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Pleniazek v. State (2/24/2017) ap-2543

Pleniazek v. State (2/24/2017) ap-2543

                                                         NOTICE
  

          The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

          errors to the attention of the Clerk of the Appellate Courts:  



                                     303 K Street, Anchorage, Alaska  99501
  

                                                 Fax:  (907) 264-0878
  

                                        E-mail:  corrections @ akcourts.us
  



                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STANLY PIENIAZEK,  

                                                                         Court of Appeals No. A-11866  

                                       Appellant,                       Trial Court No. 4FA-12-1496 CR  



                             v.  

                                                                                     O P I N I O N  

STATE OF ALASKA,  



                                       Appellee.                         No. 2543 - February  24, 2017  



                   Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                                        

                   Fairbanks, Michael P. McConahy, Judge.  



                   Appearances:  Kelly R. Taylor, Assistant Public Defender, and  

                                                  

                   Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                              

                   Nancy R. Simel, Assistant Attorney General, Office of Criminal  

                                                                                                

                   Appeals, Anchorage, and Craig W. Richards, Attorney General,  

                                                                                                

                   Juneau, for the Appellee.  



                   Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                            

                   Superior Court Judge. *  



                   Judge ALLARD.  



                    Stanly    Pieniazek    was    found    competent    to    stand    trial    following    a  



competency hearing before Fairbanks Superior Court Judge Michael P. McConahy.                                              A  



     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                                                                                                                                                                              1  

jury later found Pieniazek guilty of two counts of third-degree assault                                                                                                          for shooting a gun                



 at two state troopers after they responded to a report of a disturbance at Pieniazek's                                                                                                         



property in Fairbanks.         



                                   On appeal, Pieniazek argues that the superior court erred in determining                                                                                    



 that he was competent to stand trial.                                                               For the reasons explained here, we agree with                                                                



 Pieniazek that the superior court misapplied the factors listed in AS 12.47.100(e) and                                                                                                                              



 failed   to   conduct   an   independent   and   contemporaneous  assessment   of   Pieniazek's  



 competency.     Accordingly,  we   remand   Pieniazek's   case   to   the   superior   court   for  



 reconsideration and, if feasible, a retrospective determination of his competency to stand                                                                                                                      



 trial.  



                 Background facts  

                                                   



                                   Pieniazek, a Polish immigrant with limited English proficiency, is eighty  

                                                                                                                  



 years old. The events that gave rise to this case took place in May 2012, when Pieniazek  

                                                                                                                                                                                                      



 was seventy-five years old.  At the time of the shooting, Pieniazek was living in squalor  

                                                                                                                                                                                                           



 at his property in Fairbanks in a collection of structures connected by self-constructed  



 "tunnels" that witnesses described as dilapidated and unsanitary.  Although Pieniazek  

                                                                                                                                                                                                     

 was appointed a public guardian2  

                                                                                                                                                                                                        

                                                                                       two years prior, due to his behavior during a separate  



                                                                                                                                                                                                              

 criminal case, Pieniazek rebuffed his guardian's attempts to place him in assisted living,  



                                                                                                                                                                                                     

 and he twice left the facility in which he was placed.  The record before the trial court  



                                                                                                                                                                                                                        

 indicated that Pieniazek was employed from 1969 to approximately 1991, when he  



                                                                                                                             

 retired.  The record also indicated that although Pieniazek possessed a driver's license  



                                                                                                                                                    

 as late as 2011, he was last observed driving in February 2010.  



         1        AS 11.41.220.
  



         2        AS 13.26.370.
  



                                                                                                         - 2 -                                                                                                   2543
  


----------------------- Page 3-----------------------

                    Prior to trial,Pieniazek'sattorneyfiledamotion for ajudicial determination  

                                                                                                                



of competency.  Pieniazek was then evaluated twice:  first by clinical psychologist Dr.  

                                                                                                                                



Siegfried Fink, who concluded that Pieniazek had dementia and was incompetent to  

                                                                                                                                  



stand trial; and later by state forensic psychologist Dr. Lois Michaud, who rejected  

                                                                                                                        



Fink's diagnosis of dementia and instead concluded that Pieniazek was malingering,  

                                                                                                                 



based on his refusal to communicate with her.  

