Case Information
*1
FINAL COPY
S18A0100. CARR v. THE STATE.
N AHMIAS , Justice.
On Mаy 31, 2017, the trial court in this case ordered the sheriff to take Ricky Lee Carr into custody solely because Carr had been charged with committing violent crimes and found mentally incompetent to stand trial. The court directed that Carr be transferred to and held by the Georgia Department of Behavioral Health and Developmental Disabilities for evaluation within 90 days as to whether there is a substantial probability that he will attain competency in the foreseeable future. In this appeal, Carr contends that this detention by the State violates his constitutional right to due process.
Carr’s due process challenge to the statute that required his detention — OCGA § 17-7-130 (c) — can be divided into two parts. He argues first that the duration of the confinement allowed by the statute — which, he asserts, could be indefinite — is unconstitutional. We agree that indefinite or even *2 unreasonably extended detention under OCGA § 17-7-130 (c) would be unconstitutional, but we do not agree that the statute permits such extended detention. Instead, to avoid that constitutional concern, we construe OCGA § 17-7-130 (c) as limiting the detention it authorizes to thе reasonable time needed to fulfill its purpose. And because Carr initiated this appeal shortly after he was ordered to be detained, he has not as of yet shown on the record that the duration of his confinement is unreasonable.
Carr also argues that the mandatory nature of his confinement based on OCGA § 17-7-130 (c) is not reasonably related to the State’s legitimate and important purpose of accurately determining whether a defendant can be restored to competency to be tried. Carr says this is so because the statute requires that all defendants found incompetent after being accused of violent crimes, but not those accused of other crimes, be detained for evaluation regardless of the characteristics or circumstances of the particular defendant’s mental condition. We agree that such automatic detention without an individualized determination of whether the confinement reasonably advances the government’s purpose violates a defendant’s right to due process, and we therefore hold that this part оf OCGA § 17-7-130 (c) cannot be applied *3 constitutionally to Carr or similarly situated defendants who are not already being detained on another, lawful ground.
For these reasons, which are explained in much greater detail below, we reverse the part of the trial court’s judgment holding that OCGA § 17-7-130 (c) is constitutional, vacate the part of the judgment ordering Carr to be detained for inpatient evaluation, and remand the case for further proceedings consistent with this opinion.
1. Background
Ricky Lee Carr was arrested on June 16, 2016; he was released on bond the same day. About five months later, on November 9, 2016, a Catoosa County grand jury returned an indictment charging Carr with rape, aggravated sexual battery, two counts of child molestation, and criminal attempt to commit a felony. [1] On November 29, the trial court signed a consent order for the evaluation of Carr’s competency to stand trial. Dr. Sam Perri from the Georgia Department of Behavioral Health and Developmental Disabilities (the “department”) evaluated Carr and then filed a report with the trial court on *4 March 9, 2017. Dr. Perri concluded that Carr is not competent to stand trial. He explained that Carr is in the “mild/moderate range of intellectual functioning” and has been diagnosed with cerebral palsy. Dr. Perri further explained that although Carr seems to understand the charges presented against him, he does not appear to understand the possible consequences if he is found guilty, he does not understand courtroom procedure or the roles of court personnel, and he does not have the cognitive abilities to assist in his defense. Dr. Perri also reported:
In view of Mr. Carr’s low intellectual functioning there is a strong probability that he would not be able to be restored to competency. Nevertheless, it is my opinion that there should be an attempt to restore Mr. Carr to competency. If the court adjudicates Mr. Carr as not competent it is recommended that his restoration occur in a community setting rather than in a psychiatric facility. If this occurs, I have a staff person that will coordinate a restoration to competency program for Mr. Carr. Mr. Carr’s mother also stated that she would assist in ensuring thаt Mr. Carr participates in a restoration program.
