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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STANLY PIENIAZEK,
                                                      Court of Appeals No. A-11866
                            Appellant,               Trial Court No. 4FA-12-1496 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                 No. 2543 — February 24, 2017


              Appeal from the Superior Court, Fourth Judicial District,
              Fairbanks, Michael P. McConahy, Judge.

              Appearances: Kelly R. Taylor, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Nancy R. Simel, Assistant Attorney General, Office of Criminal
              Appeals, Anchorage, and Craig W. Richards, Attorney General,
              Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge ALLARD.


              Stanly Pieniazek was found competent to stand trial following a
competency hearing before Fairbanks Superior Court Judge Michael P. McConahy. A


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
jury later found Pieniazek guilty of two counts of third-degree assault1 for shooting a gun
at two state troopers after they responded to a report of a disturbance at Pieniazek’s
property in Fairbanks.
               On appeal, Pieniazek argues that the superior court erred in determining
that he was competent to stand trial. For the reasons explained here, we agree with
Pieniazek that the superior court misapplied the factors listed in AS 12.47.100(e) and
failed to conduct an independent and contemporaneous assessment of Pieniazek’s
competency. Accordingly, we remand Pieniazek’s case to the superior court for
reconsideration and, if feasible, a retrospective determination of his competency to stand
trial.


         Background facts
               Pieniazek, a Polish immigrant with limited English proficiency, is eighty
years old. The events that gave rise to this case took place in May 2012, when Pieniazek
was seventy-five years old. At the time of the shooting, Pieniazek was living in squalor
at his property in Fairbanks in a collection of structures connected by self-constructed
“tunnels” that witnesses described as dilapidated and unsanitary. Although Pieniazek
was appointed a public guardian2 two years prior, due to his behavior during a separate
criminal case, Pieniazek rebuffed his guardian’s attempts to place him in assisted living,
and he twice left the facility in which he was placed. The record before the trial court
indicated that Pieniazek was employed from 1969 to approximately 1991, when he
retired. The record also indicated that although Pieniazek possessed a driver’s license
as late as 2011, he was last observed driving in February 2010.


    1
         AS 11.41.220.

    2
         AS 13.26.370.


                                           –2–                                       2543

             Prior to trial, Pieniazek’s attorney filed a motion for a judicial determination
of competency. Pieniazek was then evaluated twice: first by clinical psychologist Dr.
Siegfried Fink, who concluded that Pieniazek had dementia and was incompetent to
stand trial; and later by state forensic psychologist Dr. Lois Michaud, who rejected
Fink’s diagnosis of dementia and instead concluded that Pieniazek was malingering,
based on his refusal to communicate with her.
             Fairbanks Superior Court Judge Michael McConahy subsequently held a
hearing in May 2013 at which Dr. Fink and Dr. Michaud elaborated on their respective
diagnoses. In addition, three other witnesses testified: Ruth Retynski, Pieniazek’s public
guardian, as well as Fairbanks Correctional Center (FCC) officers Joanne Murrell and
Jerry Watson. Murrell and Watson had both dealt extensively with Pieniazek while he
was in custody awaiting trial in this case. In relevant part, Retynski, Murrell, and
Watson each described a number of Pieniazek’s strange behaviors.
             Retynski testified that she struggled to find an assisted living facility for
Pieniazek, partly because she could not determine whether his behavior was due to
mental illness or dementia. But Retynski also testified that Pieniazek was manipulative,
and that there were times during her conversations with Pieniazek that she felt he was
pretending not to understand her when she “didn’t give him exactly what he wanted.”
             The FCC corrections officers testified that Pieniazek’s mental condition was
extremely poor during his incarceration: Pieniazek hoarded and ate spoiled food, refused
to shower unless “tricked” into doing so, struggled to complete all but the most simple
tasks, generally did not communicate with staff or other inmates, and was kept in
administrative segregation for the sake of both his and others’ safety. Officer Murrell
testified that Pieniazek had “moments where he knows what he’s talking about ... [and]
moments where he’s just babbling.” She also testified that Pieniazek would sometimes
“in the middle of the night ... pack up all his stuff, fold everything up, organize

