Court of Appeals of Arizona, First Division, Department C
Appeal from the Superior Court in Maricopa County Cause No. CR 2013-100399-001 The Honorable Jeanne M. Garcia, Judge
Bruce F. Peterson, Maricopa County Legal Advocate by Julie E. Rose, Deputy Legal Advocate Frances J. Gray, Deputy Legal Advocate Attorneys for Petitioner
William G. Montgomery, Maricopa County Attorney by Arthur G. Hazelton, Jr., Deputy County Attorney Attorneys for Real Party in Interest
PETER B. SWANN, Presiding Judge
¶1 In this case, a defendant in a murder case could not be made competent to stand trial within 21 months of his incompetency finding and the charges were dismissed without prejudice. After a period of inpatient civil commitment, the defendant faced unsupervised release into the community. The state refiled the charges, arrested the defendant before his release and continued to treat him at the jail.
¶2 This special action requires us to decide whether the state has the power to take such action when charges have been previously dismissed based on the defendant's lack of competency. We earlier issued an order accepting jurisdiction with a written opinion to follow. This is that opinion. We hold that, subject to due process limitations, the state can refile the dismissed charges and renew its efforts to restore the defendant to competency.
FACTS AND PROCEDURAL HISTORY
¶3 In 2010, Lamont Desmond Rider was indicted for murdering his jail cellmate and for aggravated assault. In proceedings under Ariz. R. Crim. P. ("Rule") 11, the court found that Rider was incompetent to stand trial and committed him to a correctional health services program for treatment to restore his competency. After Rider had received restoration services for several months, the court found that there was no substantial probability that Rider would regain competency within 21 months of the original incompetency finding. The court therefore remanded Rider to the custody of a behavioral health center for the institution of civil commitment proceedings, appointed a guardian ad litem for him, and dismissed the charges without prejudice pending his commitment.
¶4 Rider was committed to the state hospital in March 2011. Almost two years later, Rider's treating psychologist notified the attorney general's office that Rider was going to be discharged from the hospital with continuing treatment on an outpatient basis. Despite the psychologist's recommendation that Rider be discharged to a group home with twenty-four-hour supervision, the state-contracted regional behavioral-health authority determined that Rider did not qualify for such services -- even though he was seriously mentally ill. According to the psychologist, the discharge would result in Rider being released "onto the streets." The psychologist opined that Rider had made considerable improvement, and made positive remarks about Rider's behavior, thought process, cognitive functioning and judgment. But the psychologist also opined that Rider was not likely to improve further, was still persistently and acutely disabled, was still a danger to others, and lacked insight as to the fact of his mental illness and his need for medication.
¶5 When the county attorney's office learned of the plan to discharge Rider, it arranged for him to be arrested at the hospital and taken to jail. He was then reindicted for the previously dismissed criminal charges. In the new criminal case, Rider's counsel moved for a competency determination but then withdrew the motion and filed an "Application for Writ of Habeas Corpus and Motion to Dismiss Indictment." After holding an evidentiary hearing, the court denied the application and motion.
¶6 Rider sought relief by this special action, contending that reindictment following a determination of incompetency violated his constitutional rights to due process, equal protection and speedy trial. We accepted jurisdiction because the denial of a motion to dismiss is a non-appealable order and the issue presented is one of first impression and statewide significance. Nowell v. Rees, 219 Ariz. 399, 403, ¶ 10, 199 P.3d 654, 658 (App. 2008); Levinson v. Jarrett, 207 Ariz. 472, 474, ¶ 4, 88 P.3d 186, 188 (App. 2004).
¶7 When the court finds that a criminal defendant is incompetent and that there is no substantial probability that he will regain competency within 21 months of the initial incompetency determination, it may do any or all of the following: (1) order the institution of civil commitment proceedings under Chapter 5 of Title 36 of the Arizona Revised Statutes; (2) appoint a guardian under Title 14; or (3) dismiss the charges without prejudice. A.R.S. § 13-4517; Ariz. R. Crim. P. 11.5(b)(2). In Nowell, we held that after 21 months from the initial determination of incompetency, "no further attempts at restoration are allowed." 219 Ariz. at 406, ¶ 21, 199 P.3d at 661. But Nowell involved a single criminal case - the court was not presented in that case with the question of attempts at restoration in the context of refiled criminal charges. Here, the court ordered institution of civil commitment proceedings and dismissed the charges without prejudice.
¶8 Civil commitment proceedings are different from criminal competency restoration proceedings, and no Arizona decision has yet addressed the question whether restoration proceedings may be repeated if the charges are dismissed and later refiled. See, e.g., In re Commitment of Taylor, 206 Ariz. 355, 358, ¶ 11, 78 P.3d 1076, 1079 (App. 2004) (differentiating between Rule 11 proceedings and civil commitment proceedings for sexually violent persons under Chapter 37 of Title 36); see also In re MH2008-000028, 221 Ariz. 277, 281, ¶ 18, 211 P.3d 1261, 1265 (App. 2009) (describing A.R.S. § ...