                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                           September 25, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                  No. 49975-4-II

                                 Respondent,

         v.
                                                                   ORDER GRANTING
 SERGEY FEDORUK,                                                  MOTION TO PUBLISH

                                 Appellant.

        Appellant, Sergey Fedoruk, filed a motion to publish this court’s opinion filed on June 26,

2018. After consideration, the court grants the motion. It is now

        ORDERED that the final paragraph in the opinion which reads “A majority of the panel

having determined that this opinion will not be printed in the Washington Appellate Reports, but will

be filed for public record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further

        ORDERED that the opinion will now be published.

        FOR THE COURT

        PANEL: Jj. Worswick, Bjorgen, Sutton



                                                      Worswick, J.
 We concur:



 Bjorgen, J.




 Sutton, J.
                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            June 26, 2018
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 49975-4-II

                                Respondent,

         v.

    SERGEY V. FEDORUK,                                         UNPUBLISHED OPINION

                                Appellant.

        WORSWICK, J. — Sergey Fedoruk, who has a long history of serious mental illness,

appeals his second degree murder conviction. Although prior to trial Fedoruk was deemed

competent, he claims his mental health destabilized during the course of the trial. He argues that

the trial court erred when it proceeded with his trial after it became apparent that his mental state

had deteriorated to the point where he was no longer competent. We agree, and we reverse and

remand for a new trial.1

                                              FACTS

                                           I. Background

        In 2002, Fedoruk moved to the United States from Ukraine. While living in Ukraine,

Fedoruk suffered a head injury in a motorcycle accident, was diagnosed with schizophrenia, and




1
  Fedoruk also argues his right to be present was violated, the trial court improperly denied his
request for a mistrial, and the trial court erred by ordering Fedoruk to be placed in restraints and
by allowing his interpreters to move away from him. Fedoruk also filed a statement of additional
grounds (SAG) for review. Because the first two issues are dispositive in this case and because
we reverse Fedoruk’s conviction and remand for trial, we do not consider these arguments or the
issues in Fedoruk’s SAG.
No. 49975-4-II


was twice admitted to a psychiatric hospital. After arriving in the United States, Fedoruk lived

with his family. Over the course of years, doctors have prescribed numerous psychotropic and

antipsychotic medications, but Fedoruk has a history of poor compliance with the medication

regimens. He also has a known history of rapid decompensation.

       In 2007, prior to the incidents in this case, Fedoruk was charged with robbery, theft,

trespass, and four counts of assault. He underwent competency evaluations in both 2007 and

2008. In 2007, an evaluator diagnosed Fedoruk with “Bipolar 1 Disorder . . . with psychotic

features” but determined that he was competent to stand trial. Clerk’s Papers (CP) at 89.

However in 2008, prior to his trial, Fedoruk was again admitted to the hospital for covering

himself in feces while in jail. He underwent another competency evaluation and an evaluator

found him to be competent but also opined that Fedoruk was likely insane at the time he

committed the crimes in 2007. The jury found Fedoruk not guilty by reason of insanity for most

of the charges; he pled guilty to other amended charges.

       In September 2010, Fedoruk’s family requested that the police take him to the hospital

because he appeared “disheveled, disorganized and had pressured speech,” and had been eating

dirt and dog food and licking water, which he claimed was holy water, off of the floor. CP at 89.

Fedoruk had not slept and had not taken his psychotropic medication. Fedoruk was then

involuntarily detained and found to be “gravely disabled.” CP at 89. Fedoruk was admitted to

Western State Hospital (WSH). WSH discharged Fedoruk three months later and provided him

with a discharge plan that included medication and supervision by the Department of

Corrections.




                                                2
No. 49975-4-II


         In 2011, Fedoruk severely bit his own ﬁnger and, while in the hospital for that injury, he

“was screaming in Ukrainian and not making sense.” CP at 89. A doctor opined that Fedoruk

was psychotic and prescribed him psychotropic medications.

         In August, 2011, police found Serhiy Ischenko’s body down an embankment behind the

property where Fedoruk lived.2 After an investigation, the State charged Fedoruk with second

degree murder. The case went to trial and a jury found Fedoruk guilty. Fedoruk appealed, and

this court reversed Fedoruk’s conviction because his defense counsel failed to timely retain a

mental health expert and failed to investigate a mental health defense.

                                            II. PRETRIAL

         In May 2015, while Fedoruk was in jail awaiting his second trial for Ischenko’s murder, a

psychiatrist evaluated Fedoruk and diagnosed him with schizoaffective disorder. During the

evaluation, Fedoruk described many occasions of manic episodes all of which included “high

energy, little sleep, and delusional thought content.” CP at 91.

