 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                                                                       c)
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                                          )       No. 76311-3-1                 ..-•      Tr
                     Respondent,          )
                                          )       DIVISION ONE                   co
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              V.                          )
                                          )       UNPUBLISHED OPINION                        ornC5
WILLIAM HENRY BRANDT,                     )                                            .. ..--tp
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                     Appellant.                   FILED: November 13, 2018               czt• C""2,‘
                                          )


       BECKER, J. — When there is reason to doubt a defendant's competency to

stand trial, a trial court must obtain a professional evaluation of the defendant's

mental condition. Here, the appellant—convicted of residential burglary after a

short trial in which he represented himself—contends the court committed error

by failing to recognize there was reason to doubt his competency. Because the

threshold issue of whether there is a reason to doubt the defendant's

competency has not yet been considered at the trial court level, we postpone our

decision on appellant's request to reverse his conviction, and instead remand for

a hearing.

                                      FACTS

       On October 1, 2016, a Lynnwood homeowner called 9-1-1 to report that

an older person who appeared to be lost and disoriented was sitting in her back

yard. It was appellant William Brandt. The homeowner called again when Brandt

began trying to break through a glass door with a rock.
No. 76311-3-1/2

       When a deputy arrived, Brandt walked up to him and asked to be arrested

for violating a protective order. Deputies learned that until very recently, the

home had been owned and occupied by Brandt's daughter. A five-year no-

contact order was in place, prohibiting Brandt from having any contact with his

daughter. Brandt has previously been convicted of violating the order; indeed, he

had recently been released from custody and was still wearing an inmate

bracelet when he was arrested outside the Lynnwood home. The State charged

Brandt with attempted residential burglary for attempting to enter what he thought

was his daughter's home, in violation of the no-contact order.

       According to the bail request accompanying the affidavit of probable

cause, Brandt, who was born in 1947, has previous felony and misdemeanor

convictions for possessing explosive devices, stemming from crimes he

committed as a violent war protestor in the Bay Area in the early 1970s. His

activities are documented in People v. Yoshimura, 91 Cal. App. 3d 609,614-19,

154 Cal. Rptr. 314 (Ct. App. 1979)(reviewing the criminal acts of Brandt and one

of his co-defendants in a notorious case). Brandt also has a Washington felony

conviction for intimidating a Shoreline District Court judge in 1998. A threatening

letter from Brandt to the Shoreline judge came after a barrage of conspiracy

theory lawsuits that Brandt carried on pro se, arising from a private fee dispute

over medical services in 1995. See State v. Brandt, 103 Wn. App. 1026 (2000);

see also Brandt v. Easton, 85 Wn. App. 1035 (after dismissal of misdemeanor

charges of malicious mischief and trespass, Brandt unsuccessfully sued district




                                          2
No. 76311-3-1/3

court clerks for negligence and conspiracy), review denied, 133 Wn.2d 1005

(1997).1

       In this case, Brandt was arraigned on October 18, 2016. A public

defender was present but did not represent Brandt, who had requested to

proceed pro se. Brandt has represented himself many times in previous

litigation. Brandt pleaded not guilty.

       At an omnibus hearing on November 2, 2016, the court conducted a

colloquy concerning Brandt's request to represent himself. Brandt answered the

court's questions in a satisfactory manner, and the court found "a knowing,

voluntary, and intelligent waiver of the right to counsel."

       At a CrR 3.5 hearing held on November 18, 2016, Brandt agreed with the

State that his statements to the deputy who arrested him were admissible.

Brandt testified that he had gone to the Lynnwood residence to wait for his

daughter because he felt sick and hungry and thought some of his property might

be stored there. He told the court that he intended to testify at the trial. Up to

this point, nothing in the recorded proceedings indicated a mental impairment.




