People v. Nagi

2014 COA 12, 396 P.3d 60, 2014 WL 554265, 2014 Colo. App. LEXIS 241

• Court: Colorado Court of Appeals
• Decided: February 13, 2014
• Docket: Court of Appeals No. 12CA0004
• Status: Published

Opinions

Opinion by

JUDGE CASEBOLT

¶ 1 Defendant, Farouk Nagi, appeals the judgment of conviction entered' on a jury verdict finding him guilty of sexual assault on a child by one in a position of trust — pattern of abuse. He contends that the trial' court violated his right to a speedy trial and incorrectly calculated the applicable sentencing range. We disagree and thus affirm.

I. Background

¶ 2 On January 10, 2011, while represented by the public defender (original defense counsel), defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust — pattern of abuse. The court set his trial for June 21, 2011, about twenty days before the expiration of the six-month speedy trial period set'forth in section 18-1-405(1), C.R.S.2013.

¶ 3 In March 2011 defendant filed a pro se motion seeking to obtain a different attorney. While he was completely satisfied with original defense counsel’s performance at the preliminary hearing, he asserted various reasons for the request; primarily, that counsel was not communicating with him. But following a hearing, the trial court found no conflict of interest or other just reason and declined to appoint a new public defender or alternate defense counsel (ADC).

¶ 4 On June 1, 2011, original defense .counsel filed a motion to continue the case, asserting that he needed additional time to investigate out-of-state, witnesses and some witnesses in Yemen, defendant’s native country. Counsel also stated that he did not believe he could effectively represent defendant without conducting the .additional investigation. Defendant vehemently objected to any continuance, asserted his right to a speedy trial,.and indicated that he wished to have ADC appointed to represent Mm.

¶ 5 The trial court conducted an extensive inquiry concerning defendant’s relationsMp with original defense counsel, eventually asking defendant whether, if the court appointed ADC and the ADC attorney was not in a position to go to trial on June 21, he would agree to waive his speedy trial right and would consent to reset the trial. Defendant agreed with that proposition. The court scheduled another hearing for June 6.

¶ 6 On June 6, defendant appeared with ADC present, but without original defense counsel. Defendant initially told the court that he did not wish to have ADC appointed, but desired to represent himself. He then abruptly changed his mind and asked to retain original defense counsel “as long as I don’t waive my constitutional right to speedy trial.” The court pointed out that original defense counsel had filed a motion to continue the trial, which would require a speedy trial waiver. Defendant stated that he would not want original defense counsel if that attorney still wanted a continuance; if the attorney would not withdraw the continuance request, he would proceed pro se.

¶ 7 The court then gave defendant an Ar-guello advisement concerning his right to self-representation. See People v. Arguello, 772 P.2d 87, 94-95 (Colo.1989) (setting forth criteria to employ in determining whether a defendant has made a voluntary, knowing, and intelligent waiver of his right to counsel). The court also offered to appoint ADC, but pointed out that ADC would not be in a position to represent defendant at a trial on June 21. The ADC attorney confirmed that assertion.

¶ 8 Defendant declined the offer, and stated that he wanted original defense counsel to appear with him on June 21 to see if that attorney would withdraw his request for continuance and could effectively represent him. The court stated that, unless original defense counsel appeared, withdrew the continuance request, and stated that he could provide effective representation, defendant would represent himself at trial, to which defendant agreed. The court set another hearing for June 20.

¶ 9 On that date, the court inquired whether defendant still wanted to represent himself, and when defendant replied affirmatively, the court vacated the trial date and ordered defendant to undergo a competency evaluation. On June 21, the court advised defendant concerning his rights and ordered the evaluation to occur at the Colorado Mental Health Institute in Pueblo (CMHIP).

¶ 10 The CMHIP determined that defendant was competent to proceed. The parties did not contest that evaluation and, at a hearing on August 22, 2011, the trial court found that defendant was competent to proceed to trial. Defendant represented himself at the trial that started on August 30, 2011. The jury convicted him as charged, and the trial court sentenced him to an indeterminate term of twelve years to life.

II. Speedy Trial

¶ 11 Defendant contends that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. We disagree.

