The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY September 1, 2022
2022COA98
No. 19CA1354, People v. Rodriguez — Criminal Law — Mental Competency to Proceed — Judge’s Discretion to Reject Inadequate Proffer — Good Faith Doubt Regarding Competency
A division of the court of appeals considers whether a
defendant who was twice previously found to be competent to
proceed is entitled to a third competency determination based on
the alleged deterioration of his mental condition. The division holds
that, under sections 16-8.5-102 and 16-8.5-103, C.R.S. 2021, a
trial court does not abuse its discretion by denying a defendant’s
subsequent motion to determine competency where (1) one or more
specialists previously examined the defendant and concluded he
was competent to proceed and (2) the subsequent motion presents
neither different indicia of the defendant’s lack of competency nor a
different medical or psychological explanation for why the defendant, despite having previously been found competent, is no
longer competent to proceed. COLORADO COURT OF APPEALS 2022COA98
Court of Appeals No. 19CA1354 City and County of Denver District Court No. 15CR5078 Honorable Shelley I. Gilman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew F. Rodriguez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE LIPINSKY Navarro and Graham*, JJ., concur
Announced September 1, 2022
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2021. ¶1 Colorado statutes set forth the steps a court must take when
the court, defense counsel, or a prosecutor questions whether a
criminal defendant is mentally competent. But those statutes do
not address how the court should proceed in a case where a lawyer
asserts that the mental state of a defendant whom the court
previously found to be competent has deteriorated to the point
where the defendant may no longer be competent. This is such a
case.
¶2 Matthew F. Rodriguez appeals the judgment of conviction
entered on jury verdicts finding him guilty of sexual assault on a
child (pattern of abuse), two counts of sexual assault on a child
(position of trust), and aggravated incest. Rodriguez’s principal
argument challenges the district court’s denial of defense counsel’s
third motion for a competency evaluation (the third motion) and the
court’s related decision not to grant the defense another
continuance, after nearly three years of delays in the proceedings,
to allow Rodriguez to undergo further competency testing.
¶3 We affirm.
1 I. Background Facts and Procedural History
¶4 Rodriguez engaged in sexual intercourse with his daughter
G.L. G.L. gave birth to Rodriguez’s child shortly after she turned
fourteen. Based on this conduct, in September 2015, Rodriguez
was charged with sexual assault on a child (pattern of abuse), two
counts of sexual assault on a child (position of trust), and
aggravated incest.
¶5 Defense counsel filed three motions to determine Rodriguez’s
competency — in January 2016, in March 2017, and on February
26, 2019. The district court ordered competency evaluations for
Rodriguez following the filing of the first two motions. None of the
professionals who evaluated Rodriguez concluded that he was not
competent to proceed.
¶6 After Rodriguez’s counsel filed the third motion, the court
conducted a hearing at which it reviewed in detail the proceedings
following the first and second motions and the results of
Rodriguez’s previous competency evaluations. The court concluded
that Rodriguez was competent to proceed, primarily because no
professional had determined that he was not competent over three
years of evaluations and neurological testing.
2 ¶7 In addition, at the conclusion of the hearing on the third
motion, defense counsel requested a “Bergerud hearing” to address
an alleged “direct conflict” between Rodriguez and his counsel. See
People v. Bergerud, 223 P.3d 686, 694-96 (Colo. 2010) (explaining
the circumstances under which a defendant is entitled to the
appointment of substitute counsel). Defense counsel asserted that,
in light of the purported conflict, Rodriguez was entitled to new
counsel.
¶8 The court set a Bergerud hearing before a different judge.
Following that hearing, at which Rodriguez spoke to the court, the
court denied defense counsel’s request for appointment of
substitute counsel.
¶9 The case proceeded to trial. A jury convicted Rodriguez of all
the charged counts.
II. Analysis
¶ 10 Rodriguez contends that the district court reversibly erred by
(1) denying the third motion, not granting him another continuance
to allow for a further competency evaluation, and not suspending
the proceedings sua sponte to declare a mistrial; and (2) denying
his request for appointment of substitute counsel.
3 A. Rodriguez’s Request for a Third Competency Evaluation
¶ 11 We reject Rodriguez’s assertion that the district court abused
its discretion by denying the third motion, not granting a
continuance for further evaluation, and not declaring a mistrial.
1. Standard of Review
¶ 12 We review a district court’s competency determination for an
abuse of discretion. People v. Mondragon, 217 P.3d 936, 939 (Colo.