                                           –3–                                         2543

everything, and just bang on the door and [say] open the door, I’m ready to go home.”
Dr. Fink also noted in his report that the FCC staff members he interviewed “observed
a significant decline in [Pieniazek’s] level of functioning especially in the last year.”
              The trial judge found Pieniazek competent to stand trial, crediting
Retynski’s and Dr. Michaud’s testimony that Pieniazek was sometimes
“communicative.” The trial judge also noted that AS 12.47.100(e) directs a court
determining a defendant’s competency to take into account “whether the person has
obtained a driver’s license, is able to maintain employment, or is competent to testify as
a witness under the Alaska Rules of Evidence.” The trial judge concluded that these
conditions had been met in Pieniazek’s case because Pieniazek was “able to maintain
employment since he got [to the United States] until his retirement [in 1991]” and that,
although Pieniazek did not have a current driver’s license, he had a “currently registered
vehicle on his property” in 2011 and “gets around.”
              The trial judge also found it significant that Pieniazek had testified briefly
in his own defense in a bench trial for criminal trespass before Fairbanks Superior Court
Judge Jane Kauvar that took place two years earlier, in February 2012. Judge McConahy
assumed that Judge Kauvar had found Pieniazek competent to testify at that trial.
              However, the record indicates that this assumption was incorrect. There
were no competency proceedings prior to the 2012 criminal trespass trial, and Judge
Kauvar made no explicit finding that Pieniazek was competent to testify. The record also
indicates that, although Judge Kauvar may have permitted Pieniazek to testify,
Pieniazek’s behavior in court was sufficiently unusual that Judge Kauvar herself sought
to appoint Retynski as Pieniazek’s legal guardian. A review of Pieniazek’s trial




                                           –4–                                        2543

testimony in that prior case also reveals that his testimony was extremely brief and
largely incoherent, and that Pieniazek appeared confused by the proceedings.3
              Pieniazek also testified briefly in the current case. In the brief time he was
on the stand, he answered his attorney’s initial questions in Polish and then answered his
attorney’s later questions with “I don’t know” and silence.


       Alaska law regarding competency determinations
              Under Alaska law, a criminal defendant is incompetent to stand trial if, “as
a result of a mental disease or defect ... the defendant is unable to understand the
proceedings against the defendant or assist in the defendant’s own defense.”4 Alaska
Statute 12.47.130(5) defines “mental disease or defect” as “a disorder of thought or
mood that substantially impairs judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life.” The statutory definition further
clarifies that “mental disease or defect” also includes “intellectual and developmental




   3
        At the 2012 criminal trespass trial, Pieniazek stated, through a translator, that he was
born in Poland in 1936, but that he could not remember when he moved to the United States,
or when he moved to Fairbanks. After many questions went unanswered, Pieniazek could
not answer what his house looked like. When his counsel asked him to tell the court what
happened, Pieniazek replied “What’s supposed to happen?” “I don’t know,” and “I would
like to know when I can leave from here.” The court attempted to ask him if he wanted to
say anything about what happened and, after the translator asked more questions to
understand his answers, he replied “When I’m going to go.”
   4
      AS 12.47.100(a); see also AS 12.47.130(4) (“‘[I]ncompetent’ means a defendant is
unable to understand the proceedings against the defendant or to assist in the defendant’s
own defense.”).

                                             –5–                                          2543

disabilities that result in significantly below average general intellectual functioning that
impairs a person’s ability to adapt to or cope with the ordinary demands of life.”5
              A defendant who is incompetent may not be tried, convicted, or sentenced
so long as his incompetency exists.6 The conviction of a defendant who is incompetent
violates due process of law.7
              We have previously emphasized that,“[b]ecause the integrity of the judicial
proceeding is at stake when the competency of a criminal defendant is in question, a trial
court has a duty to order a competency evaluation whenever there is good cause to
believe the defendant may be incompetent to stand trial.”8 Moreover, “because a
defendant’s mental state may deteriorate under the pressures of incarceration or trial, a
trial court must be responsive to competency concerns throughout the criminal
proceeding.”9
              The standard for determining lack of competency, although originally
formulated in judicial decisions, is now codified in AS 12.47.100. This statute provides
that “[a] defendant is presumed to be competent” and that “[t]he party raising the issue
of competency bears the burden of proving the defendant is incompetent by a




   5
       AS 12.47.130(5).
   6
       AS 12.47.100(a).
   7
      Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson, 383 U.S. 375, 378
(1966); Diggs v. State, 274 P.3d 504, 505 (Alaska App. 2012).
   8
      Gamble v. State, 334 P.3d 714, 717 (Alaska App. 2014) (citing Leonard v. State, 658
P.2d 798, 799 (Alaska App. 1983)).
   9
      Gamble, 334 P.3d at 717 (citing Smiloff v. State, 579 P.2d 28, 36 (Alaska 1978);
AS 12.47.100(b)).

