Adams v. State

KENNEY, J. Maryland Code, sections 3-106 and 3-107 of the Criminal Procedure Article (CP) govern proceedings involving a criminal defendant who, by reason of mental retardation or mental disorder, is incompetent to stand trial. See Walker v. State, 392 Md. 1, 2, 9 , 895 A.2d 1024 (2006) (“Incompetence to stand trial is defined in CP § 3-101(f) as an inability to understand the nature or object of the proceeding or to assist in one’s defense.”). These consolidated appeals arise in the aftermath of Ray v. State, 410 Md. 384 , 978 A.2d 736 (2009), in which the Court of Appeals enforced the mandate in CP section 3-107(a)(2) that felony charges must be dismissed when the defendant remains incompetent after five years. The novel question presented here is whether, following such a dismissal, the State may (a) re-indict the same defendant for the same crimes, even though he remains incompetent; and (b) on the basis of such re-indictment, continue to confine that defendant under a criminal, rather than a civil, commitment. ⁴²¹ In these appeals, John Wesley Ray, appellant, returns and is joined by Michael Lee Adams, appellant, in challenging the State’s actions in response to Ray .

Although the original felony indictments against both appellants were dismissed in accordance with the Court of Appeals’ decision in Ray and CP section 3-107(a)(2), the State re-indicted both appellants on the same charges even though they were still not competent to stand trial. Based on these re-indictments, moreover, appellants have remained confined, pursuant to CP section 3-106, under criminal commitments. In their brief, Ray and Adams present a single issue for our review: Can the State indefinitely confine a criminal defendant found incompetent to stand trial and who is not likely to regain competency in the foreseeable future, in violation of CP § 3-107 and due process of law, by simply re-indicting the defendant on the same charges that are required to be dismissed pursuant to § 3-107? The State moves to dismiss these interlocutory appeals on the ground that they are not permitted by statute, rule, or the collateral order doctrine.

On the merits, the State argues that these re-indictments and continued criminal commitments are permitted by language in the Ray opinion stating that, following a dismissal without prejudice under CP section 3-107(a), “the State may re-institute charges[.]” Id. at 420 , 978 A.2d 736 . For the reasons explained below, we conclude that both appeals are properly before this Court under the collateral order doctrine. In addition, we agree with appellants that their re-indictments, as well as their continued confinement under criminal commitments based on such re-indictments, violate CP sections 3-106 and 3-107 and their due process and equal protection rights protected by those sections. Accordingly, we shall reverse the orders denying appellants’ motions to dismiss their re-indictments and remand for further proceedings, which may include civil commitment proceedings. ⁴²² LEGAL AND FACTUAL BACKGROUND Maryland’s Statutory Scheme Governing Indictment and Confinement of Incompetent Defendants A review of constitutional and statutory principles applicable to incompetent defendants is helpful before considering the posture of the two appeals now before us.

In Jackson v. Indiana, 406 U.S. 715, 738-39 , 92 S.Ct. 1845, 1854 , 32 L.Ed.2d 435 (1972), the Supreme Court held that, by subjecting Jackson, an incompetent defendant, to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by [statute], Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment.... For reasons closely related to those ..., we also hold that Indiana’s indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment’s guarantee of due process. (Footnote omitted.) The Jackson Court explained that, “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Id., 406 U.S. at 738 , 92 S.Ct. at 1858 . Thus, a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.

If it is determined that this is not the case, then the State must either institute the customary civil commitment ⁴²³ proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Id. (footnote omitted). Although the Supreme Court declined “to prescribe arbitrary time limits,” citing the existence “of differing state facilities and procedures and a lack of evidence in this record,” it did “note ... that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial.” Id., 406 U.S. at 738-39 , 92 S.Ct. at 1858 .

