State v. McCarthy

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Susan L. Carlson
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASfflNGTON,
No. 96653-2
Petitioner,
V. En Banc
MATTHEW SEAN McCARTHY,
Respondent.
In the Matter ofthe Personal Restraint
of
MATTHEW SEAN McCARTHY,
Petitioner.
Filed AUG 0 8 2019
JOHNSON,J.—This case concerns two issues:' whether under ROW
10.77.060(1)(a) the trial court erred, during trial, in not ordering a third
competency hearing after a jury had previously found the defendant competent to
stand trial, and what deference, if any, is given to the trial court when it does not
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
sua sponte order a competency hearing. Matthew McCarthy's appellate counsel'
contends that McCarthy's mental health deteriorated and that the trial court erred
in not sua sponte ordering another competency evaluation either before or during
McCarthy's third strike burglary trial. A jury found McCarthy guilty of first degree
burglary, and he was sentenced to life in prison as a most persistent offender. The
Court of Appeals engaged in what the parties characterize as an independent
review^ of the record, held that the trial court should have ordered another
evaluation, and vacated the conviction. The State petitioned for review. We reverse
the Court of Appeals. The proper standard of review is abuse of discretion, and the
trial court did not abuse its discretion when it did not sua sponte order a
competency evaluation based on the evidence presented during the criminal
proceedings. We reverse and remand to the Court of Appeals for consideration of
the remaining issues raised in McCarthy's personal restraint petition.^
' We refer to McCarthy and his counsel separately as McCarthy has, throughout the
proceedings, vigorously contended that he is competent, in disagreement with his competency
trial counsel and appellate counsel. McCarthy's burglary trial counsel never indicated he
questioned McCarthy's competence to stand trial.
^ The Court of Appeals does not specify the standard of review it used, but the parties
agree it engaged in an independent review, so we refer to it as such throughout the opinion.
^ Because the Court of Appeals reversed the conviction based solely on the failure to
order a competency hearing, it did not resolve the other issues raised on appeal.
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
FACTS AND PROCEDURAL fflSTORY
On September 21, 2014, McCarthy approached a stranger's home under a
mistaken belief that he would find his ex-wife within the home. He forced his way
into the home and pushed the occupant against the wall. He returned twice the next
evening: the first time once again looking for his ex-wife and the second time
looking for his cell phone. Out of these events, the State charged McCarthy with
first degree burglary predicated on assault. The State notified him that this was a
most serious offense and that he was facing life in prison without parole due to his
criminal history.
Prior to McCarthy's arraignment, his public defender, Kari Reardon,
expressed to the court that she had reason to doubt McCarthy's competency to
stand trial. The trial court ordered a competency evaluation and stayed the
proceedings. McCarthy objected to the initiation of competency proceedings
against his will because he believed himself to be competent. Dr. Daniel Lord-
Flynn conducted an evaluation and diagnosed McCarthy with bipolar disorder with
nonbizarre delusions,'^ and various substance abuse disorders. Dr. Lord-Flynn
initially found McCarthy had a detailed understanding of the legal proceedings
^ "Nonbizarre delusions" are delusions that could be real but in actuality are not, such as
"the FBI is surveilling me." In contrast, "bizarre delusions" are delusions of things that could not
happen, such as "aliens invaded and have taken over my body." See 2 Verbatim Report of
Proceedings (Jan. 27, 2016) at 383.
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
against him and the ability to assist in his own defense, and he tentatively believed
McCarthy was competent to stand trial. After receiving more information from
attorney Reardon, Dr. Lord-Flynn changed his opinion and concluded that
McCarthy was incompetent to stand trial as he could not assist in his own defense.
Based on Dr. Lord-Flynn's opinion, the trial court ordered a 90-day competency
restoration period.
McCarthy maintained he was competent and requested a second opinion,
which resulted in the appointment of Dr. Debra Brown. Dr. Brown evaluated
McCarthy and found him incompetent to stand trial because of his inability to work
with Reardon. After the first 90-day restoration treatment. Dr. Lord-Flynn changed
his conclusion and found McCarthy capable of assisting in his own defense but
only with another attorney. The trial court held another hearing and, based on the
conflicting evidence, ordered a second 90-day competency restoration period.
