                                           this opinion was filed for record
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 IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASfflNGTON,

                            Respondent,            No. 94902-6


V.

                                                   EN BANC
ANTHONY GENE HAND,

                            Petitioner.            Filed:       mM 0 8 2018




        FAIRHURST, C.J.—This case presents the question of whether detaining an

incompetent defendant in jail for 76 days before providing competency restoration

treatment violates his substantive due process rights under the Fourteenth

Amendment to the United States Constitution. The trial court found Anthony Gene

Hand incompetent to stand trial and ordered Western State Hospital(WSH)to admit

Hand within 15 days for competency restoration treatment. Hand remained in county

jail for 61 days after the court's 15 day deadline, for a total of 76 days of

confinement. Hand's competency was eventually restored through treatment at WSH.

He was subsequently convicted on both charges. Hand argues that the State violated
State V. Hand, No. 94902-6

his substantive due process rights by detaining him in jail for 76 days before

admitting him to WSH for treatment—and that the proper remedy is dismissal with

prejudice. We affirm the Court of Appeals and hold that detaining Hand in county jail

for 76 days violated his due process rights but that dismissal with prejudice, the only

relief Hand requests, is not warranted.

                        I. FACTS AND PROCEDURAL HISTORY


      On September 22, 2014, the Pierce County prosecuting attorney charged Hand

with first degree escape. The police arrested Hand pursuant to an arrest warrant and

found a bag of methamphetamine in his waistband during booking. The State charged

Hand with unlawful possession of a controlled substance. Hand did not post bail and

therefore remained in county jail.

      Hand's counsel requested a competency evaluation under former RCW

10.77.060(l)(a) (2012). On December 24, 2014, the trial court granted the request

and ordered that Hand be held without bail pending a competency determination.

After considering the opinion of the mental health evaluator, the court found Hand

not competent to stand trial and ordered a 45 day commitment to WSH for

competency restoration to begin within 15 days ofthe order.

      On January 19, 2015, Hand sent a letter to the court suggesting that the charges

be dropped because he was still in jail and had not been admitted to WSH for

treatment. On February 11, 2015, Hand still had not been admitted to WSH, and he

filed a motion to dismiss based on a substantive due process violation or,

                                          -2-
State V. Hand, No. 94902-6

alternatively, for WSH to show cause why it should not be held in contempt.^ The

court denied the motion to dismiss, finding no due process violation, but ordered a

show cause hearing. Hand filed another motion to dismiss alleging a due process

violation on February 18, 2015. On February 25, 2015, he filed yet another motion to

dismiss or, in the alternative, to release him from custody.

       At the show cause hearing on February 25, 2015, the court considered a

declaration from Dr. Barry Ward explaining that Hand was placed on a waiting list

because WSH did not have the ability to admit Hand at the time of the order. Dr.

Ward further explained that the restoration treatment services unit was operating near

full capacity and had a wait list of 113 defendants. According to Dr. Ward, 71 days

was the average wait time for 45 day restoration cases. This delay was due to a

significant increase in orders for inpatient evaluation or restoration and a decrease in

the number of available beds.


       Ultimately, the trial court found the Department of Social and Health Services

(DSHS)in contempt of the trial court's December 24, 2014 order. The court ordered

that Hand be transported to WSH by February 26, 2015, and imposed sanctions of

$500 per day to be paid to the county jail for every day beyond the new deadline.


      'Both parties acknowledged that Hand may be a class member in Trueblood v. Department
of Social & Health Services, 101 F. Supp. 3d 1010, 1022 (W.D. Wash. 2015), vacated and
remanded, 822 F.3d 1037 (2016), in which the federal district court held that the DSHS delay in
providing court ordered competency services violated class members' due process rights. The trial
court held that the federal proceedings have no hearing on the resolution ofthis case.



                                                 3-
State V. Hand, No. 94902-6

Despite the order, Hand was not transferred to WSH on February 26, 2015. On March

4, 2015, finding no due process violation, the court denied the motions to dismiss. On

March 10, 2015, 61 days after the court's 15 day deadline expired, WSH finally

admitted Hand for restoration treatment. The court ordered DSHS to pay the county

jail $6,000 in sanctions based on failure to obey a court order.