On April 27, 2017, Carr filed a petition to seek the restoration of his competency in a community (outpatient) setting. The petition also raised constitutional challenges to OCGA § 17-7-130, the Georgia statute governing pleas of mental incompetence to stand trial, claiming that insofar as the statute requires him to be placed in custody for attempted competency restoration, it *5 deprives him of due process and of equal protection of the laws in violation of the United States and Georgia Constitutions. The court then held two hearings on Carr’s competency. At the first hearing on April 28, the court admitted Dr. Perri’s report and found Carr incompetent to stand trial based on the report. The court then announced, “it appears to me that I have to transfer custody to the department.” In response, Carr’s counsel reiterated his constitutional challenges to OCGA § 17-7-130. [2]
At the second hearing, on May 31, 2017, the trial court began by explaining that Carr had been found incompetent and was not contesting that finding, so the question to bе decided was “what we do with the next stage with Mr. Carr.” Carr again raised his constitutional challenges to OCGA § 17-7-130, arguing that because he was out on bond, it would be a violation of his due process and equal protection rights to order him into custody merely because he has been found incompetent to stand trial. The State argued that the statute is constitutional and that Carr’s constitutional challenges were untimely because he had not raised them at the first opportunity or with sufficient clarity. Later *6 that day, the trial court issued an order finding that Carr is incompetent to stand trial and holding summarily that his constitutional challenges were timely raised and that OCGA § 17-7-130 does not violate constitutional due process or equal protection. The order also directed the sheriff to take custody of Carr and deliver him to the department, which was directed to evaluate and diagnose within 90 days of the order whether there is a substantial probability that Carr can attain mental competency to stand trial in the foreseeable future. [3]
On June 8, 2017, the trial court entered a certificate of immediate review of its order. Carr then filed an application for interlocutory appeal, which this Court granted on August 2. [4] Carr filed a notice of appeal on August 11, and after the case was docketed and briefed, the Court heard oral arguments on *7 December 11. [5]
2. The statute
Under OCGA § 17-7-130 (b) (1),
[i]f an accused files a motion requesting a competency evaluation, the court may order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused’s mental competency to stand trial and, if such physician or licensed psychologist determines the accused to be mentally incompetent to stand trial, to make recommendations as to restoring the accused to competency.
The statutory provision in dispute here, OCGA § 17-7-130 (c), then says, in relevant part:
If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental comрetency to stand trial in the foreseeable future. The court shall retain jurisdiction over the accused and shall transfer the accused to the physical custody of the department. At its discretion, the court may allow the evaluation to be performed on the accused as an outpatient if the accused is charged with a nonviolent offense. Such evaluation shall be performed within 90 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused. . . . .
OCGA § 17-7-130 (a) (7) defines “[n]onviolent offense” as “any offense other *8 than a violent offense,” and OCGA § 17-7-130 (a) (11) (A) defines “[v]iolent offense” to include “(i) A serious violent felony; (ii) A sexual offense; (iii) Criminal attempt to commit a serious violent felony; [and] (iv) Criminal attempt to commit a sexual offense . . . .” [6]
If the evaluation shows that the defendant is mentally competent to stand trial, “the department shall immediately report that determination” and return the defendant to the court, with the defendant remaining in the custody of the sheriff, the court’s detention facility, or the department’s secure facility. OCGA § 17-7-130 (c) (1). See also id. (d) (explaining that if the department “determines at any time” that the defendant is competent, he must be returned *9 to the court, with custody maintained in the same way). If the evaluation shows that the defendant is mentally incompetent to stand trial but there is a substantial probability that the defendant will be restored to competency in the foreseeable future, he can continue to be held in the department’s custody for up to nine more months to receive treatment. See id. (c) (3). If the evaluation shows that the defendant is unlikely to regain competency in the foreseeable future, within 45 days the court must consider a nolle prosequi of the pending charges and release the defendant or seek his civil commitment and commit or release him based on the outcome of the civil commitment trial. See id. (c) (2), (e). [7]
It is clear that the trial court in this case did what the statute mandates: because Carr is charged with violent offenses, once the court found him mentally incompetent to stand trial, thе court had no statutory discretion to consider Dr. Perri’s recommendation of attempted restoration in an outpatient setting or any other evidence regarding Carr’s mental condition, but rather was required to transfer Carr to the physical custody of the department to be detained there for up to 90 days while he was evaluated. The question we will address *10 is whether that statutorily mandated confinement at a government institution complies with the constitutional requirement of due process. [8]
3. The interests of Carr and the State
“In our society liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” United States v. Salerno,
Before he was found incompetent to stand trial and ordered detained for
further evaluation under OCGA § 17-7-130 (c), Carr retained this “strong
interest in liberty,” Salerno,
Nevertheless, in some limited circumstances, pretrial detention is
permissible as a regulation serving a legitimate and “sufficiently compelling”
government interest. Salerno, 481 U. S. at 748-749. Detention may be
*13
“permissible regulation,” rather than “impermissible punishment,” if it is
“rationally . . . connected” to a non-punitive purpose and it is not excessive in
relation to that purpose. Id. at 747 (citations and punctuation omitted). In an
opinion addressing another state’s statute that required a defendant who was
found mentally incompetent to stand trial to be committed to a mental institution
until he was made competent, the United States Supreme Court explained the
applicable due process test in this way: “At 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.” Jackson,
The apparent non-punitive purpose of detention based on OCGA § 17-7-
130 (c) is to accurately evaluate whether the defendant’s competency can be
restored so that he can be tried. See id. (“[A] department physician or licensed
psychologist [will] evaluate and diagnose the accused as to whether there is a
substantial probability that the accused will attain mental competency to stand
trial in the foreseeable future.”). That is a legitimate and important government
interest. See Warren v. State, 297 Ga. 810, 826 (778 SE2d 749) (2015)
(explaining that “‘[t]he Government’s interest in bringing to trial an individual
*14
accused of a serious crime is important’” and includes both a “‘substantial
interest in timely prosecution’” and “‘a concomitant, constitutionally essential
interest in assuring that the defendant’s trial is a fair one’” (quoting Sell v.