1 Brandt made many unsuccessful attempts to obtain review in the cases from
this era of his life. See Brandt v. Maleng, 130 Wn.2d 1013, 928 P.2d 412(1996)
(petition for review denied); Brandt v. Malenq, 133 Wn.2d 1008, 943 P.2d 663
(1997)(petition for review denied); Brandt v. Malenq, 145 F.3d 1336 (9th Cir.
1998)(affirming district court's dismissal); Brandt v. Maleng, 525 U.S. 871, 119
S. Ct. 167, 142 L. Ed. 2d 137(1998)(denial of certiorari); Brandt v. Maleng, 525
U.S. 1049, 119 S. Ct. 609, 142 L. Ed. 2d 549(1998)(petition for rehearing
denied); Brandt v. Orthopedic Consultants of Wash., Inc., 137 Wn.2d 1013, 978
P.2d 1099(1999)(petition for review dismissed); Brandt v. Orthopedics
Consultants of Wash., 525 U.S. 1019, 119 S. Ct. 545, 142 L. Ed. 2d 453(1998)
(denial of certiorari); Brandt v. Orthopedics Consultants of Wash., 525 U.S. 1095,
119 S. Ct. 856, 142 L. Ed. 2d 709(1999)(denial of rehearing).
                                          3
No. 76311-3-1/4

The only oddity was Brandt asking the deputy on cross-examination if he owned

any penny stocks. The court sustained a relevance objection to this question.
                                                         ,
      On November 21, 2016, the court granted Brandt's motion to appoint

standby counsel. Standby counsel was present throughout trial and sentencing.

       A delusional theme emerged when Brandt submitted a two-page trial brief.

In the brief, Brandt asserted that he expected to show through cross-examination

of the homeowner that she was "acting as an accomplice to a subterfuge devised

by a devious federal agent(dubbed Dirty Trickster) in collusion with my Wall

Street adversaries (Manipulators) in furtherance of a government Ponzi policy to

'stabilize,' i.e., manipulate the stock market." He claimed to be "the Acting Chair

of Investors Liberation Movement which opposes fraud and manipulation on Wall

Street." He alleged that the protection order for his daughter had been obtained

through fraud and coercion evidenced by the forgery of her signature, and

suggested that the prosecutor should call her as a rebuttal witness. He said he

intended to call the prosecutor as a witness to inquire about his ownership of

"valuable penny stocks."

       Brandt's brief returned to his earlier explanation of his behavior when he

said that he had been released from a homeless shelter where he got sick. He

said he had gone to his daughter's home in part because he believed there were

catheters there that he needed to deal with a long-standing urinary infection. He

said he was glad the deputy rescued him by taking him back to jail, and he asked

to be released unconditionally to his daughter's care.




                                         4
No. 76311-3-1/5

      The brief concluded, "If my convictions for intimidating a judge (actually

the entire State judiciary) and leadership of the anti-war Revolutionary Army are

allowed to impeach my testimony, I shall present lengthy justifications for those

actions of which I am quite proud."

      A short jury trial began on November 28, 2016. Before anyone testified,

the judge advised Brandt that he did not plan to allow much, if any, testimony

about penny stocks or a conspiracy surrounding the no-contact order. Asked

about his defense theory, Brandt said he planned to argue as an affirmative

defense that the attempted burglary charge was a "subterfuge devised by a

devious federal agent," the Dirty Trickster. The judge informed Brandt that he

would not be permitted to raise this theory as an affirmative defense. At the

suggestion of standby counsel, Brandt then stated that he was entering a

defense of general denial.

      The prosecutor moved in limine for an order precluding Brandt from

raising any issue related to his mental condition. Brandt insisted that he was

competent and sane:

      [PROSECUTOR]:.. . I haven't been given any notice of diminished
      capacity or any kind of indication that the defendant suffer[s]from
      mental illness or condition. I guess I just ask the Court to instruct
      Mr. Brandt not to argue that, unless, I guess, previously authorized
      by the Court.

       MR. BRANDT: I'm mentally sane. I'm not incompetent or -- I'm
       mentally sound.

       THE COURT: All right. So I'll grant that motion. I -- there has been
       no defenses raised about competency or anything else.




                                         5
No. 76311-3-1/6

       Brandt unsuccessfully objected to the introduction of the no-contact order

on the basis that it was fraudulent. The State called two witnesses, the arresting

deputy and the homeowner. When the State rested, Brandt unsuccessfully

moved to dismiss on the grounds that the government is involved in the

manipulation of stock prices, the charges were politically motivated, and his

daughter's signature on the protection order was forged.

       Brandt called a single witness, himself. The court permitted him to

expound briefly on his conspiracy theory and the alleged role of the Dirty

Trickster in his legal predicament. He also testified that he did not know where

his daughter was and that he believed she had been intimidated or coerced. The

State cross-examined Brandt and elicited testimony from him confirming that he

was aware of the no-contact order and nevertheless tried to enter what he

believed was his daughter's home.

