     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 12, 2018

                                2018COA96


     No. 15CA1368 People v. Lindsey — Criminal Law —

Competency to Proceed — Retrospective Competency Hearings

     In this direct criminal appeal, a division of the court of appeals

considers the proper remedy where a trial court fails to follow the

applicable statutory procedure when a defendant’s competency is

raised by motion before trial. In People v. Presson, 2013 COA

120M, ¶ 26, the division ordered a remand for the trial court to

determine the defendant’s current competency and conduct a new

trial if the defendant was found currently competent. Division in

this case departs from the Presson decision because the trial court

is better positioned than the court of appeals to first determine if a

retrospective competency determination is feasible. Thus, this
division vacates and remands for such a determination and for

further proceedings based on that threshold inquiry.




                                 2
COLORADO COURT OF APPEALS                                    2018COA96


Court of Appeals No. 15CA1368
Jefferson County District Court No. 12CR1487
Honorable Todd L. Vriesman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Arthur Lindsey,

Defendant-Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division III
                           Opinion by JUDGE FOX
                        Webb and Richman, JJ., concur

                           Announced July 12, 2018


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Ridley, McGreevy & Winocur, PC, Robert T. Fishman, Denver, Colorado, for
Defendant-Appellant
¶1    William Arthur Lindsey appeals the judgment of conviction

 entered on jury verdicts finding him guilty of eight counts of

 securities fraud and four counts of theft. We vacate and remand

 the case for proceedings consistent with this opinion.

                           I.   Background

¶2    Over a thirteen-month period, Lindsey persuaded six

 individuals to invest $3 million in new technology that would

 allegedly use algae-based bioluminescent energy to light signs and

 panels. Lindsey told his investors he had contracts to sell his

 lighted signs and panels to the United States Department of

 Defense, U-Haul, PetSmart, and the Super Bowl. As it turns out,

 neither the technology nor the contracts ever existed, and Lindsey

 allegedly spent the money on repaying other investors and on

 personal expenses.

¶3    The People charged Lindsey with eight counts of securities

 fraud and four counts of theft. After lengthy pretrial proceedings

 that included multiple changes in Lindsey’s counsel, a jury

 convicted him as charged. The judge sentenced Lindsey to twenty-

 four years in the Department of Corrections’ custody.




                                   1
                            II.   Competency

¶4    Lindsey’s primary contention is that the trial court erred in

 refusing to order a competency evaluation where the issue was

 raised by his counsel’s motion before trial. Because the trial court

 failed to follow the applicable statutory procedure and the trial

 court is better positioned to first determine if a retrospective

 competency determination is feasible, we vacate the judgment and

 remand for such a determination and for further proceedings based

 on that threshold inquiry.

             A.    Applicable Law and Standard of Review

¶5    We review a trial court’s determination of a defendant’s

 competency for an abuse of discretion. People in Interest of W.P.,

 2013 CO 11, ¶ 10. A trial court abuses its discretion when its

 decision is manifestly arbitrary, unreasonable, or unfair, id., or it

 misapplies the law, People v. Garrison, 2017 COA 107, ¶ 30.

 Whether the court should have ordered a competency evaluation is

 a question of law we review de novo. See W.P., ¶ 10.

¶6    The People’s primary argument on appeal is that the standard

 to determine competency is whether the judge has a “reason to

 believe” the defendant is incompetent. Lindsey responds that the


                                    2
 applicable statute provides different ways to raise competency —

 under section 16-8.5-102(2)(a), C.R.S. 2017, the judge may raise

 competency if he has reason to believe the defendant is

 incompetent, or under section 16-8.5-102(2)(b), the defense or

 prosecution, having reason to believe the defendant is incompetent,

 may raise competency. The plain language of section 16-8.5-

 102(2)(b) does not require that the judge have a reason to believe

 the defendant is incompetent. See People v. Nagi, 2014 COA 12,

 ¶¶ 9, 14 (using “reason to believe” as the applicable standard in a

 case where the judge raised the issue of the defendant’s competency

 after the defendant chose to proceed pro se), aff’d, 2017 CO 12.

 But, as discussed below — and as the prosecution conceded at trial

 — the motion the People now challenge on appeal was facially valid

 and raised Lindsey’s competency.