      On April 29, 2015, the trial court found Hand competent to stand trial. A bench

trial was held on stipulated facts, and the court found Hand guilty as charged. Hand

appealed his convictions to the Court of Appeals. The Court of Appeals, Division

Two, held that the State violated Hand's substantive due process rights by detaining

him in jail for 76 days before WSH admitted him for treatment. State v. Hand, 199

Wn. App. 887, 890, 401 P.3d 367 (2017). However, the Court of Appeals held that

dismissal was not required under CrR 8.3(b) because Hand could not show that the

delay prejudiced his right to a fair trial. Id. at 899. Hand petitioned this court for

review, which we granted. State v. Hand, 189 Wn.2d 1024,406 P.3d 279(2017).

                                      II. ISSUES


      A.     Did the State violate Hand's substantive due process rights under the

Fourteenth Amendment by detaining him in county jail for 76 days without bail while

he awaited competency restoration treatment?

      B.     Is dismissal with prejudice an appropriate remedy under these facts?




                                          -4-
State V. Hand, No. 94902-6

                           III. STANDARD OF REVIEW


      Constitutional questions are questions of law and are reviewed de novo. In re

Det. ofMorgan, 180 Wn.2d 312, 319, 330 P.3d 11A (2014).

                                   IV. ANALYSIS


      Washington has statutory procedures for the identification and treatment of

mentally incompetent criminal defendants. Ch. 10.77 RCW. A person is incompetent

to stand trial if a mental disease or defect causes him or her to lack "the capacity to

understand the nature of the proceedings against him or her or to assist in his or her

own defense." Former RCW 10.77.010(15) (2011). RCW 10.77.050 provides that

"[n]o incompetent person shall be tried, convicted, or sentenced for the commission

of an offense so long as such incapacity continues."

      If there is reason to doubt a defendant's competency, the trial court shall

appoint or request the secretary of DSHS to designate an expert to evaluate the

mental condition of the defendant. Former RCW 10.77.060(l)(a). If the court finds

the defendant incompetent based on the expert's report, the court shall stay the

proceedings and commit the defendant to the custody of DSHS for placement into

competency restoration treatment. Former RCW 10.77.084(l)(a) (2012); former

RCW 10.77.086 (2013). If competency is then restored, the court shall lift the stay

and continue the criminal proceedings. Former RCW 10.77.084(l)(b). If competency

is not restored, the court shall dismiss the criminal proceedings without prejudice.

Former RCW 10.77.084(l)(c).

                                         -5 -
State V. Hand, No. 94902-6

      Former RCW 10.77.068(2012)expressed the State's "performance targets" for

the timeliness of admissions for restorative treatment. The statute designated a

performance target of seven days or less for admitting a defendant in pretrial custody

awaiting restorative treatment. Former RCW 10.77.068(l)(a)(i).^ The legislature

expressly provided that performance targets do not "create any new entitlement or

cause of action related to the timeliness of competency evaluations or admission for

inpatient services related to competency to proceed or stand trial, nor can it form the

basis for contempt sanctions under chapter 7.21 RCW or a motion to dismiss criminal

charges." Former RCW 10.77.068(5).

       Hand contends that the State violated his substantive due process rights by

detaining him in jail for 76 days before WSH admitted him for treatment. He asserts

that this violation warrants dismissal with prejudice because no other remedy

provides him adequate relief.

A.    The State violated Hand's substantive due process rights by detaining him for
      76 days before providing treatment because the nature and duration of his
      detention was not reasonably related to the restorative purpose for which the
      trial court admitted him


       Constitutional questions pertaining to the pretrial confinement of incompetent

criminal defendants are analyzed under the due process clause of the Fourteenth




      ^ During the course ofthis litigation, the legislature amended RCW 10.77.068 to set a 14 day
time limit for admission of defendants detained pending competency restoration treatment. RCW
10.77.068(l)(a)(i)(A)-(B).

