22CA1129 Peo v Cochran 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1129
El Paso County District Court No. 19CR4511
Honorable Eric Bentley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Micheal Robert Cochran,
Defendant-Appellant.
JUDGMENT AND ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE DAVIDSON*
Yun and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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¶ 1 Defendant, Micheal Robert Cochran, appeals the district
court’s order finding him competent to proceed as well as the
subsequent judgment that was entered based on the court’s
acceptance of his guilty plea to one count of sexual assault.
Because the court misallocated the burden of proof at the
restoration to competency hearing, and because the question of
Cochran’s competency was “a close call,” we reverse the order
finding Cochran competent to proceed and remand the case with
directions. And because reversal of the court’s finding of
competency leaves a previous finding of incompetency intact, we
must also reverse the subsequent judgment of conviction and
sentence.
I. Background
¶ 2 For sexually assaulting his granddaughter as well as several
“at-risk persons,” Cochran was charged with two counts of sexual
assault, one count of indecent exposure, one count of sexual
assault on a child, one count of incest, one count of attempted
sexual assault, and one count of unlawful sexual contact.
¶ 3 Soon after being appointed to represent Cochran, defense
counsel raised competency under section 16-8.5-102, C.R.S. 2021.
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A competency evaluation performed in September 2020 concluded
that Cochran was competent to proceed.
¶ 4 Defense counsel immediately objected to the September 2020
competency finding and requested another competency evaluation.
A second competency evaluation performed in June 2021 by Dr.
Jane Wells concluded that Cochran was not competent to proceed.
¶ 5 The prosecution didn’t object to this finding of incompetency.
After finding that Cochran was not competent to proceed, the court
ordered restoration services.
¶ 6 Dr. Naoko Hashimoto evaluated Cochran for restoration
services in September 2021 and concluded that Cochran was
competent to proceed.
¶ 7 Defense counsel objected to this finding and requested
another evaluation. The prosecution objected to another
competency evaluation and instead asked the court to set a hearing
under section 16-8.5-113(6), C.R.S. 2021.
¶ 8 The court denied Cochran’s request for another competency
evaluation, construed Dr. Hashimoto’s competency finding as a
“restoration finding,” and granted the prosecution’s request for a
hearing.
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¶ 9 On December 10, 2021, the court held the restoration to
competency hearing. Defense counsel called Dr. Wells and
Cochran’s daughter-in-law, and the prosecution called Dr.
Hashimoto.
¶ 10 After taking its ruling under advisement, the district court
found the “defense has not met [its] burden in argument as to
competency” and found Cochran competent to proceed. Defense
counsel objected to the court’s finding.
¶ 11 The parties then reached a plea agreement. Cochran pleaded
guilty to one added count of sexual assault and the remaining
charges were dismissed. At the time of Cochran’s guilty plea,
defense counsel maintained his objection to the court’s competency
finding.
¶ 12 A few months later, the court sentenced Cochran to three
years to life in the custody of the Department of Corrections,
followed by a minimum of ten years of parole. At the time of
sentencing, defense counsel maintained his objection to the court’s
competency finding.
¶ 13 Now Cochran asks us to reverse the district court’s
competency order because the court misallocated the burden of
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proof at the hearing. The People agree that defense counsel didn’t
bear the burden of proof at the restoration to competency hearing.
But the People contend Cochran’s appellate contention isn’t
reviewable for a few reasons. After addressing and rejecting these
arguments, we explain why this error requires reversal.
II. Cochran’s Claim is Reviewable
A. Additional Background
¶ 14 When the prosecution objected to defense counsel’s request for
what would have been the fourth competency evaluation in this
case, the prosecution asked for a hearing under section 16-8.5-113,
C.R.S. 2021. In its motion, the prosecution stated, “At the hearing,
the burden of submitting evidence and the burden of proof by a
preponderance of the evidence, shall be upon the party asserting
that the defendant is competent.” To be sure, at the hearing, the
prosecution would be asserting that Cochran was competent — not
defense counsel.
¶ 15 But a few months later, at the beginning of the scheduled
hearing, defense counsel stated, “It’s my understanding it’s my
burden. I’m the one challenging the most recent report. Then I
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believe [the prosecution] and at her discretion could call her own
witnesses if she felt so inclined.”
¶ 16 Defense counsel then called Dr. Wells. The prosecution called
Dr. Hashimoto. And finally, defense counsel called Cochran’s
daughter-in-law.
¶ 17 Following the hearing, when the court ruled that Cochran was
competent, it stated, “As everybody knows, you’re under the statute
in [section] 16-8.5-103(7)[, C.R.S. 2021], the party asserting
incompetency has the burden to prove that by a preponderance of
the evidence.” The court found “it to be a close call” but
“ultimately” found “that the defense has not met the burden to
demonstrate that Mr. Cochran is incompetent to proceed as defined
in the statute.”