A. Standard of Review and Legal Authority

¶ 12 The application of the speedy trial statute to undisputed facts presents a question of law that we review de novo. See People v. Walker, 252 P.3d 551, 552 (Colo.App.2011).

¶ 13 A defendant must be brought to trial within six months of entering a not guilty plea. § 18-1-405(1). As relevant here, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. § 18 — 1—405(6)(a).

¶ 14 If a court has “reason to believe” that a criminal defendant is “incompetent to proceed,” the court must suspend the proceedings and determine competency. § 16^8.5-102(2)(a), C.R.S.2013. “ ‘Incompetent to proceed’ ” means that

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 that, 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.2013.

¶ 15 While section 16-8.5-101, C.R.S. 2013, does not contain a definition of “reason to believe,” and “there is no definitive constitutional standard with respect to the nature and quantum of evidence necessary to require resort to an adequate procedure for determining competency,” Cappelli v. Demlow, 935 P.2d 57, 62 (Colo.App.1996), it is clear that a trial court has a “duty to suspend the proceedings ... even if no more than a ‘doubt’ is entertained as to a defendant’s competency,” People v. Scherrer, 670 P.2d 18, 20 (Colo.App.1983) (some internal quotation marks omitted). Hence, the standard of “reason to believe” presents a low threshold. Cappelli, 935 P.2d at 62. As to what may trigger a doubt concerning competency, the division in Cappelli stated:

A defendant’s irrational behavior or his or her demeanor at a hearing or trial may be sufficient, of themselves, to require an evaluation. There are no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.

Id.

¶ 16 This low threshold is justified in light of the due process interests of the accused that are at stake. One purpose of section 16-8.5-102 is to ensure against a violation of due process that would arise if a defendant who is not mentally competent were required to stand trial or participate in other critical criminal procedures. See Cappelli, 935 P.2d at 61-62; see also Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (putting an accused on trial while he or she is incompetent violates due process of law); People v. Zapotocky, 869 P.2d 1234, 1237 (Colo.1994) (same).

¶ 17 In addition, a criminal defendant may not waive the right to counsel unless he or she does so competently and intelligently. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). A defendant is competent to waive the constitutional right to counsel if the defendant (1) is able to consult with his lawyer with a reasonable degree of rational understanding and (2) has a rational and factual understanding of the proceedings. Id. In other words, a defendant must have a factual understanding of the proceedings; he must be properly oriented as to time, place, and person; and his perceptions and understandings must be rational and grounded in reality. People v. Mondragon, 217 P.3d 936, 940 (Colo.App.2009).

¶ 18 We review a trial court’s order for a competency evaluation for an abuse of discretion. Cf. People v. Price, 240 P.3d 557, 561-63 (Colo.App.2010) (trial court’s determination not to suspend the proceedings and order a competency evaluation reviewed for abuse of discretion). “A court abuses its discretion when it renders a decision that is manifestly arbitrary, unreasonable, or unfair.” People v. Luman, 994 P.2d 432, 435 (Colo.App.1999).

B. Analysis

¶ 19 Here, on June 20, the day before the scheduled trial, the court vacated the trial and ordered defendant to undergo a competency evaluation. On June 21, during an advisement to defendant about his rights concerning the evaluation, the court stated its reasons for doing so:

The Court has had some hearings on this ease over the last couple of weeks. [Defendant] indicated to the Court, we had diseussion[s] on June 6th, maybe the week before that he wanted to represent himself in this matter. The Court’s .concern, frankly, [defendant], based on the statements that you’ve made to me[,] that you’re not making good decisions; that the fact that you would want to represent yourself in a ease that the consequences to you can be an indeterminate life sentence with no legal training at all raises a concern with the Court that you are not acting competently. I have a duty, sir, to suspend the proceedings and determine whether or not you are, in fact, competent or incompetent if I have reason to believe that you are incompetent.

Again, based on your actions and your decision making, I am concerned that you are not acting competently at this time.

¶ 20 In our view, the record reveals ample grounds to support a “reason to believe” that defendant might have been incompetent to proceed and should have undergone a competency’ determination. Specifically, the following are germane:

• In the hearing on June 1 in which the comí; addressed defense counsel’s motion for a continuance to investigate out-of-state and foreign witnesses, defense counsel stated, “During conversations [with defendant] I have been accused of drinking and partying with [the prosecutor]. I have been accused of trying to . use psychological .tactics to get [defendant] to plead guilty. In essence being in alignment] with the prosecution to , assist them in convicting [defendant].”