                                             -6-
State V. Hand, No. 94902-6

Amendment.^ Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). When

determining whether an incompetent criminal defendant's substantive due process

rights have been violated, the court must balance the defendant's liberty interests

against interests of the State. Id. at 1121; see Trueblood v. Dep't ofSoc. & Health

Servs., 822 F.3d 1037, 1043 (9th Cir. 2016). Incompetent criminal defendants have a

liberty interest in receiving restorative treatment and a liberty interest in freedom

from incarceration because they have not been convicted ofthe charged crimes. Mink,

322 F.3d at 1121. The relevant question is whether the nature and duration of Hand's

detention is reasonably related to the purpose for which he was committed. Id. at

1122 (citing Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435

(1972)).

       Both federal courts that have addressed this issue determined that the


Fourteenth Amendment requires the State to admit an incompetent defendant to a

state hospital for competency restoration treatment within seven days of the order

calling for treatment."^ Id. at 1123; Trueblood v. Dep't ofSoc. & Health Servs., 101 F.


       ^ We reject the State's argument that Hand's claim is not governed by the Fourteenth
Amendment—^the United States Supreme Court analyzed a nearly identical issue under the due
process clause of the Fourteenth Amendment Jackson v. Indiana, 406 U.S. 715, 731, 92 S. Ct.
1845, 32 L. Ed. 2d 435 (1972)("Indiana's indefinite commitment of a criminal defendant solely on
account of his ineompeteney to stand trial does not square with the Fourteenth Amendment's
guarantee of due process."). Hand's detention may also implicate his rights under the Fourth and
Sixth Amendments to the United States Constitution, as the State suggests, but Hand does not claim
that his Fourth or Sixth Amendment rights have been violated here. The State's Fourth and Sixth
Amendment arguments have no bearing on our resolution of Hand's Fourteenth Amendment
substantive due process claim.
       '' The California Court of Appeal addressed this same issue and affirmed a trial court's
finding that "60 days was the outside limit" for ensuring timely admission to a state hospital for
                                              -7-
State V. Hand, No. 94902-6

Supp. 3d 1010, 1022 (W.D. Wash. 2015), vacated and remanded, 822 F.3d 1037

(2016). In Mink, Oregon Advocacy Center (GAG) sued the Oregon State Hospital

(OSH)on behalf of its constituents, mentally incompetent criminal defendants, on the

basis that OSH was violating incompetent defendants' Fourteenth Amendment due

process rights. 322 F.3d at 1107. OAC argued that OSH violated defendants'

substantive due process rights by unreasonably detaining them in county jails for

weeks or months before admitting them to OSH for restorative treatment. Id. The

United States District Court for the District of Oregon agreed with OAC and held that

OSH violated class members' substantive due process rights by failing to admit them

within seven days ofthe order declaring them incompetent. M at 1119.

        The United States Court of Appeals for the Ninth Circuit affirmed the trial

court's declaration of a seven day constitutional limit, holding that civilly committed

persons must receive mental health treatment that gives them a realistic opportunity

for restoration or improvement and that a lack of funds or facilities does not justify a

hospital's failure to provide such treatment. Id. at 1121. Relying on the United States




treatment. In re Loveton, 244 Cal. App. 4th 1025, 1044, 198 Cal. Rptr. 3d 514 (2016). The court's
analysis was informed by a California statute that required the medical director of the state hospital
to report on each defendant's progress toward recovery of competence within 90 days of
commitment. Id. at 1043. The trial court reasoned, based on evidence in the record, that a report
takes 17 to 20 days to produce. The trial court then concluded that 60 days was an appropriate
deadline for admission so that the hospital could produce a report before the 90 day statutory
deadline expired. Id. The California Court of Appeal explained that "[a]lthough transferring
[incompetent] defendants in less than 60 days after commitment should of course remain the goal,
the trial court's order realistically places an outside limit on what is statutorily and constitutionally
permissible." M at 1047.

                                                 -8-
State V. Hand, No. 94902-6

Supreme Court's holding in Jackson, 406 U.S. at 738,^ the court held that detaining

incapacitated defendants for "weeks or months" violates their substantive due process

rights because "the nature and duration of their incarceration bear no reasonable

relation to the evaluative and restorative purposes for which courts commit those

individuals." Mink, 322 F.3d at 1122.