                                                                 



                    Fairbanks Superior Court Judge Michael McConahy subsequently held a  

                                                                                                       



hearing in May 2013 at which Dr. Fink and Dr. Michaud elaborated on their respective  

                                                                                                                     



diagnoses. In addition, threeother witnesses testified: Ruth Retynski, Pieniazek's public  

                                                                                                                            



guardian, as well as Fairbanks Correctional Center (FCC) officers Joanne Murrell and  

                                



Jerry Watson.  Murrell and Watson had both dealt extensively with Pieniazek while he  

                                                                                                                                 



was in custody awaiting trial in this case.   In relevant part, Retynski, Murrell, and  

                                                                                                                               



Watson each described a number of Pieniazek's strange behaviors.  

                                                                                       



                    Retynski testified that she struggled to find an assisted living facility for  

                                                                                                                                



Pieniazek, partly because she could not determine whether his behavior was due to  

                                                                                                                                 



mental illness or dementia. But Retynski also testified that Pieniazek was manipulative,  

                                                                                                                



and that there were times during her conversations with Pieniazek that she felt he was  

                                                                                                                               



pretending not to understand her when she "didn't give him exactly what he wanted."  

                                                                                                                      



                    TheFCCcorrectionsofficerstestifiedthatPieniazek's mental conditionwas  

                                                                                                                               



extremely poor during his incarceration: Pieniazek hoarded and atespoiled food, refused  

                                                                                                                          



to shower unless "tricked" into doing so, struggled to complete all but the most simple  

                                                                                                                           



tasks,  generally  did  not  communicate  with  staff  or  other  inmates,  and  was  kept  in  

                                                                                                                                 



administrative segregation for the sake of both his and others' safety.  Officer Murrell  

                                                                               



testified that Pieniazek had "moments where he knows what he's talking about ... [and]  

                                                                                                                             



moments where he's just babbling."  She also testified that Pieniazek would sometimes  

                                                                                                                     



"in  the  middle  of  the  night  ...  pack  up  all  his  stuff,  fold  everything  up,  organize  

                                                                                                                       



                                                              -  3 -                                                        2543
  


----------------------- Page 4-----------------------

everything, and just bang on the door and [say] open the door, I'm ready to go home."  

                                                                                                                          



Dr. Fink also noted in his report that the FCC staff members he interviewed "observed  

                                                                                                                     



a significant decline in [Pieniazek's] level of functioning especially in the last year."  

                                                                                                                         



                    The  trial  judge  found  Pieniazek  competent  to  stand  trial,  crediting  

                                                                                                                      



Retynski's          and       Dr.     Michaud's            testimony          that     Pieniazek          was       sometimes  

                                                                                                                  



"communicative."               The  trial  judge  also  noted  that  AS  12.47.100(e)  directs  a  court  

                                                                                                                            



determining a defendant's competency to take into account "whether the person has  

                                                                                                                               



obtained a driver's license, is able to maintain employment, or is competent to testify as  

                                                                                                                                  



a witness under the Alaska Rules of Evidence."  The trial judge concluded that these  

                                                                                                                             



conditions had been met in Pieniazek's case because Pieniazek was "able to maintain  

                                                                                                                       



employment since he got [to the United States] until his retirement [in 1991]" and that,  

                                                                                                                              



although Pieniazek did not have a current driver's license, he had a "currently registered  

                                                                                                                      



vehicle on his property" in 2011 and "gets around."  

                                                                   



                    The trial judge also found it significant that Pieniazek had testified briefly  

                                                                                                                           



in his own defense in a bench trial for criminal trespass before Fairbanks Superior Court  

                                                                                                                            



Judge Jane Kauvar that took place two years earlier, in February 2012. JudgeMcConahy  

                                                                                                                    



assumed that Judge Kauvar had found Pieniazek competent to testify at that trial.  

                                                                                                                      



                    However, the record indicates that this assumption was incorrect.  There  

                                                                                                                            



were no competency proceedings prior to the 2012 criminal trespass trial, and Judge  

                                                                                                                            



Kauvar made no explicit finding that Pieniazek was competent to testify. The record also  

                                                                                                                               



indicates  that,  although  Judge  Kauvar  may  have  permitted  Pieniazek  to  testify,  

                                                                                                                         



Pieniazek's behavior in court was sufficiently unusual that Judge Kauvar herself sought  

                                                                                                                           



to  appoint  Retynski  as  Pieniazek's  legal  guardian.                             A  review  of  Pieniazek's  trial  

                                                                                                                              



                                                              - 4 -                                                         2543
  


----------------------- Page 5-----------------------

testimony in that prior case also reveals that his testimony was extremely brief and                                                                

largely incoherent, and that Pieniazek appeared confused by the proceedings.                                                              3  



                                                                                                                                                     

                        Pieniazek also testified briefly in the current case.  In the brief time he was  



                                                                                                                                                      

on the stand, he answered his attorney's initial questions in Polish and then answered his  



                                                                                            

attorney's later questions with "I don't know" and silence.  