United States,
4. Duration of the detention
We start with the duration of the detention, recognizing that this is an issue only if the person can lawfully be detained in the first place.
(a) In 1972, the United States Supreme Court held in Jackson that Indiana’s statute mandating pretrial detention of criminal defendants based solely on their mental incompetence to stand trial violated due process because it required that defendants be detained until they regained competency. See 406 U.S. at 731. This meant that defendants like Jackson, a deaf and mute man with the “mental level of a pre-school child” and little likelihood of ever attaining *15 competency, would be detained indefinitely. See id. at 717, 725-726. While declining to enumerate the maximum length of time a defendant could ever be detained to evaluate competency, the Court held that, as a matter of constitutional due process, “a person charged by a State with a criminal offense who is committed solely on account of his incaрacity 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.” Id. at 738. [10]
Like many states and the federal government, Georgia addressed Jackson’s holding by establishing an express statutory time limit for the evaluation of a defendant’s likelihood to attain competency: when a defendant is found incompetent to stand trial and taken into custody on that basis, the court “shall transfer [the defendant] to the physical custody of the department” and the evaluation of the defendant’s likelihood to regain competency “shall be performed within 90 days after the department has received actual custody of an *16 accused.” OCGA § 17-7-130 (c). See also 18 USC § 4241 (d) (limiting the time that a federal defendant found incompetent can be hospitalized for treatment to “a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward”); Grant H. Morris & J. Reid Meloy, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. Davis L. Rev. 1, 10 (1993) (explaining that in response to Jackson, 20 states, including Georgia, specified the length of the detention or evaluation period). [11]
Carr does not contend that the 90-day maximum evaluation period in
OCGA § 17-7-130 (c) is necessarily excessive to achieve the government’s
purpose of accurately evaluating a defendant, and we conclude that it is not.
Many states have similar time limits. See Morris & Meloy, supra, at 10 (“Of the
twenty states that specify the length of the detention period, ninety days is the
most frequent period specified, with the shortest period being thirty days and the
*17
longest being twelve months.” (footnotes omitted)). Indeed, the deadline in
Georgia’s statute is a month shorter than the four-month maximum allowed by
the federal statute, which has been upheld against due process challenges based
on Jackson by several federal circuit courts. See, e.g., United States v. Dalasta,
Carr argues, however, that while the express time limit of 90 days for completion of the evaluation may be reasonable, the statutory scheme actually allows a defendant detained due to OCGA § 17-7-130 (c) to be confined much longer than that, because there are no explicit provisions governing how quickly he must be transferred to the department, how quickly after the evaluation is done the department must provide it to the court, how quickly he will be returned to the court, or how quickly the court will act on the evaluation. Carr is correct that the statute says the 90-day clock begins to tick only when a defendant is physically delivered to the department and stops as soon as the evaluation is complete; there are no express time limits on the steps that must *18 happen before and after that evaluation if the defendant remains incompetent. [12] If the lack of explicit deadlines for each of these steps meant that a defendant could be detained indefinitely under OCGA § 17-7-130 (c), the statute would be unconstitutional under Jackson. But OCGA § 17-7-130 (c) is not facially unconstitutional, because unlikе the Indiana statute in Jackson, the Georgia statute does not mandate indefinite detention (that is, detention until an unattainable condition is achieved); our statute simply does not include express time limits for each of the several steps required to complete the statutory process.
