                                                                            Nov 26 2013, 5:38 am




FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                        GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana
Indianapolis, Indiana
                                              JODI KATHRYN STEIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

EVAN LEEDY,                                   )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )    No. 49A04-1303-CR-102
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Kurt M. Eisgruber, Judge
                          Cause No. 49G01-1203-FB-17254



                                  November 26, 2013


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                           Case Summary

       The State charged Evan Leedy with four felony counts of operating while intoxicated

(“OWI”) stemming from an automobile accident in which his girlfriend was killed and

another motorist was seriously injured.             The defense sought to have him declared

incompetent to stand trial, and the trial court found him incompetent and committed him to

the Division of Mental Health and Addiction (“DMHA”) pursuant to Indiana Code Section

35-36-3-1. Leedy sought review via interlocutory appeal, and the trial court stayed his

commitment pending our review. Finding that the trial court followed the statutory

procedure and that the statute does not run afoul of Leedy’s due process rights, we affirm.

                                  Facts and Procedural History

       Late one night in February 2012, Leedy was driving about eighty miles per hour with

his girlfriend on an Indianapolis street. His blood alcohol content (“BAC”) was .15, and he

ran a red light, colliding with a pickup truck. Leedy’s girlfriend died shortly thereafter, and

the driver of the truck suffered serious injuries. Leedy suffered a brain injury and was

comatose for about a month. The State charged him with class B felony OWI with a BAC of

at least .15 causing death, class C felony OWI causing death, class D felony OWI causing

serious bodily injury, and class D felony OWI with a BAC of at least .08 causing serious

bodily injury.

       In May 2012, Leedy filed a motion for competency and sanity evaluation to determine

whether he was competent to stand trial.1 He underwent mental evaluations with court-


       1
           During the pendency of the proceedings, Leedy was living at home with his mother.

                                                    2
appointed psychiatrist Dr. George Parker and court-appointed clinical psychologist Dr.

Shelvy Keglar. The doctors submitted reports to the trial court, which conducted a series of

competency hearings. At the hearings, both doctors testified that Leedy could not understand

the nature of the charges and proceedings against him and could not assist his counsel in

conducting his defense. The doctors testified concerning Leedy’s need of physical and

occupational therapy. They further testified concerning the various services available at the

state psychiatric hospitals, with the Logansport State Hospital (“Logansport”) focusing on

competency evaluations for criminals awaiting trial and housing mostly patients with mental

illness and disability rather than those with traumatic brain injuries. Dr. Parker testified that

he was not optimistic about Leedy’s chances of being restored to competency. Dr. Keglar

testified that with a cognitive rehabilitation program, Leedy could possibly be restored to

competency within one to two years. The trial court took the matter under advisement and

set another hearing to hear testimony from representatives of DMHA.

       At a November 2012 hearing, the medical director of Logansport, Dr. Danny

Meadows, testified that although most of the patients at the facility suffer from mental illness

or disability rather than from traumatic brain injury, he and his colleagues had treated patients

similarly situated to Leedy. He also testified that while the success rate for competency

restoration is lower for patients with Leedy’s type of injury than for mental illness patients,

Logansport would be capable of evaluating Leedy and attempting restoration services.

Additionally, he reported that any therapeutic services that Leedy would need that were not

provided at Logansport would be outsourced to area professionals. He stressed that it would


                                               3
be Logansport’s responsibility to meet all of Leedy’s clinical needs and that Logansport

personnel would transport him for outsourced services. Finally, he testified that while the

Larue D. Carter Memorial Hospital (“Larue Carter”) in Indianapolis was more geared to

handle brain injury patients in need of physical or speech therapy, Logansport was

specifically geared toward treating patients awaiting trial on criminal charges and that the

Logansport experts could possibly know within six months whether Leedy could be restored

to competency.

       DMHA chief counsel Katherine Gregory testified concerning the procedures for

determining which of the state psychiatric facilities best meets the needs of a given patient.

She stated that although Logansport would be the most routine placement for Leedy, DMHA

would make an effort to place him where his specific needs could best be met. She also

referenced the effect of DMHA’s funding constraints on outpatient restoration services.

       At the close of the hearing, the trial court determined that Leedy was incompetent to

stand trial and committed him to DMHA pursuant to Indiana Code Section 35-36-3-1(b). The

trial court stayed the commitment order so that the parties could submit briefs concerning

Leedy’s challenge to the constitutionality of the commitment statute. At a hearing on January

4, 2013, the trial court denied Leedy’s motion to declare the statute unconstitutional.