       Similarly, in Trueblood, the United States District Court for the Western

District of Washington found "seven days to be the maximum justifiable period of

incarceration" allowed by the Fourteenth Amendment. 101 F. Supp. 3d at 1022. After

a bench trial, the court concluded that a "seven-day limit is required by the

constitution" because holding incompetent defendants in jail causes harm that directly

conflicts with the goal of competency restoration:

       Each additional day of incarceration causes further deterioration of class
       members' mental health, increases the risks of suicide and of
       victimization by other inmates, and causes illness to become more
       habitual and harder to cure, resulting in longer restoration periods or in
       the inability to ever restore that person to competency.

Id. at 1022.




       ^ The Supreme Court held that under the due process clause,
       a person charged by a State with a criminal offense who is committed solely on
       account of his incapacity to proceed to trial cannot be held more than the reasonable
       period of time necessary to determine whether there is a substantial probability that
       he will attain that capacity in the foreseeable future. . . . Furthermore, even if it is
       determined that the defendant probably soon will be able to stand trial, his continued
       commitment must be justified by progress toward that goal.
Jackson, 406 U.S. at 738. The Court explained that "due process requires that the nature and
duration of the commitment bear some reasonable relation to the purpose for which the individual is
committed." Id.



                                                -9-
State V. Hand, No. 94902-6

       The court ordered a permanent injunction requiring, inter alia, that individuals

ordered to receive restorative treatment are admitted to a state hospital within seven

days of the order. Id. at 1023-24. DSHS did not challenge this part of the order on

appeal. Trueblood, 822 F.3d at 1040.^

       Here, the trial court ordered WSH to admit Hand for restorative treatment

within 15 days of the order finding Hand incompetent. WSH did not admit Hand

within 15 days of the order. Instead, Hand remained in jail for a total of 76 days,

awaiting restorative treatment. Detaining an incompetent defendant in jail for months

likely harms a defendant's mental health and runs counter to the very purpose for

which he was committed—^which is to restore the defendant's competency. Mink, 322

F.3d at 1121. Because prolonged incarceration while awaiting treatment may cause

serious harm to defendants and does not meaningfully advance the State's interest in

restoring defendants' competency to stand trial, the constitutional due process

balancing favors Hand. In light of the 7 day constitutional limit expressed by the

Ninth Circuit in Mink and the district court in Trueblood, and the legislature's 7 day

performance target, we affirm the Court of Appeals and hold that the State's 76 day

detention of Hand violated his substantive due process rights to restorative treatment

and to be free from incarceration. See also Willis v. Dep't ofSoc. & Health Servs.,



       ^ The district court's ruling in Trueblood required two things. First, it required the State to
provide in-jail competency evaluations within seven days of the order calling for an evaluation. 101
F. Supp. 3d at 1023-24. Second, it required the State to admit persons ordered to receive
competency restoration services into a state hospital within seven days of the order calling for
                                               - 10-
State V. Hand, No. 94902-6

No. C16-5113RBL, 2017 WL 1064390, at *6 (W.D. Wash. Mar. 21, 2017)(court

order) ("At the time of Willis's incarceration, it was clearly established that

indefinitely incarcerating incompetent defendants while they awaited competency

restoration, because there was not room in the state hospital, violated their

constitutional due process rights.").

B.     Hand fails to show that dismissal with prejudice is warranted under these facts

       As a remedy. Hand seeks dismissal with prejudice. Washington currently has

two statutory mechanisms by which incompetent defendants detained in jail can have

their charges dismissed without prejudice.^ First, RCW 10.77.079, enacted two

months after the trial court found Hand competent to stand trial, allows a prosecuting

attorney to dismiss a potentially incompetent defendant's charges without prejudice

and refer the defendant for assessment by a mental health professional:

       If the issue of competency to stand trial is raised by the court or a party
       under RCW 10.77.060, the prosecutor may continue with the
       competency process or dismiss the charges without prejudice and refer
       the defendant for assessment by a mental health professional, chemical
       dependency professional, or developmental disabilities professional to
       determine the appropriate service needs for the defendant.