(b)
“[A] statute should not be deemed facially invalid unless it is not
readily subject to a narrowing construction,” as “every reasonable construction
must be resorted to, in order to save a statute from unconstitutionality.” Haley
v. State,
In doing so, we nоte that in Jackson, which was decided before the four-
month time limit was codified in 18 USC § 4241 (d), the Court explained that
lower courts interpreting federal statutes allowing pretrial detention of mentally
incompetent defendants had “expressed substantial doubt that [those statutes]
could survive constitutional scrutiny if interpreted to authorize indefinite
commitment” on the ground of incompetency alone.
In determining what duration of confinement is reasonable in this context, the court should consider not only the total time of detention but also whether the amount of time spent at a particular challenged step is unreasonable. For example, a federal circuit court considered а lawsuit brought on behalf of mentally incompetent defendants in Oregon who had been held between one and five months awaiting transfer to the state mental hospital. See Oregon Advocacy Center v. Mink, 322 F3d 1101, 1106 (9th Cir. 2003). [13] Citing Jackson, the court explained that “[h]olding incapacitated criminal defendants in jail for weeks or months violates their due process rights because the nature and duration of their incarceration bear no reasonable relation to the evaluative and restorative purposes for which courts commit those individuals.” Mink, 322 F3d at 1122 (citation and punctuation omitted). The court therefore affirmed the district court’s ruling that these defendants had a due process right to “reasonably timely transport to a treatment facility.” Id. at 1119, 1122 (citation *21 and punctuation omitted). See also Advocacy Center for Elderly and Disabled v. Louisiana Dept. of Health and Hospitals, 731 FSupp.2d 603, 621 (E.D. La. 2010) (relying on Jackson to hold that “the continued imprisonment of the Incompetent Detainees in parish jails . . . does not bear a reasonable relationship to either restoring the Detaineеs to competency or determining that they will never become competent”).
Like the Court in Jackson, see
As his case is presented here, Carr cannot prevail on such a challenge. He initiated this appeal only days after being ordered detained for evaluation under OCGA § 17-7-130 (c), so he cannot show from the record that the duration of his actual confinement is unreasonable (assuming he can be properly detained at all). As for the trial court’s order, it requires that the department evaluate Carr within 90 days of the date of the order, rather than 90 days of the time he arrives at the department (as OCGA § 17-7-130 (c) allows). Thus, if complied with, the order would prevent any time that might pass between the entry of the order and the sheriff’s delivery of Carr to the department from extending the 90- day period that we have said is facially reasonable. The order does not limit the time for completing the next steps after the evaluation, but neither does it specify an unreasonable time for these steps. This is nоt, however, the end of the due process analysis.
5. Nature of the detention
No matter how short the duration of the detention, if the nature of the confinement is not reasonably related to the government’s purpose of accurately evaluating the individual defendant’s potential to attain competency, the detention is unconstitutional. See Foucha, 504 U. S. at 79 (“Due process
requires that the nature of commitment bear some reasonable relation to the
purpose for which the individual is committed.” (citing Jackson,
*24
(a) We start with the understanding that confinement at a department
facility is not required for the accurate evaluation the State seeks to obtain. The
statute itself tells us this. OCGA § 17-7-130 (c) provides outpatient evaluation
as an option for defendants who have been accused of nonviolent offenses: “At
its discretion, the court may allow the evaluation to be performed on the accused
as an outpatient if the accused is charged with a nonviolent offense.”
[15]
This
Court has never held, that so long as the duration of detention is reasonable, the government may
detain
every
defendant found incompetent
automatically,
without any sort of individualized finding
as to whether the detention bears a reasonable relation to the purpose for that defendant’s
commitment. Such a holding would run against the reasoning of cases like Salerno, as well as the
Jackson Court’s discussion of the importance of individualized determinations supporting
commitment in the equal protection section of its opinion and its discussion in the due process
section of the process Jackson was not afforded. See
2007, p. 663. See also Marisol Orihuela, The Unconstitutionality of Mandatory Detention During
Competency Restoration, 22 Berkeley J. Crim. L. 1, 21 (2017) (explaining that concerns about state
mental institutions and advances in medication for the mentally ill have “revealed that providing
mental health care in the community was not just desirable but also possible”). The sentence before
the one granting the trial court discretion to order outpatient evaluation says that the court “
shall
transfer the accused to the physical custody of the department.” OCGA § 17-7-130 (c) (emphasis
supplied). Although the word “shall” is “generally construed as a mandatory directive,” this Court
has explained that it “need not always be construed in that fashion,” if the context in which it is used
indicates a permissive instruction. Lewis v. State,
For example, the Ninth Circuit, following the lead of the First and Eighth
Circuits, has explained that a determination of whether a defendant is likely to
regain competence “requires a more ‘careful and accurate diagnosis’ than the
courts to exercise discretion and order outpatient evaluation for defendants charged with nonviolent
offenses, we must conclude that “shall” as used in the second sentence of OCGA § 17-7-130 (c) is
not a mandatory directive when the trial court exercises its discretion to order outpatient evaluation.