¶7    A defendant is incompetent to proceed if, “as a result of a

 mental disability or developmental disability,” he lacks “sufficient

 present ability to consult with [his] lawyer with a reasonable degree

 of rational understanding in order to assist in the defense, or . . .

 does not have a rational and factual understanding of the criminal

 proceedings.” § 16-8.5-101(11), C.R.S. 2017.


                                    3
¶8    When the question of a defendant’s competency is raised, the

 court makes a preliminary finding of competency. § 16-8.5-103(1),

 C.R.S. 2017. The preliminary finding becomes a final determination

 unless a party objects within fourteen days. Id. If the court lacks

 the information necessary to make a preliminary finding of

 competency or incompetency, or if either party objects to the court’s

 preliminary finding, the court must order a competency

 evaluation. § 16-8.5-103(2); W.P., ¶ 16 (discussing the 2008

 statutory amendments that now “mandate[] that a court order a

 competency evaluation upon either party’s timely objection to its

 preliminary finding of competency or incompetency”).

                      B.   Additional Background

¶9    The attorney who ultimately represented Lindsey at trial,

 David G. Tyler, entered his appearance in the case in May 2014,

 just days before Lindsey’s trial setting. The court granted Tyler a

 continuance to allow him time to prepare. At the end of the

 continuation period, Tyler filed a motion to withdraw, which the

 court denied. With Lindsey’s trial set to start on April 20, Tyler filed

 the competency motion at issue on April 16, 2015.




                                    4
¶ 10   The motion alleged that Lindsey displayed “irrational” behavior

  and that Lindsey was unable to appreciate the nature and

  consequences of the trial and could not assist Tyler in defending

  him. Tyler later added that on numerous occasions

             I have repeatedly been assured with regard to
             this matter about testimony, witnesses, the
             furnishing of new witnesses, money for the
             hiring of experts, expert names, addresses,
             assured that this will be furnished to me.

             None of it has happened. I’ve been told a
             number of things which are contradictory . . . .
             [Lindsey] cannot help me, and has not helped
             me. I believe it’s delusional. . . .

             [T]here are elements to this that are just not
             what a normal person would do. And as a
             result of that, I am in a position where I
             cannot rely on what Mr. Lindsey tells me[.]

¶ 11   Tyler’s motion alleged that Lindsey lacked “sufficient present

  ability to consult with [his] lawyer with a reasonable degree of

  rational understanding in order to assist in the defense.” § 16-8.5-

  101(11).




                                     5
¶ 12   At the hearing concerning Tyler’s motion, the court determined

  Lindsey was competent to proceed.1 But, the judge also determined

  that the motion did not fall under section 16-8.5-101(11):

            I hereby find that the motion . . . does not fall
            within that definition. I am emphasizing the
            words “present ability to consult with the
            defendant’s lawyer.” In fact, [what] is being
            alleged here is that there hasn’t been a
            consultation, but what is extremely important
            for any motion under this statute, to come up,
            is to talk about the ability, and the present
            ability, to understand not simply because . . .
            there has been some lack of communication or
            non-preparation, as much as defense counsel
            would like. Defense counsel cannot make a
            claim of alleging competency of his client
            based upon a client’s refusal to cooperate with
            his counsel. That doesn’t go to the issue of
            present ability to understand, with a
            reasonable degree of rational understanding in
            the proceedings that are before us.


  1 The judge explained how a competency evaluation would proceed
  and asked Lindsey if he wanted to join the motion to determine
  competency, to which Lindsey replied, “No.” Under the statute, the
  defendant is not required to join a competency motion, and the
  defendant’s preferences do not dictate whether a competency
  evaluation will be conducted. § 16-8.5-105(2), C.R.S. 2017 (the
  defendant is required to cooperate with the competency evaluator);
  cf. § 16-8.5-106(1), C.R.S. 2017 (the defendant may move to be
  examined “by a competency evaluator of his or her own choice in
  connection with any proceeding under this article”). The judge also
  asked Lindsey, “Do you believe you have that mental competence to
  understand what’s going on today?” Lindsey replied, “I honestly
  don’t know because I’ve never been — I’ve never had an evaluation.”

                                    6
¶ 13   Tyler then tried to proceed to the second step of the statute —

  objecting to the court’s finding and prompting an evaluation. § 16-

  8.5-103(1)-(2). The prosecution agreed to this reading of the

  statute:

             [Prosecutor]: So after the preliminary finding is
             made, the [c]ourt would go on to the second
             step. Does the [c]ourt agree with me?

