 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON
                                                  No. 72833-4-1
                     Respondent,
                                                  DIVISION ONE
              v.
                                                  UNPUBLISHED OPINION
ISAIAH STEVEN SUMMERS,

                     Appellant.                   FILED: March 2, 2015


       Trickey, J. — Isaiah Summers appeals the judgmentand sentence entered

on a jury's verdict, arguing thetrial court erred when it ruled that hewascompetent
to stand trial. The trial court properly exercised its broad discretion in weighing the
evidence presented at the competency hearing—including defense counsel's
concerns regarding Summers' ability to rationally assist him during trial—and in
                                                                                          !
                                                                                          fO
assessing Summers' competency. We affirm.
                                       FACTS
                                                                                          en
                                                                                          CD
       On November 14, 2012, the State charged Summers with robbery in the

first degree, burglary in the first degree, assault in the second degree, and theft in
the second degree. The State sought a firearm enhancement on each count.
       Summers' defense counsel, Dino Sepe, became concerned that Summers

was not competent to stand trial. As a result, Sepe retained Dr. Joseph Nevotti, a
licensed psychologist, to conduct a forensic competency evaluation. Following his
evaluation of Summers, Dr. Nevotti concluded that Summers could not rationally
assist defense counsel because of his severe mental disorders. He testified at a
competency hearing that Summers suffered from bi-polar disorder and narcissistic
No. 72833-4-1 / 2



personality disorder, which caused Summers to have experiences of grandiosity—

where he had difficulty connecting with reality—that bordered on delusional

behavior.   According to Dr. Nevotti, Summers' sense of grandiosity, in turn,

rendered him highly irrational and confrontational.     Dr. Nevotti testified that

Summers understood that he was facing serious charges and knew that the

possible outcome was a lengthy prison term. Dr. Nevotti interpreted Summers'

strong opinion as to the trial strategy as an example of his experiences of

grandiosity. Dr. Nevotti testified that Summers' mental disorders would affect his

ability to rationally assist defense counsel during trial because he would be

resistant to anyone's opinion but his own, and it was possible that he would

become violent and confrontational in the courtroom.

       Dr. Marilyn Ronnei, a Western State Hospital psychologist, also conducted
an evaluation of Summers. According to her observations, Summers displayed no

symptoms of psychosis or a major affective disorder that would interfere with his
ability to work with his attorney. Dr. Ronnei determined that although Summers
did not have any major mental disorders, he did exhibit aspects of narcissistic and
antisocial personality disorder. However, contrary to Dr. Nevotti's opinion, Dr.
Ronnei did not believe Summers experienced grandiosity; rather, she believed he

had a slightly inflated sense of self-worth.

       Dr. Ronnei testified at the competency hearing that she found that some

portions of Summers' presentation during the evaluation were not credible. For
example, it was apparent to her that he chose to not offer complete answers and
pretended to be unable to retrieve information.        Dr. Ronnei concluded that
No. 72833-4-1 / 3


Summers was competent to stand trial. In the "Forensic Psychological Report"

submitted to the trial court, Dr. Ronnei stated the following:

       Given Mr. Summers's non-credible attempts to demonstrate memory
       impairments and an extremely poor fund of knowledge of the court
       system, and given that he does not demonstrate any major mental
       illness symptoms nor any actual significant intellectual impairment,
       it is my clinical opinion that Mr. Summers has the capacityto discuss
       his current legal situation and the basic elements of competency in a
       rational and goal-directed manner, although he does not always
       choose to demonstrate this ability. He demonstrates the capacity to
       maintain appropriate courtroom behavior and to communicate
       appropriately with his attorney regarding the decisions and
       eventualities involved in his case. Consequently, it is our opinion that
       Mr. Summers currently has the essential capacity to understand the
       nature of the proceedings against him and to assist in his own
       defense. It is possible that he may not always choose to demonstrate
       this capacity; however, it is my opinion that he has the capacity to
       think clearly, weigh and evaluate options and potential outcomes,
       and to participate in planning his own defense if he chooses to do
       so.™

       Sepe submitted a declaration in which he expressed his concern over
Summers' competency. He explained that Summers was very confrontational with
him, ignored his legal advice, and reacted violently when he pointed out flaws in
Summers' analysis and strategy of the case.           Sepe believed that Summers'
behavior was not the result of a conscious choice but was dictated by mental

illness. Sepe opined that Summers could not rationally assist him during the trial.
           Following the competency hearing, the trial court ruled that Summers was
competent to stand trial. The trial court entered the following uncontested findings
of fact:

                 That as to the second prong of the test Dr. Ronnei opines in
           her report and her testimony that the defendant is capable of
           assisting his counsel at trial. Dr. Ronnei concluded that during her
           examination of the defendant that the defendant was not fully

 1 Clerk's Papers (CP) at 36 (emphasis omitted).
                                            3
No. 72833-4-1/4


       cooperating with her and that he was purposely doing so. The Court
       accepts Dr. Ronnei's factual observations and conclusions based
       upon the written report and the verbal testimony of Dr. Ronnei.