RCW 10.77.079(1).^



restoration services. Id. at 1024. DSHS challenged only the seven day time limit on providing
competency evaluations on appeal. Trueblood, 822 F.3d at 1040.
     'A trial court may be able to dismiss an incompetent defendant's charges without prejudice
as a remedy for a substantive due process violation, but we decline to answer that question here
because Hand is no longer incompetent and seeks only dismissal with prejudice.
       ^ Even without being in jail, a person may be civilly committed under RCW 71.05.230 if
professional staff at a facility providing mental health evaluation services determines that a person

                                              - 11 -
State V. Hand, No. 94902-6

       Second, RCW 10.77.084(l)(c) allows a court to dismiss an incompetent

defendant's charges without prejudice if the court finds the defendant's competency

has not been restored by the end ofthe competency restoration period:

      If, following notice and hearing or entry of an agreed order under (b) of
      this subsection, the court finds that competency has been restored, the
       court shall lift the stay entered under (a) of this subsection. If the court
      finds that competency has not been restored, the court shall dismiss the
      proceedings without prejudice, except that the court may order a further
       period of competency restoration treatment if it finds that further
       treatment       within      the     time       limits     established       by RCW
       10.77.086 or 10.77.088 is likely to restore competency, and a further
       period oftreatment is allowed under RCW 10.77.086 or 10.77.088.

(Emphasis added.)

       Case law now provides a third mechanism by which incompetent defendants

detained in jail can have their charges dismissed without prejudice. In State v. Kidder,

197 Wn. App. 292, 295, 389 P.3d 664(2016), decided more than a year after the trial

court found Hand competent to stand trial, the Court of Appeals affirmed the trial

court's use of RCW 10.77.084(l)(c) to dismiss a defendant's charges without

prejudice after WSH failed to admit the defendant for treatment within the 90 day

competency restoration period specified in the court's order of commitment.

       Kidder and the statutory mechanisms described above allow a court or

prosecuting attorney to dismiss an incompetent defendant's charges without




has a mental disorder or substance abuse disorder and files a petition with the court stating that the
person presents a likelihood of serious barm or is gravely disabled. RCW 71.05.230(4)(b).
                                               - 12-
State V. Hand, No. 94902-6

prejudice.^ While it is not clear what Hand earlier wanted, at this point he seeks

only dismissal with prejudice. As Hand explains in his petition, "Dismissal without

prejudice, the statutory relief, provides no remedy for Mr. Hand, as he has been

convicted and is serving his sentence." Pet. for Review at 9. Hand cites no authority

directly supporting his dismissal with prejudice argument. He contends that we

should apply the reasoning used in State v. Striker (a speedy trial rights case) to

dismiss his charges with prejudice. 87 Wn.2d 870, 876, 557 P.2d 847 (1976). In

Striker, this court held that to discourage prosecutorial delay, a prosecution must be

dismissed with prejudice if not brought to trial in a timely manner:

       In order to protect the right of the accused, and in accordance with the
       manifest policy expressed in the rules, to discourage prosecutorial
       delays which are not approved by the court, we hold that in such
       circumstances a prosecution must be dismissed with prejudice on timely
       motion of the defendant, if it is not brought to trial within the time
       specified in CrR 3.3, after the information or indictment is filed.

Id. at 877 (emphasis added). Hand does not argue before this court that his detention

violated his right to a speedy trial.'^ Nor does he argue that his prolonged detention

was the result of prosecutorial delay. Thus, Striker has no bearing on the resolution of

this case.




       ^ Trial courts may set an admission deadline in their commitment orders, as the court did
here, and monitor the State's compliance with the order.
          Hand did not specify in his motions to dismiss whether he was requesting dismissal with
or without prejudice, hut the language in his January 19, 2015 letter to the trial court suggests that
he was seeking dismissal without prejudice. See Clerk's Papers at 36 ("If not for the sake of
regaining my freedom, at least for the sake of'again' trying to obtain Mental Health 'Treatment.'"
(underlining omitted)).