App. 2009). A court abuses its discretion where its decision is
manifestly arbitrary, unreasonable, or unfair, or it applies an
incorrect legal standard. Id.
2. Applicable Law
¶ 13 Under the United States and Colorado Constitutions, the right
to due process bars the trial of an incompetent defendant. See
Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); People v. Zapotocky,
869 P.2d 1234, 1237 (Colo. 1994). In Colorado, a defendant’s due
process right not to be tried while incompetent is further protected
by statute. See §§ 16-8.5-101 to -123, C.R.S. 2021.
¶ 14 Under the version of the competency statutes in effect when
defense counsel filed the third motion on February 26, 2019, a
defendant is “[i]ncompetent to proceed” if,
4 as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or . . . , as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.
§ 16-8.5-101(11), C.R.S. 2018. (Where indicated, we cite to the
version of the competency statutes in effect at the time defense
counsel filed the third motion. The General Assembly subsequently
amended the statutes. The portions of the statutes most critical to
our analysis have not materially changed since 2018, however.) A
“[m]ental disability” is a “substantial disorder of thought, mood,
perception, or cognitive ability that results in marked functional
disability, significantly interfering with adaptive behavior.”
§ 16-8.5-101(12), C.R.S. 2018. Thus, a defendant is competent to
proceed if he or she has “both a factual understanding and cognitive
ability and perceptions and understandings that are rational and
grounded in reality.” Mondragon, 217 P.3d at 941.
¶ 15 “A defendant is presumed to be competent to stand trial.”
People v. Stephenson, 165 P.3d 860, 866 (Colo. App. 2007). The
5 party asserting that the defendant lacks the mental competency to
proceed bears the burden to prove incompetency by a
preponderance of the evidence. § 16-8.5-103(7), C.R.S. 2018.
¶ 16 The Colorado statutes provide two ways to challenge a
criminal defendant’s competency to proceed. First, if “either the
defense or the prosecution has reason to believe that the defendant
is incompetent to proceed, either party may file a motion in advance
of the commencement of the particular proceeding.”
§ 16-8.5-102(2)(b), C.R.S. 2018. Second, if the court “has reason to
believe that the defendant is incompetent to proceed, it is the
[court]’s duty to suspend the proceeding and determine the
competency or incompetency of the defendant.” § 16-8.5-102(2)(a),
C.R.S. 2018. The procedures a court must follow to determine a
defendant’s competency to proceed are outlined in section
16-8.5-103, C.R.S. 2018.
¶ 17 Under section 16-8.5-103(1), C.R.S. 2018, if a defendant’s
competency is called into question, “the court may make a
preliminary finding of competency or incompetency, which shall be
a final determination unless a party to the case objects within
fourteen days after the court’s preliminary finding.” If a party
6 objects to the court’s preliminary finding, or if the court determines
it has insufficient information to make a preliminary finding, the
court “shall order that the defendant be evaluated for competency”
by the department of human services and that the department
“prepare a court-ordered report.” § 16-8.5-103(2), C.R.S. 2018.
¶ 18 “Within fourteen days after receipt of the court-ordered report,
either party may request a hearing or a second evaluation.”
§ 16-8.5-103(3), C.R.S. 2018. “If a party requests a second
evaluation, any pending requests for a hearing shall be continued
until the receipt of the second evaluation report.” § 16-8.5-103(4),
C.R.S. 2018. However, “[i]f neither party requests a hearing or a
second evaluation within the applicable time frame, the court shall
enter a final determination, based on the information then available
to the court, whether the defendant is or is not competent to
proceed.” § 16-8.5-103(5), C.R.S. 2018.
3. The Court Did Not Abuse Its Discretion by Denying the Third Motion
¶ 19 We disagree with Rodriguez’s contention that the district court
erred by denying the third motion and not suspending the court
proceedings further to allow for another competency evaluation.
7 ¶ 20 As explained below, after a court makes a final determination
of competency, as the district court had already done twice here
before defense counsel filed the third motion, the court need not
order an additional competency evaluation where the new motion
raises the same issues as did the previous competency motions.
Under these circumstances, sections 16-8.5-102 and 16-8.5-103 do
not require the district court to address the defendant’s competency
again.
a. The Three Competency Motions
¶ 21 We begin our review of the court’s ruling on the third motion
by examining the allegations in the first and second competency
motions and the results of Rodriguez’s evaluations in 2016 and
2017.
¶ 22 Defense counsel filed the first motion to determine Rodriguez’s
competency (the first motion) in January 2016. In the first motion,
defense counsel said that Rodriguez was unable to discuss the facts
of his case in a meaningful capacity because he had difficulty
focusing on the issues and was easily distracted.