After the second restoration treatment. Dr. Lord-Flyim, with Dr. Brown
observing, evaluated McCarthy again. At this interview, McCarthy spoke about the
case and his defense, indicated he understood the charges and what the prosecutor
needed to prove, and again expressed that he did not trust Reardon to be his
attorney. Dr. Lord-Flynn added a diagnosis of antisocial personality disorder but
concluded McCarthy was competent to stand trial. The trial court then ordered a
jury trial to determine if McCarthy was competent.
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
A different judge presided over the competency trial. During that trial,
McCarthy testified that he believed he was competent but agreed there may have
been reasons to doubt competency earlier in the case. Both experts testified about
their opinions, including that they both found McCarthy suffered from bipolar
disorder with paranoid, nonbizarre delusions and irrational thought, but they
differed as to whether he was competent. Dr. Brown discussed McCarthy's
conspiracy theories and inability to trust his attorney. She opined that because
McCarthy's version of the facts did not make sense, that he thought others were
out to get him, and that his asserted defense was not viable, he could not assist his
attorney in his own defense and, thus, was not competent. She also testified that
while testifying that day, McCarthy still exhibited signs of paranoia and delusions.
Dr. Lord-Flyrm disagreed, testifying that McCarthy was calm when he
testified and his behavior was dramatically different from previous interactions.
Dr. Lord-Flynn explained that McCarthy's bipolar disorder was being treated, he
was taking his medications, and Dr. Lord-Flynn had found him competent. Fie
testified McCarthy was intelligent and at the time was able to understand the
consequences of his different legal options and could assist in his defense. The jury
found McCarthy competent to stand trial. At his arraignment following the verdict,
McCarthy pleaded not guilty. The court then allowed Reardon to withdraw as
counsel and agreed to appoint another public defender.
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
At McCarthy's next hearing, in front of the same judge as the competency
trial, the court heard McCarthy's motion to proceed pro se with the potential to
have Dennis Dressier as standby counsel. McCarthy indicated he wanted to
proceed pro se because of governmental misconduct and harassment within the
jail. The trial court inquired into McCarthy's education, familiarity with the law,
and his understanding ofthe consequences. The court asked if Dressier had any
input. Dressier indicated that he had read McCarthy's filings with the court and
stated that he had "seen a lot worse" from lawyers and that McCarthy had been
diligent in learning how to handle the matters. 4 Verbatim Report ofProceedings
(VRP)(May 13, 2016) at 709. The trial court granted McCarthy's request, finding
McCarthy knowingly, voluntarily, and intelligently waived his right to an attorney,
and Dressier was appointed in limited scope as standby counsel. The State raised
concerns about delusions resurfacing based on McCarthy's beliefs that his ex-wife
was working in the county jail mail room and that his jailers were out to get him.
The judge stated,
I understand the State's concern. We went through a whole
competency trial. You were found to be competent. In listening to you
today, you don't sound a whole lot different than you did at the
competency trial. You seem to understand the process, the procedure,
where you are in this case, and it seems that you have some defense.
Whether or not it's a defense that other people would choose is a
separate question.
I think what we'll do is have you come back to check on you,
though, to make sure you're doing okay. If there does appear to be
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
issues of competency, then we might have to start this whole thing
over again.
4 VRP(May 13, 2016) at 716.
In subsequent proceedings, in front of different judges, McCarthy continued
to express delusional beliefs and file corresponding motions. Although McCarthy
indicated that the court was to monitor his mental health, no one questioned
McCarthy's competency. In a petition for a writ of habeas corpus, McCarthy
alleged his jailers were harming him with toxic fumes, prohibiting him from
reviewing his discovery. The court held a later hearing with jail staff testifying to
address McCarthy's allegations within the jail but twice delayed ruling on the
petition for writ of habeas corpus. The record does not contain a subsequent
hearing on these allegations of the toxic fumes.
At a pretrial hearing, the parties discussed the witnesses McCarthy wanted to
call and why, among other pretrial issues. McCarthy continued to allege that there
was a conspiracy between his ex-wife and the burglary victim and that there had
been governmental misconduct. He also had rejected the State's plea deal, which
would have allowed him to avoid persistent offender status by pleading guilty to a
nonstrike offense.