              That as to the second prong of the test Dr. Nevotti opines in
       his report and his testimony that the defendant is not capable of
       assisting his counsel at trial. Dr. Nevotti's testimony was that the
       reason the defendant might not be able to assist counsel is because
       the defendant's sense of his own grandiosity which borders on the
       delusional. Therefore the defendant might act out at trial in a
       physically or verbally violent manner and might refuse to listen to his
       attorney as he has previously done during attorney/client meetings.
       Dr. Nevotti opines that the defendant may lack the ability to choose
       whether or not the defendant will cooperate with his attorney. This
       contradicts Dr. Nevotti's written report which does not appear to
       support this conclusion. Dr. Nevotti himself could offer nothing to
       really support this conclusion and admits that it is "a judgment call."
       Dr. Nevotti offers conclusions but no substance to support it.[2]

       The trial court concluded that Summers had the capacity to assist defense

counsel if he chose to do so. The courtadditionally concluded that Summers failed

to prove by a preponderance of the evidence that he lacked competency to stand
trial. Summers challenges these conclusions of law on appeal.3
                                      ANALYSIS

       The due process clause of the Fourteenth Amendment to the United States
Constitution prohibits the conviction of a person who is not competent to stand trial.
In re Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001) (citing Drope v. Missouri,



2 Qp g{ g-|
3Following ajury trial, the jury found Summers guilty as charged. The jury returned special
verdicts, finding that Summers was armed with a firearm during the commission of each
crime. The trial court imposed a sentence of 151 months of total confinement. At
sentencing, the trial court merged Summers' convictions for robbery in the first degree and
assault in thesecond degree, and vacated the conviction for assault in thesecond degree.
The trial court also merged Summers' convictions for robbery in the first degree and theft
in the second degree, and vacated the conviction for theft in the second degree. Finally,
the trial court determined that Summers' convictions for robbery in the second degree and
burglary in the first degree were the same criminal conduct.
No. 72833-4-1 / 5



420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Pate v. Robinson, 383

U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966)). Under Washington law, an

incompetent person may not be tried, convicted, or sentenced for committing an

offense so long as the incapacity continues. Fleming, 142 Wn.2d at 862 (quoting

RCW 10.77.050).

      Chapter 10.77 RCW places the burden of proof by a preponderance of

evidence on the party challenging competency. State v. Colev, 180 Wn.2d 543,

556, 326 P.3d 702 (2014), petition for cert, filed, Aug. 27, 2014. "Preponderance

of the evidence means that considering all the evidence, the proposition asserted

must be more probably true than not true." State v. Otis, 151 Wn. App. 572, 578,

213 P.3d 613 (2009) (citing State v. Ginn, 128 Wn. App. 872, 878, 117P.3d 1155

(2005)).

       "[A] defendant is competent to stand trial if he understands the nature of the
charges and is capable of assisting in his own defense. State v. Lewis, 141 Wn.
App. 367, 381, 166 P.3d 786 (2007). Here, Summers challenges the trial court's
conclusion that he was capable of assisting in his own defense.

       Adefendant must be "capable of rationally assisting his legal counsel in the

defense of his cause." State v. Wicklund, 96 Wn.2d 798, 800, 638 P.2d 1241

(1982). Moreover, a "defendant's ability to 'relate past events which would be
useful in assisting his attorney' in whatever defense counsel decides is appropriate
is an important consideration in determining his competency to stand trial." State
v, Harris, 114 Wn.2d 419, 428, 789 P.2d 60 (1990) (quoting State v. Ortiz, 104

Wn.2d 479, 483, 706 P.2d 1069 (1985)). But the "ability to assist" requirement is
No. 72833-4-1 / 6


minimal. Harris, 114 Wn.2d at 429. It does not require that a defendant be able

to suggest trial strategy or choose among alternative defenses. State v. Benn, 120

Wn.2d 631, 662, 845 P.2d 289 (1993); Harris, 114 Wn.2d at 428.              Nor is a

defendant required to have the ability to recall past events. Harris, 114 Wn.2d at

428.   Furthermore, the existence of a mental disorder does not establish

incompetency. See State v. Smith, 74 Wn. App. 844, 850, 875 P.2d 1249 (1994).