However, the court again stayed the commitment order pending Leedy’s pursuit of an

interlocutory appeal, which we accepted.




                                              4
                                    Discussion and Decision

       Leedy contends that his commitment to DMHA pursuant to Indiana Code Section 35-

36-3-1 violates his due process rights. Because it presents a question of law, we review a

matter of statutory interpretation using a de novo standard. Sloan v. State, 947 N.E.2d 917,

921 (Ind. 2003). When interpreting a statute, our goal is to determine and give effect to the

legislature’s intent in promulgating it. Ryan v. State, 900 N.E.2d 43, 44-45 (Ind. Ct. App.

2009). Thus, we begin by examining the language of the statute, presuming that the words

were selected to express their common and ordinary meanings. Id. at 45. Where the statute

is unambiguous, we accord each word and phrase its plain, ordinary, and usual meaning,

without having to resort to rules of construction to decipher meanings. Id.

       Leedy essentially raises due process challenges to both the statute itself and the trial

court’s action in committing him pursuant to the statute. Indiana Code Section 35-36-3-1

provides a mechanism for determining whether a defendant is competent to stand trial,

stating in pertinent part,

               (a) If at any time before the final submission of any criminal case to the
       court or the jury trying the case, the court has reasonable grounds for believing
       that the defendant lacks the ability to understand the proceedings and assist in
       the preparation of a defense, the court shall immediately fix a time for a
       hearing to determine whether the defendant has that ability. The court shall
       appoint two (2) or three (3) competent, disinterested:

               (1) psychiatrists;

               (2) psychologists endorsed by the Indiana state board of examiners in
               psychology as health service providers in psychology; or

               (3) physicians;

                                               5
        who have expertise in determining competency.

        …. The individuals who are appointed shall examine the defendant and testify
        at the hearing as to whether the defendant can understand the proceedings and
        assist in the preparation of the defendant’s defense.

               (b) At the hearing, other evidence relevant to whether the defendant has
        the ability to understand the proceedings and assist in the preparation of the
        defendant’s defense may be introduced. If the court finds that the defendant
        has the ability to understand the proceedings and assist in the preparation of
        the defendant’s defense, the trial shall proceed. If the court finds that the
        defendant lacks this ability, it shall delay or continue the trial and order the
        defendant committed to [DMHA]. [DMHA] shall provide competency
        restoration services or enter into a contract for the provision of competency
        restoration services by a third party in the:

                (1) location where the defendant currently resides; or

                (2) least restrictive setting appropriate to the needs of the defendant and
                the safety of the defendant and others.

(Emphasis added.)

        Although Leedy acknowledges the mandatory language contained in subsection (b), he

asserts that after the trial court made the incompetency finding,2 it nonetheless violated his

due process rights by ordering his commitment to DMHA. In this vein, Leedy essentially

asserts that the statute is unconstitutional as applied to him.

        Involuntary commitment is a clear deprivation of a defendant’s liberty and can only be

justified on the basis of legitimate state interests. Curtis v. State, 948 N.E.2d 1143, 1153

(Ind. 2011).

        The State has dual interests in committing an incompetent defendant: (1) to
        restore the accused to competency due to the right of the public and the

        2
          Leedy does not challenge the procedure followed by the trial court in conducting the competency
hearings under subsection (a).

                                                   6
       defendant to the prompt disposition of criminal charges pending against him
       and (2) to protect the defendant against being required to answer to charges
       that [he] lacks the capacity to understand or to assist [his] attorney in
       defending against [the charges].

Id. at 1154 (citation and internal quotation marks omitted). “Commitment of an accused thus

focuses on the State’s interest in the accused’s restoration to competency and necessarily

entails a finding of probability that the accused can be so restored.” State v. Davis, 898

N.E.2d 281, 289 (Ind. 2008).

       The statute clearly states that the determination concerning the probability of restoring

a defendant’s competency is made by DMHA or contracted third party service provider.