         In September 2015, the jail reported that Fedoruk was no longer taking his mood

stabilizing medication. The court ordered Fedoruk to undergo another mental health evaluation.

Fedoruk revealed to the evaluator that he had stopped taking his mood stabilizing medication,

because he was currently in jail and could not “hurt anybody.” CP at 87. Fedoruk also reported

that he becomes “sick” when he has not slept and that he experienced episodes of mania after his

earlier murder trial. CP 87. He stated that the prison had refused his request for sleeping pills.

The evaluator noted that Fedoruk’s “inability to sleep was known to him as a precursor for a

manic episode including paranoid delusions.” CP at 88. Fedoruk reported that during a manic


2
    Ischenko was Fedoruk’s relative by marriage.


                                                   3
No. 49975-4-II


episode he is “[n]ot in control—brain isn’t working right.” CP at 88. Fedoruk also stated that

during his manic episodes he believed that he had special powers and has paranoid delusions of

harming him and his family. The evaluation also included a report on Fedoruk’s judgment and

insight of his disorder:

       Insight/Judgment: Mr. Fedoruk showed fair insight into the nature of his episodic
       mood disorder and claimed he had the ability to accurately judge when he required
       medication in the jail environment based on a change in his sleeping pattern—i.e.
       when he began not sleeping. He also stated in the community he would have to
       remain consistently medication adherent. However, by his own description, onset
       of sleep disturbance also brings with it a level of lost control of his brain and
       behaviors.

CP at 94. Ultimately, the evaluator determined that Fedoruk was competent to stand trial, but

also noted that because he was not compliant with his medication, he was at a “higher risk” of

having returning symptoms and being susceptible to “other factors that can destabilize symptoms

of his major mood disorder including increased stress one would expect during a court trial.” CP

at 95. The evaluator stated that a forced medication order may be required.

       Three days after the competency evaluation Fedoruk had a psychiatric episode that led to

an emergency hearing where the court found Fedoruk incompetent. The court ordered that

Fedoruk be admitted to WSH and receive forced medication. During a delay in transferring

Fedoruk to WSH, he displayed unstable behavior. The jail notes state:

       Fedoruk at times was showing improvement, and at other times exhibited
       deteriorated conditions, which included manic-like symptoms, with yelling and
       pounding on his cell door, throwing liquid all over ﬂoor, pacing in his cell . . . . He
       would occasionally refuse his prescribed medication . . . .


CP at 148.




                                                 4
No. 49975-4-II


In December 2015, Fedoruk was finally admitted to WSH where he displayed more vacillating

behavior. At one point, Fedoruk was being loud and “extremely bossy” toward others and a

psychiatrist described him as “disinhibited” and not taking medication. CP at 148. A few days

later, Fedoruk’s behavior and mood began to “escalate” and he began washing himself and his

clothing in a toilet bowl and sink. CP at 148. That same day he was physically and verbally

assaultive which resulted in Fedoruk being restrained. Fedoruk was also “agitated, loud,

touching other patients, and instigating altercations.” CP at 149.

       During the next weeks, Fedoruk continued to have “manic-like behavior” and he was

“hard to redirect.” CP at 149. Staff reported that Fedoruk was “[u]pset about various things . . .

constantly handwashing clothing . . . taking bath in sink” and required extra medication and

emergency response for de-escalation. CP at 149.

       Fedoruk began to stabilize by January 2016 and his medications were adjusted.

However, a week later Fedoruk denied needing medication and again became noncompliant.

Doctors placed Fedoruk on medication watch to ensure Fedoruk’s compliance, and thereafter his

mood and behavior improved entering into February.

       In February, Fedoruk underwent another competency evaluation and the evaluator

determined that Fedoruk had the ability to understand the charges against him and court

proceedings and that he had the capacity to assist his attorney. In March, Fedoruk had a forensic

mental health evaluation addressing his capacity at the time of the murder. An evaluator noted

that at the time of the evaluation Fedoruk had “a moderate to high risk for reoffending and

dangerous behavior” and that his dangerous behavior would “increase should he discontinue his

medications.” CP at 180.



                                                 5
No. 49975-4-II


       In April, the court held a hearing regarding the need for another forced medication order.

The trial court noted Fedoruk’s “past history of rapid decompensation,” and ruled that the earlier

forced medication order was still in effect. Report of Proceedings (RP) (April 12, 2016) at 77.

At that hearing, the court and counsel discussed trial scheduling and both the State and defense

counsel agreed that the trial would last two weeks.

       In early September, the trial court held a pretrial hearing. During the hearing, defense

counsel stated:

              And at the same time, we do not want to continue this trial. There are all
       sorts of problems with that. The Court’s aware of—you know, we’ve had
       competency issues that have delayed things. My client’s competent; I think
       witnesses are available, and it’s our desire to go to trial as scheduled.