                                            –6–                                        2543

preponderance of the evidence.”10 When the court raises the issue of competency, the
burden of proving the defendant is incompetent “shall be on the party who elects to
advocate for a finding of incompetency.”11
                 Alaska Statute 12.47.100(e)-(g) directs the trial court to consider a variety
of factors in assessing a defendant’s competency to stand trial.12 Subsection (e) provides
a list of factors that the court is required to consider in determining “whether a person
has sufficient intellectual functioning to cope with the ordinary demands of life.” These
factors are:
                 whether the person has obtained a driver’s license, is able to
                 maintain employment, or is competent to testify as a witness
                 under the Alaska Rules of Evidence.13
                 Subsection (f) provides a list of non-exhaustive factors that the court is
required to consider in determining “if the defendant is able to understand the
proceedings against the defendant.” These factors include:
                 whether the defendant understands that the defendant has
                 been charged with a criminal offense and that penalties can
                 be imposed; whether the defendant understands what criminal
                 conduct is being alleged; whether the defendant understands


      10
           AS 12.47.100(c).
      11
           Id.
      12
           These subsections were added to the competency statute in 1996. SLA 1996, ch. 62,
§1.
      13
       AS 12.47.100(e); see also AS 12.47.130(5) (“‘[M]ental disease or defect’ means a
disorder of thought or mood that substantially impairs judgment, behavior, capacity to
recognize reality, or ability to cope with the ordinary demands of life; ‘mental disease or
defect’ also includes intellectual and developmental disabilities that result in significantly
below average general intellectual functioning that impairs a person’s ability to adapt to or
cope with the ordinary demands of life.”).

                                              –7–                                       2543

              the roles of the judge, jury, prosecutor, and defense counsel;
              whether the defendant understands that the defendant will be
              expected to tell defense counsel the circumstances, to the best
              of the defendant’s ability, surrounding the defendant's
              activities at the time of the alleged criminal conduct; and
              whether the defendant can distinguish between a guilty and
              not guilty plea.14
              Lastly, subsection (g) provides a list of non-exhaustive factors that the court
is required to consider in determining if the defendant is “unable to assist in the
defendant’s own defense.” These factors include:
              whether the defendant’s mental disease or defect affects the
              defendant’s ability to recall and relate facts pertaining to the
              defendant’s actions at times relevant to the charges and
              whether the defendant can respond coherently to counsel’s
              questions.15
Subsection (g) also provides:
              A defendant is able to assist in the defense even though the
              defendant’s memory may be impaired, the defendant refuses
              to accept a course of action that counsel or the court believes
              is in the defendant’s best interest, or the defendant is unable
              to suggest a particular strategy or to choose among alternative
              defenses.16




   14
      AS 12.47.100(f); see also AS 12.47.130(6) (“‘[U]nderstand the proceedings against
the defendant’ means that the defendant’s elementary mental process is such that the
defendant has a reasonably rational comprehension of the proceedings.”).
   15
       AS 12.47.100(g); see also AS 12.47.130(2) (“‘[A]ssist in the defendant’s own
defense’ means to consult with a lawyer while exercising a reasonable degree of rational
functioning.”).
   16
        AS 12.47.100(g).

                                           –8–                                         2543

        Why we remand Pieniazek’s case for reconsideration
              As explained above, AS 12.47.100(e)-(g) directs a trial court to consider
a variety of factors in determining whether a defendant is competent to stand trial.
              In this case, however, the trial court focused its analysis almost exclusively
on the factors listed in AS 12.47.100(e) and appeared to largely ignore the requirements
of subsections (f) and (g). Although the court briefly mentioned the requirements of (f)
and (g), it did not appear to undergo any independent analysis of these factors; instead
the court primarily deferred to Dr. Michaud’s conclusions without much explanation for
this deference.17
              Moreover, when the court evaluated the factors listed in AS 12.47.100(e),
it did not evaluate these factors in terms of Pieniazek’s current ability to function and
cope with the ordinary demands of life. Instead, it evaluated these factors exclusively
in terms of Pieniazek’s ability to function in the past — including, at times, the distant
past. For example, the trial court noted that “I don’t think anybody is saying that
[Pieniazek] currently has an operator license,” but the trial court nevertheless found it
significant that “it seems clear that he’s driven in the past, and [] had a — in 2011 at
least, a currently registered vehicle.” The trial court also found it significant that
Pieniazek “maintain[ed] employment since he got here until his retirement” even though
Pieniazek’s retirement was in 1991 — more than twenty years before the 2013
competency hearing. Lastly, the trial court found it significant that Pieniazek had
testified on his own behalf in a prior criminal trial that took place approximately two
years earlier. But, as already noted, the prior trial had not included a competency


   17
        See Adams v. State, 829 P.2d 1201, 1207-08 (Alaska App. 1992) (Bryner, C.J.,
concurring) (noting that the determination of competency is ultimately a legal matter, not a
medical matter, and the superior court’s deference to psychologist’s opinion amounted to a
failure to exercise judicial discretion and constituted an independent ground for reversal).