Indiana Code Section 35-36-3-3(a) gives the superintendent of the institution where the

defendant is committed or the director of the third party contractor ninety days to certify to

the trial court “whether the defendant has a substantial probability of attaining the ability to

understand the proceedings and assist in the preparation of the defendant’s defense within the

foreseeable future.” Subsection (b) outlines how DMHA or a third party contractor must

proceed if a substantial probability does or does not exist. See Ind. Code § 35-36-3-3(b) (if

substantial probability does not exist, initiate regular commitment proceedings;3 if substantial

probability does exist, retain defendant until he attains competency or for six months,

whichever occurs first).

       Leedy essentially argues that Indiana Code Section 35-36-3-1 is unconstitutional as

applied to him because it is specifically geared toward those with mental illness or disability


       3
           As outlined in Indiana Code Article 12-26.


                                                    7
and not to defendants who, like himself, are incompetent due to traumatic brain injury. At

the outset, we note that there is nothing in the statutory language indicating such a distinction

based on the source of a defendant’s incompetency. To the extent that the source of his

incompetency may affect his statistical probability of restoration, it is relevant in making that

determination.

       As support for his due process argument, Leedy relies on three cases. In the first,

Davis, our supreme court held that it is a violation of due process not to dismiss criminal

charges against an incompetent defendant where experts opined that the defendant could not

be restored to competency due to her paranoid schizophrenia and where her accrued period of

commitment had exceeded the maximum possible confinement in the event of an eventual

conviction. 898 N.E.2d at 283-84. Here, Leedy does not seek to have the charges dismissed.

Moreover, because the trial court stayed the commitment order pending the filing of this

interlocutory appeal, Leedy is not in the custody of DMHA, but rather is living with his

mother. Finally, as discussed below, the evidence is conflicting concerning Leedy’s chances

of being restored to competence. As such, Davis is factually distinguishable.

       Leedy also relies on Curtis, which involved a fifty-nine-year-old developmentally

disabled defendant seeking dismissal of charges of residential entry, battery, and criminal

mischief. 948 N.E.2d at 1146. Although the trial court ordered a competency evaluation in

which one of two experts determined that Curtis could never be restored to competency due

to dementia and the other found restoration unlikely, the trial court never actually made an




                                               8
incompetency finding and never committed the defendant to DMHA.4 Id. at 1153. Curtis

claimed that the failure to dismiss the charges pending against him violated his due process

rights. Id. at 1151. Our supreme court dismissed Curtis’s charges not on due process

grounds, but on the basis of Indiana Criminal Rule 4(C).5 Id. at 1154. With respect to

Curtis’s due process argument, our supreme court specifically stated that our statutes control

the appropriate way to determine incompetency to stand trial and probability of restoration

and that the procedures outlined therein “establish a comprehensive method that balances the

various interests at stake.” Id. at 1153. “If the trial court finds a defendant incompetent, the

trial court must commit the defendant to the DMHA, and the DMHA must provide

competency services.” Id. The Curtis court held that “[t]here is no viable fundamental-

fairness argument when Curtis has not been involuntarily committed and there has been no

appropriate finding [by DMHA] that he will never be restored to competency.” Id. at 1154.

Thus, despite the factual and procedural distinctions between Curtis and the present case,

what we can glean from Curtis is that our supreme court requires adherence to the clear

language of the statute concerning who shall make the determination concerning a

defendant’s probability of regaining competency: DMHA.

        In support of his argument that the trial court is nevertheless not required to commit

him to DMHA, Leedy cites a very recent decision by another panel of this Court, State v.


        4
         Notably, the trial court denied the State’s motion to have Curtis committed to DMHA based on its
determination that the State’s interest in restoring Curtis could not be accomplished.

        5
          See Ind. Criminal Rule 4(C) (stating that no person shall be held to answer criminal charge for
longer than one year from the date of charge or arrest).


                                                   9
Coats, 981 N.E.2d 1273 (Ind. Ct. App. 2013), trans. granted. There, an elderly man with

Alzheimer’s disease was charged with the sexual battery of his granddaughter. The experts

assigned to assess the defendant’s competency to stand trial both testified that due to the

progressive nature of his dementia, there was little chance of his ever being restored to

competency. The trial court designated Coats incompetent and found that he “will not return

to competency.” Id. at 1275. The trial court did not commit him to DMHA and determined

that he could continue to reside with his wife. The State did not dispute the finding of

incompetence but challenged the trial court’s decision not to commit Coats to a DMHA

facility, arguing that the mandatory statutory language forecloses any discretion by the trial

court to do anything except commit a defendant once it has made an incompetency finding.