                                               - 13 -
State V. Hand, No. 94902-6

       The 76 day delay in admitting Hand for treatment was caused by a lack of

resources at WSH.^^ The trial court correctly imposed sanctions against WSH for

violating its contempt order. These sanctions do not provide Hand relief, but Hand

may be able to bring a civil claim for damages. See Willis, 2017 WL 1064390, at *6.

The remedy that Hand seeks in this court, dismissal with prejudice, is simply not

warranted under these facts.


                                      V. CONCLUSION


       We affirm the Court of Appeals and hold that detaining an incompetent

defendant for 76 days before providing competency restoration treatment violates the

due process clause of the Fourteenth Amendment but that dismissal with prejudice is

not warranted under these facts.




      '^ Hand briefly alleged a speedy trial violation in his Court of Appeals brief. However, the
argument is limited to one sentence at the end of the section devoted to his due process argument.
He also raised the speedy trial argument briefly in his motions to dismiss.
         Hand's time spent in county jail will be counted toward his earned release time pursuant
to WAG 137-30-030 and -040.

                                             - 14
State V. Hand, No. 94902-6




                                    ^-^CLKA       d-C


WE CONCUR:




                                              J




                             - 15
State V. Hand (Anthony Gene)




                                       No. 94902-6




       MADSEN,J.(concurring)—^Although I agree with the result, I disagree with the

majority's position that Anthony Hand's detention awaiting competency treatment

implicates substantive due process. Substantive due process necessarily requires that a

fundamental right exists—either in statute or under the constitution. This is not the case

here. RCW 10.77.068 establishes only aspirational timelines and that Western State

Hospital(WSH)conduct competency evaluations and restorative serviees in a speeified

manner. A person does not have a fundamental right to services. Instead, I would hold

that this is a speedy trial rights issue under the Sixth Amendment to the United States

Constitution. However, Hand did not raise a speedy trial argument and waived that

defense. Therefore, I also would affirm Hand's convietion, but I depart from the

majority's rationale in doing so.

                                        Discussion


       In Jackson v. Indiana, the United States Supreme Court held that mentally

ineompetent persons are denied equal protection when committed to a mental institution

under less stringent standards than those required for release. 406 U.S. 715, 92 S. Ct.

1845, 32 L. Ed. 2d 435 (1972). The Court held "that a person . . . committed solely on
No. 94902-6
Madsen, J., concurring


account of his incapacity to proceed to trial cannot be held more than the reasonable

period oftime necessary to determine whether there is a substantial probability that he

will attain that capacity in the foreseeable future." Id. at 738. "[D]ue process requires

that the nature and duration of commitment bear some reasonable relation to the purpose

for which the individual is committed." Id.


       This general principle was relied on by the district court in Trueblood v.

Department ofSocial & Health Services, 101 F. Supp. 3d 1010(W.D. Wash. 2015),

vacated and remanded, 822 F.3d 1037(9th Cir. 2016), and in Oregon Advocacy Center v.

Mink, 322 F.3d 1101 (9th Cir. 2003). The majority relies on these two cases in holding

that the pretrial detention of a defendant prior to commitment for restorative treatment

falls under substantive due process.

       Specifically, the court, on appeal in Trueblood, opined,"[W]e excluded delays due

to competency issues from both the statutory and constitutional speedy trial analysis in

part because 'the delays were all either directly caused by Defendant or . . . were deemed

necessary in the interests ofjustice.'" Trueblood, 822 F.3d at 1044(second alteration in

original)(citing United States v. Sutcliffe, 505 F.3d 944, 957(9th Cir. 2007)).

       I disagree with the Ninth Circuit's interpretation ofthe Sixth Amendment speedy

trial right as it relates to civil commitment. In my view, its opinion conflates two very

distinct procedures—^pretrial detention awaiting restorative treatment and pretrial civil

commitment intended for restoration of competency to proceed to trial. A Sixth

Amendment right to speedy trial is necessarily implicated when a defendant's trial is
No. 94902-6
Madsen, J., concurring


being delayed simply because he is waiting for his competency restorative services. The

Ninth Circuit's support for dismissing a Sixth Amendment issue is unpersuasive.'