       Brandt began his closing argument by stating his position was, "1 don't

want to leave the jail, except to the care of my daughter." He referred briefly to

alleged fraud, government conspiracies, and penny stocks. He told the jury that

he was prepared to stay in jail indefinitely because it would provide him with a

place to stay. He testified that he had assumed his daughter still lived in the

house, that he never represented a threat to the homeowner, that the federal

agent known as the Dirty Trickster had told the homeowner not to answer the

door to him, and that the same federal agent had interfered with his medical

treatment. He claimed that his family owned "the major positions in all these

penny stocks" that were owned by the deputy and the prosecutor.


                                         6
No. 76311-3-1/7

       Brandt concluded by telling the jury he was content with any decision they

would make. The jury convicted Brandt as charged.

       Brandt submitted a sentencing statement asserting that he did "absolutely

nothing wrong ethically or morally" and that the abuse being committed against

him by the Dirty Trickster "had become so tormenting that it amounted to an

assassination attempt."

      At sentencing on December 7, 2016, the prosecutor recommended a

sentence of 9 months, the high end of the standard range. The prosecutor

suggested that the court consider ordering a mental health evaluation as a

community custody condition, even though he was not aware of authority

permitting it. He said that while he believed Brandt was "competent to stand trial"

and knew what he did was wrong, "I think it's apparent that there is a mental

health issue at play here. . . . I believe that Mr. Brandt is in dire need of some

kind of mental health evaluation, some kind of supervision." The prosecutor

explained that he was recommending the high-end sentence because he

believed Brandt was playing a game of trying to force his daughter to have

contact with him notwithstanding the no-contact order:

      [PROSECUTOR]: And the reason I'm making the high-end
      recommendation, Your Honor, is that Mr. Brandt, I mean -- he was
      still wearing the jail bracelet from his latest release from custody
      when he went immediately back to this address when he was under
      the impression that his daughter was still residing there, knowing
      full well that by going there he would be violating an order. In 2013,
      he was convicted of -- charged with four and convicted of three no-
      contact order violations in south division by my office for doing the
      same thing.

             We knew we could prove the attempted residential burglary
       without her participation, and that was a tactical decision that we

                                          7
No. 76311-3-1/8

       made. But I said in closing, I'll say it again today, Mr. Brandt's
       entire game,the entire thought behind the series of crimes he's
       committing, is essentially to find ways to force contact in violation of
       this order, whether that means going straight to Ms. Brandt's home,
       or where he believed Ms. Brandt lived, or going pro se in a trial so
       that he has the opportunity to personally cross-examine her, if
       there's any excuse to get her added on to a witness list. And this
       pattern of harassment or attempted harassment justifies a sentence
       on the higher end of the standard range.

       Brandt then was given an opportunity to be heard with respect to the

sentence. He said he would "reject and not cooperate with any mental health

evaluation." Brandt allowed standby counsel to speak for him to recommend a

mid-to-low range sentence and to say that he was not asking for a stay of

sentence pending appeal.

       The court imposed a sentence of nine months, the high end of the

standard range. The court did not attempt to fashion a sentence that would

require any type of mental health evaluation. In response to Brandt's claim that

he had done nothing wrong, the judge said, "You did something ethically and

morally wrong. You terrified a young lady for no apparent reason." The judge

told Brandt that the Dirty Trickster

       has gotten into your head somehow and caused you to go down
       this Alice in Wonderland rabbit hole. It has no connection to reality
       or anything that you say about penny stocks or any of that
       nonsense. You're just simply wrong, and you need some mental
       help.

       Brandt filed a notice of appeal. He indicated to standby counsel that he

wanted to appeal pro se. With standby counsel's assistance, he obtained an

order of indigency and authorization to proceed with an appeal at public expense.




                                          8
No. 76311-3-1/9

He is represented by counsel on appea1.2 With good time and credit for time

served, Brandt completed his sentence in March 2017.

                                    ANALYSIS

        Brandt contends that the trial court had reason to doubt his competency

and erred by failing to order a professional evaluation. He asks this court to

reverse his conviction and to "remand for a new trial, pending Brandt's

competency."

        The Fourteenth Amendment's due process clause prohibits the conviction

of a person who is not competent to stand trial. Drove v. Missouri, 420 U.S. 162,

171, 955. Ct. 896,43 L. Ed. 2d 103(1975). This due process principle extends

to sentencing. "No incompetent person shall be tried, convicted, or sentenced for

the commission of an offense so long as such incapacity continues." RCW

10.77.050.