                                                                           

            Alaska law regarding competency determinations  



                                                                                                                                                      

                        Under Alaska law, a criminal defendant is incompetent to stand trial if, "as  



                                                                                                                                                     

a result of a mental  disease or  defect ...  the defendant is unable to  understand  the  



                                                                                                                                          4  

                                                                                                                                              

proceedings against the defendant or assist in the defendant's own defense."                                                                  Alaska  



                                                                                                                                                       

Statute 12.47.130(5) defines "mental disease or defect" as "a disorder of thought or  



                                                                                                                                                       

mood that substantially impairs judgment, behavior, capacity to recognize reality, or  



                                                                                                                                               

ability to cope with the ordinary demands of life."   The statutory definition further  



                                                                                                                         

clarifies that "mental disease or defect" also includes "intellectual and developmental  



      3     At the 2012 criminal trespass trial, Pieniazek stated, through a translator, that he was  



born in Poland in 1936, but that he could not remember when he moved to the United States,  

                                                                               

or when he moved to Fairbanks.  After many questions went unanswered, Pieniazek could  

                                                                                                                        

not answer what his house looked like.  When his counsel asked him to tell the court what  

happened, Pieniazek replied "What's supposed to happen?" "I don't know," and "I would  

                                                                                                                                      

like to know when I can leave from here."  The court attempted to ask him if he wanted to  

                                                                           

say  anything  about  what  happened  and,  after  the  translator  asked  more  questions  to  

understand his answers, he replied "When I'm going to go."  



      4     AS 12.47.100(a); see also AS 12.47.130(4) ("'[I]ncompetent' means a defendant is  



unable to understand the proceedings against the defendant or to assist in the defendant's  

own defense.").  



                                                                         -  5 -                                                                   2543
  


----------------------- Page 6-----------------------

disabilities that result in significantly below average general intellectual functioning that                                                     

impairs a person's ability to adapt to or cope with the ordinary demands of life."                                                           5  



                                                                                                                                       

                       A defendant who is incompetent may not be tried, convicted, or sentenced  



                                                             6  

                                                                                                                                   

                                                                 The conviction of a defendant who is incompetent  

so long as his incompetency exists. 



                                                 7  

                                          

violates due process of law. 



                                                                                                                                            

                       Wehavepreviously emphasized that,"[b]ecause theintegrity ofthejudicial  



                                                                                                                                                 

proceeding is at stake when the competency of a criminal defendant is in question, a trial  



                                                                                                                                                     

court has a duty to order a competency evaluation whenever there is good cause to  



                                                                                                           8  

                                                                                                                                                      

believe  the  defendant  may  be  incompetent  to  stand  trial."                                               Moreover,  "because  a  



                                                                                                                                                       

defendant's mental state may deteriorate under the pressures of incarceration or trial, a  



                                                                                                                                         

trial  court  must  be  responsive  to  competency  concerns  throughout  the  criminal  

proceeding."9  



                                                                                                                                       

                       The  standard  for  determining  lack  of  competency,  although  originally  



                                                                                                                                         

formulated in judicial decisions, is now codified in AS 12.47.100. This statute provides  



                                                                                                                                                

that "[a] defendant is presumed to be competent" and that "[t]he party raising the issue  



                                                                                                                                                     

of  competency  bears  the  burden  of  proving  the  defendant  is  incompetent  by  a  



      5     AS 12.47.130(5).  



      6     AS 12.47.100(a).  



      7     Drope v. Missouri, 420 U.S. 162,   172  (1975); Pate v. Robinson, 383 U.S. 375, 378  



(1966); Diggs v. State, 274 P.3d 504, 505 (Alaska App. 2012).  



      8     Gamble v. State, 334 P.3d 714, 717 (Alaska App.  2014) (citing Leonard v.  State, 658  



P.2d 798, 799 (Alaska App. 1983)).  



      9     Gamble, 334 P.3d at 717 (citing Smiloff v. State,   579 P.2d 28, 36 (Alaska 1978);  



AS 12.47.100(b)).  