At this point, the State again alerted the court that there may be "slippage"
due to McCarthy's delusions about the toxic fumes and other governmental
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
misconduct. VRP (July 15, 2016) at 96. The trial court expressed concerns about
McCarthy's ability to represent himself, and McCarthy then agreed to allow
Dressier to be his counsel for the trial. Neither the trial court nor the parties
questioned McCarthy's competence.
The case proceeded to trial where McCarthy testified and described the facts
from his point of view. Based on the trial record, McCarthy appeared coherent in
his recitation and there is no indication of any irrational behavior or outbursts.
When he arrived for the reading of the verdict, McCarthy wore "jail clothes"
although he was told he could wear "street clothes." 2 VRP (Sept. 21, 2016) at 253.
Dressier stated, "Although I would prefer him being in civilian attire, I have to
assume Mr. McCarthy knows what he's doing.I never have had any thoughts
otherwise^ 2 VRP (Sept. 21, 2016) at 254(emphasis added). McCarthy was
convicted of first degree burglary and sentenced to life as a persistent offender.
McCarthy filed a personal restraint petition in the Court of Appeals, again
alleging governmental misconduct. Shortly after. Dressier filed a notice of appeal.
The Court of Appeals consolidated the cases. In her Court of Appeals brief,
McCarthy's appellate counsel alleged that McCarthy's delusions about
governmental misconduct and the relationship between his ex-wife and the victim
were a sufficient basis to doubt his competency and that the trial court abused its
discretion in not sua sponte ordering another competency hearing. In his briefing.
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
McCarthy still contended he was competent. See Statement of Additional Grounds
for Review at 18(Wash. Ct. App. No. 34859-8-III (2017))("Incompetence is not
the real issue here.").
The Court of Appeals, based on its review of the record, agreed that reasons
existed to doubt McCarthy's competency, vacated his conviction, and remanded to
the trial court. See State v. McCarthy, 6 Wn. App. 2d 94, 143-44, 429 P.3d 1086(2018). The State petitioned for review, arguing that the Court of Appeals applied
the wrong standard of review and the proper standard of review should be abuse of
discretion, and that the trial court did not abuse its discretion; further, even if error
occurred, the proper remedy is to remand for an evidentiary hearing on whether
McCarthy was competent at the time of trial. We granted review. State v.
McCarthy, 192 Wn.2d 1023, 435 P.3d 265 (2019).
ANALYSIS
The due process clause ofthe Fourteenth Amendment to the United States
Constitution guarantees an accused the fundamental right not to stand trial if he is
legally incompetent. State v. Ortiz-Ahrego, 187 Wn.2d 394, 402-03, 387 P.3d 638(2017). This principle is codified under RCW 10.77.050, which states,"No
incompetent person shall be tried, convicted, or sentenced for the commission of
an offense so long as such incapacity continues." Under the statutory definition,
"'[i]ncompetency' means a person lacks the capacity to understand the nature of
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
the proceedings against him or her or to assist in his or her own defense as a result
of mental disease or defect." RCW 10.77.010(15).
"Chapter 10.77 RCW governs the procedures and standards trial courts use
to [assess] the competency of defendants to stand trial." State v. Coley, 180 Wn.2d
543, 551,326 P.3d 702(2014).
Under Washington's statutory scheme,
[w]henever ... there is reason to doubt [the accused's] competency,
the court on its own motion or on the motion of any party shall either
appoint or request the secretary to designate a qualified expert or
professional person, who shall be approved by the prosecuting
attorney, to evaluate and report upon the mental condition ofthe
defendant.
RCW 10.77.060(l)(a)(emphasis added). When making the determination of
whether a competency hearing is necessary, the factors the trial court considers
include the defendant's behavior, demeanor, appearance, personal and family
history, and psychiatric reports. In re Pers. Restraint ofFleming, 142 Wn.2d 853,
863, 16 P.3d 610(2001). In addition, we have recognized that the trial court should
afford "considerable weight" to a defense attorney's opinion regarding his or her
client's competency. State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177(1991).
