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                                                 ADVANCE SHEET HEADNOTE
                                                             March 16, 2020

                                    2020 CO 21

No. 18SC620, People v. Lindsey—Competency Motions—Statutory Threshold
Requirements—Judge’s Discretion to Reject Inadequate Proffer.

      The supreme court concludes that section 16-8.5-102(2)(b), C.R.S. (2019),

includes threshold requirements. Further, the supreme court concludes that,

while trial courts must guard against second-guessing a competency motion that’s

“in writing” and contains “specific facts” that form the basis of counsel’s “good

faith doubt” about the defendant’s competency—i.e., a motion that satisfies the

threshold requirements in section 16-8.5-102(2)(b)—they retain sufficient

discretion to reject a competency motion that rests on counsel’s inadequate proffer.

Because the supreme court discerns no abuse of discretion in the district court’s

rejection of defense counsel’s competency motion as inadequate, it reverses the

judgment of the court of appeals.
                The Supreme Court of the State of Colorado
                2 East 14th Avenue • Denver, Colorado 80203

                                  2020 CO 21

                     Supreme Court Case No. 18SC620
                   Certiorari to the Colorado Court of Appeals
                    Court of Appeals Case No. 15CA1368

                                  Petitioner:

                     The People of the State of Colorado,

                                       v.

                                 Respondent:

                           William Arthur Lindsey.

                             Judgment Reversed
                                  en banc
                               March 16, 2020


Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General
      Denver, Colorado

Attorneys for Respondent:
Ridley, McGreevy & Winocur, PC
Robert T. Fishman
      Denver, Colorado

Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
JLongtin Law, LLC
Jennifer E. Longtin
      Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE HART dissents, and JUSTICE MÁRQUEZ and JUSTICE GABRIEL
join in the dissent.




                               2
¶1    Any experienced attorney would have realized that the trial court was not

going to grant another motion to continue in this case. This was at least the seventh

trial setting, the case had been pending for approximately three years (prompting

another judge to remark that it was likely the oldest case pending in Jefferson

County), David G. Tyler was William Arthur Lindsey’s fourth attorney in this case,

and Judge Todd Vriesman and his predecessor had admonished Tyler and

Lindsey no fewer than three times during the previous twelve months that there

would be no more continuances.

¶2    A month before trial, Tyler moved to withdraw from the case, but his motion

was denied after a hearing in front of a different judge who found no irreconcilable

conflict. On the eve of trial, Tyler filed another motion, this one challenging

Lindsey’s competency. The factual assertions in this motion were the same factual

assertions on which Tyler relied during the hearing on the motion to withdraw ten

days earlier: Lindsey had failed to be completely forthright with him, to keep

promises to furnish information and funds for an effective defense, and to

diligently work and communicate with him. In all the years the case had been

pending, this was the first time anyone had ever raised a question about Lindsey’s

competency. And, during the hearing on the competency motion, just as during

previous hearings, Lindsey was lucid and coherent, showing no signs of

incompetency.

                                         3
¶3    Tyler believed that our competency statutes required the trial court to either

make a preliminary finding regarding competency or indicate that there was

insufficient evidence to do so. He was aware that if the court made a preliminary

finding (either of competency or incompetency) and he objected to it or,

alternatively, if the court determined there was insufficient information to make a

preliminary finding, the statutory scheme required the court to order a

competency evaluation, which, in turn, would necessarily postpone the trial. But

Judge Vriesman found that the motion’s factual assertions had nothing to do with

competency and did not support a good-faith doubt about Lindsey’s competency.

Accordingly, consistent with his and his predecessor’s previous warnings about

no more continuances, Judge Vriesman refused to postpone the trial. The case

thus proceeded to a jury trial, where Lindsey was convicted of securities fraud and

theft. Lindsey then appealed, and a division of the court of appeals vacated his

convictions.

¶4    Because we perceive no abuse of discretion by the trial court, we now

reverse the division’s judgment. We conclude that, while trial courts must guard

against second-guessing a competency motion that’s “in writing” and contains the

“specific facts” that form the basis of counsel’s “good faith doubt” about the

defendant’s competency—i.e., a motion that satisfies the threshold requirements




                                         4
in section 16-8.5-102(2)(b), C.R.S. (2019)—they retain sufficient discretion to reject

the rare competency motion grounded in an attorney’s inadequate proffer.