See Garrison v. Perkins,
*26
‘brief interviews’ and ‘review of medical records’ that tend to characterize the
initial competency proceeding.” Strong,
The Eighth Circuit has also suggested that the defendant’s commitment
“appropriately affords additional time during which the Attorney General may
explore medical options.” Ferro,
The Dalasta court also said that commitment “provides the Attorney
General’s medical experts an opportunity to evaluate the defendant's
dangerousness.”
Finally, to the extent the State asserts that the constant surveillance and close control afforded by detention is important in all cases to ensure an accurate determinаtion of the likelihood of competency restoration, see Coats, 3 NE3d at 534, our legislature evidently did not rest the current version of OCGA § 17- 7-130 (c) on that theory, because the statute allows a large group of accused offenders — those charged with nonviolent crimes — to avoid these supervisory conditions. Moreover, the kind of crime the defendant allegedly committed *29 bears no obvious relationship to the appropriate process for evaluating the probability that he will attain competency to stand trial in the foreseeable future. See Morris & Meloy, supra, at 18 (“A defendant charged with a serious crime is not by that fact more difficult to treat or less responsive to treatment than a defendant charged with a less serious crime.”).
Rather than the particular
crime
with which a defendant is charged, it is
his particular
mental condition
that affects whether his commitment is
reasonably related to the goal of accurately evaluating his likelihood of attaining
competence so he can be tried. Only in those cases where detention is in fact
reasonably related to this objective does the State’s interest justify depriving the
defendant of his strong liberty interest. See, e.g., Salerno,
In fact, in some cases the evidence presented at the competency hearing
may indicate that confinement will
not
serve the government’s purpose of
*31
accurately evaluating the defendant’s likelihood to attain competency. For
example, the facility in which the defendant would be confined may not have the
means to effectively care for or communicate with the defendant. See, e.g.,
Jackson,
defendant had been diagnosed with Alzheimer’s disease and the court concluded at an earlier hearing that he could not be restored to competency). In these cases, at least without a showing by the State and a finding by the court that the proposed examination and treatment of the defendant in a confined setting has *32 a realistic possibility of altering the status quo, commitment serves no legitimate purpose at all, and so does not justify the deprivation of the defendant’s liberty. [17]
We acknowledge, however, that in many cases the constant observation and increased control afforded by a defendant’s detention in a department facility may reasonably promote the government’s purpose of accurate evaluation. For example, in cases where the doctor or the court itself suspects that the defendant may be feigning or exaggerating symptoms to avoid trial, or where the defendant’s diagnosis is truly uncertain or holds the potential for improvement rather than stasis or deterioration, close and extended observation and control may be beneficial to the department’s doctors. But the existence of such cases does not justify automatic detention for all defendants in Georgia’s courts who are accused of a violent crime and found incompetent to stand trial.