RP (Sept. 9, 2016) at 87.

                                            III. TRIAL

       Trial began on September 20. During trial, Russian interpreters assisted Fedoruk through

electronic headsets. On Wednesday, September 28, defense counsel informed the court that

Fedoruk was experiencing significant back pain. Defense counsel stated that Fedoruk was in so

much pain that he was having a hard time focusing. Fedoruk requested a continuance until

Tuesday of the following week. The State objected based on witness availability. The court then

denied Fedoruk’s request and stated:

               Well, I already know that we have witness—or pardon me, jurors, who had
       commitments in the first week of October and beyond that would mean that any
       continuance would mean that we’d be starting over, and I’m just not in a position
       to grant that request.

               Mr. Fedoruk needs to talk to jail medical staff when he goes back over at
       the lunch hour, and if they have any concerns then we can re-address the matter.

RP (Sept. 28, 2016) at 8.


                                                6
No. 49975-4-II


         Later that day, during a short recess, corrections officers placed Fedoruk in restraints.3

The court noted that Fedoruk had “been getting more concerned about his physical situation and

has been insistent that he be taken to the hospital.” RP (Sept. 28, 2016) at 57. Defense counsel

told the court that Fedoruk’s pain was “unbearable” and that his biggest concern was getting to a

doctor. RP (Sept. 28, 2016) at 57. The court stated that “[g]iven witnesses, jurors who are going

to be gone, we don’t have any choice but to go forward with your trial.” RP (Sept. 28, 2016) at

58. The court also informed Fedoruk that he needed to maintain his composure in the courtroom

and told Fedoruk that during the lunch recess the medical staff at the jail would be able to help

him with his pain.

         The court took an extended lunch recess so that Fedoruk could seek medical attention.

After the recess, Fedoruk again requested a continuance, but this time only until the following

morning, stating that “sleep and rest for a good chunk of the rest of the day and overnight, that

will go a long way toward making tomorrow more tolerable.” RP (Sept. 28, 2016) at 59-60. The

court denied Fedoruk’s request citing concerns over juror availability. The court stated that if it

extended the recess, the court would lose jurors, resulting in a mistrial.

         Fedoruk then requested to waive his presence at trial. The court engaged Fedoruk in a

colloquy to confirm that he wished to waive his presence:

         THE COURT: All right, Mr. Fedoruk, I just want to confirm—and you can stay
         seated if you wish, that’s fine.
                  I want to confirm: It’s your desire that you not be present for the balance of
         trial today; is that right?
         THE DEFENDANT: I agree.
         THE COURT: All right.
                  And you understand you have an absolute right to be here today?
         THE DEFENDANT: Yes. I believe my attorney.

3
    The exact nature of the restraints is not apparent from the record on appeal.


                                                   7
No. 49975-4-II


       THE COURT: Okay. You have discussed this with your attorney and this is how
       you wish to proceed; is that right?
       THE DEFENDANT: Yeah. Thank you.
       THE COURT: All right.
               Then we’ll allow Mr. Fedoruk to return to the jail for the balance of the day.
       We will have you brought over tomorrow morning. I assume that’s [sic] your wish
       is to be back here tomorrow morning?
       THE DEFENDANT: Yeah, thank you, yeah, yeah.
       THE COURT: All right.
               You’re comfortable with the trial proceeding without you this afternoon and
       your attorney acting on your behalf without you here?
       THE DEFENDANT: Correct, correct.

RP (Sept. 28, 2016) at 62-63. The court then allowed Fedoruk to return to jail for the rest of the

afternoon and continued the trial in his absence. The court instructed the jury that it should not

consider Fedoruk’s absence as “evidence of anything” and that Fedoruk had a right to not be

present. RP (Sept. 28, 2016) at 66.

       The next morning, on September 29, Fedoruk returned to the courtroom. During a

witness’s testimony, Fedoruk exclaimed, “Totally wrong. He’s lying.” RP (Sept. 29, 2016) at 8.

As the witness continued, Fedoruk made other verbal but unintelligible outbursts and again

claimed the witness was lying. The State then rested and defense counsel asked to address the

court. Outside the presence of the jury, defense counsel stated:

               Your Honor, I’m concerned about Mr. Fedoruk and very—he’s just very
       animated this morning, and some reactions to this last witness that the testimony
       really has been—well, reactions that I haven’t seen, up to this point.

               I believe he understands me; but, I’m concerned about his—his mood, at
       this point. I know we are very close to the end of the trial and I’m hoping he can
       keep it together.