                        I. Facts and Procedural History

¶5    Over the course of thirteen months, Lindsey persuaded six investors to

advance roughly $3 million toward a new technology that he claimed would

harness the energy of bioluminescent algae to light signs and panels. In soliciting

these funds, Lindsey told his investors that he had already secured contracts to sell

his lighting products to several large clients, including the U.S. Department of

Defense, U-Haul, PetSmart, and the 2012 Super Bowl. As it turned out, neither the

technology nor the contracts existed. Instead, Lindsey diverted the funds he

collected to his own personal use. But Lindsey’s investment scheme caught up

with him on June 7, 2012, when a Colorado grand jury indicted him for securities

fraud and theft.

¶6    Lindsey, however, would not stand trial for almost three years. In the

intervening time, the criminal case against Lindsey lingered in the Jefferson

County district court as it was besieged by significant procedural interruptions,

including numerous continuances of court appearances, at least seven trial

settings, and three changes in defense counsel.          Lindsey’s handiwork was

responsible for the bulk of these delays. The last attorney to enter an appearance

on Lindsey’s behalf was Tyler. But, like most of his colleagues before him, Tyler


                                          5
eventually wanted off the case. Less than a month before trial, he filed a combined

notice of discharge and motion to withdraw (“motion to withdraw”). Tyler

informed the court that he and Lindsey had “[i]rreconcilable differences” and that

Lindsey had discharged him as counsel of record. In a letter to the court, Lindsey

denied discharging Tyler and objected to Tyler’s withdrawal from the case.

¶7       Tyler’s motion to withdraw was referred to another judge, Judge

Christopher Munch, for a hearing outside the presence of the prosecutor.1 At the

hearing, Tyler argued that Lindsey had failed to be completely forthright with

him, to keep promises to furnish information and funds for an effective defense,

and to diligently work and communicate with him.2 Judge Munch found no

irreconcilable conflict and predicted, based on the number of postponements and

the age of the case, that Judge Vriesman was unlikely to continue the trial yet

again.    On Judge Munch’s recommendation, Judge Vriesman denied Tyler’s

motion to withdraw.




1 The transcript of the hearing in front of Judge Munch was initially sealed.
However, Lindsey’s appellate counsel attached it to his opening brief at the court
of appeals and it is now accessible to the public.
2 This wasn’t a one-way street. Lindsey complained about Tyler too, accusing him
of failing to return phone calls, to work on the case diligently, to contact witnesses,
to review documents, to make productive use of the $39,000 paid in attorney fees,
and to submit accurate billing statements.
                                          6
¶8    Ten days later—less than forty-eight business hours before trial was set to

start—Tyler filed a new motion, this one asking the court to make a determination

as to Lindsey’s competency pursuant to section 16-8.5-102.3 In the motion, Tyler

certified that he had “good faith doubts” that Lindsey was competent to proceed.

Tyler opined that Lindsey could neither “appreciate the nature and consequences

of the trial which he [was] facing” nor “assist in the preparation and assistance of

[c]ounsel in his [d]efense.” But the specific facts on which Tyler relied mirrored

the factual allegations advanced in support of his motion to withdraw: Lindsey

had not been completely forthright with him, had not kept promises to furnish

information and funds for an effective defense, and had failed to diligently work

and communicate with him.

¶9    At the hearing on the competency motion, which was held on the morning

of the first day of trial, Lindsey informed the court that he had read Tyler’s

competency motion and that it was “driving [him] nuts” because he had given

Tyler “a lot” of the information and documents that the motion claimed he hadn’t

provided. He added that he wished he had a lawyer who would “at least look[]




3While sections 16-8.5-101 through -103, C.R.S. (2019) were amended in 2019, long
after Lindsey’s trial, the changes are not relevant to the analysis here. Therefore,
throughout this opinion, we cite, quote, and discuss the current statutory
provisions.
                                         7
at [his] technology and . . . at all the documents that [he had] provided” Tyler.

Lindsey further indicated that he had never been diagnosed with a reading

disability or any other type of mental or developmental disability. After being

advised of the consequences that would accompany a court-ordered competency

evaluation, including that he would be committed to the Jefferson County jail or

the Colorado Mental Health Institute at Pueblo for as little as several weeks or as

long as a few months, Lindsey told the court that he did not wish to join Tyler’s

motion. In fact, according to Lindsey, he “didn’t even know the motion was being

filed” by Tyler.

¶10   For her part, the prosecutor asked the court to allow Lindsey’s probation

officer in a criminal case out of Arapahoe County to testify by telephone. She

represented, by way of an offer of proof, that Lindsey’s probation officer, who

knew Lindsey better than Tyler, the judge, and the prosecutor, would testify that

she (the probation officer) had been meeting regularly with Lindsey for two years

and that Lindsey was competent.

