in the Court of Appeals 7 August 2019.
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.
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.
born in 1986, is intellectually disabled. 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.
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.
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. 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.
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,  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.
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.
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.
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
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."
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).
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).
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
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
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.
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.
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."
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
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.
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
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.").
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.
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 ...