he could be safely confined pending his evaluation.

                                    MOTION TO DISMISS DENIED. JUDGMENT
                                    OF THE CIRCUIT COURT FOR BALTIMORE
                                    CITY AFFIRMED. COSTS TO BE PAID BY
                                    APPELLANT.




                                             14