(b) Because the nature of automatic commitment for all those *33 defendants does not bear a reasonable relation to the State’s purpose of accurately determining the restorability of individual defendants’ competence to stand trial, that aspect of OCGA § 17-7-130 (c) violаtes due process when applied to defendants who have been deprived of their liberty based solely on that statutory provision. In such cases, the trial court should proceed as it does in determining how to evaluate mentally incompetent defendants accused of nonviolent offenses. To ensure that the nature of commitment to the department is appropriate for the particular defendant, the court should consider all relevant evidence and make a finding as to whether the evaluation required by OCGA § 17-7-130 (c) should be conducted on an inpatient or outpatient basis. A defendant who is not already lawfully detained should be committed to the department only if the court finds that such confinement is reasonably related to the purpose of accurately evaluating whether that particular defendant can attain competency. A hearing on this issue should be held at the same time or promptly after the court initially determines the defendant’s competency to be tried. To the extent the prosecutor or the defendant wishes tо present or contest evidence that speaks to the detention determination, that should be permitted. If the court determines that inpatient evaluation is not appropriate for a mentally *34 incompetent defendant charged with a violent offense and not already detained for another, lawful reason, then the portion of OCGA § 17-7-130 (c) requiring commitment of that defendant to the physical custody of the department cannot be applied as a matter of constitutional due process. [18]
6. Conclusion
For these reasons, the part of the trial court’s judgment concluding that OCGA § 17-7-130 (c) is constitutional is reversed, and the part of the judgment ordering Carr to be delivered to the custody of the department for evaluation is vacated. As noted above in footnote 3, the trial court’s unchallenged finding that Carr is incompetent to stand trial is affirmed. On remand, the trial court should proceed in accordance with this opinion, including exercising discretion in deciding whether Carr should be committed to the department’s custody for evaluation or should be evaluated on an outpаtient basis. [19] *35 Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction. All the Justices concur.
Decided June 18, 2018.
OCGA § 17-7-130; constitutional question. Catoosa Superior Court.
Before Judge Van Pelt.
David J. Dunn, Jr., Amber L. Connell, for appellant.
Herbert E. Franklin, Jr., District Attorney, Clayton M. Fuller, Assistant District Attorney, for appellee.
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sarah Hawkins Warren, Solicitor-General, Ross W. Bergethon, Deputy Solicitor-General, amici curiae.
in Code Section 5-6-37 . . . shall serve as supersedeas in all cases . . . where the defendant is admitted
to bail.”); State v. Vansant,
Notes
[1] The arrest warrant, bond order, and indictment are not in the record on appeal because Carr specified that only a limited record be transmitted to this Court. This information comes from representations made by the attorneys for the parties in their filings and at hearings in the trial court.
[2] Apparently an order was entered after this hearing, but that order was rescinded. Neither the rescinded order nor the reason for the rescission is in the record on appeal.
[3] Neither party has challenged the trial court’s ruling that Carr is mentally incompetent to stand trial, and that part of the court’s judgment will stand affirmed.
[4] As it did in the trial court, the State argues here that Carr did not timely raise his
constitutional challenges. We expressed interest in this issue when granting the application, but a
review of the more complete record we now have shows that Carr’s attorney clearly raised the
constitutional challenges in a timely manner.
Because Carr obtained review of the trial court’s pretrial detention order by following the
procedures for interlocutory appeals, see OCGA § 5-6-34 (b), we need not decide whether he would
have been entitled to a direct appeal under the collateral order doctrine. See Warren v. State, 297
Ga. 810, 811 n.2 (
[5] Because Carr asks this Court to strike down a state statute as unconstitutional, we invited the Attorney General’s office to file a brief defending OCGA § 17-7-130 (c), which it did.
[6] “Violent offense” is defined in full as: (A) (i) A serious violent felony [as defined in OCGA § 17-10-6.1]; (ii) A sexual offense [as defined in OCGA § 17-10-6.2]; (iii) Criminal attempt to commit a serious violent felony; (iv) Criminal attempt to commit a sexual offense; (v) Aggravated assault; (vi) Hijacking a motor vehicle in the first degree or hijacking an aircraft; (vii) Aggravated battery; (viii) Aggravated stalking; (ix) Arson in the first degree or in the second degree; (x) Stalking; (xi) Fleeing and attempting to elude a police officer; (xii) Any offense which involves the use of a deadly weapon or destructive device; and (B) Those felony offenses deemed by the court to involve an allegation of actual or potential physical harm to another person.
[7] As the record stands, subsections (c) (1)-(3), (d), and (e) of OCGA § 17-7-130 have not yet been applied to Carr, and we express no opinion on their constitutionality.