Implementing the due process and equal protection principles recognized in Jackson , sections 3-106 and 3-107 of Maryland’s Criminal Procedure Article establish a maximum period for holding an incompetent defendant under indictment and standards for confining such a defendant under a criminal commitment. Section 3-107 limits the length of time criminal charges may remain pending against incompetent defendants. Although a court has discretionary authority to dismiss charges at any time “if the court considers that resuming the criminal proceeding would be unjust because so much time has passed since the defendant was found incompetent to stand trial,” the General Assembly has set specific times after which the court is required to dismiss charges against an incompetent defendant. Under CP section 3-107(a), [wjhether or not the defendant is confined and unless the State petitions the court for extraordinary cause to extend the time, the court shall dismiss the charge against a defendant found incompetent to stand trial under this subtitle: (1) when charged with a capital offense, after the expiration of 10 years; (2) when charged with a felony or a crime of violence as defined under § 14-101 of the Criminal Law Article, after the lesser of the expiration of 5 years or the maximum sentence for the most serious offense charged; or ⁴²⁴ (3) when charged with an offense not covered under paragraph (1) or (2) of this subsection, after the lesser of the expiration of 3 years or the maximum sentence for the most serious offense charged.

(Emphasis added.) CP section 3-106(b) authorizes the court to involuntarily confíne an incompetent defendant against whom criminal charges are pending, under what is known as a criminal commitment. It provides: (1) If, after a hearing, the court finds that the defendant is incompetent to stand trial and, because of mental retardation or a mental disorder, is a danger to self or the person or property of another, the court may order the defendant committed to the facility that the Health Department designates until the court finds that: (1) the defendant no longer is incompetent to stand trial; (ii) the defendant no longer is, because of mental retardation or a mental disorder, a danger to self or the person or property of others; or (iii) there is not a substantial likelihood that the defendant will become competent to stand trial in the foreseeable future. (2) If a court commits the defendant because of mental retardation, the Health Department shall require the Developmental Disabilities Administration to provide the care or treatment that the defendant needs. (Emphasis added.) Defendants confined under criminal commitments receive at least annual judicial reconsideration of their incompetency, as set forth in CP section S-H^c). 1 When a reviewing court ⁴²⁵ finds that an untried defendant is not likely to become competent in “the foreseeable future,” and that involuntary confinement is still necessary to protect the defendant and/or public, 2 confinement may continue only if the State satisfies the “clear and convincing evidence” standard required for civil commitment.

CP section 3-106(d) provides: At a competency hearing under subsection (c) of this section, if the court finds that the defendant is incompetent and is not likely to become competent in the foreseeable future, the court shall: (1) civilly commit the defendant as an inpatient in a medical facility that the Health Department designates provided the court finds by clear and convincing evidence that: (i) the defendant has a mental disorder; (ii) inpatient care is necessary for the defendant; ⁴²⁶ (in) the defendant presents a danger to the life or safety of self or others; (iv) the defendant is unable or unwilling to be voluntarily committed to a medical facility; and (v) there is no less restrictive form of intervention that is consistent with the welfare and safety of the defendant. (2) order the confinement of the defendant for 21 days as a resident in a Developmental Disabilities Administration facility for the initiation of admission proceedings under § 7-503 of the Health—General Article provided the court finds that the defendant, because of mental retardation, is a danger to self or others. Conversion of an incompetent person’s confinement from a criminal commitment to a civil commitment brings additional substantive and procedural rights. See generally CP § 3-106(e) (“The provisions under Title 10 of the Health— General Article shall apply to the continued retention of a defendant civilly committed under subsection (d) of this section.”); Md.Code, § 10-701(c) of the Health—General Article (HG) (enumerating rights of individuals in a mental health facility, which include rights to be free from certain types of restraints and to “receive appropriate humane treatment and services in a manner that restricts the individual’s personal liberty within a facility only to the extent necessary and consistent with the individual’s treatment needs and applicable legal requirements”); HG § 10-706 (enumerating procedural requirements for creating a treatment plan for a civilly committed person, which include establishing treatment goals in consultation with the committed person).