                                                                        - 6 -                                                                  2543
  


----------------------- Page 7-----------------------

                                                       10  

preponderance of the evidence."                             When the court raises the issue of competency, the   



burden of proving the defendant is incompetent "shall be on the party who elects to                                                             

advocate for a finding of incompetency."                              11  



                                                                                                                                        

                       Alaska Statute 12.47.100(e)-(g) directs the trial court to consider a variety  



                                                                                                       12  

                                                                                                                                     

                                                                                                           Subsection (e) provides  

of factors in assessing a defendant's competency to stand trial. 



                                                                                                                                     

a list of factors that the court is required to consider in determining "whether a person  



                                                                                                                                          

has sufficient intellectual functioning to cope with the ordinary demands of life." These  



              

factors are:  



                                                                                                                          

                       whether the person has obtained a driver's license, is able to  

                                                                                                                 

                       maintain employment, or is competent to testify as a witness  



                                                                                     13  

                                                                     

                       under the Alaska Rules of Evidence. 



                                                                                                                                                

                       Subsection (f) provides a list of non-exhaustive factors that the court is  



                                                                                                                                             

required  to  consider  in  determining  "if  the  defendant  is  able  to  understand  the  



                                                                                       

proceedings against the defendant."  These factors include:  



                                                                                                                       

                       whether the defendant understands that the defendant has  

                                                                                                                       

                       been charged with a criminal offense and that penalties can  

                                                                                                               

                       beimposed;whetherthedefendant understands what criminal  

                                                                                                         

                       conduct is being alleged; whether the defendant understands  



      10   AS 12.47.100(c).  



      11   Id.  



      12   These subsections were added to the competency statute in 1996.                                            SLA 1996, ch. 62,  



1.  



      13   AS 12.47.100(e); see also AS 12.47.130(5) ("'[M]ental disease or defect' means a  



                                                                                                                                                

disorder  of  thought  or  mood  that  substantially impairs  judgment,  behavior,  capacity to  

                                                                                                              

recognize reality, or ability to cope with the ordinary demands of life; 'mental disease or  

defect' also includes intellectual and developmental disabilities that result in significantly  

                                                                                                                              

below average general intellectual functioning that impairs a person's ability to adapt to or  

cope with the ordinary demands of life.").  



                                                                     -  7 -                                                               2543
  


----------------------- Page 8-----------------------

                             the roles of the judge, jury, prosecutor, and defense counsel;                                                  

                             whether the defendant understands that the defendant will be                                                                 

                             expected to tell defense counsel the circumstances, to the best                                                           

                             of    the    defendant's    ability,    surrounding  the    defendant's  

                             activities at the time of the alleged criminal conduct; and                                                               

                             whether the defendant can distinguish between a guilty and                                                                

                             not guilty plea.                 14  



                                                                                                                                                                                 

                             Lastly,subsection (g)provides alistofnon-exhaustivefactorsthatthecourt  



                                                                                                                                                                                    

is  required  to  consider  in  determining  if  the  defendant  is  "unable  to  assist  in  the  



                                                                                                              

defendant's own defense."  These factors include:  



                                                                                                                                         

                             whether the defendant's mental disease or defect affects the  

                                                                                                                                                         

                             defendant's ability to recall and relate facts pertaining to the  

                                                                                                                                                      

                             defendant's  actions  at  times  relevant  to  the  charges  and  

                                                                                                                                          

                             whether the defendant can respond coherently to counsel's  

                             questions.15  



                                            

Subsection (g) also provides:  



                                                                                                                                                         

                             A defendant is able to assist in the defense even though the  

                                                                                                                                                

                             defendant's memory may be impaired, the defendant refuses  

                                                                                                                                              

                             to accept a course of action that counsel or the court believes  

                                                                                                                                                 

                             is in the defendant's best interest, or the defendant is unable  

                                                                                                                                         

                             to suggest aparticular strategy or to choose among alternative  

                             defenses.16  



        14    AS 12.47.100(f); see also  AS 12.47.130(6) ("'[U]nderstand the proceedings against  



the   defendant'  means  that  the  defendant's  elementary   mental  process  is  such  that  the  

defendant has a reasonably rational comprehension of the proceedings.").   



        15    AS  12.47.100(g);  see  also  AS  12.47.130(2)  ("'[A]ssist  in  the  defendant's  own  

                                                                                                                                                                                  

defense' means to consult with a lawyer while exercising a reasonable degree of rational  

                                                                                                                                                                            

functioning.").  



