{1 Mitсhell Edward Wolf stood trial for charges that he stalked and threatened his long-time partner and one of her co-workers. Late at night after the first day of trial, Wolf shot himself in the stomach. When he did not appear in court the next morning, the trial court completed the trial in Wolf's absence. The jury convicted Wolf on all charges. Wolf appeals. We hold that because Wolf's trial counsel raised a bona fide doubt as to Wolf's competency to stand trial, the trial court was required to order a full hearing into Wolf's competency. We vacate Wolf's convictions and remand for further proceedings.
BACKGROUND
Wolf's Threats
{2 Wolf and B.W. met in 1980 and began an "off and on" relationship. They moved in
T3 Wolf and B.W.'s relationship ended in early 2007. According to B.W.'s trial testimony, in a series of phone calls over the following two years, Wolf made threats against B.W., their daughter K.W., and several of B.W.'s co-workers. In April 2008 Wolf called B.W. at work and demanded that she sell her house and quit her job or "all [her] dirty little secrets ... were going to be revealed by 10:00 the next morning." In September 2008, one of Wolfs friends warned B.W. that if she refused to return Wolf's calls, Wolf would "go out in the desert and ... kill himself" and implicate B.W. in his death. When BW. called Wolf and insisted that their relationship was over, Wolf ended the call by saying, "I could be [at your workplace] right now." B.W. and her coworkers then began receiving numerous "prank calls" from someone they believed was Wolf. For a period of about six months, B.W. and her co-workers received approximately twenty phone calls each day in which the caller would either hang up or remain silent.
{4 Wolfs calls to B.W. began to follow a pattern. Each time he called, he said, "[Three things, three things bitch." B.W. testified that the "three things" were quitting her job, selling her house, and giving Wolf his things back. B.W. usually hung up the phone. During one call, though, B.W. asked Wolf, "What are you going to do?" Wolf responded, "[Ylou know what I'm going to do." Wolf made other statements that left B.W. with "serious concerns" for their daughter's safety.
T5 One of B.W.'s co-workers (Co-worker) testified that he received a voicemail from Wolf that accused him of having an "improper relationship" with BW. and made a threatening statement in reference to Coworker's son. In the following months, Coworker received numerous silent phone calls he believed were from Wolf. Finally Coworker obtained a stalking injunction against Wolf. Wolf was not served with the injunetion, however, and the calls continued.
T6 In one telephone conversation, Coworker testified, Wolf threatened Co-worker's family and other employees. Accоrding to Co-worker, Wolf said he had "purchased weapons," that he knew how to make an explosive, and that he had rented a room at a hotel near Co-worker's workplace. Co-worker also stated that Wolf had said "he'd seoped out the homes" of other employees, had threatened that "innocents [would] be hurt," and had stated that "when the pain [got] to be too much, he [would] earry out his plan."
Wolf's Trial
T7 Wolf was charged with two counts of making terroristic threats and two counts of stalking. Wolf attended the first day of trial but did not take the stand; he planned to testify the next day. Between midnight and 1:00 a.m. that night, Wolf called 911, identified himself, "stated that he was going to shoоt himself in the stomach, [and] indicated he was being accused of doing things he had not done." Police officers found him in a parked car with a handgun and a box of ammunition. He had, in fact, shot himself in the stomach.
[ 8 In court the next morning, Wolf's attorney attempted to explain the situation to the judge:
[Wle have been able to confirm that [police] were involved in a self-inflicted shooting last night at approximately one a.m. Mr. Wolf shot himself in the stomach. He was transported to [a local hospitall. He had ER surgery.... [We were told by his friend ... that they stabilized him.... I was told that he is expected to be there approximately six days [and then] they will take him up to the VA Hospital and keep him on psychiatric observation. I've been told but not confirmed that they will keep him for 30 days there.
Wolfs attorney sought a continuance but assured the court that he would not be moving
19 The State opposed a continuance, insisting that "this is [Wolfs] pattern, this is what he does." On "at least two prior occasions," the prosecutor said, "right in anticiрation of court and immediately previous to an upcoming court date, [Wolf] would do something in a similar manner, would get involuntarily admitted into a mental institution." The prosecutor characterized Wolf's self-inflicted injury as "just another one of those voluntary delay tactics."