. • In the same-hearing, defendant objected to the continuance, insisting on his speedy trial rights. Defendant stated, “I don’t want to waive my right to speedy trial just based on whatever is going on in the head of [defense counsel] and [the prosecutor]. Your honor, I want to have ' my trial on June the 21st. I don’t want a defense. I don’t want him to go interview witness.... I’m just asking [defense counsel]; I’ll be fine. I don’t want any kind of defense plans.... I’ll go through my trial on June the 21st. Whatever happens[,] happens. I accept what God has written for me. Every- . thing- has been written for me since I was bom. So I can go to life sentence, that means I go to life sentence.... You know that I can sense — I can feel there are some instructions from the District Attorney’s Office for [defense counsel] to give them extension. That’s how I feel.... These- are baseless charges. This is statements weren’t written by my daughter. These statements were written by [a detective] and whoever people they were talking to my daughter, I can tell they are not her words. - I don’t know ... why I’m still here. Just if it’s going to, let’s go 'to trial. If you send me to prison, life, whatever God has chose is going to get me out of this. You know, that’s up to God.”

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“Trust me [defense counsel] will never complete his investigation. He will never complete his — I’m sorry to say, it’s fake investigations. Your Honor, I am a Semitic person. .I’m a Semite. I inherited inspiration in my veins. My forefather Abraham, David, Joseph, Mohammed, all of them are Semitic to one father. I always feel and say things.”

• At the June 6 hearing, defendant vacillated between wanting to have original defense counsel represent him (which was contrary to his earlier views and agreement) and wanting to represent himself. He wanted original defense counsel to represent him “as long as I don’t waive my constitutional right to speedy trial.” But the court pointed out how that was inconsistent with his assertion of a right to a speedy trial. Defendant then stated he still wanted to see if original defense counsel could effectively represent him and would withdraw the request for continuance.

¶ 21 These actions and conflicting decisions of defendant are sufficient to justify the court’s entertainment of a “doubt” concerning defendant’s competency, see Scherrer, 670 P.2d at 20, and meet the low “reason to believe” threshold. See Cappelli, 936 P.2d at 62. Even based on a cold record and lacking the trial court’s ability to personally observe defendant’s tone and demeanor, we conclude that the record supports the conclusion that defendant might not have been competent to proceed to trial. See Morrow v. State, 293 Md. 247, 443 A.2d 108, 113 (1982) (“[i]n our view the understanding required [for competency] is the nature of the charge, the facts required to be proved to sustain the charge, and the consequences attending a conviction for having committed the charge”); State v. Coco, 371 So.2d 803, 806 (La.1979) (“Pertinent inquiries to determine whether the accused can understand the proceedings against him include: ... his comprehension of the range of possible verdicts and of the consequences of conviction”). (Emphasis added.)

¶ 22 Defendant stated he was “mentally and psychologically unsettled” by some of defense counsel’s explanations; he accused defense counsel of using psychological tactics and being in league with the prosecutor to induce him to plead guilty; he did not want any defense at all at his trial and was willing to risk a life sentence if God chose that for him; he believed the charges against him were baseless because the outcry statements were written by a detective, not his stepdaughter (even though she had testified to the assaults at defendant’s preliminary hearing several months earlier); he asserted that defense counsel was pursuing fake investigations and the prosecutor was instructing his counsel to seek a continuance; and he did not appear to comprehend why he would have to choose between representing himself and having life original defense counsel represent him.

¶ 23 Further, the circumstances reveal that defendant may not have had a rational and factual understanding of the proceedings against him because his perception that the prosecution had no case was not grounded in reality. See § 16-8.6-101(11) (defining competency to proceed as requiring a rational understanding of the criminal proceedings); Mondragon, 217 P.3d at 940 (noting that a defendant must have a rational understanding of the proceeding and his perceptions must be grounded in reality).