Here, the trial court did not sua sponte refer McCarthy for an additional
competency hearing after a jury found him competent. We must initially determine
the standard ofreview to review the trial court's decision. Although the briefing at
10
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
times characterizes this issue as challenging the trial court's "decision,"^ no such
decision exists. Instead, it is the trial court's failure to order a new competency
hearing, although it makes no substantive difference to the analysis.
1. Standard of Review
The parties disagree as to whether appellate courts should give deference to
the trial court when a trial court judge does not order a competency evaluation or
hearing where no request is raised. The State contends that the proper standard of
review is abuse of discretion. McCarthy's counsel instead urges that the appellate
court engage in an independent review of the record, given that this is a matter of
constitutional significance.
In State v. Sisouvanh, 175 Wn.2d 607, 620, 290 P.3d 942(2012), to address
whether Sisouvanh's competency evaluation was adequate, we first needed to
determine the appropriate standard of review. In holding that the standard of
review for the adequacy of a competency evaluation is abuse of discretion, we
noted that "various decisions by the trial court regarding competency are subject to
an abuse of discretion standard." Sisouvanh, 175 Wn.2d at 620. We also explained.
^ See, e.g., Appellant's Opening Br. at 8-9(Wash. Ct. App. No. 34859-8-III (2017))
("Appellate courts will review a trial court's decision about a defendant's competency or, as
here, its decision not to evaluate whether a defendant's competency continues, for abuse of
discretion."(emphasis added)); Suppl. Br. of Pet'r at 2("Whether the trial court's decision not to
refer Matthew McCarthy for additional competency evaluations was within its discretion?"
(emphasis added)).
11
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
An abuse of discretion standard often is appropriate when(1)
the trial court is generally in a better position than the appellate court
to make a given determination,(2) a determination is fact intensive
and involves numerous factors to be weighed on a case-by-case basis,
(3)the trial court has more experience making a given type of
determination and a greater understanding of the issues involved,(4)
the determination is one for which "no rule of general applicability
could be effectively constructed,", and/or(5)there is a strong interest
in finality and avoiding appeals.
Sisouvanh, 175 Wn.2d at 621 (citations omitted)(quoting re Parentage of
Jannot, 149 Wn.2d 123, 127,65 P.3d 664(2003)). As in Sisouvanh, all ofthese
factors support appljdng an abuse of discretion standard for failure to sua sponte
order another competency hearing where no motion or request is made for another
hearing.
Similarly, in Fleming we applied the abuse of discretion standard to a failure
to order a competency hearing. Under that standard, we found the judge did not err
in not ordering a competency evaluation where the "trial judge did not see any
irrational behavior in the courtroom, nor were there any psychiatric reports given
to the trial court judge." 142 Wn.2d at 863. We have also applied the abuse of
discretion standard to a trial court's decision whether defense counsel has met the
threshold "reason to doubt... competency" such that a trial court must order a
competency hearing, affirming the trial court's decision that counsel had not met
the threshold. Lord, 117 Wn.2d at 904.
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State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
Applying the reasoning from our cases, we hold that whether a trial court
should have sua sponte ordered a competency evaluation is also reviewed for abuse
of discretion.
2. Discretion To Order Additional Competency Hearings
Applying an abuse of discretion standard, a reviewing court will find error
only when the trial court's decision is manifestly unreasonable or is based on
untenable grounds. Sisoiivanh, 175 Wn.2d at 623. Although the appellate court
reviews the relevant record, it does so not to come to its own conclusions; the
focus is to determine if the trial court's exercised discretion was reasonable and
tenable. Therefore, in the present case, if the issue of competency is '"fairly
debatable,"' failure to order a subsequent evaluation does not violate RCW
10.77.060, and the trial court did not abuse its discretion. Sisouvanh, 175 Wn.2d at
623 (internal quotation marks omitted)(quoting Walker v. Bangs, 92 Wn.2d 854,
858,601 P.2d 1279(1979)).