¶11   At that point, Tyler requested and received a short recess so that he could

discuss the competency motion with Lindsey. At the end of the recess, Tyler

informed the court that Lindsey had experienced a change of heart and was now

willing to join in the competency motion. Lindsey confirmed that, based on his

discussion with Tyler, he was on board with the competency motion.

                                        8
¶12   In resolving the competency motion, Judge Vriesman looked to the

definition of “[i]ncompetent to proceed” in section 16-8.5-101(12), C.R.S. (2019).

Under that definition, a defendant is incompetent to proceed if he suffers from “a

mental disability or developmental disability” that causes him to lack either

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

rational understanding in order to assist in the defense” or “a rational and factual

understanding” of the proceedings.4 Guided by this definition, Judge Vriesman

considered all of the pertinent circumstances:

      • the timing of the competency motion—“less than 48 [business] hours
        prior to” trial;

      • the history of the case, including at least seven trial settings;

      • the fact that he and his predecessor had warned Tyler and Lindsey on at
        least three occasions during the previous twelve months that there
        would be “[n]o more continuances in this case”;

      • Tyler’s recent motion to withdraw from the case;

      • the fact that “the . . . allegations that [were] contained in th[e] motion to
        determine competency were . . . the same type of allegations with regard
        to lack of communication[] [that] were contained in th[e] previous
        motion” to withdraw;




4 At the time of trial, the definition of “incompetent to proceed” was codified at
section 16-8.5-101(11). Following the 2019 amendments, it is now located at section
16-8.5-101(12). The statutory language remains the same. See Ch. 227, sec. 1,
§ 16-8.5-101, 2019 Colo. Sess. Laws 2273, 2274.
                                          9
      • the multiple changes of counsel, which had caused delays in the case,
        and the fact that Tyler was Lindsey’s fourth attorney, though not the first
        to assert a conflict with Lindsey;

      • his observations of Lindsey that day and during several prior court
        appearances, which provided no basis to be concerned about Lindsey’s
        competency;

      • the fact that Lindsey, who had a history of other cases (both civil and
        criminal), was “familiar with court proceedings” and not “a novice to the
        court system”;

      • the letter Lindsey wrote to the court objecting to Tyler’s withdrawal from
        the case, which showed that Lindsey “underst[ood] the nature of the[]
        proceedings”;

      • Lindsey’s admission that he had never “been diagnosed with a mental
        disability or [a] developmental disability”;

      • the fact that no evidence was presented showing either that Lindsey was
        taking any medication for a mental or developmental disability or that
        he had a history of such a disability; and

      • the factual assertions in the competency motion, which reflected that
        Tyler’s doubt about Lindsey’s competency was based on the
        “consultation between” Tyler and Lindsey never occurring, “documents
        that exist[ed]” not being “fully vetted,” Lindsey’s alleged “fail[ure] to
        provide” documents to Tyler, the fact that Lindsey “forgot or ignored
        meetings,” and the failure to retain experts.

¶13   The court ultimately rejected Tyler’s competency motion. It determined that

Lindsey, “an intelligent man,” did not suffer from a mental or developmental

disability, was “able to act and speak rationally,” and had “a reasonable degree of

rational understanding in order to assist in the defense in this case.” The court




                                        10
found that the conclusory opinions in Tyler’s motion related to Lindsey’s

purported incompetency did not “raise a good-faith doubt about competency.”

¶14   Judge Vriesman acknowledged the concerns expressed by Tyler. But he

explained that “almost every trial attorney . . . might like more preparation[] and

sometimes even a more cooperative client.” Indeed, mentioned the judge, this was

certainly not the first time a defense attorney in a criminal case wished his client

had done more to help prepare a defense.

¶15   In the end, Judge Vriesman was convinced that the issues raised by Tyler

were related to Lindsey’s lack of cooperation in this litigation and had nothing to

do with competency:

      Defense counsel cannot make a claim of alleging competency of his
      client based upon a client’s refusal to cooperate with his counsel. That
      doesn’t go to the issue of present ability to understand [or to the issue
      of] a reasonable degree of rational understanding in the proceedings
      that are before us . . . . I will repeat that defense counsel cannot make
      a claim of competency in this case, which is an ability to understand.

Judge Vriesman clarified, though, that he was not denying the motion based on a

finding of competency, which, if timely objected to by either attorney, would

require a competency evaluation. Instead, he was rejecting or striking the motion

for failing to raise a good-faith doubt regarding competency.

¶16   The case then proceeded to trial. Midway through the trial, Tyler renewed

his competency motion, insisting that Lindsey was entitled to have the

proceedings stayed “pending the outcome of an evaluation.” The trial court
                                         11
denied the renewed motion, and at the conclusion of the trial, the jury found

Lindsey guilty as charged.

¶17   On appeal, Lindsey argued that the trial court erred by refusing to follow

the statutory procedures for determining competency set forth in sections

16-8.5-102 and -103, C.R.S. (2019). More specifically, Lindsey maintained that,

upon receiving Tyler’s competency motion, the trial court had only two choices:

(1) make a preliminary finding of competency or incompetency, which, if timely

objected to by either attorney, would require a competency evaluation; or

(2) indicate that there was insufficient information to make a preliminary finding,

which would require a competency evaluation.            The People countered that

Lindsey’s judgment of conviction should be affirmed because a competency

evaluation is not required unless the trial court has “reason to believe” that the

defendant is incompetent.

¶18   Ultimately, a division of the court of appeals sided with Lindsey, holding

that the trial court had abused its discretion in failing to follow the procedures set

forth in sections 16-8.5-102 and -103. See People v. Lindsey, 2018 COA 96M, ¶ 15,

__ P.3d __. In particular, the division ruled that the trial court had erred by

(1) concluding that Tyler’s motion failed to adequately raise the issue of Lindsey’s

competency; and (2) refusing to order a competency evaluation after Tyler

attempted to object to what the division viewed as the trial court’s preliminary

                                         12
finding of competency. Id. In the process, the division rejected the People’s

assertion that a competency evaluation is required only when the trial court has

“reason to believe” the defendant is incompetent. Id. at ¶ 6. Rather, looking to the

plain language of sections 16-8.5-102(2)(a)–(b), the division found that a

defendant’s competency can be raised when the judge, the prosecutor, or defense

counsel has “reason to believe” the defendant is incompetent. Id. Because it

determined that Tyler had filed a valid motion, the division vacated Lindsey’s

convictions and remanded the case for a determination of whether a retrospective

evaluation of Lindsey’s competency is feasible. Id. at ¶¶ 20–24.

¶19      The People then petitioned this court for certiorari review. And we granted

their petition.5

                                     II. Analysis
¶20      In Colorado, a defendant is “[i]ncompetent to proceed” if, “as a result of a

mental disability or developmental disability,” he lacks either “sufficient present

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




5   Specifically, we granted certiorari to review the following issue:
         Whether the court of appeals erred in concluding that a trial court is
         required to order a competency evaluation whenever a defendant
         files a motion in writing requesting such an evaluation and the
         motion contains a certificate of counsel stating that it is based on a
         good faith doubt that the defendant is competent to proceed.

                                           13
understanding in order to assist in the defense” or “a rational and factual

understanding of the criminal proceedings.” § 16-8.5-101(12).6 Thus, a defendant

may only be declared incompetent if: (1) he has “a mental disability or

developmental disability,” and (2) as a result of such disability, he either is unable

to consult with his attorney in order to assist in the defense or lacks a rational and

factual understanding of the proceedings. Id.

¶21   At the outset, we join the division in rejecting the People’s contention that a

competency evaluation is only required if the trial court “has reason to believe”

the defendant is incompetent. Section 16-8.5-102(2)(b) provides that if defense

counsel or the prosecutor has reason to believe the defendant is incompetent,

either may make a motion to determine competency. If either party properly raises

the question of a defendant’s competency, the court has two choices: (a) make a

preliminary finding of competency or incompetency; or (b) determine that it lacks

sufficient information to make a preliminary finding. § 16-8.5-103(1)(a), (2). If the

court makes a preliminary finding (whether of competency or incompetency) and




6 Section 16-8.5-101(5) contains a similar definition of “[c]ompetent to proceed”
—a defendant is competent to proceed if he “does not have a mental disability or
developmental disability” that prevents him either “from having sufficient present
ability to consult with [his] lawyer with a reasonable degree of rational
understanding in order to assist in the defense” or “from having a rational and
factual understanding of the criminal proceedings.”
                                         14
a party timely objects to it, the court must order a competency evaluation.7

§ 16-8.5-103(2). Similarly, the court must order a competency evaluation if it

determines that it lacks sufficient information to make a preliminary finding. Id.

¶22   But the division erred in failing to recognize that there is more to our

competency statutory scheme. The statutory mandate that instructs trial courts to

make a preliminary finding or determine that there is insufficient information to

make such a finding is not triggered unless the attorney raising the competency

issue satisfies certain threshold requirements in section 16-8.5-102(2)(b).

Specifically, counsel must make his motion “in writing,” certify he has “a good

faith doubt that the defendant is competent to proceed,” and “set forth the specific

facts that have formed the basis for the motion.” § 16-8.5-102(2)(b). We conclude

that an attorney cannot adequately raise the question of competency without

complying with these threshold requirements.

¶23   Here, the trial court found that Tyler’s motion failed to comply with the

threshold requirements in section 16-8.5-102(2)(b) because it was barren of specific

facts supporting a good-faith doubt regarding Lindsey’s competency. Inasmuch

as the record amply supports this finding, we perceive no abuse of discretion. A




7If neither party timely objects to the preliminary finding, the preliminary finding
becomes a final determination of competency or incompetency. § 16-8.5-103(1)(a).
                                        15
trial court abuses its discretion only when its decision is “manifestly arbitrary,

unreasonable, or unfair.” People in Interest of W.P., 2013 CO 11, ¶ 10, 295 P.3d 514,

519. In our view, there is nothing manifestly arbitrary, unreasonable, or unfair

about the trial court’s rejection of Tyler’s competency motion. The division thus

erred in reversing Lindsey’s judgment of conviction.

¶24   Here are the specific facts set forth by Tyler to support his doubt about

Lindsey’s competency:

      • Lindsey has consistently avoided contact with counsel and has made it
        virtually impossible for counsel to assist him with his defense.

      • Lindsey has consistently been requested to furnish information to
        counsel. He has made assurances to counsel that he has the information,
        but has failed to deliver the information.

      • Lindsey has consistently asserted (including recently in open court) that
        he furnished two terabytes of information to counsel. Based on counsel’s
        understanding of Lindsey’s internet Dropbox, counsel has received no
        such amount of information. The information that has been received by
        counsel is not generally relevant to the issues in this action. Lindsey has
        been advised of this fact. The most recent addition to the Dropbox did
        not contain any information that counsel deems supportive of the
        defense.

      • Counsel has been advised that a large amount of new information
        concerning this matter is available. Counsel was advised the information
        would be scanned and sent to him. No information has been received.
        This pattern of indicating the possession of information and then failing
        to deliver it is consistent with Lindsey’s method of operation, which
        counsel reviewed with former counsel.

      • Lindsey has consistently advised counsel and previous counsel that he
        has a number of experts available to support his claims. Throughout his

                                         16
         representation, counsel has requested the names and addresses of these
         witnesses. They have never been furnished. Lindsey has been pressed
         on this issue. As of this moment, no expert has been identified and no
         address, phone number, or any other identifying information has been
         furnished. And no funding has been made available to retain these
         experts.

      • Lindsey has indicated on a number of occasions that he was unable to
        meet with counsel because he was meeting with his probation officer “all
        day.” He has also represented that he has contacted his probation officer
        concerning being able to meet with counsel beyond curfew hours. But
        Lindsey’s probation officer has stated that she has never denied him
        permission to meet with counsel. In fact, she has indicated that she has
        never been requested to allow Lindsey to travel to meet counsel.
        According to the probation officer, if the request had been made, she
        never would have stood in the way of Lindsey meeting with counsel.

      • Lindsey has made accusations about current counsel that are untenable
        and not in accord with the accuracy of the matters asserted.

      • Counsel has not heard from Lindsey for three days and has not received
        anything from him concerning the requested information. However,
        yesterday, Lindsey directed another attorney to contact counsel about
        the prospect of taking over this case. This behavior is in keeping with
        Lindsey’s actions immediately before the last hearing on the motion to
        withdraw.

¶25   The trial court reasonably concluded that these facts had no bearing on

Lindsey’s competency. These facts, taken at face value, simply established that

Lindsey had failed to be completely forthright with Tyler, to keep promises to

furnish information and funds for an effective defense, and to diligently work and

communicate with Tyler.




                                       17
¶26   Significantly, the specific facts in the competency motion were the same

specific facts advanced by Tyler to show that he had a conflict with Lindsey that

warranted withdrawal as counsel of record. Tyler did not mention, much less

discuss, any issues related to Lindsey’s competency in the motion to withdraw or

during the hearing held on that motion. Nor did Tyler aver in the competency

motion or during the hearing held on that motion that he had noticed a change in

Lindsey vis-à-vis competency after the hearing on the motion to withdraw. Yet

Tyler never explained why he waited until the eleventh hour to file the

competency motion.

¶27   Moreover, no one in this case, including prior defense counsel, had ever

raised any concerns related to Lindsey’s competency. There is also no indication

in the record that anyone had ever questioned Lindsey’s competency in any of his

other cases.

¶28   Tellingly, the transcript of the hearing in front of Judge Munch and the

transcript of the competency hearing both reflect that Lindsey had no difficulty

understanding the proceedings, disputing Tyler’s assertions, or communicating

his concerns about Tyler’s services. Lindsey was articulate in both hearings and

effectively conveyed his misgivings regarding Tyler’s representation. Consistent

with those transcripts, the prosecutor represented that Lindsey’s probation officer,

who knew Lindsey well, was prepared to vouch for his competency. And the

                                        18
other circumstances on which the trial court relied offer further support for its

rejection   of   Tyler’s   competency   motion    as   inadequate   under    section

16-8.5-102(2)(b).

¶29   True, Tyler’s motion expressly questioned Lindsey’s competency. But it did

so only through Tyler’s conclusory and speculative opinions, and section

16-8.5-102(2)(b) requires that a motion “set forth the specific facts” that form the

basis for counsel’s good-faith doubt regarding his client’s competency. Here are

the assumptions and suppositional beliefs Tyler included in his competency

motion:

      • Counsel has formed the belief that, for reasons unknown to counsel, Lindsey
        is unable to appreciate the nature and consequences of the trial and to
        assist counsel in the preparation of the defense. Counsel believes that he
        is under an ethical obligation to bring this matter to the Court’s attention.
        Counsel further believes that Lindsey’s actions are irrational and have left
        counsel without the ability to effectively prepare and present a
        competent defense.

      • Lindsey apparently fails to perceive the nature of his alleged offenses and
        the relationship of his conduct to the charges.

      • Counsel believes that Lindsey earnestly believes that he has information
        related to expert witnesses and that these witnesses will back him up.
        However, counsel believes that this conclusion flies in the face of reality.
        The ease with which Lindsey has repeatedly made unfounded
        statements and assurances leads counsel to believe that, as a result of a
        significant psychological pathology, there can be no trust in the attorney-
        client relationship. Given the major issues in the attorney-client
        relationship, counsel cannot help but believe that Lindsey is operating
        under significant delusions about reality and the status of this case.

                                         19
¶30   More importantly, Tyler’s thoughts about Lindsey’s competency were

premised on the inferences Tyler unreasonably drew from the specific facts

identified earlier, which were irrelevant to Lindsey’s competency. Based on those

specific facts—Lindsey’s failure to be completely forthright, to keep promises, and

to diligently assist with and communicate about the case—Tyler argued that he

had concerns about Lindsey’s competency. In effect, Tyler posited that Lindsey’s

failure to be completely forthright with him, to keep promises, and to diligently

work and communicate with him allowed Tyler to “form[] the belief” that

Lindsey’s   actions   and   thoughts   were    “irrational”   and   “significant[ly]

delusion[al],” and “fl[ew] in the face of reality,” and that Lindsey was

“apparently” unable “to perceive the nature of his alleged offenses and the

relationship of his conduct to the charges,” as well as “unable to appreciate the

nature and consequences of the trial” and “to assist [counsel] in the preparation”

of his defense.

¶31   Were we to accept Tyler’s hypothesis, it would render the threshold

requirements in section 16-8.5-102(2)(b) largely, if not wholly, meaningless. Any

attorney with a client who behaves like Lindsey allegedly did with Tyler could

force a continuance by questioning his client’s competency through a written

motion.     It hardly bears stating that this approach would risk adverse

consequences to the efficiency of our criminal justice system, as it would

                                        20
jeopardize our trial courts’ ability to manage their dockets and control the

proceedings over which they preside.

¶32   We do not believe that this is the type of illogical or absurd result the

legislature envisioned when it adopted the current version of section

16-8.5-102(2)(b).   See McCoy v. People, 2019 CO 44, ¶ 38, 442 P.3d 379, 389

(explaining that “we must avoid [statutory] constructions that would . . . lead to

illogical or absurd results”). Instead, we conclude that the legislature meant just

what it said: A competency motion must be in writing, must contain counsel’s

certificate that it is being filed in good faith, and must set forth the specific facts

that support counsel’s good-faith doubt related to the defendant’s competency. In

construing a statute, our goal is to ascertain and give effect to the General

Assembly’s intent. Id. at ¶ 37, 442 P.3d at 389. To do so, we prioritize the language

of the statute, giving its words and phrases their plain and ordinary meaning. Id.

And we read those words and phrases in context and in accordance with the rules

of grammar and common usage. Id.

¶33   Notably, as relevant here, section 16-8.5-102(2)(b)’s predecessor simply

required “the prosecution or defense” to file a competency motion “in advance of

the commencement of the particular proceeding.” § 16-8-110(2)(b), C.R.S. (2007).