¶ 24 We are not persuaded by the dissent’s view that the court ordered the competency evaluation solely because defendant exercised his right to represent himself. The court’s comments at the June 21 hearing demonstrate that its order was based on defendant’s statements made during hearings in the weeks before the trial, together with his actions and decisions. Among those actions were his conflicting and inconsistent positions regarding whether he wanted the public defender, ADC, or to proceed pro se; his decision to represent himself in the absence of legal training and while facing the possibility of an indeterminate sentence; and his view that there was no substance to the prosecution’s case.

¶ 25 We acknowledge the court’s statement in the August 24 hearing that “the court’s concern was that he wanted to represent himself in a case which, if convicted, would result in an indeterminate sentence. So the court did not feel that he was making good decisions.” Even so, the court’s statement should not be read in isolation, but in context with its recitations at the June 21 hearing referencing the court’s prior hearings as well as defendant’s previous pronouncements and actions.

¶ 26 For the above reasons, we conclude that the court’s determination was not manifestly arbitrary, unreasonable, or unfair. See Laman, 994 P.2d at 435 (setting forth abuse of discretion standard); see also Carrillo v. People, 974 P.2d 478, 485-86 (Colo.1999) (the abuse of discretion standard is a “very high standard of review”); People v. Milton, 732 P.2d 1199, 1207 (Colo.1987) (discretion means the trial court “has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over the other”). Rather than being arbitrary or unreasonable, the court’s actions here reflect the exercise of judgment in favor of protecting defendant’s right to due process and his right to counsel. In addition, they more than meet the low “reason to believe” threshold required by section 16-8.5-102(2)(a).

¶27 Because the court did not abuse its discretion in ordering defendant to undergo a competency evaluation, we also conclude that the period during which defendant was under observation should be excluded from the speedy trial computation. See § 18-1-405(6)(a) (any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month speedy trial period). Excluding that period, defendant’s trial occurred within the speedy trial limit.

III. Sentencing

¶ 28 Defendant also contends that the trial court erred by aggravating the applicable sentencing range in accordance with the crime of violence and extraordinary risk crime statutes because the prosecution failed to allege a crime of violence in a separate count of the information and to prove that he caused bodily injury to the victim or that he used threats, intimidation, or force against the victim. § 18 — 1.3—406(2)(b)(I), (6), C.R.S. 2013.

¶ 29 We conclude that defendant was subject to crime of violence sentencing because the offense of which he was convicted is a per se crime of violence. See § 18 — 3— 405.3(4), C.R.S.2013 (a defendant convicted of a class three felony of sexual assault on a child — pattern of abuse, shall be sentenced in accordance with section 18-1.3-406, C.R.S. 2013); People v. Banks, 9 P.3d 1125, 1130 (Colo.2000) (when the statute defining an offense pi*escribes crime of violence sentencing for the offense by reference to section 18-1.3-406, the offense is called a per se crime of violence). Contrary to defendant’s position, the prosecution was not required to prove a crime of violence in order to aggravate the sentencing range for a per se crime of violence in accordance with the crime of violence statute. See People in Interest of A.B.-B., 215 P.3d 1205, 1208 (Colo.App.2009) (per se crimes of violence need not be defined by the crime of violence statute); People v. Santanctr-Medrano, 165 P.3d 804, 808 (Colo.App.2006) (“To support the imposition of enhanced punishment under [section 18-1.3-406] when the underlying crime is not a per se crime of violence, a separate count must be pled and proved to the jury beyond a reasonable doubt.”) (emphasis added).

¶30 However, the People concede and we agree that the sentencing range should not have been aggravated as an extraordinary risk crime. See People v. Banks, 9 P.3d 1125, 1127 (Colo.2000). Nevertheless, defendant does not argue, nor do we perceive anything in the record to indicate, that the court’s sentence would have been different had defendant been sentenced pursuant a sentencing range aggravated solely by the crime of violence statute. See People v. Young, 987 P.2d 889, 895 (Colo.App.1999). Defendant’s twelve-year-to-life sentence in the DOC falls within both the correct sentencing range and the incorrect sentencing range relied upon by the trial court.

¶ 31 The judgment is affirmed.

JUDGE DUNN concurs. JUDGE LICHTENSTEIN dissents.