8 ¶ 23 The district court granted the first motion and ordered a
competency evaluation (the 2016 evaluation) pursuant to section
16-8.5-103(2), C.R.S. 2018.
¶ 24 The psychologist who conducted the 2016 evaluation (the first
psychologist) reported that Rodriguez mentioned a head injury from
a car accident nearly three years earlier. However, the first
psychologist noted that Rodriguez’s hospital records did not
indicate he had experienced a traumatic brain injury, an altered
mental status, or cognitive dysfunction before, during, or after the
car accident. Moreover, Rodriguez was “not taking medications,
was not engaged in mental health treatment, presented with
adequately intact memory and comprehension, and appeared to be
of approximately average to low average verbal intelligence.”
¶ 25 Notably, the first psychologist reported that Rodriguez
understood the nature of the charges against him, potential outcomes and consequences if found guilty of his charges, the adversarial nature of court proceedings and personnel roles, how to assist his attorney, his right against self-incrimination, and the reasoning underlying important decisions in his case. He demonstrated the ability to behave appropriately in the courtroom and to express his desired approach to his case. . . . He . . . demonstrated the ability to provide
9 pertinent detailed information regarding his version of the alleged offenses [to his attorney] and appeared willing to work with [her] and to consider her advice.
The first psychologist opined that Rodriguez was competent to
proceed.
¶ 26 At a hearing on the first motion, the district court said it
would accept the first psychologist’s findings and make a final
determination that Rodriguez was competent to proceed unless the
defense requested a second evaluation within fourteen days.
Defense counsel did not request a second evaluation within that
time.
¶ 27 Based on the findings detailed in the first psychologist’s report
and the fact that defense counsel did not request a second
evaluation within the fourteen-day time period specified in section
16-8.5-103(3), C.R.S. 2018, the district court entered a final
determination that Rodriguez was competent to proceed pursuant
to section 16-8.5-103(5), C.R.S. 2018.
¶ 28 In March 2017, a new public defender entered her appearance
as counsel for Rodriguez and filed a second motion to determine
Rodriguez’s competency (the second motion). In the second motion,
10 defense counsel alleged that Rodriguez had “significant defects in
memory and comprehension and could not recall basic information
about attorney/client conversations for time periods as short as one
day.” Counsel also asserted that Rodriguez was unable to
demonstrate a rational ability to evaluate the information she
explained to him and was unable to make decisions that were
factually and rationally based.
¶ 29 The district court granted the second motion and ordered
another competency evaluation (the first 2017 evaluation). A
different psychologist (the second psychologist) conducted the first
2017 evaluation.
¶ 30 The second psychologist said that Rodriguez’s medical records
showed no neurological deficits following the car accident and that
Rodriguez’s “head was atraumatic” with “no abnormal test results”
and “no impairments.” She said that Rodriguez’s “abstract
reasoning abilities were fair to poor . . . but his judgment for
common dilemmas was good.” He “performed well on simple tasks
designed to measure his attention and concentration and he
maintained an adequate amount of both throughout the interview.”
The second psychologist noted that,
11 [a]lthough [Rodriguez] reported concerns with his memory functioning and sometimes indicated that he could not recall information, there was no evidence of significant memory impairment during the interview; he was able to recall historical information about his life as well as newly learned information during the interview when he chose to do so.
¶ 31 Additionally, the second psychologist reported that she had
administered a test to assess “response styles and feigned deficits”
in legal knowledge. She opined that Rodriguez’s score on the test
suggested he was feigning deficits in his legal knowledge. The
second psychologist further found that Rodriguez was
“psychiatrically stable” and “did not present with cognitive deficits”
that would preclude him from having a “rational and factual
understanding of the proceedings against him as well as the ability
to consult with his attorney to assist in his defense.” Like the first
psychologist, the second psychologist opined that Rodriguez was
¶ 32 Following the completion of the first 2017 evaluation, defense
counsel requested a second evaluation (the second 2017
evaluation), which the district court ordered. A third psychologist
(the third psychologist) conducted the second 2017 evaluation.
12 ¶ 33 The third psychologist said that Rodriguez “performed below
average on questions assessing verbal aspects of intelligence.”
However, the third psychologist observed that Rodriguez
was alert and attentive throughout the [evaluation], and his overall level of attention and concentration was sufficient for interview purposes. He knew who he was, where he was, [and] the approximate time of day, date, day of the week, and season.