Appeal No. 435: Mr. Ray In February 2001, appellant John Wesley Ray was indicted for attempted first degree murder and lesser included offenses, in the Circuit Court for Harford County. On January 2, 2002, the circuit court found that Ray, a paranoid schizophrenic, was not competent to stand trial. See Ray, 410 Md. at 389 , 978 A.2d 736 . Ray was confined under a criminal commitment to Clifton T. Perkins Hospital (“Perkins”), a ⁴²⁷ State mental health facility for, inter alia, incompetent defendants who have been ordered to be confined under CP section 3-106(b). 3 More than five years later, Ray, in January 2007, moved to dismiss the charges against him, citing the mandatory dismissal provision in CP section 3-107(a)(2).

See id. During his confinement at Perkins, Ray took anti-psychotic medication that resulted in assessments that he could be “restored” to competency, and, for brief periods, he appeared to be competent. Ultimately, however, he remained incompetent for most of those five years. Id. at 389-97, 404 , 978 A.2d 736 .

At the time the circuit court decided the motion to dismiss, Ray was incompetent and considered a danger to others. Id. at 404 , 978 A.2d 736 . The circuit court denied Ray’s motion, but the Court of Appeals reversed and remanded with instructions to dismiss the charges. See id. at 420 , 978 A.2d 736 .

Reviewing the statutory scheme, the Court noted that “under Section 3-107 ..., any dismissal is without prejudice to the State reindicting and that civil commitment under Title 10 of the Health General Article ... is always a possibility.” Id. at 406 n. 7, 978 A.2d 736 . The Court concluded that the General Assembly intended to implement the Supreme Court’s decision in Jackson when it added dismissal deadlines in CP section 3-107 and when it “mandate[d] civil commitment when a judge determines that the defendant is not restorable to competency” in CP section 3-106. Id. at 415-17, 978 A.2d 736 . The Court of Appeals reversed the circuit court’s holding that Ray’s dangerousness and restorability to competency established “extraordinary cause” warranting extension of the five-year dismissal deadline under CP section 3-107(a)(2).

Id. at 419 , 978 A.2d 736 . The Court rejected that interpretation of the statute because it permitted Ray’s criminal commitment to extend “beyond the five-year period, conceivably for an indefinite period.” Id. at 419 , 978 A.2d 736 . The statutory scheme, the Court pointed out, contemplates that when a ⁴²⁸ defendant is not restorable to competency within the time frame set in CP section 3-107(a), his commitment must be converted from criminal to civil, in order to avoid the type of unreasonably indefinite criminal commitment prohibited by Jackson. Id.

The Court reasoned that the “extraordinary cause” exception must be construed so that a defendant who is restorable to competency cannot be subjected to such an indefinite criminal commitment either. Id. at 419-20 , 978 A.2d 736 . In the Court’s view, it would be anomalous indeed, in light of the mandate for civil commitment of an incompetent defendant who cannot be restored, that Ray, who was identified as restorable, could be held indefinitely without a commitment proceeding. In this regard, then, extraordinary cause must require more than dangerousness and restorability, in order to avoid the necessity of civil commitment that requires greater procedural protections.

Dangerousness, the norm for defendants institutionalized at Perkins, cannot be viewed as extraordinary, especially because it is but one factor for civil commitment. Restorability to competency, similarly, cannot constitute “extraordinary cause,” especially when restorability, a desirable characteristic, could result in indefinite institutionalization, without procedural protection. In holding that dangerousness and restorability cannot constitute “extraordinary cause,” however, we recognize that under the statute the State may re-institute charges and that civil commitment proceedings may be initiated against Ray. Whatever decision is made, if any, the pending charges against Ray must be dismissed.

Id. (emphasis added and footnote omitted). Six weeks after the Ray opinion was filed, on October 6, 2009, the State, relying on the Ray Court’s statement that “under the statute the State may re-institute charges,” re-indicted appellant Ray on the same charges, in Case No. 12-K-09-1693. Although the original charges were thereafter dismissed in accordance with the mandate in Ray , the State continued to confine Ray at Perkins, under a criminal commitment based on the second indictment. ⁴²⁹ On November 18, 2009, Ray moved to dismiss the second indictment, arguing that it “nullifies CP § 3-107(a)” and that “his continued incarceration at Perkins den[ies] him the right to civil commitment pursuant to CP section 3-106(a)-(e).” While that motion was pending, Ray responded to the second indictment, pleading, inter alia, that he was still not competent to stand trial.