       The trial court has wide discretion in determining a defendant's competency

to stand trial. Ortiz, 104 Wn.2d at 482. "We normally defer to the trial court's

competency determination because the trial court can personally observe the
individual's behavior and demeanor." State v. Crenshaw, 27 Wn. App. 326, 330,

617 P.2d 1041 (1980). Thus, we will not reverse a trial court's determination that
an accused is competent to stand trial absent a manifest abuse of discretion.
Crenshaw. 27 Wn. App. at 330. Accordingly, we will find error only when the trial
court's decision (1) adopts a view that no reasonable person would take and is
thus manifestly unreasonable, (2) rests on facts unsupported in the record and is
thus based on untenable grounds, or (3) was reached by applying the wrong legal
standard and is thus made for untenable reasons. State v. Sisouvanh, 175 Wn.2d

607, 623, 290 P.3d 942 (2012).

       Here, Summers contends that the trial court abused its discretion in
concluding that he failed to show by a preponderance of evidence that he lacked
competency to stand trial. This is so, he asserts, because the trial court applied
an incorrect legal standard by failing to give weight to his counsel's opinion that he
was incompetent.
No. 72833-4-1 / 7


       In determining competency, the trial court considers the "'defendant's

appearance, demeanor, conduct, personal and family history, past behavior,

medical and psychiatric reports and the statements of counsel.'" Fleming. 142

Wn.2d at 863 (quoting State v. Dodd. 70 Wn.2d 513, 514, 424 P.2d 302 (1967)).

Although defense counsel's representation concerning the competency of his or
her client is a factor that is entitled to considerable weight, it is not dispositive of

the issue. See State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978) (holding

that the trial court did not abuse its discretion by considering counsel's statement

about his client's competency in deciding that defense counsel could waive

statute's examination requirement on client's behalf); State v. Hicks, 41 Wn. App.

303, 308-09, 704 P.2d 1206 (1985) (trial court did notabuse its discretion in finding
defendant competent to stand trial even after extended colloquy between defense
counsel and trial court); Crenshaw, 27 Wn. App. at 331 (trial court did not abuse
its discretion in finding the defendant competent despite his counsel's reservations
about his competency).

        Here, the record evinces that the trial court properly considered these
factors, including defense counsel's opinion, in assessing Summers' competency

to stand trial.

        In considering Sepe's declaration, the trial court stated:
        I will acknowledge that under the case law, my determination of
        competency can be determined from many things, . . . including the
        defendant's appearance, demeanor, conduct, personal and family
        history, past behavior, medical and psychiatric reports, and
        statements of counsel, which is where - the statement of counsel. .
        . must be given considerable weight in determining the defendant's
        competency to stand trial.[4]
4Report of Proceedings (May 29, 2013) (Competency Hearings) at 69.
                                            7
No. 72833-4-1 / 8




The trial court then stated that it reviewed Sepe's declaration and gave significant

weight to it. The trial court did not apply an incorrect legal standard.

       Summers additionally contends that the trial court's conclusion—that he

was capable of rationally assisting counsel—was not supported by the record.5

But the uncontested findings of fact and the record patently controvert this

contention. The trial court's unchallenged findings indicate it found Dr. Ronnei's

written report and verbal testimony more credible than Dr. Nevotti's. The trial court

found that Dr. Nevotti's opinion was contradictory, and offered no facts to support

his conclusions. The trial court accepted Dr. Ronnei's conclusion—that Summers

was capable of assisting his counsel in his defense—as true. Unchallenged

findings are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313
(1994). These findings supported the trial court's conclusion that the Summers
was capable of rationally assisting his trial counsel. Furthermore, we defer to the
trier offact on issues of credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d

850(1990).

       The trial court properly exercised its broad discretion in assessing

Summers' competency in-person and weighing the evidence concerning his

competency.         The trial court did not abuse its discretion in concluding that

Summers was competent to stand trial.




5The challenged conclusion of law states the following: "That the defendant in this matter
has the capacity to assist his counsel if he chooses to do so. The defendant in this matter
has the ability to make that choice." CP at 92.
No. 72833-4-1 / 9


      We affirm.




                    Js\ zM \ \j .

WE CONCUR:
