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State v. Allen

Court of Appeals of North Carolina

December 17, 2019


          Heard in the Court of Appeals 7 August 2019.

          Appeal by defendant by petition for writ of certiorari from judgments entered 9 February 2018 by Judge Alan Z. Thornburg in Mitchell County Superior Court. Nos. 15 CRS 50346, 50474, 16 CRS 28

          Attorney General Joshua H. Stein, by Assistant Attorney General Barry H. Bloch, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love, for defendant-appellant.

          ZACHARY, JUDGE

         Defendant Harley Aaron Allen appeals from judgments entered upon jury verdicts finding him guilty of selling buprenorphine, delivering buprenorphine, and possession of buprenorphine with intent to sell or deliver. After careful review, we remand for further proceedings.


         Defendant, born in 1986, is intellectually disabled.[1] Defendant was also subject to "severe abuse and neglect" during his early childhood, which further impaired his development. Defendant received special education assistance throughout his schooling, and although he received a certificate of attendance upon completion of the 12th grade, he is unable to live independently or maintain a job because of his intellectual disability. In addition to his intellectual disabilities, for which he receives disability benefits, Defendant suffers from opiate abuse, and has been diagnosed with bipolar disorder.

         On 22 October 2015, Defendant was arrested for allegedly having sold a single pill of buprenorphine-a Schedule IV controlled substance and opium derivative-to a confidential informant for the Mitchell County Sheriff's Office. Defendant was subsequently indicted for (1) sale, (2) delivery, and (3) possession with the intent to sell or deliver buprenorphine, a Schedule IV controlled substance; and (4) keeping or maintaining a vehicle for the purpose of selling buprenorphine. Defendant was also indicted for having attained the status of an habitual felon.

         During the period between his arrest and trial, Defendant was involuntarily committed on three separate occasions and was twice found "not capable of proceeding" to trial. After Defendant's first involuntary commitment, a forensic screener conducted a psychiatric evaluation on 21 November 2016 and opined that Defendant's "prospects of restorability [we]re limited," due to his "profound fund of knowledge deficits." On 28 February 2017, Defendant was again found incapable of proceeding. Following Defendant's third involuntary commitment, a psychiatric report dated June 2017 noted that Defendant had "regained his capacity to proceed" to trial. Based on that report, and despite defense counsel's sentiments to the contrary, on 23 August 2017, the trial court found that Defendant "currently ha[d] the capacity to proceed" to trial.[2] The case came on for trial nearly six months after the trial court's competency determination, and eight months after Defendant's final psychiatric evaluation.

         Defendant's trial commenced on 8 February 2018 in Mitchell County Superior Court before the Honorable Alan Z. Thornburg. At the trial's conclusion, the jury found Defendant guilty of selling buprenorphine, delivering buprenorphine, and possession of buprenorphine with the intent to sell or deliver. The jury found Defendant not guilty of keeping or maintaining a vehicle for the purpose of selling buprenorphine. Defendant subsequently pleaded guilty to having attained the status of an habitual felon. The trial court arrested judgment on Defendant's conviction for delivering a controlled substance, [3] and sentenced Defendant for the remaining two convictions to concurrent terms of 58 to 80 months and 8 to 19 months in the custody of the North Carolina Division of Adult Correction.

         On 9 February 2018, Defendant filed a procedurally inadequate pro se notice of appeal. Thereafter, Defendant filed a petition for writ of certiorari asking this Court to review the merits of his appeal, which we allowed by order entered 10 July 2019.

         Standard of Review

         "[T]he conviction of an accused person while he is legally incompetent [to proceed to trial] violates due process[.]" State v. Taylor, 298 N.C. 405, 410, 259 S.E.2d 502, 505 (1979) (citation omitted). "The defendant bears the burden of demonstrating he is incompetent [to proceed]." State v. McClain, 169 N.C.App. 657, 663, 610 S.E.2d 783, 787 (2005) (citation omitted). "The [trial] court's findings of fact as to [the] defendant's mental capacity are conclusive on appeal if supported by the evidence." State v. Baker, 312 N.C. 34, 43, 320 S.E.2d 670, 677 (1984) (internal citations omitted). We review a trial court's determination of a defendant's competency to proceed under an abuse of discretion standard. See McClain, 169 N.C.App. at 663, 610 S.E.2d at 787. "[T]he trial court's decision that [the] defendant was competent to stand trial will not be overturned, absent a showing that the trial judge abused his discretion." Id.


         I. Competency Hearing

         Defendant argues that, "[i]n light of [his] mental health history and prior findings of incompetence, the trial court erred by failing to hold a competence hearing before starting [his] trial" six months after he was found to be competent. We agree.

N.C. Gen. Stat. § 15A-1001(a) (2017) provides that:
No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as "incapacity to proceed."

         "If a defendant is deficient under any of these tests he or she does not have the capacity to proceed." State v. Mobley, 251 N.C.App. 665, 667, 795 S.E.2d 437, 439 (2017) (citations and internal quotation marks omitted).

         "A defendant's competency to stand trial is not necessarily static, but can change over even brief periods of time. For this reason, a defendant's competency is assessed at the time of trial." Id. at 675, 795 S.E.2d at 443 (internal citations and quotation marks omitted). Nevertheless, "[t]he question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court." N.C. Gen. Stat. § 15A-1002(a).

         Whenever there is a bona fide doubt as to the defendant's competency to proceed to trial, the trial court is required to hold a competency hearing. Mobley, 251 N.C.App. at 668, 795 S.E.2d at 439. The trial court "has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent [to stand trial]." Id. (internal citations omitted).

         The trial court's failure to "protect a defendant's right not to be tried or convicted while [incompetent to proceed] deprives him of his due process right to a fair trial." State v. McRae, 139 N.C.App. 387');">139 N.C.App. 387, 389, 533 S.E.2d 557, 559 (2000) [hereinafter "McRae I"].

         In the present case, there was substantial evidence before the trial court that Defendant might have been incompetent to stand trial. It is evident that the trial court correctly recognized its duty to assess Defendant's capacity to proceed, and did so approximately six months prior to trial, on 23 August 2017. However, the competency hearing should have been held closer to trial.

         Various factors can raise a bona fide doubt as to the defendant's competency to proceed to trial. "Evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant to a bona fide doubt inquiry." Id. at 390, 533 S.E.2d at 559. Here, Defendant's lengthy and varied history of severe mental health issues and cognitive disabilities-which led to repeated involuntary commitments and psychiatric evaluations-together with defense counsel's reluctance to agree with the evaluating physician's report that Defendant was capable of proceeding to trial, was sufficient to raise a bona fide doubt as to Defendant's competency at the time of trial, thereby triggering the trial court's duty to conduct a hearing immediately prior to trial.

         As previously mentioned, Defendant was involuntarily committed three times during the period between his 22 October 2015 arrest and 8 February 2018 trial, due to his severe mental health issues. When Defendant was discharged from his second involuntary commitment in February 2017, the forensic screener's psychiatric report noted that Defendant's mental health diagnoses included "Methamphetamine Use Disorder, Severe, Opioid Use Disorder, Severe, Adjustment Disorder with Depressed Mood, Antisocial Personality Disorder/Traits, [and] Suicidal Ideation, Resolved." Additional reports established that Defendant had also been diagnosed with bipolar disorder, "Attention Deficit/Hyperactivity Disorder Not Otherwise Specified, Mood Disorder Not Otherwise Specified, Polysubstance/Dependence, and a Personality Disorder Not Otherwise Specified."

         The psychiatric reports in the record also demonstrate Defendant's history of noncompliance with mental health treatment. Defendant's November 2016 evaluation noted that "Mission Hospital currently has plans to engage [Defendant] in a long-term inpatient treatment." Three months later, Defendant's February 2017 report indicated that Defendant was not consistently compliant with mental health treatment recommendations. Specifically, it detailed that Defendant (i) "has never been compliant [or] consistent with medication treatment (either not taking any medication or taking too much at one time) or mental health follow through"; (ii) that "[a]s an adult there is no clear record of [Defendant] consistently being compliant with mental health treatment recommendations"; and (iii) that Defendant "has not been compliant with treatment in an outpatient setting, and his last two hospitalizations in 2016 were on an involuntary basis, where he appeared to lose behavioral control, threatening suicide and becoming confrontational."

         It is also well-documented that Defendant has a significant intellectual disability. As previously noted, the February 2017 psychiatric evaluation placed Defendant "in the borderline to mild intellectual disability range" based on available IQ scoring criteria. However, the evaluation further stated that when combined, certain of Defendant's conditions-including his significantly impaired adaptive functioning, attention and learning deficits, difficulty moderating his own behavior, and a mood disorder-actually contributed to Defendant "being more impaired than IQ scores alone . . . would suggest." One psychiatric report noted that Defendant's "cognitive deficits . . . have been with him since early childhood, . . . [that] he will likely struggle with them for the remainder of his life[, ]" and that "[g]iven the nature of his impairments, . . . [Defendant's] prospects of restorability are limited." The report indicated that Defendant's cognitive disabilities were believed to stem, in part, from "extreme abuse and neglect" that he suffered before his second birthday.

         Additionally, although he receives disability benefits as a result of his intellectual disability, Defendant "did not know the amount of the award[, ]" which the examiner noted was "somewhat rare in [his] experience[.]" The report further noted that Defendant's "mom is his representative payee because he is unable to manage his own finances."

         During the period between his arrest and trial, Defendant was twice found to be incapable of proceeding to trial. See McRae I, 139 N.C.App. at 391, 533 S.E.2d at 560 ("In our opinion, the numerous psychiatric evaluations of [the] defendant's competency that were conducted before trial with various findings and expressions of concern about the temporal nature of [the] defendant's competency [to proceed] raised a bona fide doubt as to [the] defendant's competency at the time of his second trial.").

         Only one of the reports in which Defendant was found incapable of proceeding to trial noted Defendant's appearance and conduct. In particular, it noted that Defendant "was an average-sized young adult white male who appeared to be in no acute physical distress, displayed no unusual or bizarre mannerisms, and had no obvious physical deformities." Defendant's "beard and haircut were neatly groomed"; he was "initially . . . fairly soft-spoken, but when encouraged to speak up, he did"; and he "maintained intermittent eye contact." This forensic screener's notes demonstrate that, despite the ultimate determination of incompetence, Defendant's physical appearance did not immediately evince his lack of capacity to proceed to trial.

         In addition, during the final competency hearing six months before trial, defense counsel expressed reservations concerning Defendant's competency to proceed.

[C]ourts often look to whether the defense attorney has disputed competency before trial as evidence of competency. Because defense counsel is usually in the best position to determine that the defendant is able to understand the proceedings and assist in his defense, it is well established that significant weight is afforded to a defense counsel's representation that his client is competent.

State v. McRae, 163 N.C.App. 359, 369, 594 S.E.2d 71, 78, disc. review denied, 358 N.C. 548, 599 S.E.2d 911 (2004) [hereinafter "McRae ...

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