RP (Sept. 29, 2016) at 9. Fedoruk himself then stated, “Because this is not truth. Not truth. I

never said my [inaudible] I kill somebody; I never tell my wife; my sister over there is saying

things.” RP (Sept. 29, 2016) at 9 (alteration in original). The State asserted that it appeared that


                                                 8
No. 49975-4-II


Fedoruk was upset about the witness testimony, which was the reason for his disruptive

behavior, “not that he’s having any difficulty understanding or following the proceedings, or any

difficulty assisting Counsel at this time.” RP (Sept. 29, 2016) at 10.

       After a brief recess and outside the presence of the jury, the court noted that Fedoruk was

having a “difficult time” and that at the request of the corrections officers, Fedoruk was placed in

leg shackles and a belly chain. RP (Sept. 29, 2016) at 11. Defense counsel told the court that he

was concerned about Fedoruk’s ability to maintain composure in the courtroom and that he

attempted to have a discussion with Fedoruk but was unsuccessful.

       Fedoruk then raised concerns about the jury being able to see the restraints. The court

then stated that if Fedoruk could maintain his composure, the court would have Fedoruk’s belly

chains removed. Fedoruk affirmed that he would be able to maintain his composure.

       Defense counsel objected to the restraints and stated that any rearranging of the

courtroom to accommodate the restraints would be very prejudicial to Fedoruk. Fedoruk added,

“[Inaudible] me. Yeah, maybe I’d [inaudible] stark crazy; but, if nobody touch me, I never touch

somebody back,” and he then apologized. RP (Sept. 29, 2016) at 14 (alteration in original). The

court responded that it was going to keep Fedoruk in the leg shackles because his behavior was

“very concerning to all.” RP (Sept. 29, 2016) at 14.

       Defense counsel also informed the court that the interpreters wanted to move away from

Fedoruk. The court, over Fedoruk’s objection, allowed the interpreters to move.

       Before the jury was brought in, Fedoruk asked to use the restroom, and the court

instructed the corrections officers to escort Fedoruk to the restroom. The court reported that

while using the restroom Fedoruk was “very loud in the back hall and was having some difficulty



                                                 9
No. 49975-4-II


controlling himself.” RP (Sept. 29, 2016) at 16. The court again asked Fedoruk if he would be

able to maintain his composure and Fedoruk responded in the affirmative.

       At this time, defense counsel informed the court that he was concerned about Fedoruk’s

competency and his ability to assist in his defense. Counsel stated that before the last break

Fedoruk was “chanting stuff that is some indecipherable Russian” and that when discussing the

testimony of the last witness, Fedoruk’s reaction was “pure anger.” RP (Sept. 29, 2016) at 16.

Defense counsel then said he was “concerned about [Fedoruk’s] competence, at this point. I hate

to do that, but I think that that’s—I think we’re—I’m very concerned that I’ve known him for

two years, I’m very concerned about his behavior.” RP (Sept. 29, 2016) at 17.

       The court then responded:

              At this point, based on my observations, Mr. Fedoruk is certainly responsive
       to what he is hearing in the courtroom and can converse with his attorney; but, he’s
       also emotionally upset. But I—at least at this point I don’t see this rising to the level
       of a competency concern.

               In addition, we are now at the point where Counsel advises me we are very
       close to completion of all the testimony after almost two weeks of trial. Mr. Fedoruk
       is currently calm, and I think we can continue to proceed.

              I’ll leave it to Counsel and his client whether he wishes to proceed with his
       presence in the courtroom or not in the courtroom. If he is in the courtroom, he does
       need to maintain his composure, and if you can’t do that, I won’t have any choice
       but to have him removed from the courtroom; complete the balance of the
       testimony; preparation of jury instructions.

              After that, we’d be providing those instructions to the jury and closing
       arguments. I know Mr. Fedoruk wants to be present for those parts of the
       proceedings, but it’s contingent on his behavior.

RP (Sept. 29, 2016) at 17-18. Fedoruk then removed his interpretive device from his head.

       The proceedings continued and after one more witness, the defense then rested and the

court inquired whether Fedoruk wanted to be present while the jury instructions were being


                                                  10
No. 49975-4-II


finalized. Fedoruk began to cry and defense counsel stated that Fedoruk would take the

opportunity to get some rest. The court then engaged in a colloquy with Fedoruk:

        THE COURT: Mr. Fedoruk, do you understand you can be here while we go over
        these instructions. It’s my understanding that you would prefer not to be; allow your
        attorneys to handle that; and you’ll take a chance to give your back a break; is that
        right?
        [Fedoruk]: No more witnesses?
        [DEFENSE COUNSEL]: No more witnesses.
        [Fedoruk]: No, no.
                Today and tomorrow; done?
        [DEFENSE COUNSEL]: Done.
        [Fedoruk]: Today, done?
        [DEFENSE COUNSEL]: Yes.
        [Fedoruk]: [lnaudible].
        [DEFENSE COUNSEL]: Yes
        [Fedoruk]: You’re sure? They told me tomorrow.
        [DEFENSE COUNSEL]: No, I’m sure we’re going to be done today.
        [Fedoruk]: Okay, if it’s done, then I like stay.
        [DEFENSE COUNSEL]: You’d like to stay? Okay.
        THE COURT: All right.