        Jackson can and should be distinguished. The issue in Jackson was the duration

ofthe defendant's stay in civil commitment. 406 U.S. at 719. Due to the psychological

evaluations of the defendant, the doctors testified that there was little hope for him to ever

restore competency, opening the door to indefinite civil confinement. See id. The Court

established the reasonableness standard to address the issue ofsomeone being

indefinitely confined after being evaluated and admitted to treatment as incompetent. In

such a case, a defendant's fundamental rights to treatment and to liberty are implicated.

Here, the issue is not pretrial commitment but, rather, pretrial detention. Due process is




' The court relied on Sutcliffe for the proposition that the Sixth Amendment is not implieated
when the delays are caused by the defendant or were deemed necessary in the interest ofjustice.
505 F.3d at 957. The delay here was not caused by the defendant, and the only reason for the
 wait was because WSH refused to admit him for treatment because it was near capacity. The
court in Trueblood opined that this was unpersuasive reasoning for the delay by holding a
permanent injunction was appropriate. Although reaching this conclusion through substantive
due process, it is clear that the delay caused by WSH is not "in the interest ofjustice" under the
decision in Sutcliffe.
        The court also cited a number of other cases to support its reasoning. See Trueblood, 822
F.3d at 1044 n.5. In United States v. DeGarmo,the court did not hold that the Sixth Amendment
is inapplicable to mental competency cases but, rather, that the facts did not show a violation of
the defendant's Sixth Amendment speedy trial rights. 450 F.3d 360, 365 (8th Cir. 2006). The
same holds true for the decision in United States v. Cope, 312 F.3d 757, 777-78 (6th Cir. 2002).
        Finally, in United States v. Vasquez, the court did not categorically preclude a Sixth
 Amendment violation. Instead the court held that the delay "would not necessarily have
constituted a violation of Vasquez's rights under the Speedy Trial Aet." 918 F.2d 329, 333(2d
 Cir. 1990).
        None ofthe cases the Ninth Circuit relied on in Trueblood stand for the proposition that
the Sixth Amendment simply does not apply in pretrial detention awaiting eommitment.
No. 94902-6
Madsen, J., concurring


not implicated when a person is being detained for the purpose of awaiting a restorative

treatment unless such a right is created by operation of statute.

       Here, the statute in question does not create a right to services for restorative

treatment. The statute in effeet at the time of the eourt's order read:


       The legislature establishes the following performance targets for the
       timeliness ofthe completion of accurate and reliable evaluations of
       eompetency to stand trial and admissions for inpatient services related to
       eompetency to proceed or stand trial.... The legislature recognizes that
       these targets may not be achievable in all cases without compromise to
       quality of evaluation services, but intends for the department to manage,
       allocate, and request appropriations for resources in order to meet these
       targets whenever possible. ...
              (i) For a state hospital to extend an offer of admission to a defendant
       in pretrial custody for legally authorized treatment or evaluation services
       related to competency . . . seven days or less.

Former RCW 10.77.068(l)(a)(2012)(emphasis added). The plain language of the

statute does not create any duty on the part of WSH,nor does it create any remedies or

rights in the defendant.

       Since there is no fundamental right implicated and the statutory scheme does not

impose a duty on WSH,nor does it give the defendant a remedy for prolonged detention

awaiting treatment, substantive due process is not implicated here.

       However,the Sixth Amendment and article I, seetion 22 of the Washington State

Constitution do provide defendants with the right to a speedy trial. Under our

constitution, speedy trial rights are substantially the same as under the Sixth Amendment,

and we use the Barker v. Wingo, 407 U.S. 514,92 S. Ct. 2181, 33 L. Ed. 2d 101 (1972),

balancing test to determine whether a constitutional violation has occurred. State v.
No. 94902-6
Madsen, J., concurring


Ollivier, 178 Wn.2d 813, 826-27, 312 P.3d 1 (2013). The Barker test weighs the conduct

of both the prosecution and the defendant. 407 U.S. at 529. Courts eonsider a number of

nonexclusive factors, such as "the '[l]ength of delay, the reason for the delay, the

defendant's assertion of his right [to a speedy trial], and prejudice to the defendant.'"