B. Invited Error
¶ 18 First, the People contend this issue isn’t reviewable under the
invited error doctrine. Specifically, they assert that “[b]y assuming
the burden of proof through repeated, intentional conduct,
Defendant injected the raised error into the case.”
¶ 19 Whether the invited error doctrine applies is an issue we
review de novo. People v. Becker, 2014 COA 36, ¶ 20.
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¶ 20 Invited error is a “narrow doctrine” that doesn’t apply to
“errors that result from oversight.” People v. Rediger, 2018 CO 32,
¶ 34. According to Rediger’s view of invited error, to bar review,
counsel must affirmatively inject a matter into a case as a matter of
“strategy.” Id.
¶ 21 From our review of the record, we aren’t convinced that
defense counsel’s erroneous assumption of the burden of proof at
the restoration to competency hearing was strategic. To the
contrary, it seems defense counsel and the court were both
mistakenly tracking the wrong statute. Compare § 16-8.5-103(7),
C.R.S. 2021 (procedures for “[d]etermination of competency to
proceed”), with § 16-8.5-113(6), C.R.S. 2021 (procedures for
“[r]estoration to competency”).
¶ 22 Specifically, once a defendant has been found incompetent to
proceed under section 16-8.5-103, the procedures the court must
follow are set out in section 16-8.5-113. Under section 16-8.5-
103(7), “[T]he party asserting the incompetency of the defendant
shall have the burden of submitting evidence and the burden of
proof by a preponderance of the evidence.” But under section 16-
8.5-113(6), “[T]he burden of submitting evidence and the burden of
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proof by a preponderance of the evidence shall be upon the party
asserting that the defendant is competent.” Because the court, in
granting the prosecution’s motion for a hearing, construed Dr.
Hashimoto’s competency finding as a restoration finding, section
113 applied — not section 103. To us, this record suggests that
defense counsel’s reliance on subsection 103(7) instead of
subsection 113(6) resulted from oversight, not intent or strategy.
¶ 23 Accordingly, we conclude the doctrine of invited error doesn’t
bar appellate review of Cochran’s claim.
C. Waiver
¶ 24 Alternatively, the People argue that Cochran “waived any
statutory right to hold the prosecution to [its] burden under section
16-8.5-113(6).”
¶ 25 “We review de novo whether a claim is waived or forfeited.”
People v. Garcia, 2024 CO 41, ¶ 29.
¶ 26 Waiver is the intentional relinquishment of a known right or
privilege. Id.; Rediger, ¶ 39. In other words, waiver requires intent,
and the existence and validity of a waiver is fact-dependent,
ultimately requiring consideration of the totality of circumstances.
Garcia, ¶ 29. For the same reasons we can’t conclude that the
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doctrine of invited error bars review of Cochran’s appellate
contention, we can’t conclude defense counsel knew he didn’t have
the burden of proof at the restoration to competency hearing.
¶ 27 Thus, indulging every reasonable presumption against waiver
as we must, see id., we conclude that defense counsel’s failure to
make a timely assertion of Cochran’s statutory right to have the
prosecution take on the burden of proof at the restoration to
competency hearing wasn’t intentional. Defense counsel’s
inadvertent reliance on the wrong statutory section constitutes a
forfeiture, which doesn’t bar appellate review. See Rediger, ¶ 40.
D. Standard of Review
¶ 28 Accordingly, discerning no waiver, we review Cochran’s
contention for plain error. Id. (“[T]his court may review a forfeited
error under the plain error standard.”); accord Crim. P. 52(b) (“Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.”). An
error is plain if it is obvious and substantial and so undermines the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction. Rediger, ¶ 48; see also
People v. Miller, 113 P.3d 743, 749 (Colo. 2005) (even some
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unpreserved constitutional errors are reviewed under the plain error
standard).
¶ 29 Whether the court applied the correct burden of proof is a
question of law. Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s
Dep’t, 196 P.3d 892, 897-98 (Colo. 2008).
III. The Error Was Plain
¶ 30 The parties agree that at the restoration to competency
hearing it was the prosecution’s burden to prove by a
preponderance of the evidence that Cochran was competent to
proceed. § 16-8.5-113(6), C.R.S. 2021. And the parties agree that
the court didn’t follow this statutory procedure. We also agree. See
People v. Zimmer, 2021 COA 40, ¶ 23 (reviewing whether a court
followed the appropriate competency procedures de novo); see also
People v. Wingfield, 2014 COA 173, ¶ 27.
¶ 31 The People nonetheless argue that “regardless of which party
bore the burden of proof by a preponderance of the evidence, the
district court’s final competency determination was well-supported
and fundamentally fair.” True, we won’t overturn a trial court’s
determination where “the trial court reache[d] the correct result”
but it was “premised upon an incorrect analysis.” People v.