  The court disagreed, stating,

             It does not. Did you not hear what I said? I
             said that your motion was not filed on a proper
             basis under the statute itself.

             So apparently your mistake is that you
             presumed by simply following the procedures
             in this statute, that you, in your mind, have
             questioned the present ability of your client to
             proceed here today, is wrong. So the motion is
             being dismissed.

             So now we’re going to have a trial. Do you
             understand that, sir?

¶ 14   After a week of trial, Tyler renewed his competency motion,

  but the court’s ruling remained unchanged: “I’m denying your

  renewed motion to consider incompetency. I’m not going to hear

  any more of this. If you believe that I’m wrong under the statute

  . . . then you have the ability to go over my head after whatever

  verdicts are rendered.”


                                     7
                              C.    Analysis

¶ 15   In misapplying the law, the court abused its discretion. See

  Garrison, ¶ 30. The plain language of the statute requires the court

  to order a competency evaluation if, within fourteen days of the

  court’s preliminary finding, either party objects to its preliminary

  determination of competency. § 16-8.5-103(1)-(2); W.P., ¶ 16.

  Although counsel filed his motion on the eve of trial, thus giving the

  court grounds for reasonable skepticism on the underlying

  motivation, counsel met the statutory requirements for the motion

  — including providing the court and prosecutor with copies of the

  motion, § 16-8.5-102(2)(b), so the motion was facially valid. The

  court further abused its discretion in concluding that a facially

  valid motion on competency did not fall under the competency

  statute.

¶ 16   Having determined there was error, we now consider what

  remedy is required. Lindsey argues that this error constitutes a

  violation of his right to due process, thus requiring a new trial. See

  People v. Presson, 2013 COA 120M, ¶ 16. The People assert that

  there was no error because the trial court has discretion in deciding

  whether to grant a competency hearing. We need not resolve


                                     8
  whether this is constitutional or nonconstitutional trial error,

  because under either standard vacating the conviction and remand

  is appropriate. See id. at ¶ 17. However, and for reasons explained

  below, we prescribe a different remedy than that ordered in Presson,

  ¶ 26. See People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008)

  (one division of this court is not bound by another division’s

  decision).

¶ 17   Tyler’s motion alleged that Lindsey lacked the ability to

  consult with him to assist in his own defense. Tyler’s allegations

  that Lindsey avoided communication with him, lied about procuring

  funds and expert witnesses, attempted to fire him, and seemed to

  be operating under “significant delusions about the reality and the

  status of this matter” raised legitimate doubts about Lindsey’s

  competence. At trial, the difficulties with Lindsey that Tyler

  described came to light:

               [Prosecutor]: Do you have any more
               information on [your witnesses] like date of
               birth or address or anything? . . .

               [Tyler]: I really, frankly, don’t. . . . I’m trying to
               determine . . . I have to talk with Mr. Lindsey
               about exactly how we’re going to proceed to
               put on his testimony . . . . I don’t know that
               yet. . . .


                                         9
             [The Court]: I’ve heard . . . that your client
             supposedly isn’t communicating with you . . .
             and I won’t go off on that again. There is no:
             [m]y client refuses to communicate with me, so
             I don’t have to comply with the rules of
             procedure or exception to the criminal rules of
             procedure. . . . So I know that you’re doing
             your best, but I need for you to explain, as
             fully as you possibly can, the names and
             identifying information of the witnesses that
             you are calling in your defense.

¶ 18   The possibility that an incompetent person, incapable of

  rationally assisting in his own defense, may have been forced to

  stand trial could have infected the fairness of the trial proceedings.

  See Nagi, ¶ 15 (considering a trial court raising the issue of

  competency on its own initiative under section 16-8.5-102(2)(a) and

  stating that “the standard of ‘reason to believe’ presents a low

  threshold”). While we do not condone counsel filing a motion on the

  eve of trial raising concerns that had been ongoing for months, the

  trial court’s failure to comply with section 16-8.5-103 requires the

  judgment to be vacated and the case to be remanded for further

  proceedings.

¶ 19   The harder question is how to deal with Lindsey’s competency

  on remand. After all, he has not been determined to be

  incompetent. And at oral argument, his appellate counsel conceded


                                    10
  that absent a retrospective determination of incompetency or a new

  motion questioning competency, the issue of Lindsey’s competency

  need not be addressed on remand.