[8] Carr raises his due process claim under both the United States and Georgia Constitutions,
which both guarantee a person’s right not to “be deprived of life, liberty, or property” without “due
process of law.” U. S. Const. amend. XIV; Ga. Const. of 1983, Art. I, Sec. I, Par. I. We have
addressed due process claims raised under either Constitution in the same way. See, e.g., Women’s
Surgical Center, LLC v. Berry,
[9] This opinion addresses only defendants like Carr, who are on pretrial bond and face
detention solely due to a finding of mental incompetence to stand trial. The constitutional analysis
may well be different for defendants found incompetent who are already detained before trial
because, for example, they were denied bond or had their bond revoked, were already serving a
criminal sentence, or were committed civilly. Compare Vitek v. Jones,
[10] The Court also held that the Indiana statute violated Jackson’s right to equal protection
because it “subject[ed] Jackson to a more lenient commitment standard and to a more stringent
standard of release than those generally applicable to all others not charged with [or convicted of
criminal] offenses.” Jackson,
[11] The 90-day time limit for evaluation first appeared in the version of OCGA § 17-7-130 enacted in 1977, five years after Jackson. See Ga. L. 1977, p. 1293. Before then, Georgia law simply provided that defendants found mentally incompetent to be tried were “to be delivered to the superintendent of the Milledgeville State Hospital, there to remain until discharged in the manner prescribed by law.” Code 1933, § 27-1502.
[12] If the evaluation shows that the defendant is mentally competent to stand trial, the statute specifies that the department “shall immediately report that determination and the reasons therefor to the court, and the court shall submit such determination” to the attorneys for the defendant and the State. OCGA § 17-7-130 (c) (1) (emphasis supplied). The department must also return the defendant, normally within 20 days, and the court must hold a bench trial on the defendant’s competency to stand trial within 45 days of receiving the evaluation or, if demanded, conduct a jury trial on competency within six months. See id. Also, if the department determines that the defendant has regained competency “at any time,” it must notify the court, and the same deadlines then apply; the court need not wait for a completed evaluation. See id. (d).
[13] At the time of Mink, the Oregon statute allowed the trial court, after finding a defendant
incompetent, to commit him to а state mental hospital or release him on supervision; if the defendant
was committed, the statute required the hospital to evaluate him within 60 days of admission and
report that evaluation to the court within 90 days of admission. See Mink,
[14] Jackson did not decide the “nature” issue. As mentioned above, Jackson’s due process
holding was “that 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.”
[16] We also note that although thе federal statute and more than ten states, including Georgia, mandate detention for a certain period to evaluate an incompetent defendant’s likelihood to regain competency, see Orihuela, supra, at 22, other states have concluded that such measures are not necessary in every case. Statutes in several states indicate that the evaluation of competency and likelihood of restoration should occur at the same time. See, e.g., W. Va. Code § 27-6A-3 (e) (“If at any point in the proceedings the defendant is found not competent to stand trial, the court of record shall at the same hearing, upon the evidence, make further findings as to whether or not there is a substantial likelihood that the defendant will attain competency within the next ensuing three months.”); 22 Okla. Stat. § 1175.5 (2) (requiring that the court or the jury determining a defendant’s competency also decide whether “the incompetency of the person [can] be corrected within a reasonable period of time”); Conn. Gen. Stat. § 54-56d (f) (“If the court finds that the defendant is not competent, the court shall also find whether there is a substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section.”). See also Ohio Rev. Code Ann. § 2945.38 (B) (1) (a) (allowing the court to order continuing evaluation of a defendant charged with a felony for up to four months only if the court is unable at the time of the competency hearing to determine if there is a substantial probability that the defendant will become competent to stand trial within one year); Or. Rev. Stat. § 161.365 (1) (explaining that “[i]f the court determines the assistance of a psychiatrist or psychologist would be helpful,” the court may order an examination conducted by a certified evaluator or may commit a defendant for up to 30 days for evaluation at a state mental hospital or similar facility).
[17] In this respect, although we will let the trial court decide in the first instance whether Carr’s individual circumstances justify confinement for evaluation, we note that in the report on which the trial court relied in finding Carr incompetent to stand trial, the department’s doctor concluded that “there is a strong probability that [Carr] would not be able to be restored to competency” and, further, that any attempts to restore competency should happen “in a community setting rather than in a psychiatric facility.”
[18] We encourage the General Assembly to amend OCGA § 17-7-130 (c) to incorporate these constitutional requirements, so that those reading that statutory provision in the Georgia Code will not be misled as to its constitutional application.
[19] The record does not show Carr’s status after he filed his application for interlocutory appeal more than 11 months ago. We note that although the application did not act as supersedeas of the trial court’s order, it appears that Carr’s notice of appeal filed last August 11 should have done so. See OCGA § 5-6-34 (b) (explaining that after an application for interlocutory appeal is granted, the applicant may file a notice of appeal as provided in OCGA § 5-6-37, which acts as a supersedeas). See also OCGA § 5-6-45 (“In all criminal cases, the notice of appeal filed as provided