Id. at 1276. The Coats majority affirmed the trial court’s denial of the State’s motion to

commit Coats, specifically noting the procedures outlined in the statute, but holding that “the

purposes of the competency restoration process cannot be met by following those procedures

here.” Id. at 1278. In her dissent, Judge Riley focused on the delineation of duties outlined

in the statute: “The trial court determines whether the defendant is incompetent in the first

instance, but the statutory scheme entrusts the ultimate determination on competency to the

[DMHA] superintendent, who has not only the skills to make such observations but also the

time within which to do so.” Id. at 1280 (Riley, J., dissenting).6

       Here, Leedy concedes that “there has not been a finding that [he] is not restorable.”

Appellant’s Br. at 8, n.6. Rather, he asserts that he “must get therapies DMHA cannot


       6
           Our supreme court heard oral argument on Coats on November 7, 2013.

                                                 10
provide if there is to be any hope of restoration.” Id. With respect to the restoration issue,

we note the following: (1) the trial court did not make any specific finding concerning

Leedy’s chances at restoration (assuming arguendo that such a finding would have had any

legal effect, given the language of the statute); (2) the expert testimony presented at the

competency hearing was conflicting concerning the probability of his restoration (with Dr.

Parker stating that he was not optimistic about restoration and Dr. Keglar stating that with a

cognitive rehabilitation program, Leedy had a possibility of restored competency within one

to two years); (3) beyond the fact that there is no specific language in the statute

distinguishing between the various sources of incompetency, i.e., mental illness versus

traumatic brain injury, the experts’ testimony that the restoration success rate is statistically

higher in mental illness patients did not preclude restoration in the cases involving traumatic

brain injury; (4) because the trial court stayed its commitment order pending this

interlocutory appeal, DMHA has not had Leedy in its care and custody, and as such, has not

even had the statutory ninety days during which to evaluate his chances of restoration; and

(5) the evidence was inconclusive regarding the effect of any DMHA funding constraints

upon Leedy’s receipt of therapeutic services necessary to restore his competency (at the

competency hearing, Gregory briefly referenced DMHA funding constraints; however, both

she and Dr. Meadows testified that it is the duty of DMHA and the assigned facility to ensure

that all of Leedy’s clinical needs will be met). Tr. at 142, 157.

       Simply put, Leedy’s due process arguments are based on speculation concerning both

DMHA’s ability to provide him with the necessary therapeutic services and his own cognitive


                                               11
responses to those services. Essentially, he has asked us to reweigh evidence and make a

conclusion that the legislature has specifically delegated to experts in the field of mental

competency, a determination that is made after a period of providing services and evaluating

the patient/accused. This is precisely why the General Assembly outlined such specific

procedures, recognizing the delicate balance that exists between the fundamental fairness

owed to the accused and the interests of both the public and the accused in the prompt

disposition of criminal charges. Based on the foregoing, we conclude that the commitment

statute is not unconstitutional as applied to Leedy and that the trial court did not violate

Leedy’s due process rights in ordering his commitment to DMHA. Accordingly, we affirm.

       Affirmed.

PYLE, J., concurs.

BARNES, J., concurs with separate opinion.




                                            12
                              IN THE
                    COURT OF APPEALS OF INDIANA

EVAN LEEDY,                                        )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )     No. 49A04-1303-CR-102
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )




BARNES, Judge, concurring

       I concur with the majority’s analysis. However, I write separately to emphasize and

highlight what I believe are inadequacies that our State’s mental health system displays here.

On the one hand, representatives from Logansport testified that that hospital was capable of

providing the “restorative services” that Leedy requires, albeit it would likely require the use

of third-party providers outside of the hospital itself. That is because Logansport is better-

suited for treatment of mental illness, not traumatic brain injuries. On the other hand, the

chief counsel for DMHA testified regarding the “constraints” her agency faces regarding

outpatient restorative services. In other words, no or very limited money is available for

these services.

                                              13
       All agree that the Larue Center in Indianapolis is better-suited to handle the specific

type of brain injuries Leedy sustained. I would respectfully, but strongly, suggest that

DMHA focus on securing the best and most appropriate treatment for Leedy—wherever that

might be. Without providing the best possible services for competency treatment, evaluation,

and restoration (if possible), DMHA and the State would possibly be delaying ultimate

resolution of this case at the expense of Leedy, his family, the victims, and families of the

victims of Leedy’s alleged crimes.




                                             14