        16    AS 12.47.100(g).  



                                                                                         -  8 -                                                                                  2543
  


----------------------- Page 9-----------------------

                        Why we remand Pieniazek's case for reconsideration                                                                              



                                              As explained above, AS 12.47.100(e)-(g) directs a trial court to consider                                                                                                                                                     



a variety of factors in determining whether a defendant is competent to stand trial.                                                                                                                                                                                       



                                              In this case, however, the trial court focused its analysis almost exclusively                                                                                                                                       



on the factors listed in AS 12.47.100(e) and appeared to largely ignore the requirements                                                                                                                                                                     



of subsections (f) and (g).                                                               Although the court briefly mentioned the requirements of (f)                                                                                                                                            



and (g), it did not appear to undergo any independent analysis of these factors; instead                                                                                                                                                                                          



the court primarily deferred to Dr. Michaud's conclusions without much explanation for                                                                                                                                                                                                           

this deference.                                    17  



                                                                                                                                                                                                                                                            

                                              Moreover, when the court evaluated the factors listed in AS 12.47.100(e),  



                                                                                                                                                                                                                                                                                             

it did not evaluate these factors in terms of Pieniazek's current ability to function and  



cope with the ordinary demands of life.  Instead, it evaluated these factors exclusively  



                                                                                                                                                                                                                                               

in terms of Pieniazek's ability to function in the past - including, at times, the distant  



                                                                                                                                                                                                                                                                                            

past.   For example, the trial court noted that "I don't think anybody is saying that  



                                                                                                                                                                                                                                                                              

 [Pieniazek] currently has an operator license," but the trial court nevertheless found it  



                                                                                                                                                                                                                                                                               

significant that "it seems clear that he's driven in the past, and [] had a - in 2011 at  



                                                                                                                                                                                                                                                                                            

least,  a  currently  registered  vehicle."                                                                                                 The  trial  court  also  found  it  significant  that  



                                                                                                                                                                                                                                                                                  

Pieniazek "maintain[ed] employment since he got here until his retirement" even though  



                                                                                                                                                                                                                                                                                      

Pieniazek's  retirement  was  in  1991  -  more  than  twenty  years  before  the  2013  



                                                                                                                                                                                                                                                                                            

competency  hearing.                                                             Lastly,  the trial court found  it significant that Pieniazek  had  



                                                                                                                                                                                                                                                                                            

testified on his own behalf in a prior criminal trial that took place approximately two  



                                                                                                                                                                                                                                                               

years earlier.   But, as already noted, the prior trial had not included a competency  



            17         See  Adams   v.  State,  829  P.2d  1201,  1207-08  (Alaska  App.  1992)  (Bryner,  C.J.,  



concurring) (noting that the determination of competency is ultimately a legal matter, not a                                                                                                                                              

medical matter, and the superior court's deference to psychologist's opinion amounted to a  

failure to exercise judicial discretion and constituted an independent ground for reversal).  



                                                                                                                                             -  9 -                                                                                                                                     2543
  


----------------------- Page 10-----------------------

evaluation.   Moreover, Pieniazek's testimony at that prior trial was largely incoherent,                                                                                



and his behavior ultimately resulted in the court appointing him a public guardian.                                                                                                                                                              



                                       Taken together, the trial court's remarks indicate that the court misapplied                                                                                                        



thefactors                     under AS12.47.100(e) and failed                                                                to adequately investigate whether Pieniazek                                                      



was competent                               at the time of trial                                , rather than at some point in the past.                                                                     The record also                   



indicates that the court failed to properly document its consideration of the relevant                                                                                                                                             



factors under AS 12.47.100(f)-(g).                 



                                       As the Alaska Supreme Court has previously cautioned, competency is not                                                                                                                                    



a static concept, and the trial court's duty to determine competency is "not one that can                                                                                                                                                        



                                                                                                                 18  

be once determined and then ignored."                                                                                                                                                                                                 

                                                                                                                         The need to focus on the defendant's current  



                                                                                                                                                                                                                                                       

level of functioning was particularly acute in this case, given that there had been a  



                                                                                                                                                                                                                                             

diagnosis  of  progressive  dementia  from  one  expert  and  witness  testimony  that  



                                                                                                                                                                                                                                     

Pieniazek's functioning had significantly deteriorated over the last year.  But in making  



                                                                                                                                                                                                                                                    

its competency finding, the trial court relied primarily on evidence that was too old to be  



                                                                                                                                                                                                                                              

of direct relevance to a contemporaneous assessment of Pieniazek's competency.  The  



                                                                                                                                                                                                                                                

trial court also relied on a purported finding of competency from another judge that had  



                                                                                                                                                                                                                                   

not actually occurred. Because of these errors, we conclude that a remand to the superior  



                                                                                                                                                                                                                      

court for reconsideration of Pieniazek's competency at the time of trial is required.  