RCW 10.77.060(l)(a) requires the trial court to order a competency hearing
whenever there is a reason to doubt competency. This requirement continues even
after a determination of competency. However, once there has been a
determination that a defendant is competent to stand trial, a trial court need not
revisit the issue of competency unless some objective incident or event occurs
where the court is provided with new information that indicates a significant
13
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
change^ in the defendant's mental condition. State v. Ortiz, 119 Wn.2d 294, 301,
831 P.2d 1060(1992)(plurality opinion). The Court of Appeals has similarly
found that a reason to doubt is "not definitive, but vests a large measure of
discretion in the trial [court]." City ofSeattle v. Gordon, 39 Wn. App. 437, 441,
693 P.2d 741 (1985).
Washington courts have found that a trial court errs in not ordering a
competency evaluation when there is significant evidence that the defendant is not
competent, especially where the record includes evidence from expert witnesses
and defense counsel. For example, in State v. Marshall, 144 Wn.2d 266, 279, 27
P.3d 192(2001), we vacated Marshall's guilty plea because of the "ample
evidence" before the court that called his competency into question. In that case, in
addition to the motion to vacate the plea due to incompetency, Marshall provided
the court with expert testimony indicating that Marshall suffered from a high level
of brain atrophy, below average intelligence, and diagnoses of bipolar disorder.
® The Court of Appeals adopted a California rule that requires another competency
hearing after a determination of competency only when there is a "substantial change of
circumstances or new evidence presented casting serious doubt on the validity of the prior
finding of the defendant's competency." McCarthy,6 Wn. App. 2d at 135-36 (citing People v.
Mendoza,62 Cal. 4th 856, 884, 365 P.3d 297, 198 Cal. Rptr. 3d 445, cert, denied, 137 S. Ct. Ill
(2016); People v. Medina, 11 Cal. 4th 694, 734, 906 P.2d 2, 47 Cal. Rptr. 2d 165 (1995)). The
Court of Appeals adopted this rule in part because "substantial change" is, in their view, the
same as "significant change" from our plurality decision in Ortiz. McCarthy,6 Wn. App. 2d at
136. There is no need to adopt an out of state rule when our case law provides a persuasive rule
that is virtually indistinguishable.
14
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
depression, and paranoid schizophrenia. One expert testified that Marshall did not
understand he could go to prison if he pleaded guilty. Another witness testified that
Marshall stated he did not intend to kill the victim, yet he still pleaded guilty to
premeditated murder. The trial court denied the motion despite finding Marshall
had a mental impairment. We held that given the substantial evidence calling
Marshall's competency into question when he pleaded guilty, the trial court erred
in not ordering a competency hearing or granting the motion to vacate Marshall's
guilty plea. Marshall, 144 Wn.2d at 281.
Similarly, in State v. Fedoruk, 5 Wn. App. 2d 317, 339-40, 426 P.3d 757(2018), review denied, 192 Wn.2d 1012(2019), the Court of Appeals reversed
Fedoruk's conviction when new information arose during trial that brought
competency into question. Fedoruk had been found to be competent after many
months of concerning behavior. Flowever, at trial, Fedoruk began exhibiting
"extreme behavior that was similar to behavior he displayed in past mental
breakdowns." Fedoruk, 5 Wn. App. 2d at 337. This included screaming in an
unintelligible language, the need to be increasingly physically restrained due to his
inability to remain composed, interrupting witnesses, collapsing on the floor, and
other disruptive behaviors. At first, Fedoruk's counsel expressed concern about
Fedoruk's mood, but as the trial went on, counsel moved for a mistrial based on
what was happening in the courtroom. The trial court denied the motion, finding
15
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
that any need for a mistrial was due to Fedoruk's behavior. In that case, after trial,
the trial court did order a competency evaluation, and a psychologist found
Fedoruk was in a psychotic state and not competent to proceed with sentencing. On
appeal, the Court of Appeals vacated the conviction and held that the trial court
abused its discretion when it failed to consider if Fedoruk was competent to stand
trial. Fedoruk, 5 Wn. App. 2d at 338-39.