RP (Sept. 29, 2016) at 27-28 (alteration in original).

        Fedoruk began speaking in Russian and the following exchange took place:

        THE COURT: All right.
        (Defendant speaking in Russian.)
        THE INTERPRETER: (After translation communication with the Defendant:) He
        says that everybody knows [inaudible].
        THE COURT: I’m sorry, I couldn’t hear the interpreter?
        THE INTERPRETER: He just said—
                (Defendant continues speaking in Russian.)
        THE INTERPRETER:—the relatives they were testifying if they will come to the
        courtroom [inaudible].
        THE COURT: Okay, so, Mr. Fedoruk—
        (Defendant speaking in Russian.)
        THE COURT: Mr. Fedoruk, I need you to be quiet while we’re doing this; you
        understand?

RP (Sept. 29, 2016) at 28-29 (alterations in original). The court ordered that Fedoruk be placed

back in restraints at a corrections officer’s request.


                                                  11
No. 49975-4-II


       While the court and counsel were discussing jury instructions, Fedoruk requested to use

the restroom and said that he had a strain in his back. The court informed Fedoruk that he would

need to stay until the court had finished with jury instructions but that Fedoruk would soon be

able to go back to the jail for lunch. Fedoruk then said “I—actually, I refuse to go to lunch” but

then said he understood and was just “confused.” RP (Sept. 29, 2016) at 32-33. After preparing

the jury instructions, the court took a lunch recess.

       After the recess, the court continued to finalize the instructions and Fedoruk continued

speaking in Russian and also saying unintelligible things. The corrections officers restrained

Fedoruk again, chaining him to the table. The court then reported that Fedoruk had some

problems over the lunch hour in that he had taken his cell apart, but that he had received

medication and appeared to be doing “somewhat better.” RP (Sept. 29, 2016) at 38. Fedoruk

stated the name of the medication he took. Fedoruk then pointed to his head and stated “I’ve got

this beeping . . . instead.” RP (Sept. 29, 2016) at 38.

       With the jury present, the court began to read the instructions to the jury. Soon

thereafter, Fedoruk collapsed onto the floor. The court removed the jury from the courtroom.

Fedoruk began speaking unintelligibly, crying, and not responding. Defense counsel informed

the court that Fedoruk slid down his chair and hit his head on the table. Fedoruk then stated that

he wanted to go to sleep and then began shouting in Russian. He stated that he lost

consciousness and stated that he could not get up and that he was “done.” RP (Sept. 29, 2016) at

49.

       The court stated that it was “willing to give Mr. Fedoruk one more opportunity to sit

through the balance of the trial.” RP (Sept. 29, 2016) at 50. Fedoruk then began singing and



                                                  12
No. 49975-4-II


chanting in an unintelligible language. The trial court ordered Fedoruk’s removal from the

courtroom and ordered the officers to hold him in an area outside the courtroom to see if he

improved. Fedoruk continued to speak and chant, at one point stopping to apologize. Fedoruk

asked for a wheelchair and stated that he could not walk and then began to yell unintelligibly.

       As corrections officers were attempting to get Fedoruk off the floor, a spectator began

speaking to Fedoruk in Russian and Fedoruk began yelling in Russian. Fedoruk continued

yelling until he was removed from the courtroom. The interpreter then informed the court of

what Fedoruk had been saying:

              Well, first he was praying in poems, so it’s not any language, it’s just a
       made-up language which he prays in, and that’s according to his sisters. We
       couldn’t make sense of it.

               And then he was saying I’m going to call FBI [(Federal Bureau of
       Investigation)]you were not getting to help me, you broke my back, it hurts. That’s
       pretty much the gist of it.

RP (Sept. 29, 2016) at 53. The spectator, identified by the interpreter as Fedoruk’s sister, stated

that every time Fedoruk starts “losing it, that’s how he behaves.” RP (Sept. 29, 2016) at 53.

       The State then asserted that Fedoruk, through his behavior, had “effectively waived his

presence” at trial for the remainder of day. RP (Sept. 29, 2016) at 53. Defense counsel

responded that Fedoruk was not competent and that Fedoruk’s behavior was not something the

“Court should base exclusion on” and stated that the attorney was unable to “redirect” Fedoruk’s

behavior. RP (Sept. 29, 2016) at 54. The court then stated:

               Well, obviously we were at a point a little more than halfway through the
       giving of instructions and closing argument. It’s a point where the Defendant’s
       participation, if any, obviously is minimal.