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Jenkins, 768 P.2d 727, 730 (Colo. App. 1988) (citing People v. Baca,
must first address whether the alleged error was “obvious,” and
then we must address whether the alleged error was “substantial.”
Hagos v. People, 2012 CO 63, ¶¶ 14, 22.
¶ 32 An alleged error is obvious if it contravenes (1) a clear
statutory command; (2) a well-settled legal principle; or (3) Colorado
2024 COA 38, ¶ 32. An error is substantial if it so undermines the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. Hagos, ¶ 14; People v.
Shannon, 2024 COA 41, ¶ 37.
¶ 33 First, the court’s misallocation of the burden of proof at the
restoration to competency hearing was obvious. See People v.
Mondragon, 217 P.3d 936, 939-40 (Colo. App. 2009) (the court
misapplied the law when it imposed the wrong legal standard at a
competency hearing under section 16-8.5-103(7)).
¶ 34 Second, in this case, the court’s misallocation of the burden of
proof at the restoration to competency hearing was substantial. Cf.
Zimmer, ¶¶ 39-42 (the court’s failure to comply with competency
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procedures wasn’t harmless beyond a reasonable doubt); People v.
Presson, 2013 COA 120M, ¶ 22 (the court’s failure to order
statutorily required competency evaluation was not harmless
beyond a reasonable doubt because evidence that defendant was
competent was not overwhelming). The court found both experts
“credible,” “well-qualified,” and “persuasive.” What’s more, the
court found that this was a “close call.” And the court referenced
defense counsel’s burden three times in its relatively short order.
¶ 35 On this record, we can’t conclude that if the court had
properly placed the burden on the prosecution to prove that
Cochran was competent, the outcome would have been the same.
Cf. Atl. & Pac. Ins. Co. v. Barnes, 666 P.2d 163, 165 (Colo. App.
1983) (the court commits reversible error if it allocates the burden
of proof to the wrong party and the evidence is conflicting); Kim v.
Grover C. Coors Tr., 179 P.3d 86, 90 (Colo. App. 2007) (error in
misallocating the burden of proof was harmless where trial court
stated that the defendants would prevail regardless of which party
bore the burden of proof). Under C.A.R. 35(c), “[t]he appellate court
may disregard any error or defect not affecting the substantial
rights of the parties.” But here, we can’t say that the court’s
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misallocation of the burden of proof at the restoration to
competency hearing didn’t affect Cochran’s substantial rights. See
Rediger, ¶ 48.
¶ 36 Because the error was obvious and substantial, we conclude
that the court plainly erred by misallocating the burden of proof at
the restoration to competency hearing.
IV. Remedy and Remand
¶ 37 Turning now to the question of remedy, see Rediger, ¶ 54, the
People agree with Cochran, as do we, that if there was reversible
error, then the proper remedy is to remand the case to the district
court to determine if Cochran was restored to competency, with the
prosecution having the burden to prove competency by a
preponderance of the evidence.
¶ 38 On remand, the court must initially determine whether it is
feasible to conduct a retrospective restoration to competency
see also Zimmer, ¶¶ 43-45.
¶ 39 In making this determination, the court should consider
(1) the passage of time, (2) the availability of
contemporaneous medical evidence, including
medical records and prior competency
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determinations, (3) defendant’s statements in
the trial record, and (4) the availability of
individuals and witnesses who interacted with
the defendant before and during [the
providency and sentencing hearings], including
the trial judge, both counsel, and jail officials.
Corichi, 18 P.3d at 811.
¶ 40 If the court first determines that a retrospective competency
hearing is feasible, and second, based on the retrospective
evaluation and any other evidence presented, the court determines
that Cochran was competent at the time of his plea and sentencing,
then the court shall reinstate the original plea agreement and
sentence subject to Cochran’s right to appeal. See Zimmer, ¶ 45.
¶ 41 If, on the other hand, the court first determines that a
retrospective competency hearing is feasible, but second, based on
the retrospective evaluation and any other evidence presented, the
court determines that Cochran was incompetent at the time of his
plea and sentencing, then the court shall proceed in a manner
consistent with the competency procedure statutes. Similarly, if the
court determines a retrospective competency hearing is not feasible,
then the court shall proceed in a manner consistent with the
competency procedure statutes.
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¶ 42 In the meantime, because we are reversing the court’s order
finding Cochran competent, and because due process prohibits the
district court from accepting a guilty plea from and sentencing an
incompetent defendant, we must reverse the judgment of conviction
and sentence. See § 16-8.5-102(1), C.R.S. 2021; see also Wingfield,
¶ 32.
V. Disposition
¶ 43 The court’s competency order is reversed, the judgment of
conviction and sentence are reversed, and the case is remanded
with directions.
JUDGE YUN and JUDGE MOULTRIE concur.