In contrast, in Lord, the trial court denied a motion for a competency
hearing, and we affirmed the denial. In support of the motion. Lord's counsel
offered testimony that Lord told a correctional officer that he had spoken with the
devil and that the devil asked him to '"drink .. . his own blood to prove his
irmocence.'" Lord, 117 Wn.2d at 901. Lord told the court he was competent and
requested that one of his attorneys withdraw. The trial court noted Lord's counsel
"had not made any assertion that Lord was unable to recall or relate facts sufficient
for defense counsel to proceed." Lord, 117 Wn.2d at 902. Upon reviewing the
record, we held that the trial court did not abuse its discretion in declining to hold a
competency hearing because the "threshold burden of establishing that there was
reason to doubt Lord's competency was not met." Lord, 117 Wn.2d at 903-04.
Here, McCarthy's counsel argues the trial court should have ordered an
additional competency hearing when it addressed McCarthy's motions concerning
his conditions in the jail and when he presented his defense theory. However,
16
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
neither instance presents a situation similar to the cases finding reversible error
where it was found the trial court was required to order a competency hearing. The
record indicates no significant change in McCarthy's mental health that would
create doubt as to whether McCarthy was incompetent as statutorily defined. It is
undisputed that McCarthy understood the nature ofthe proceedings against him
throughout this case. Thus, at issue is only whether McCarthy could assist in his
defense.
A defendant can assist in his own defense when he "possess[es] an adequate
recall of the factual events involved in the charge against him,[is] able to
communicate those recollections to his attorney, and ha[s] both an intellectual and
emotional appreciation of the ramifications and consequences of the crime
charged." 12 RoYCE A.FERGUSON,Jr., Washington Practice: Criminal
Practice AND Procedure § 902, at 171 (3d ed. 2004)(citing v. Gwaltney,
11 Wn.2d 906, 468 P.2d 433 (1970)). As in Lord, this case presents a situation
where, although delusions may have been apparent, there was no evidence
presented to the trial court that would cast doubt on the defendant's ability to recall
facts, communicate with his attorney, or understand the ramifications and
consequences ofthe crime.
While McCarthy's delusions may have changed, including allegations of
toxic fumes within the jail and presenting a theory that the victim and his ex-wife
17
State V. McCarthy, In re Pers. Restraint ofMcCarthy, No. 96653-2
were in a relationship, the judges who presided over the proceedings entertained
McCarthy's motions, including bringing in jail staff to testify as to the fumes and
jail conditions. No party in any of the proceedings following the competency trial
raised a concern as to McCarthy's competence. No party had McCarthy evaluated
again by an expert witness who could testify as to whether McCarthy was
competent during the trial. When the court expressed concerns about McCarthy
representing himself in a third strike case, McCarthy seemed to act reasonably by
choosing to have counsel reappointed to him when the judge expressed those
concerns. There is no indication that McCarthy did not retain composure during his
trial. His testimony is an accurate representation of the facts as he believed them.
He was coherent throughout trial, and his defense counsel stated that he never had
a thought that McCarthy did not know what he was doing.
This case is not similar to Marshall, where multiple experts provided
evidence that the defendant was not competent at the time of his plea. Nor is it
similar to Fedoruk, where the defense attorney asked for another evaluation of
competency when the defendant could not keep himself composed in the
courtroom and was exhibiting signs of a mental breakdown. This case is similar to
Lord, where we held that simply having delusions, without more, was not a
sufficient showing that there was reason to doubt the defendant's competency.
18
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
In the present case, McCarthy's appellate counsel cannot identify any event,
other than McCarthy's continuing delusions, to support the conclusion that
McCarthy was incompetent to stand trial. Further, counsel provides no evidence
that any delusions affected McCarthy's ability to recall facts and communicate
with his attorney during the trial. Therefore, the trial court's failure to sua sponte
order another competency hearing was reasonable, and the trial court did not abuse
its discretion.^
^ The State argues the Court of Appeals incorrectly vacated McCarthy's conviction
instead of remanding for an evidentiary hearing. We need not address this issue because we
reverse the Court of Appeals.
19
State V. McCarthy,In re Pers. Restraint ofMcCarthy, No. 96653-2
CONCLUSION
We reverse and remand to the Court of Appeals for resolution of the issues
raised in McCarthy's personal restraint petition. Under the statutory scheme, the
judge was not required to order another competency hearing as there was no reason
to doubt McCarthy's competence.
WE CONCUR:
'am.
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