               Mr. Fedoruk has demonstrated that at this point he’s either won’t or can’t,
       and I don’t say that in any pejorative fashion I just don’t know which, maintain his


                                                 13
No. 49975-4-II


       composure sufficient to allow the case to go forward with him still in the room. So,
       I would find that he’s waived his presence at this time; and that there’s no
       meaningful participation from him going forward.

               Given those two facts, I’ll allow the case to proceed without Mr. Fedoruk
       present. After I complete instructions, I’d ask that the officer advise us if he’s
       improved or not, or advise me and if at any point you think he’s calmed down
       sufficiently to come back into court please let me know.

RP (Sept. 29, 2016) at 54-55 (emphasis added). A corrections officer informed the court that

Fedoruk was lying down in the holding cell not saying anything.

       Defense counsel then stated that “under the circumstances” he was moving for a mistrial.

RP (Sept. 29, 2016) at 55. The court denied the motion and reasoned that “to the extent there’s

been any error or problem, it’s certainly has come from the behavior of the Defendant, whether

he can or can’t control that, whichever situation it is, I don’t think it can form the basis for a

mistrial.” RP (Sept. 29, 2016) at 55.

       After closing arguments, the court provided an update on Fedoruk and stated that

Fedoruk “was lying down on the floor in the holding cell, refusing to get up; speaking in a very

loud voice, indicating that he wished to return to the jail.” RP (Sept. 29, 2016) at 94. The court

then discussed whether Fedoruk could be present during the presentation of the verdict. The

court stated that once the jury reached a verdict, a corrections officer would check on Fedoruk

and advise the court of Fedoruk’s situation and the court would then make a “decision based on

that whether or not to bring him over.” RP (Sept. 29, 2016) at 95-96. Before the recessing for

the day, a corrections officer informed the court that when Fedoruk was transported to the jail,

smelling salts were needed to “wake” Fedoruk up and to get him out of the vehicle. RP (Sept.

29, 2016) at 96.




                                                  14
No. 49975-4-II


       The next morning, the jury reached a verdict. The court asked the jail to bring Fedoruk

back to the courthouse and the jail advised that Fedoruk spent the night without sleeping and

“mostly practicing boxing moves.” RP (Sept. 30, 2016) at 99. The court then took testimony

from an officer who testified that, “[w]e had officers go to his cell, let him know that there was a

verdict we needed to bring him over for court. He’s basically refusing to come over and he’s not

following directions at all this morning.” RP (Sept. 30, 2016) at 98. The officer also informed

that force would need to be used to bring Fedoruk to the courtroom.

       The court then took the verdict in Fedoruk’s absence. The State again asserted that

Fedoruk “waived his presence by his inability to follow directions; his unwillingness to follow

directions; and unwillingness to maintain behavior as appropriate.” RP (Sept. 30, 2016) at 100.

Defense counsel disagreed and asserted that he did not think Fedoruk was competent and that he

was concerned for Fedoruk’s safety. The court explained that there was no purpose in bringing

Fedoruk back to the courtroom and that “he wouldn’t otherwise have any active participation in

this process and would have no basis or opportunity to assist in his own defense in the course of

accepting the verdict, in any event.” RP (Sept. 30, 2016) at 100-101.

       The jury found Fedoruk guilty of second degree murder. After the jury exited the

courtroom, the court questioned counsel as to the next steps. Defense counsel stated, “[W]e’re

still questioning competency. I think sentencing is a critical proceeding. I’m asking that he be

evaluated.” RP (Sept. 30, 2016) at 106-107. The court responded:

              As kind of a recap, while Mr. Fedoruk was having difficulties over the
       course of the last couple days of the trial, it ultimately led to putting the leg shackles
       on him as kind of a last resort, and making sure the jury couldn’t see those.

               Conduct that might have caused me to question his competency at all really
       didn’t occur until we were reading jury instructions. At that point, I didn’t have a


                                                  15
No. 49975-4-II


          basis to think that he was not competent. Based on his behavior subsequent,
          including his behavior overnight in the jail and given the need for him to be able to
          consult with his attorneys pending sentencing, I think we have enough information,
          at this point, to question competence.

                  And I don’t think it’s in the Defendant’s or the State’s or the County’s best
          interest to delay until another hearing starting that process. So, at this point in time
          I am going to order an evaluation to determine the Defendant’s competence to
          continue to stand trial and to be sentenced.

RP (Sept. 30, 2016) at 107. Thereafter the court ordered that Fedoruk undergo a competency

evaluation and entered a forced medication order.