Had the legislature intended for the mere filing of a competency motion

—regardless of its contents—to require the trial court to make a preliminary

                                          21
finding or indicate there is insufficient evidence to make a preliminary finding, it

presumably would have said so. The fact that it amended section 16-8-110(2)(b)

as reflected in section 16-8.5-102(2)(b) shows its intent to impose the threshold

requirements on which the trial court relied.8 Prosecutors and defense counsel

alike must comply with those requirements. In the rare case one of them doesn’t,

the trial court retains sufficient discretion to reject a competency motion as

inadequate under subsection (2)(b).

¶34   We caution trial courts, though, to resist the temptation to second-guess

competency motions that are in writing and contain specific facts that support a

good-faith doubt about a defendant’s competency. Nothing in this opinion should

be understood as imposing a demanding standard or as requiring competency

motions to set forth meticulous details. In some cases, it will be challenging for

defense counsel to include extensive information in a competency motion because

the contents of the motion may subsequently be revealed to the prosecution. See

§ 16-8.5-102(2)(b). Trial courts should be mindful that, in general, defense counsel




8 We may consider statutory history even where, as here, we find a statute
unambiguous. Colo. Oil & Gas Conservation Comm’n v. Martinez, 2019 CO 3, ¶ 30
n.2, 433 P.3d 22, 29 n.2.
                                        22
are in the best position to assess whether there is a competency concern with a

defendant.

¶35   We reiterate that today we simply conclude that section 16-8.5-102(2)(b)

includes threshold requirements and that trial courts retain sufficient discretion to

reject the rare competency motion that rests on counsel’s inadequate proffer.

Under the totality of the circumstances present in this case, including the

competency motion filed by Tyler, which was bereft of specific facts supporting a

good-faith doubt regarding Lindsey’s competency, the trial court did not abuse its

discretion in rejecting the motion as inadequate. Given that trial courts are best

suited to make that type of determination, and given further that there is abundant

support in the record for the trial court’s determination here, we abstain from

disturbing the trial court’s ruling.

¶36   Finally, we would be remiss if we failed to mention that today’s opinion

aligns with the notion that a trial court should only order competency evaluations

when they are warranted. Doing otherwise has the potential to adversely affect

defendants (including those in custody) who are deserving of a competency

evaluation and are patiently awaiting their turn. In the recent past, all three

branches of our state government have devoted substantial time and energy to

addressing the lengthy backlogs that exist regarding competency evaluations.

Ordering a competency evaluation when there is not a good-faith doubt about a

                                         23
defendant’s competency would undermine those efforts and further exacerbate

the situation.

                                III. Conclusion

¶37   For all the foregoing reasons, we conclude that the trial court did not abuse

its discretion in rejecting Tyler’s competency motion. We therefore reverse the

division’s judgment. Accordingly, the matter is remanded to the court of appeals

with instructions to reinstate Lindsey’s judgment of conviction.

JUSTICE HART dissents, and JUSTICE MÁRQUEZ and JUSTICE GABRIEL
join in the dissent.




                                        24
JUSTICE HART, dissenting.

¶38    Like the majority, I am uncomfortable with the timing of Mr. Tyler’s request

for a competency determination, particularly in light of the protracted history of

his case. Unlike the majority, however, I do not believe that I can read into the

statute a judicial release valve that the legislature did not itself include. I therefore

respectfully dissent.

¶39    Prior to 2008, the competency statutes granted the court sole discretion as to

whether to require a competency evaluation.1 The statute as it is currently written

does not give the court that same discretion. Instead, when one of the lawyers has

“reason to believe” a defendant is incompetent to proceed, is willing to certify that

the belief is in “good faith,” and offers the “specific facts” that give rise to the

belief, the lawyer sufficiently raises the issue of the defendant’s competency such

that   the   statutory   process    for   determining     competency     is   triggered.

§ 16-8.5-102(2)(b), C.R.S. (2019). After the matter of the defendant’s competency is

raised “by either party or on the court’s own motion,” the court is required to make




1We have previously recognized that the 2008 amendments “significantly altered
the procedures surrounding determination of an adult defendant’s competency to
proceed.” People in Interest of W.P., 2013 CO 11, ¶ 16, 295 P.3d 514, 520. In
particular, the new statute removed the considerable discretion that had
previously rested with the court as to whether a defendant would receive a
competency evaluation. Id.
                                           1
a preliminary determination as to competency. § 16-8.5-103(1), C.R.S. (2019). And

if either party objects to that preliminary finding, then “the court shall order that

the defendant be evaluated for competency” by the Colorado Department of

Human Services. § 16-8.5-103(2). There is no suggestion in this statutory language

that the judge should—or can—make an initial finding as to whether an attorney’s

motion to determine competency is in fact offered in good faith.