¶ 20   The Presson division held that “[o]n remand, the court shall

  conduct further competency proceedings, in accordance with

  applicable statutory procedures and this opinion, to ascertain

  whether defendant is properly oriented to time, place, and person,

  and her perceptions are rational and grounded in reality.” ¶ 26

  (citing People v. Mondragon, 217 P.3d 936, 940 (Colo. App. 2009)).

  The record evidence on Lindsey’s mental state is sparse — no

  witnesses testified about Lindsey’s competency, and no relevant

  medical records were included in our record. Thus, we adopt the

  remedy other states and United States v. Bergman, 599 F.3d 1142,

  1148 (10th Cir. 2010), have employed: the case is remanded for the

  trial court to determine if a retrospective competency hearing,

  including the opportunity to present additional evidence, on

  Lindsey’s competency at the time of the 2015 trial is feasible. See,

  e.g., State v. Bostwick, 988 P.2d 765, 772-73 (Mont. 1999); see also

  Odle v. Woodford, 238 F.3d 1084, 1090 (9th Cir. 2001) (discussing,

  in the context of defendant’s request for habeas corpus relief, the


                                    11
  propriety of allowing the state court to cure its omission of a

  competency hearing by conducting one retroactively if the record

  contained sufficient evidence to make one feasible); People v. Ary,

  246 P.3d 322, 329 (Cal. 2011).

¶ 21   “Retrospective competency hearings are generally ‘disfavored’

  but are ‘permissible whenever a court can conduct a meaningful

  hearing to evaluate retrospectively the competency of the

  defendant.’” McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir.

  2001) (quoting Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir.

  1999)); see also Pate v. Robinson, 383 U.S. 375, 387 (1966); People

  v. Pendleton, 2015 COA 154, ¶¶ 11-12, 17 (approving of the

  postconviction court conducting a retrospective competency hearing

  and determining that a five-year gap between the trial and the

  hearing did not invalidate the court’s findings); Edwards v. State,

  902 N.E.2d 821, 825 n.3 (Ind. 2009) (collecting cases). But see

  Greene v. State, 264 S.W.3d 271, 273 (Tex. App. 2008) (declining to

  order a retrospective competency hearing because the defendant

  had possessed no meaningful level of competency since being

  convicted).




                                    12
¶ 22   On remand, the trial court must weigh four factors when

  considering whether a meaningful retrospective competency hearing

  can be held:

            (1) the passage of time, (2) the availability of
            contemporaneous medical evidence, including
            medical records and prior competency
            determinations, (3) defendant’s statements in
            the trial record, and (4) the availability of
            individuals and witnesses who interacted with
            the defendant before and during trial,
            including the trial judge, both counsel, and jail
            officials.

  People v. Corichi, 18 P.3d 807, 811 (Colo. App. 2000); see also

  Clayton, 199 F.3d at 1169.

¶ 23   If the court determines (1) it is not able to make a retrospective

  competency determination, or (2) it can make a retrospective

  competency determination and finds Lindsey was not competent

  during the 2015 trial, then the judgment shall remain vacated and

  a new trial will be required. Bergman, 599 F.3d at 1149; Bostwick,

  988 P.2d at 773. If a new trial is warranted because the court is

  unable to make a retrospective competency determination, the

  court on its own or either counsel may question Lindsey’s

  competency at that new trial, thus triggering the statutory

  procedures discussed above. If a new trial is warranted because


                                    13
  the court finds that Lindsey was not competent during the 2015

  trial, the prosecution must prove that Lindsey has been restored to

  competency before he can be retried.

¶ 24   If the court concludes a retrospective competency

  determination is feasible and further finds Lindsey was competent

  during trial in 2015, then the court shall reinstate the judgment of

  conviction, subject to his right to appeal that determination. See

  Bostwick, 988 P.2d at 773. But cf. Bergman, 599 F.3d at 1149

  (even if the defendant was competent at the time of the original

  trial, “the court may still, in its discretion, vacate [the defendant’s]

  conviction and conduct a new trial”).