          During the week immediately following trial, a psychologist evaluated Fedoruk at the

jail. The psychologist noted that he saw Fedoruk through his cell because he was too, “acutely

impaired and mentally ill.” CP at 381. The psychologist reported that Fedoruk had not slept and

not taken medication. During the evaluation Fedoruk muttered with pressured speech and stated

that he had seen Jesus. The psychologist concluded that Fedoruk was, “in an acute psychotic,

agitated and confused state, and at that point not competent to proceed with his sentencing.” CP

at 381.

          After another competency evaluation in January 2017, an evaluator stated that nothing

impaired Fedoruk’s capacity to consult with his attorney or his understanding and recommended

that Fedoruk return to court for sentencing. The court then entered an order of competency and

conducted a sentencing hearing. The court sentenced Fedoruk to 216 months of confinement.

Fedoruk appeals.

                                               ANALYSIS

          Fedoruk argues that the trial court failed to order a competency evaluation when there

was reason to doubt his competency. Fedoruk argues that he was not competent and could not



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assist in his own defense and asserts that the trial court failed to consider his mental health

history and failed to give deference to his counsel’s concerns about his competence. Fedoruk

also argues that the trial court applied the wrong standard in determining whether he needed to

be evaluated for competency. We agree and hold that the trial court abused its discretion when it

failed to order a competency evaluation.

                                           I. COMPETENCY

A.     Legal Principles

       Criminal defendants have a constitutional right not to be tried while incompetent. In re

Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001). RCW 10.77.050 codifies this right by

preventing an incompetent person from being tried, convicted, or sentenced so long as the

incapacity continues. A defendant is “incompetent” if he or she “lacks the capacity to

understand the nature of the proceedings against him . . . or to assist in his . . . own defense as a

result of mental disease or defect.” RCW 10.77.010(15). The test for competency to stand trial

has two parts: (1) whether the defendant understands the nature of the charges and (2) whether he

is capable of assisting in his defense. Fleming, 142 Wn.2d at 861-62. The mere existence of a

mental disorder or the existence of delusions does not prevent a defendant from being competent.

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

       The trial court is required to order a competency evaluation when there is reason to doubt

a defendant’s competency. RCW 10.77.060(1)(a). We differentiate the determination of a

reason to doubt competency from an actual determination of competency. City of Seattle v.

Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985). The court must make the threshold




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determination that there is a reason to doubt competency before a hearing to determine

competency is required. Gordon, 39 Wn. App. at 441.

       We review a trial court’s decision on whether to order a competency examination for an

abuse of discretion. Fleming, 142 Wn.2d at 863. The trial court abuses its discretion when its

decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.

State v. Walker, 185 Wn. App. 790, 800, 344 P.3d 227 (2015). Once the trial court makes a

determination that a defendant is competent, it need not revisit competency unless “new

information” exists that shows the defendant’s mental condition has changed since being found

competent to stand trial. State v. Ortiz, 119 Wn.2d 294, 301, 831 P.2d 1060 (1992).

       There are no fixed signs which require a competency hearing, but the factors the court

may consider include, medical and psychiatric reports, personal and family history, defendant’s

appearance, demeanor, conduct, and past behavior. Fleming, 142 Wn.2d at 863. The trial court

should also give considerable weight to the defense counsel’s opinion regarding a defendant’s

competency. State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004).

       Here, Fedoruk had been found competent to stand trial. Thus, our examination focuses

on the signs that his mental condition had so changed since being found competent to stand trial

so as to require another competency evaluation. Ortiz, 119 Wn.2d at 301. To do so, we examine

the same factors the trial court considers when initially determining if it has reason to doubt a

defendant’s competency.

B.     Medical and Psychiatric Reports

       Fedoruk’s medical and psychiatric reports showed that his mental illness spanned years.

The reports also showed that Fedoruk had a history of rapid decompensation and medication



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noncompliance. The trial court was aware of Fedoruk’s lengthy medical history which detailed

certain behaviors Fedoruk exhibited during psychotic breaks, such as screaming in another

language, not being redirectable, and not making sense. Moreover, Fedoruk’s medical reports

contained information that Fedoruk’s “inability to sleep was known to him as a precursor for a

manic episode including paranoid delusions.” CP at 88. Fedoruk’s available psychiatric reports

documented that Fedoruk experienced a manic episode after a period of not sleeping and not

taking medication. Fedoruk was under a forced medication order and twice during trial Fedoruk

brought the issue of his lack of sleep to the court’s attention.

C.     Family History

       In 2002 Fedoruk’s family reported him to the police on account of Fedoruk threatening

them. After the threats, a doctor evaluated Fedoruk and prescribed him antipsychotic

medication. Fedoruk’s family again reported him to the police in 2010 and WSH then admitted

Fedoruk for psychiatric treatment.