                                           –9–                                        2543

evaluation. Moreover, Pieniazek’s testimony at that prior trial was largely incoherent,
and his behavior ultimately resulted in the court appointing him a public guardian.
              Taken together, the trial court’s remarks indicate that the court misapplied
the factors under AS 12.47.100(e) and failed to adequately investigate whether Pieniazek
was competent at the time of trial, rather than at some point in the past. The record also
indicates that the court failed to properly document its consideration of the relevant
factors under AS 12.47.100(f)-(g).
              As the Alaska Supreme Court has previously cautioned, competency is not
a static concept, and the trial court’s duty to determine competency is “not one that can
be once determined and then ignored.”18 The need to focus on the defendant’s current
level of functioning was particularly acute in this case, given that there had been a
diagnosis of progressive dementia from one expert and witness testimony that
Pieniazek’s functioning had significantly deteriorated over the last year. But in making
its competency finding, the trial court relied primarily on evidence that was too old to be
of direct relevance to a contemporaneous assessment of Pieniazek’s competency. The
trial court also relied on a purported finding of competency from another judge that had
not actually occurred. Because of these errors, we conclude that a remand to the superior
court for reconsideration of Pieniazek’s competency at the time of trial is required.
              We recognize that retrospective competency hearings are disfavored under
the law, largely because of the inherent difficulties in making such determinations
retrospectively.19 But we believe that this case presents different circumstances than the


   18
       See Smiloff v. State, 579 P.2d 28, 33-36 (Alaska 1978); accord Gamble v. State, 334
P.3d 714, 717 (Alaska App. 2014).
   19
      See Leonard v. State, 658 P.2d 798, 800 (Alaska App. 1983) (holding that the only
remedy for erroneous denial of competency evaluation is reversal of conviction because of
                                                                            (continued...)

                                          – 10 –                                     2543

typical case where a trial court fails to hold a competency hearing or fails to follow the
procedural rules for such a hearing.20 Here, unlike in those cases, a full competency
hearing was held, and there was a significant amount of testimony presented from
experts and other people with recent interactions with Pieniazek. It therefore may be
possible, unlike in most cases, for the superior court to reach a retrospective
determination of Pieniazek’s then-competency to stand trial based on the current
record.21 However, if the superior court determines that the record is inadequate for a
retrospective determination of competency, then the only proper remedy is a new trial
preceded by a new competency determination.




   19
        (...continued)
difficulties associated with retrospective competency determinations); see also Pate v.
Robinson, 383 U.S. 375, 386-87 (1966) (noting that proper remedy for error in competency
determination was a new trial preceded by a new competency determination due to the
difficulty of retroactively determining an accused’s competence to stand trial); Dusky v.
United States, 362 U.S. 402, 403 (1960) (per curiam) (concluding that the only way to
effectively correct an erroneous determination of competency to stand trial is to reverse the
conviction and remand to the district court for a hearing as to competency and for a new trial
if the accused should be found competent).
   20
        See, e.g., Leonard, 658 P.2d at 800 (court failed to hold a competency hearing).
   21
       See, e.g., Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001) (holding that
retrospective competency hearings are permissible “when the record contains sufficient
information upon which to base a reasonable psychiatric judgment” of the defendant’s
competence); United States v. Arenburg, 605 F.3d 164, 171 (2nd Cir. 2010) (remanding for
a determination of whether there is sufficient information to allow a meaningful retroactive
competency hearing); see also United States v. Jones, 336 F.3d 245, 260 (3rd Cir. 2003);
People v. Ary, 118 Cal. App. 4th 1016, 1029 (Cal. App. 2004); State v. Hawkins, 363 P.3d
348, 354 (Idaho 2015).

                                           – 11 –                                       2543

      Conclusion
             We REMAND this case to the superior court for reconsideration of the
defendant’s competency on the current record and, if feasible, a retrospective
determination of the defendant’s competency to stand trial.




                                        – 12 –                              2543