¶40   Tyler’s motion met the statutory requirements for raising the issue of

Lindsey’s competency. The motion was in writing, and it contained language

certifying that his motion was based on “good faith doubts” that Lindsey was

competent to proceed to trial. Further, Tyler’s motion alleged the specific facts

that gave him “reason to believe” that Lindsey might be incompetent. These facts

included, among others, that Lindsey asserted that he had provided information

to Tyler that he had in fact not produced, and that this had occurred not only

throughout the representation but also during the three days immediately

preceding the motion to determine competency; that Lindsey seemed to believe

that there were witnesses and experts who could back up his defense, but that this

belief “fl[ew] in the face of reality”; and that Lindsey claimed to have had

conversations with his probation officer that the officer flatly denied had ever

occurred.




                                         2
¶41   Based on these facts, Tyler averred his good-faith belief that Lindsey was

“unable . . . to appreciate the nature and consequences of [his] trial,” and was

“further unable . . . to assist in the preparation and assistance of [c]ounsel in his

[d]efense.” Tyler’s motion stated also that Lindsey “apparently fail[ed] to perceive

the nature of his alleged offenses and the relationship of his conduct to the

charges.”   And the motion expressed concern that Lindsey suffered from a

“significant psychological pathology,” and was “operating under significant

delusions about the reality and status of this matter.”

¶42   The majority recognizes, maj. op. ¶ 21, there is no statutory requirement that

the attorney suspecting the defendant’s incompetence must first give the judge

“reason to believe” there may be a competency issue before the competency

determination procedures contained in section 16-8.5-103 are triggered. Having

recognized the absence of this requirement, however, the majority concludes that

the statute nonetheless permits the trial court to conclude that the facts offered by

the defense attorney do not support a “good-faith” belief that a defendant may be

incompetent to proceed.

¶43   But the language of the statute, for better or worse, does not make a finding

of “good faith” part of the threshold showing. It simply requires the attorney to

certify “that the motion is based on a good faith doubt that the defendant is

competent to proceed.” § 16-8.5-102(2)(b). As the People actually conceded during

                                         3
the competency hearing, by making a good-faith certification and setting out the

facts that supported his belief that Mr. Lindsey was not competent to proceed,

“Mr. Tyler has given his offer of proof, which is tantamount to sworn testimony

since he’s an officer of the court.” As a result of that offer of proof, the People

continued, Tyler had “raised a doubt about defendant’s competency” that

required the court to hold a competency hearing.

¶44   Confronted with the plain language of this statutory scheme, I do not

believe it is appropriate to add a requirement—the judge’s determination that the

motion to determine competency was made in good faith—that the legislature did

not actually write into the law. As this court has consistently held, “[w]e do not

add words to the statute or subtract words from it.” People v. Diaz, 2015 CO 28,

¶ 12, 347 P.3d 621, 624. Indeed, we must enforce statutes as written—we are not

empowered “to give a statute a meaning that the plain language does not support

in order to avoid a result that we find inequitable or unwise. Where a statute leads

to undesirable results, it is up to the General Assembly, not the courts, to

determine the remedy.” Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1191

(Colo. 2010).

¶45   True, a threshold showing must still be made under section 16-8.5-102 in

order to trigger the judge’s preliminary competency determination. Specifically,

counsel must set forth “specific facts” forming the basis of counsel’s “reason to

                                         4
believe” the defendant might be incompetent. And those facts must bear some

relationship to the statutory definition of incompetence: the existence of a mental

or developmental disability, an insufficient present ability to consult with counsel

“with a reasonable degree of rational understanding in order to assist in the

defense,” or an insufficient “rational and factual understanding of the criminal

proceedings.” § 16-8.5-101(12), C.R.S. (2019). At the point where such “specific

facts” are alleged in the competency motion, however, the trial court is not free to

deny the motion simply because the judge does not share in counsel’s “belief.”

¶46    I, like the majority, am sympathetic to the trial court’s frustration with this

last-minute competency motion and the similarity of the complaints Tyler made

in this motion to those he included in his earlier motion to withdraw. But the form

and content of Tyler’s allegations constituted a facially valid motion under section

16-8.5-102(2)(b) that the trial court was not at liberty to deny out of hand. Because

Tyler’s motion raised the issue of Lindsey’s competence in a manner that fully

complied with the requirements of section 16-8.5-102(2)(b), the trial court was

required to engage with the competency determination procedures set forth in

section 16-8.5-103.

¶47    I respectfully dissent.

       I am authorized to state that JUSTICE MÁRQUEZ and JUSTICE GABRIEL

join in this dissent.

                                          5