                                                                                                                                                                                                                                           

                                       We recognizethat retrospective competency hearings aredisfavored under  



                                                                                                                                                                                                              

the law,  largely because of the inherent difficulties in  making such  determinations  



                                             19  

retrospectively.                                                                                                                                                                                                                                  

                                                    But we believe that this case presents different circumstances than the  



          18         See Smiloff v. State, 579 P.2d 28, 33-36 (Alaska 1978); accord Gamble v. State, 334  



P.3d 714, 717 (Alaska App. 2014).  



          19  

                                                                                 

                   See Leonard v. State, 658 P.2d 798, 800 (Alaska App. 1983) (holding that the only  

                                                                                                                                                                                              

remedy for erroneous denial of competency evaluation is reversal of conviction because of  

                                                                                                                                                                                                                      (continued...)  



                                                                                                                     -  10 -                                                                                                                2543
  


----------------------- Page 11-----------------------

typical case where a trial court fails to hold a competency hearing or fails to follow the                                                   



                                                             20  

procedural rules for such a hearing.                                                                                          

                                                                  Here, unlike in those cases, a full competency  



                                                                                                                                          

hearing was held, and there was a significant  amount of testimony presented from  



                                                                                                                                              

experts and other people with recent interactions with Pieniazek.  It therefore may be  



                                                                                                                           

possible,  unlike  in  most  cases,  for  the  superior  court  to  reach  a  retrospective  



                                                                                                                                      

determination  of  Pieniazek's  then-competency  to  stand  trial  based  on  the  current  



            21  

record.                                                                                                                                         

                 However, if the superior court determines that the record is inadequate for a  



                                                                                          

retrospective determination of competency, then the only proper remedy is a new trial  



                                                       

preceded by a new competency determination.  



      19   (...continued)  



difficulties  associated  with  retrospective  competency  determinations);  see  also  Pate  v.  

                                                                                                                                               

Robinson, 383 U.S. 375, 386-87 (1966) (noting that proper remedy for error in competency  

                                                                                                             

determination was a new trial preceded by a new competency determination due to the  

                                                                                                          

difficulty of retroactively determining an accused's competence to stand trial); Dusky v.  

                                           

 United States, 362 U.S. 402, 403 (1960) (per curiam) (concluding  that the only way to  

                                                                                                                                               

effectively correct an erroneous determination of competency to stand trial is to reverse the  

                                                                                                     

conviction and remand to the district court for a hearing as to competency and for a new trial  

                                                                                                                      

if the accused should be found competent).  

     



      20   See, e.g., Leonard, 658 P.2d at 800 (court failed to hold a competency hearing).  



      21  

                                                                                                                             

           See,  e.g.,  Odle  v.  Woodford,  238  F.3d  1084,  1089  (9th  Cir.  2001)  (holding  that  

                                            

retrospective  competency hearings  are  permissible  "when  the  record  contains  sufficient  

                                                                                                                         

information  upon  which  to  base  a  reasonable  psychiatric  judgment"  of  the  defendant's  

competence); United States v. Arenburg, 605 F.3d 164, 171 (2nd Cir. 2010) (remanding for  

                               

a determination of whether there is sufficient information to allow a meaningful retroactive  

                                                                                                                 

competency hearing); see also United States v. Jones, 336 F.3d 245, 260 (3rd Cir. 2003);  

People v. Ary, 118 Cal. App. 4th 1016, 1029 (Cal. App. 2004); State v. Hawkins, 363 P.3d  

348, 354 (Idaho 2015).  



                                                                    -  11 -                                                              2543
  


----------------------- Page 12-----------------------

          Conclusion  

                             



                    We REMAND this case to the superior court for reconsideration of the  

                                                                                                                            



defendant's  competency  on  the  current  record  and,  if  feasible,  a  retrospective  

                                                                                                            



determination of the defendant's competency to stand trial.  

                                                                                 



                                                            -  12 -                                                      2543
  

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