Long-term memory appeared to be intact, and he described his past history in adequate detail. He repeated three words immediately, and he recalled one of them after approximately 5 minutes.
¶ 34 The third psychologist also compared the results of the tests
he had administered to the results of the tests conducted by the
first and second psychologists. The third psychologist explained
that
[a]lthough there was no indication that Mr. Rodriguez feigned memory deficits, tests administered both by [the second psychologist] and myself suggested the probability of feigning competency abilities and of insufficient motivation and effort when taking performance tests. These test results call into question the validity of the neuropsychological and intelligence test results, as well as his poor performance on my assessment of his competency abilities. . . . Finally, and importantly, although Mr. Rodriguez may have
13 difficulty comprehending complex material, deficits in adaptive functioning were not reported or observed in any of the evaluations.
¶ 35 Based on these observations, the third psychologist, like the
first and second psychologists, opined that Rodriguez was
¶ 36 Following the first and second 2017 evaluations, defense
counsel scheduled neurological testing for Rodriguez and requested
that the district court conduct a competency hearing after
Rodriguez completed the testing. Although section 16-8.5-103,
C.R.S. 2018, did not require the court to continue the competency
hearing to allow for neurological testing following a second
competency evaluation, the court nonetheless granted the defense’s
request for a continuance to complete the testing.
¶ 37 Over the next approximately eleven months, the district court
granted defense counsel’s requests for three additional
continuances to allow two doctors to complete the neurological
tests. Although the first doctor concluded that Rodriguez was
competent to proceed, the second doctor said that Rodriguez had
“some sort of traumatic brain injury, and it affects him.” But
because Rodriguez also had severe anxiety that he was not treating
14 with medication, the second doctor reported that she could not tell
“the extent that [the anxiety] affects him or whether it affects him[,]
but the results . . . are a result of malingering.” She could not
determine whether “this is an effect regarding incompetency or . . .
it’s malingering until he is medicated on anxiety medication.”
¶ 38 Defense counsel requested a continuance of the competency
hearing so she could either get Rodriguez to take his anti-anxiety
medication or, if he refused, have the second doctor retest him to
assess whether a traumatic brain injury affected his competency.
¶ 39 At that point, Rodriguez’s competency proceedings had already
delayed the case for approximately three years, and the victim was
expressing frustration that the case had not yet gone to trial. In
part due to the length of the delays, the district court denied
counsel’s new request for a continuance of the competency hearing
and set the hearing for August 2018.
¶ 40 At that competency hearing, defense counsel told the court
that she did not believe she had “sufficient legal grounds” to
“challenge the findings previously made by the doctors” and
therefore would not “go forward” with the second motion. Because
Rodriguez had not met his burden to prove that he was
15 incompetent, see § 16-8.5-103(7), C.R.S. 2018, the district court
made a final determination that Rodriguez was competent to
¶ 41 Defense counsel filed the third motion on February 26, 2019
— approximately three years after defense counsel had filed the first
motion. In the third motion, defense counsel alleged that
Rodriguez’s competency had significantly deteriorated since he had
been taken into custody on new charges not involving G.L. Defense
counsel asserted that Rodriguez was unable to retain the
information his lawyers provided to him and that his ability to
understand any aspect of his case had diminished to the point of
nonexistence. Defense counsel specifically said that she had
noticed “additional and significant deterioration in Rodriguez’s
ability to communicate, understand and assist in his case.”
¶ 42 At a hearing conducted on February 28, 2019, the district
court noted that defense counsel had not presented any information
regarding Rodriguez’s competency that materially differed from the
allegations contained in the first and second motions. The court
described in detail the proceedings involving the first and second
16 motions and the results of the 2016 evaluation and the first 2017
evaluation.
¶ 43 The district court determined for a third time that Rodriguez
was competent to proceed, explaining that
[Rodriguez’s] competency to proceed has been examined for almost three years now, and no doctor has found [him] incompetent[.] [Moreover,] . . . the neurological testing has not been presented that indicates there’s any concern, so the Court would find that it has sufficient information to find that Mr. Rodriguez is competent to proceed.
The court thus acknowledged that the representations in the third
motion did not allege a sufficient material change in Rodriguez’s
mental condition to warrant another competency evaluation.
¶ 44 In discussing the third motion again during Rodriguez’s trial a
few days later, the district court noted that it had already
authorized competency evaluations of Rodriguez and that, even
though “all of those competency evaluations found [he] was
competent to proceed,” the court had nonetheless granted him an
additional year “to conduct neuro and neurocognitive testing.” The
court observed that, following the additional testing, defense
counsel advised the court “there was not a good faith basis to
17 challenge [Rodriguez’s] competency.” The court then denied defense
counsel’s request for an additional competency evaluation.
¶ 45 A comparison of the factual allegations in the three motions
underscores why the court did not abuse its discretion by denying
the third motion:
Issue The first The second The third motion motion motion Defense Rodriguez’s Rodriguez gets Rodriguez Rodriguez is Counsel’s inability to easily distracted cannot recall unable to retain Assertions focus and to and has basic information retain difficulty information from one information. focusing on the about meeting to the issues and attorney/client next. conversations at conversations hand. for time periods as short as one Rodriguez is day. unable to focus on one thought Rodriguez is long enough to unable to meaningfully demonstrate a discuss the rational ability facts and to evaluate the circumstances information of the case provided by without counsel. confusing facts He exhibits and incidents. significant defects in memory and comprehension.
18 Issue The first The second The third motion motion motion Rodriguez’s Rodriguez may Rodriguez has cognitive be low insufficient abilities. functioning or cognitive may have facilities to be experienced a able to proceed traumatic brain to trial. injury that affects his ability to consult with and assist counsel. Rodriguez is unable to make decisions that are factually and rationally based.
Rodriguez’s It is unclear Rodriguez’s understanding whether ability to of the Rodriguez has a understand any proceedings. complete aspect of his understanding case has of the court diminished to proceedings and the point that it possible is nonexistent. penalties.
Rodriguez’s Rodriguez is Rodriguez’s ability to unable to anxiety is communicate discuss the debilitating, and with his facts of his case he has become counsel. in a meaningful more emotional, capacity. resulting in significant deterioration in his ability to communicate, understand, and assist in his defense.
¶ 46 As the chart indicates, counsel’s assertions in the third motion
were not materially different from the assertions of mental
incompetence in the first and second motions. The third motion did
19 not suggest any cause for the change in Rodriguez’s competency,
aside from his incarceration, and did not point to any indicia of his
incompetence that differed from those reported in the first and
second motions. Like the first and second motions, the third
motion referred to the car accident and noted Rodriguez’s
difficulties in understanding “the nature of the charges, the
workings of the criminal system and the possible penalties.”
Further, in the third motion, defense counsel acknowledged that
none of the prior competency evaluations had resulted in a
determination that Rodriguez was incompetent to proceed. And
nothing in the third motion suggested that a specialist who
conducted a third competency evaluation would arrive at a different
conclusion from that reached by the specialists who had previously
examined and tested Rodriguez.
¶ 47 In sum, defense counsel alleged both before and after
Rodriguez’s first two competency evaluations that Rodriguez lacked
the ability to retain the information he received from defense
counsel, had “low functioning” cognitive abilities, lacked a “rational
and factual understanding of the criminal proceedings,” and did not
have a “sufficient present ability to consult with his lawyer with a
20 reasonable degree of rational understanding in order to assist in the
defense.”
b. The Case Law Governing Competency Motions that Lack Sufficient Facts to Support a Good Faith Doubt Regarding the Defendant’s Competency
¶ 48 The supreme court’s reasoning in People v. Lindsey, 2020 CO
21, 459 P.3d 530 (Lindsey II), guides our analysis. Less than one
month before trial, Lindsey’s lawyer sought leave to withdraw, id. at
¶ 6, 459 P.3d at 532, in part because “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,” id. at ¶ 7, 459 P.3d at 532. The
court denied the motion to withdraw. Id.
¶ 49 Ten days later, defense counsel filed a motion seeking a
determination regarding Lindsey’s competency. Id. at ¶ 8, 459 P.3d
at 532. The specific facts alleged in the competency motion
“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.” Id.
21 ¶ 50 Following a hearing, the court found that Lindsey was
competent to proceed, id. at ¶ 13, 459 P.3d at 534, in part because
the issues detailed in the competency motion “were related to
Lindsey’s lack of cooperation in this litigation and had nothing to do
with competency,” id. at ¶ 15, 459 P.3d at 534; see People v.
Lindsey, 2018 COA 96M, ¶ 12, 461 P.3d 553, 556 (Lindsey I),
rev’d, 2020 CO 21, 459 P.3d 530. The court then said that it would
not allow defense counsel to file an objection to its ruling. It
admonished defense counsel, “you presumed by simply following
the procedures in this statute, that you, in your mind, have
questioned the present ability of your client to proceed here today,
is wrong. So the motion is being dismissed.” Lindsey I, ¶ 13, 461
P.3d at 556. Lindsey was convicted as charged and filed an appeal.
Lindsey II, ¶¶ 16-17, 459 P.3d at 534.
¶ 51 On appeal, Lindsey argued that the court erred by “refusing to
follow the statutory procedures for determining competency set
forth in sections 16-8.5-102 and -103.” Id. at ¶ 17, 459 P.3d at
534. He specifically contended that, once his lawyer filed the
competency motion, the court had only two choices: “(1) make a
preliminary finding of competency or incompetency, which, if timely
22 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.” Id.
¶ 52 In determining that the court had not erred by denying the
competency motion without following the procedures set forth in
sections 16-8.5-102 and 16-8.5-103, the supreme court noted,
among other points, that “the specific facts in the competency
motion were the same specific facts advanced by [defense counsel]
to show that he had a conflict with Lindsey that warranted
withdrawal as counsel of record.” Id. at ¶ 26, 459 P.3d at 536. For
that reason, the supreme court concluded that “the trial court did
not abuse its discretion in rejecting the motion as inadequate”
because it contained an “inadequate proffer”: Under the totality of
the circumstances present in the case, the motion “was bereft of
specific facts supporting a good-faith doubt regarding Lindsey’s
competency.” Id. at ¶ 35, 459 P.3d at 538.
¶ 53 Thus, Lindsey II stands for the proposition that a district
court’s finding of competency in response to a motion that fails to
“raise a good-faith doubt regarding competency,” id. at ¶ 13, 459
23 P.3d at 534, does not trigger the procedures set forth in sections
16-8.5-102 and 16-8.5-103:
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.
Lindsey II, ¶ 22, 459 P.3d at 535; see People v. Zimmer, 2021 COA
40, ¶ 20, 491 P.3d 554, 558 (“[T]he facts set forth in the
[competency] motion must actually support a good faith doubt
about the defendant’s competency. If the asserted facts do not, the
trial court has discretion to reject the motion without making a
preliminary finding, thereby not triggering any of the statutory
procedures.”) (citation omitted).
¶ 54 A division of this court considered similar facts to those
presented here when analyzing an earlier version of the competency
statutes. In People v. Davis, 851 P.2d 239, 242 (Colo. App. 1993),
24 defense counsel raised the issue of the defendant’s competency one
week before the fourth scheduled trial date, after five psychiatrists
had examined the defendant and determined he was “competent
(albeit malingering).” Under these circumstances, the division held
that the trial court had not abused its discretion by concluding that
the defense had not presented “a good faith basis for believing” that
the defendant was incompetent. Id.; see People v. Morino, 743 P.2d
49, 51 (Colo. App. 1987) (A court is not required to accept without
questioning defense counsel’s assertions regarding the defendant’s
competence; “[i]t is only when those representations, either alone or
in conjunction with other evidence, raise a substantial issue of a
defendant’s competence that a court violates due process if it
proceeds without determining the issue.”).
¶ 55 Following the analyses in Lindsey II, Zimmer, and Davis, we
hold that a successive competency motion that does not raise new
indicia of incompetency regarding a defendant who was previously
examined and determined to be competent does not “support a good
faith doubt about the defendant’s competency.” Zimmer, ¶ 20, 491
P.3d at 558. Therefore, the third motion did not trigger the
25 procedures set forth in sections 16-8.5-102 and 16-8.5-103. See
Lindsey II, ¶ 35, 459 P.3d at 538.
¶ 56 In this case, unlike in Lindsey II, the district court did not
expressly say it was dismissing the motion and would not allow
defense counsel to file an objection to its finding of competency.
But the court’s ruling from the bench made clear that it had no
intention of ordering another competency evaluation for Rodriguez,
stating “it has sufficient information to find that Mr. Rodriguez is
competent to proceed” based on the evaluations conducted over the
preceding three years.
¶ 57 The reasoning of Lindsey II is essential to avoid unnecessary
delays in criminal proceedings. As the supreme court observed,
requiring district courts to follow the procedures in sections
16-8.5-102 and 16-8.5-103 every time a lawyer files a competency
motion, even one that fails to raise a good faith doubt regarding the
defendant’s competency, “would risk adverse consequences to the
efficiency of our criminal justice system, as it would jeopardize our
trial courts’ ability to manage their dockets and control the
proceedings over which they preside.” Lindsey II, ¶ 31, 459 P.3d at
537. Stripping district courts of their discretion to decline to order
26 a competency evaluation where no such evaluation is warranted
would allow lawyers to delay trials for years, if not decades, by filing
competency motion after competency motion. No reasonable
reading of sections 16-8.5-102 and 16-8.5-103 would allow criminal
cases to become trapped in such a time loop.
¶ 58 Consistent with Lindsey II’s admonition that “a trial court
should only order competency evaluations when they are
warranted,” id. at ¶ 36, 459 P.3d at 538, we hold that a court does
not abuse its discretion by denying a defendant’s subsequent
motion for a determination of competency where (1) one or more
specialists previously examined the defendant and concluded he or
she was competent to proceed and (2) the subsequent motion
presents neither previously unexamined indicia of the defendant’s
lack of competency nor a different medical or psychological
explanation for why the defendant, despite having previously been
found competent, is no longer competent to proceed. Significantly,
here, in denying the third motion, the district court considered the
number of specialists who had evaluated Rodriguez and determined
that he was competent. Except for the doctor who could not
determine whether Rodriguez was or was not competent to proceed,
27 every specialist who examined him concluded that he was
competent despite his low intelligence and anxiety. While Rodriguez
is unquestionably a low functioning individual, nothing in the
record shows that the court abused its discretion by relying on the
medical and psychological specialists who found that Rodriguez’s
level of functioning did not dip below the level of competency.
¶ 59 Accordingly, we conclude that the district court did not abuse
its discretion by denying defense counsel’s third motion and not
suspending the court proceedings until a new competency
evaluation could be conducted. (Rodriguez’s argument that the
court erred by not sua sponte suspending the trial and declaring a
mistrial is undeveloped. Specifically, he does not explain why the
court should have declared a mistrial after it had already denied the
third motion and found Rodriguez competent to proceed. For this
reason, we do not address the merits of Rodriguez’s argument
concerning the court’s alleged failure to act sua sponte. See
People v. Liggett, 2021 COA 51, ¶ 53, 492 P.3d 356, 365.) Thus, we
affirm the district court’s denial of the third motion.
28 B. The Motion for Appointment of Substitute Counsel
¶ 60 We also disagree with Rodriguez’s assertion that the district
court violated his right to counsel by denying his request for
appointment of substitute counsel on the grounds of an alleged
complete breakdown in communication between him and defense
1. Standard of Review and Applicable Law
¶ 61 We review a district court’s denial of a defendant’s request for
substitution of counsel for an abuse of discretion. People v. Garcia,
64 P.3d 857, 863 (Colo. App. 2002).
¶ 62 The right to counsel is a fundamental right guaranteed by the
Sixth Amendment to the United States Constitution and is
considered essential to a fair trial. People v. Arguello, 772 P.2d 87,
92 (Colo. 1989). The Sixth Amendment guarantees competent
representation. Id. A court is not required to appoint substitute
counsel “unless it verifies that the defendant has a well-founded
reason for believing that the appointed attorney cannot or will not
competently represent him.” People v. Johnson, 2016 COA 15, ¶ 30,
381 P.3d 348, 355.
29 ¶ 63 “If the defendant establishes good cause, such as a conflict of
interest, a complete breakdown in communication, or an
irreconcilable conflict that may lead to an apparently unjust verdict,
the court must appoint substitute counsel.” People v. Kelling,
151 P.3d 650, 653 (Colo. App. 2006). “The type of ‘total breakdown’
in communication which would warrant substitution of counsel
must be evidenced by proof ‘of a severe and pervasive conflict with
[the defendant’s] attorney or evidence that he had such minimal
contact with the attorney that meaningful communication was not
possible.’” People v. Faussett, 2016 COA 94M, ¶ 24, 409 P.3d 477,
483 (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.
2002)).
2. Additional Facts
¶ 64 At the conclusion of the February 28, 2019, hearing, defense
counsel requested a Bergerud hearing to address an alleged conflict
between Rodriguez and his counsel relating to “the defense of
[Rodriguez’s] case and how [Rodriguez] wishes to present the
defense.” The district court set a Bergerud hearing later that day
before a different judge.
30 ¶ 65 At the Bergerud hearing, counsel said that she had
represented Rodriguez for about two and a half years. During that
time, she “tried meeting with him one-on-one, . . . with him with his
mother present, . . . [and] with him with his mother and sister
present.” She explained that, during those meetings, she did not
believe that Rodriguez understood the information that she was
attempting to communicate to him.
¶ 66 Counsel also told the court that she had arranged for a
different public defender to meet with Rodriguez to determine
whether her difficulty in communicating with Rodriguez arose from
a “language issue, a sex issue, or a race issue.” In the week before
the hearing, the other public defender met with Rodriguez for more
than seven hours and similarly concluded that Rodriguez was
unable to understand him.
¶ 67 The court then questioned Rodriguez. Although he had
difficulty answering some of the court’s questions and began crying
on the witness stand, Rodriguez said it was hard for him to
remember things and that he liked his lawyers.
¶ 68 At the conclusion of the Bergerud hearing, the court found
there had not been a complete breakdown in communication
31 between defense counsel and Rodriguez. The court said, “What I do
see is . . . lawyers who are really working hard to try and do the
best that they can for Mr. Rodriguez, and I don’t think Mr.
Rodriguez thinks differently . . . and in fact, he says he trusts you.”
The court denied defense counsel’s request to appoint substitute
counsel for Rodriguez.
3. The Court Did Not Err by Denying Rodriguez’s Request to Appoint Substitute Counsel
¶ 69 We conclude that, for two reasons, the district court’s denial
did not constitute error.
¶ 70 First, based on the court’s colloquy with Rodriguez at the
Bergerud hearing and the length of defense counsel’s relationship
with him, we conclude that the district court did not abuse its
discretion by determining that the relationship between counsel
and Rodriguez had not deteriorated to the point where counsel
could not provide effective assistance. See People v. Jenkins,
83 P.3d 1122, 1127 (Colo. App. 2003).
¶ 71 Although the record demonstrates that Rodriguez and defense
counsel experienced difficulty communicating with one another, the
court did not abuse its discretion by concluding that such difficulty
32 did not constitute an irretrievable breakdown in communications.
See People v. Thornton, 251 P.3d 1147, 1151 (Colo. App. 2010)
(holding that communication difficulties do not demonstrate a
complete breakdown of communication, particularly when counsel
has assured the court that he has been in contact with the
defendant and continued to represent the defendant’s interests); see
also Jenkins, 83 P.3d at 1126 (finding that a complete breakdown of
communication was not established even though defense counsel
only met with the defendant once in nine months, had not
discussed potential witnesses with him, and had not given him
copies of discovery materials).
¶ 72 Second, the record demonstrates that any lawyer would have
experienced the same challenges in communicating with Rodriguez.
After defense counsel discussed her difficulties in communicating
with Rodriguez, the court said, “[B]ased on what you just told me[,]
that would be true whoever represented him.” The record
establishes that appointing new counsel for Rodriguez would have
been a futile exercise; new counsel would have experienced no
greater ability to explain the case and the proceedings to Rodriguez
than did his counsel at the time of the trial. Rodriguez’s difficulties
33 in understanding what his lawyers were trying to tell him could
have delayed his trial indefinitely, as new lawyer after new lawyer
attempted without success to communicate with him, resulting in
yet another judicial time loop. Rodriguez’s communication
difficulties were not attributable to his inability to understand any
particular lawyer, but, rather, to his low intelligence and high level
of anxiety.
¶ 73 We also note that, at the Bergerud hearing, defense counsel
advised the court that other judges had previously deemed
Rodriguez competent to proceed despite the “severe limitations to
his processing and communicating ability.” Defense counsel
explained that “[d]octors have found that he has a very low IQ and
. . . a severe anxiety disorder” that make it “very difficult for him to
answer questions and to articulate what he’s thinking.” The court
acknowledged this point and noted that “[t]his is sounding more
like a competency hearing and less like a Bergerud hearing.” The
record confirms the accuracy of this observation; the motion for
leave to withdraw and the three competency motions all arose from
the mental and emotional challenges that Rodriguez consistently
34 manifested throughout this case. They made him a difficult client
but not an incompetent one.
¶ 74 After carefully reviewing the extensive record in this case, we
cannot say that the district court’s denial of the motion for
appointment of substitute counsel was “manifestly arbitrary,
unreasonable, or unfair,” or that the court applied “an incorrect
legal standard.” Mondragon, 217 P.3d at 939; see People v.
Rubanowitz, 688 P.2d 231, 242-43 (Colo. 1984) (holding that, in
determining whether to appoint substitute counsel, a court may
consider “the possibility that any new counsel would be faced with
similar difficulties” to those that current defense counsel is
experiencing). Thus, we conclude that the district court did not
abuse its discretion by declining to appoint substitute counsel for
Rodriguez.
III. Conclusion
¶ 75 The judgment of conviction is affirmed.
JUDGE NAVARRO and JUDGE GRAHAM concur.