        Under Washington law, when there is reason to doubt a defendant's

competency, the trial court must arrange for a qualified professional to carry out

an evaluation of the defendant's mental condition:

        Whenever a defendant has pleaded not guilty by reason of insanity,
        or there is reason to doubt his or her competency, the court on its
        own motion or on the motion of any party shall either appoint or
        request the secretary to designate a qualified expert or professional
        person, who shall be approved by the prosecuting attorney, to
        evaluate and report upon the mental condition of the defendant.

RCW 10.77.060(1)(a). The threshold determination of whether there is a reason

to doubt competency is to be distinguished from an actual determination of




2 See   Clerk's Papers at 1-11.
                                         9
No. 76311-3-1/10

competency. City of Seattle v. Gordon, 39 Wn. App. 437, 441,693 P.2d 741,

review denied, 103 Wn.2d 1031 (1985). The factors a trial judge may consider in

determining whether or not to order a formal inquiry into the competence of an

accused include the defendant's appearance, demeanor, conduct, personal and

family history, past behavior, medical and psychiatric reports and the statements

of counsel. State v. Ortiz-Abrego, 187 Wn.2d 394, 404, 387 P.3d 638 (2017).

       Here, the trial court did not consider, at least not on the record, whether

there was any reason to doubt Brandt's competence. Brandt argues that once

he began talking about penny stocks, government conspiracies and the role of

the Dirty Trickster, it was apparent that there was reason to doubt his

competence, and accordingly the trial court erred by failing to order a mental

health evaluation under RCW 10.77.060(1)(a).

       A criminal defendant is incompetent to stand trial if he or she "lacks the

capacity to understand the nature of the proceedings. . . or to assist in his or her

own defense as a result of mental disease of defect." RCW 10.77.010(15)

(emphasis added); Ortiz-Abreqo, 187 Wn.2d at 403. This is a two-part test. In

re Fleming, 142 Wn.2d 853, 862, 16 P.3d 610(2001). The record does reflect

some reason to be concerned, especially about whether Brandt's persistent

assertion of an implausible conspiracy theory undermined his capacity to assist

in his own defense.

       The State contends Brandt met the test for competency because he was

generally able to understand and comply with court rules and instructions and he

was able to cooperate with and follow the suggestions of standby counsel. The


                                         10
No. 76311-3-1/11

State points out that no one, including standby counsel, raised any suggestion

that he was incompetent.

       The State cites In re Fleming for its holding that if the trial court receives

no information regarding a defendant's competency, then the court does not

abuse its discretion by not ordering an evaluation. In that case, medical

professionals had examined the defendant and questioned his competency, but

their evidence was never provided to the trial court, and the trial judge did not

see any irrational behavior in the courtroom. In re Fleming, 142 Wn.2d at 863-

64. However, the Supreme Court did grant relief from the conviction on the

ground that the defendant's trial attorneys were ineffective. They did not raise

the issue of competency nor did they move for a competency hearing before the

defendant entered a guilty plea and was sentenced. In re Fleming, 142 Wn.2d at

867.

       In exercising its discretion in determining the threshold question of

whether there is reason to doubt a defendant's competency, a trial court will give

considerable weight to the attorney's opinion regarding the defendant's

competency and ability to assist in the defense. Gordon, 39 Wn. App. at 442.

But in the present case, unlike in In re Fleming or Gordon, Brandt was not

represented at trial. There was no attorney present with an obligation to protect

his due process right not to be tried or sentenced while incompetent. If Brandt

deserves to have his conviction reversed because a competency hearing was not

sought, that relief cannot be provided on the ground of ineffective assistance of

counsel as it was in In re Fleming.


                                          11
No. 76311-3-1/12

       Unlike In re Fleming, the trial judge did see irrational behavior in the

courtroom. It is true that the colloquy about self-representation, which was

conducted by a different judge, did not raise any concerns. But later, throughout

voir dire, opening statements, cross-examination, direct testimony, closing

argument, and sentencing, Brandt irrationally attributed his prosecution to the

existence of a vast government conspiracy.