Ollivier, 178 Wn.2d at 827 (first alteration in original)(quoting Barker, 407 U.S. at 530).

       Moreover, under CrR 3.3, we have created comprehensive guidelines to facilitate

the timely processing of defendants. We have required that defendants detained in jail be

brought to trial within 60 days after the commencement date. CrR 3.3(b)(l)(i).

Recognizing issues relating to competency proceedings, we exempted the time it takes to

restore competency from when the order is first entered to when the court finds the

defendant competent. CrR 3.3(e)(1).

       In applying CrR 3.3(e)(1) we must give effect to the statutory scheme governing

competency. Thus, time should not be exempted under CrR 3.3(e) if a state hospital fails

"to extend an offer of admission" to a defendant in pretrial custody within seven days.^

Former RCW 10.77.068(l)(a)(i). CrR 3.3(e)(1) unequivocally states the "proceedings

relating to the competency of a defendant" are excluded from computing time for trial.

Former RCW 10.77.068 outlines the "proceedings" referred to in CrR 3.3(e)(1). Nothing

in former RCW 10.77.068 treats time spent awaiting admission to a state hospital for




^ Former RCW 10.77.068(l)(a)(ii) states that the "competency evaluation in jail and distribution
of the evaluation report" should occur within seven days. Moreover,former RCW
10.77.068(l)(a)(i) states that a state hospital has seven days to extend an "offer of admission" for
legally authorized treatment or evaluation.
No. 94902-6
Madsen, J., concurring


restorative treatment as a "proceeding." Since pretrial detention awaiting admission to a

state hospital is not one of the enumerated proceedings outlined in former RCW

10.77.068, it carmot justifiably be an exemption under CrR 3.3(e)(1).

       The Sixth Amendment requires that pretrial delays related to competency issues

must be "deemed necessary in the interests ofjustice" to be exempted from the time

calculation for purposes of speedy trial. Sutcliffe, 505 F.3d at 957; see also supra note 1.

It can hardly be said that a defendant being detained awaiting restorative services for 76

days because of administrative delays is "necessary in the interest ofjustice." Moreover,

this is distinct from cases where courts have found long periods of delay not

presumptively prejudicial, see, e.g.. United States v. DeGarmo,450 F.3d 360, 365 (8th

Cir. 2006); United States v. Cope, 312 F.3d 757, 777-78 (6th Cir. 2002), because our time

computation scheme under CrR 3.3(e)(1) excludes only proceedings relating to the

competency of a defendant. Delays awaiting the proceeding (i.e., the restorative

treatment) necessarily cannot be implicated within that calculation. If the hospital is

unable to admit pretrial defendants in a timely manner, then the State may choose to

dismiss the action without prejudice or to face a speedy trial rights violation.

       Delay in state services due to lack of resources is not unheard of. For example,

when the State is waiting for a toxicology report that is delayed due to backlogs,

prosecutors may elect to dismiss an action without prejudice to avoid a speedy trial rights

violation. Applying similar principles here will hold the State accountable for
No. 94902-6
Madsen, J., concurring


competency proceedings and will provide relief for defendants awaiting restorative

treatment in historically baeklogged and understaffed institutions.

       I believe that the speedy trial analysis under the Barker test is appropriate for

pretrial detention of a defendant awaiting restorative treatment. The 60-day period to

take a defendant to trial under CrR 3.3(b)(1) has expired if we take into account the time

spent awaiting the restorative services beyond the aspirational 7-day period under former

RCW 10.77.068. Thus, Hand's speedy trial rights were violated. However, since he

failed to assert a Sixth Amendment speedy trial rights violation, the analysis ends.

                                         Conclusion


       There is a distinction between pretrial detention and pretrial competency

restoration commitment, which implicates different constitutional rights. Since there is

no fundamental right or statutory right in receiving services, the Sixth Amendment's

speedy trial clause governs issues relating to pretrial detention, not substantive due

process. Because Hand fails to argue his right to a speedy trial has been violated here, his

conviction should stand.
No. 94902-6
Madsen, J., concurring