Ray was examined and, although there once again was evidence that he might be restored to competency with supervised medication and treatment, he was again found to be incompetent to stand trial. Thereafter, in a written opinion, the circuit court denied Ray’s motion to dismiss. With respect to the second indictment, the court reasoned that CP section 3-107(a)(2) specifies that the dismissal of criminal charges against an incompetent defendant after five years is “without prejudice” and that the Court of Appeals had stated that the State could “reinstitute charges” against Ray. As for Ray’s right to civil commitment under CP section 3—106(d), the court was “uncertain how the current indictment precludes [Ray] from again averring that he is incompetent to stand trial and thereby availing himself of possible civil commitment pursuant to CP § 3-106(b).” In the circuit court’s view, the new indictment did “not prevent [Ray] from being committed” under the civil commitment subsections of CP section 3-106 “after a trial judge has made the necessary findings of fact.” At the time this appeal was noted on his behalf, Ray was still confined at Perkins under a criminal commitment.

Appeal No. 352: Mr. Adams In 1998, appellant Michael Lee Adams was indicted on charges of attempted first degree rape and related offenses, in Case No. 98-CR-3113 in the Circuit Court for Baltimore County. Since Adams was first found incompetent to stand trial due to his limited cognitive ability, he has been continuously confined under a criminal commitment. 4 ⁴³⁰ After the Court of Appeals’ decision in Ray , Adams moved to dismiss his indictment, citing Ray and CP section 3-107(a)(2). The Circuit Court for Baltimore County dismissed those charges without prejudice. Two months earlier, however, on January 19, 2010, the State had re-indicted Adams on the same charges, in Case No. 03-K-10-0353.

Adams’ motion to prevent the re-indictment was denied. After Adams pleaded incompetency, he was re-evaluated. Adams then moved to dismiss the second indictment. At the hearing on that motion, the public defender representing Adams argued that “the net effect” of the State’s re-indictment “is to circumvent Jackson completely” and to distort the decision in Ray .

He maintained that under “a fair reading” of Ray and Jackson , “until there is reason for the State to conclude that Mr. Adams either is currently competent or that he will become competent in the reasonably foreseeable future, ... it’s not ripe for them to recharge.” The circuit court then pointed out that Adams had “been found to be not competent for many, many years now[,]” and the prosecutor acknowledged that, due to “organic difficulties that he has,” “it’s very unlikely that he would ever be[ ] found competent!)]” Noting the dearth of statutory and appellate authority regarding “the way that new charges could be filed with the timing,” the court observed that “both sides agree the State can re [-]indict.” Although the court agreed with the public defender that neither Jackson nor Ray contemplate that the State “could keep every five years or 10 years re-upping or recharging the [defendant,” it concluded that, “based on the circumstances of this case and the procedure of this case, I do believe his due process rights have not been violated!)]” The circuit court therefore denied Adams’ motion to dismiss. ⁴³¹ Adams noted this appeal, which this Court consolidated for briefing and argument with Ray’s subsequently filed appeal. DISCUSSION The State’s Motion to Dismiss These Appeals The State moves to dismiss both appeals on the grounds that neither is from a final appealable judgment or “otherwise permitted pursuant to statute, Maryland Rule 2-602, or the collateral order doctrine.” We are persuaded that these interlocutory appeals are appropriate under the collateral order doctrine. The Court of Appeals recently summarized this exception to the general rule that “the right to seek appellate review ... must await the entry of a final judgment, disposing of all claims against all parties[,]” Shoemaker v. Smith, 353 Md. 143, 165 , 725 A.2d 549 (1999), as follows: Maryland’s collateral order doctrine has its roots in the important policy underlying the final judgment rule, which is to “prevent piecemeal appeals and ... the interruption of ongoing judicial proceedings.” The doctrine “is very limited,” and permits the immediate appeal of only a “narrow class of orders” that are “offshoots of the principal litigation in which they are issued” and are considered “final judgments without regard to the posture of the case[.]” To come within the collateral order