                    III.   Lindsey’s Other Contentions

¶ 25   We address Lindsey’s other contentions to the extent that

  similar issues may arise in the event of retrial. People v. Rios, 2014

  COA 90, ¶ 39. Because we remand on the competency issue, we

  need not address Lindsey’s arguments on the prosecutor’s cross-

  examination or merger because the issues were not raised at trial

  and they are unlikely to arise on remand — particularly the merger

  issue, on which the parties agree. If Tyler represents Lindsey on

  remand, the court must take up Lindsey’s argument that his right


                                     14
  to conflict-free counsel is violated if Lindsey’s competency is raised

  and Tyler discloses confidential information that could impeach

  Lindsey’s trial testimony without Lindsey being advised of and

  waiving the conflict.2

¶ 26   Lindsey next argues that the trial court erred by (1) instructing

  the jury that “any note” constitutes a security and (2) giving an

  improper unanimity instruction. Lindsey did not preserve this

  issue so we review for plain error. People v. Carter, 2015 COA 24M-

  2, ¶¶ 50, 52 (“A court’s improper instruction ‘does not constitute

  plain error if the relevant instruction, read in conjunction with

  other instructions, adequately informs the jury of the law.’” (quoting

  People v. Garcia, 28 P.3d 340, 344 (Colo. 2001))).

¶ 27   As to the first contention, Lindsey’s trial was conducted before

  People v. Mendenhall, 2015 COA 107M, was decided. The trial

  court and parties now have the benefit of that case and can apply



  2 According to Tyler’s motion on competency, counsel was semi-
  retired as of 2015, so it would seem unlikely he would represent
  Lindsey once more, especially since he will likely be called on to
  testify at any competency hearing. See People v. Delgadillo, 2012
  COA 33, ¶ 14 (discussing the conflict of interest created where
  counsel testified, in a case where he was representing the
  defendant, about communications he had with the defendant).

                                    15
  the four-factor test in crafting new jury instructions. See People v.

  Thompson, 2018 COA 83, ¶¶ 14-17.

¶ 28   As to the second contention, we conclude the instructions as

  to counts 1, 2, 4, 9, and 10 were proper because each count was

  based on its own individual transaction.3 The instruction as to

  count 6 was improper because the pertinent investments involved

  three separate transactions.

            When evidence of many acts is presented, any
            one of which could constitute the offense
            charged, the trial court must take one of two
            actions to ensure jury unanimity: (1) require
            the prosecution to elect the transaction on
            which it relies for the conviction, or (2) if there
            is not evidence to differentiate between the
            acts and there is a reasonable likelihood that
            jurors may disagree on the act the defendant
            committed, instruct the jury that to convict it
            must agree unanimously that the defendant
            committed the same act or that the defendant
            committed all of the acts included within the
            period charged.

  People v. Greer, 262 P.3d 920, 925 (Colo. App. 2011). But, when “a

  defendant is charged with crimes occurring in a single transaction,




  3 While the payment at issue in count 10 was made in four separate
  transfers, those transfers constituted one payment for a single
  transaction induced by a single statement.

                                    16
  the prosecutor need not elect among the acts, and the trial court

  need not give a modified unanimity instruction.” Id.

¶ 29   Here, the unmodified jury instruction provided:

            In order to convict a defendant in each count
            of Securities Fraud based upon a material
            untrue statement or omission you must be
            unanimous in finding that the defendant made
            at least one specific material untrue statement
            or omission on or about the dates charged, in
            each count.

  Each of counts 1, 2, 4, 9, and 10, was based on a unique

  transaction, so this unmodified unanimity instruction was

  sufficient. But, the three transactions in count 6 were induced

  through different statements: the first was based on Lindsey’s claim

  he needed money to buy equipment to fulfill his Super Bowl

  contracts, and the second and third were based on separate claims

  that he needed cash to make payroll and meet other regular

  operating expenses. To be proper, the instruction needed to specify

  that the jury “must agree unanimously that the defendant

  committed the same act or that the defendant committed all of the

  acts included within the period charged.” Id. In the event of retrial,

  we direct that the instructions be modified accordingly. If Lindsey’s

  convictions are reinstated following a retrospective competency


                                    17
  hearing, the conviction on count 6 must remain vacated and the

  mittimus corrected accordingly because the jury instruction did not

  adequately inform the jury of the law. Carter, ¶ 52.

                            IV.   Conclusion

¶ 30   The judgment is vacated, and the case is remanded for further

  proceedings consistent with this opinion.

       JUDGE WEBB and JUDGE RICHMAN concur.




                                   18