D.     Conduct and Demeanor

       Starting on the second to last day of trial, Fedoruk exhibited extreme behavior that was

similar to behavior he displayed in past mental breakdowns. His behavior became increasingly

questionable as the trial proceeded and Fedoruk eventually stopped responding to his attorney

altogether.

       Fedoruk began chanting and screaming in an unintelligible language and had to be

physically restrained, in increasing fashion, for him to maintain composure. He slid out of his

chair, collapsed onto the floor, screamed at a spectator, and referenced calling the FBI, all the

while continuing to chant in a fake language. Fedoruk’s sister stated that the type of behavior



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Fedoruk displayed was the same type of behavior Fedoruk displayed before “losing it.” RP

(Sept. 29, 2016) at 53.

       Additionally, immediately after trial, Fedoruk underwent an evaluation. The evaluating

psychologist was unable to gain access to Fedoruk outside of his jail cell because Fedoruk was

“acutely impaired and mentally ill.” CP at 381. The psychologist deemed Fedoruk not

competent to undergo sentencing.

E.     Counsel’s Opinion

       At trial, defense counsel informed the court of his concern with Fedoruk’s “mood” and

competency multiple times toward the end of the trial. RP (Sept. 29, 2016) at 9. Defense

counsel also expressed that he was concerned about Fedoruk’s ability to assist in his defense. On

September 29, defense counsel voiced his concern about Fedoruk’s competence and stated that

he had known Fedoruk for two years and was worried about his behavior. Counsel reported that

Fedoruk was, “chanting stuff that is some indecipherable Russian.” RP (Sept. 29, 2016) at 16.

Later that same day, after Fedoruk slid off the chair in the courtroom and began singing in an

unintelligible language, counsel again told the court about his concerns and stated that Fedoruk

was not competent and that he could not be “redirect[ed].” RP (Sept. 29, 2016) at 54.

       Although each of the four factors above may not individually have required the court to

order a competency evaluation, taken together, a combination of the above factors create reason

to doubt Fedoruk’s competency. Fleming, 142 Wn.2d at 863. In light of Fedoruk’s mental

health history, his family history, his conduct at trial, his counsel’s opinion and other information

properly before the court, it is clear that Fedoruk showed signs of mounting decompensation

enough to create doubt as to his competency.



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No. 49975-4-II


F.     Trial Court Did Not Consider Correct Factors

       In evaluating the need for a competency evaluation, the trial court must consider (1)

whether the defendant understands the nature of the charges and (2) whether he is capable of

assisting in his defense. Fleming, 142 Wn.2d at 861-62. As noted above, in evaluating the need

for a competency evaluation, the trial court may consider the statements of counsel, medical and

psychiatric reports, personal and family history, defendant’s appearance, demeanor, conduct, and

past behavior. Fleming, 142 Wn.2d at 863.

       Here, as Fedoruk’s behavior deteriorated, and despite Fedoruk’s mental health history,

the trial court failed to consider whether Fedoruk was competent. Instead, the trial court focused

on whether Fedoruk had waived his presence at trial due to his disruptive behavior. Multiple

times throughout trial, the court warned Fedoruk that he needed to maintain his composure to

remain in the courtroom. After Fedoruk first started chanting in an indecipherable language the

court placed him in restraints, opining that Fedoruk was not having competency issues but was

“emotionally” upset. RP (Sept. 29, 2016) at 17. The court also stated that Fedoruk’s presence in

the courtroom was contingent on his behavior. The court additionally gauged Fedoruk’s

behavior by whether he was “calm” rather than whether he was exhibiting signs of mental

decompensation. RP (Sept. 29, 2016) at 17. Also, after Fedoruk’s removal from the courtroom,

the court expressly stated that it was unclear as to whether Fedoruk won’t “or can’t” control his

behavior. RP (Sept. 29, 2016) at 55 (emphasis added). Rather than address any competency

concerns based on that uncertainty, the court decided that it would continue to check on Fedoruk

to see if his behavior stabilized such that he would not disrupt the remainder of his trial.




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       It is apparent that the trial court reviewed Fedoruk’s behavior under the standard for

determining whether Fedoruk waived his right to be present at trial rather than analyzing whether

a competency evaluation was necessary. Because there were clear signs that Fedoruk’s mental

condition had significantly deteriorated since being found competent to stand trial, and because

the trial court applied the wrong standard in evaluating Fedoruk’s behavior, the court abused its

discretion when it failed to order a competency evaluation during trial.

       Because the trial court failed to order a competency evaluation when there was reason to

doubt Fedoruk’s competency and because the court applied the wrong standard to assess

Fedoruk’s behavior, the trial court abused its discretion.

       We reverse and remand to the trial court for further proceedings consistent with this

opinion.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                    Worswick, P.J.
 We concur:



 Bjorgen J.




 Sutton, J.




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