       A defendant may appear competent at the beginning of a proceeding, but

the trial court "must always be alert" to changes in the mental condition of the

accused. prope,420 U.S. at 181. Ortiz-Abreqo is a recent example of this

principle. That case was "unusual" in that the contested hearing to determine if

the defendant was competent to stand trial occurred after the trial itself. Ortiz-

Abreqo, 187 Wn.2d at 407. Here, the trial judge, at one point referring to the

deciSion that Brandt had validly waived his right to counsel, characterized it as a

"determination that this gentleman is competent and versed to represent himself,"

and stated that he did not intend to reopen that inquiry. But a decision permitting

a defendant to represent himself is based on different criteria than a decision to

inquire into competency, and we do not regard this comment as reflecting a

deliberated choice that an inquiry into competency was unnecessary.

       Some of the prosecutor's comments during the trial indicated his unease

with the situation. The State does not dispute that Brandt's conspiracy theories

were delusional. After the verdict, the prosecutor and the judge both expressed

the belief that Brandt needed help with mental health issues. The prosecutor

said he believed that Brandt was "in dire need of some kind of mental health



                                         12
No. 76311-3-1/13

evaluation, some kind of supervision," even though he could not find authority for

ordering an evaluation under the terms of the sentence he was asking the court

to impose.

       Whether there was reason to doubt Brandt's competence and order a

professional evaluation is not an issue that we are presently in a position to

decide. Needing a mental health evaluation is far from a conclusive indicator of

incompetency. And possibly, as the prosecutor suggested at sentencing, Brandt

consciously designed a ruse aimed at bringing him in contact with his daughter.

       What is problematic, though, is the complete absence in the trial record of

consideration of the possibility that Brandt needed a competency evaluation. It is

not dispositive that Brandt insisted he was sane and competent, or that he

objected to being compelled to undergo any type of mental evaluation. The law

requires vigilance in the protection of the right of an accused not to be tried or

sentenced when incompetent. When convictions have been affirmed on appeal

against an argument that the trial court abused its discretion by failing to call for a

competency evaluation, the record typically reflects that the issue of competency

was raised at some point and considered by the court. See, e.g., Gordon, 39

Wn. App. at 438,442-43. Here, it was not raised or considered. While a trial

court has broad discretion in competency matters, our role is to review the trial

court's decision for abuse of discretion. Here, there is no exercise of discretion

that we can review. On the record presented to us, we are unwilling to affirm or

reverse the conviction without a decision made by the trial court after weighing

the pertinent factors.


                                          13
No. 76311-3-1/14

       The posture of the case is somewhat similar to the circumstances in State

v. Chettv, 167 Wn. App. 432, 272 P.3d 918 (2012). There, the appellant filed a

motion to extend time to file his criminal appeal. We determined the record was

inadequate to allow us to determine whether to grant or deny the motion. We

remanded to superior court for a reference hearing because the inquiry was so

highly fact-specific. Chettv, 167 Wn. App. at 444-45.

       Here, like in Chettv, a fact-specific inquiry is needed before we can

properly determine whether Brandt's conviction should be affirmed or whether, as

he contends, he is entitled to a new trial pending a determination of his

competency. Accordingly, we remand for such further proceedings as the trial

court may deem necessary. The court shall enter findings addressing, at a

minimum, whether there was reason to doubt Brandt's competency at any point

of the proceedings below.

       A hearing on this matter shall be held within 90 days of the date this

opinion is filed unless the superior court determines that additional time is

needed to prepare for the hearing. In that event, the superior court may grant the

parties additional time, provided the court or the parties advise this court of any

delay and the reasons. Following the hearing, counsel shall promptly forward to

this court copies of the written findings and conclusions together with the clerk's

papers and transcripts of the hearing. Counsel may request permission to file

supplemental briefing in this court. This court will then determine the proper

disposition of Brandt's appeal.




                                         14
No. 76311-3-1/15

       On remand, the superior court shall also reconsider the no-contact order

that barred Brandt from contacting the Lynnwood homeowner for 10 years. The

State concedes the 10-year duration is error because it exceeds the 5-year

statutory maximum for the crime. State v. Armendariz, 160 Wn.2d 106, 120, 156

P.3d 201 (2007).

                                     CONCLUSION

       The record does not reflect that the trial court ever considered whether

there was reason to doubt the appellant's competency. The relief requested by

the appellant—reversal of his conviction—cannot be appropriately considered

until that issue is resolved in the first instance in the trial court.

       Reversed and remanded for further proceedings not inconsistent with this

opinion.



                                             3     -e C, --R 7



WE CONCUR:




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