' 10 Before the lunch recess, the trial court stated that it needed to confirm whether Wolf shot himself and that "if it was self-inflicted" it was the court's "determination that [it would] proceed with trial." Based on the upsetting nature of the previous day's proceedings, the court concluded, "[TJhe most likely scenario is ... that he's voluntarily absented himself and we can go forward." Wolf's attorney asked the сourt to reconsider continuing trial to enable Wolf to receive a psychological evaluation. He also specifically raised the issue of competency:
[Slomeone who ... attempts to commit suicide has indications that he's not competent to proceed.... [Competency is] an issue that can be raised at any time if it becomes apparent [that a defendant's competency is in question,] and at this time I believe ... that [Wolf's] competency is clearly in question and I would ask [that the court] continue this trial so that we can get him properly evaluated for competency.
The court denied the request for a continuance, stating, "[Wle are going to proceed today with the trial in absentia.... Mr. Wolf's threat to take his own life has been persistent throughout all of these proceedings.... This appears to be nothing more than a tactic for delay." The proceedings continued without Wolf, and the court did not explain to the jury why he was absent.
1 11 After the lunch recess, Wolf's attorney again raised the issue of competency:
I went back and reviewed Mr. Wolf's mental health records as well as the docket of this case before I was counsel. There [had] been a petition for competency ... raised [by Wolf's first attorney]. He then retained [his second attorney] who withdrew the petition. Looking through his medical history, I prepared a [second] petition and order for competency....
Wolf's attorney filed a brief competency petition. It closely resembled a competency petition the court had granted two years earlier, but it also included information related to Wolf's self-inflicted gunshot wound, which it characterized as a suicide attempt. When Wolf's attorney submitted the petition, the trial court said, "Well, I'm not sure what to say except it's a little too late since we're in the middle of a trial but the Court will receive it."
112 The jury found Wolf guilty of electronic communication harаssment, making a terroristic threat, and two counts of stalking (one a felony, the other a misdemeanor)
ISSUES AND STANDARDS OF REVIEW
118 Wolf first contends that the trial court erred when it declined to order a full competency hearing. A competency determination presents "a mixed question of fact and law." State v. Woodland,
1 14 Wolf next contends that the trial court erred by allowing his trial to continue in his absence "without making a meaningful determination [of whether] Wolf had voluntarily absented himself." Our resolution of the competency claim moots this claim. See Jensen v. IHC Hosps., Inc.,
115 Finally, Wolf contends that the trial court erred in failing to amend his conviction under State v. Shondel,
ANALYSIS
I. Competency
{16 Wolf contends that the trial court erred when it declined to order a full competency hearing. Wolf argues that the "facts and cireumstances presented to and known by the trial court regarding Wolfs mental health status, including a self-inflicted gunshot wound to the abdomen, raised a bona fide doubt as to Wolf's competency and demanded further inquiry." In addition to the self-inflicted gunshot wound, Wolf argues, the court had before it evidence of "Wolf's undisputed and extensive history of bipolar disorder, coupled with numerous psychiatric hospitalizations." On that evidence, Wоlf concludes, a trial court considering a competency petition faces "a statutory duty to order a competency hearing," and the trial court's denial of his petition violated his right to a fair trial.
{17 The State responds that "the only hearing a trial court is statutorily required to hold when a competency petition is opposed is a limited hearing solely to determine whether the petition raises a bona fide doubt as to the defendant's competency." The trial court held a limited hearing on the morning of the second day of trial, the State argues, and at that hearing "the totality of the circumstances ... failed to raise a bona fide doubt as to [Wolfs] competency on the see-ond day of trial." Therefore, "the trial court did not err in denying [Wolf] a competency hearing."
118 "[The failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial." Drope v. Missouri,
$19 A defendant qualifies as incompetent to proceed if his mental disorder renders him either (1) unable "to have a rational and factual understanding of the proceedings against him or of the punishment specified for the offense charged" or (2) unable "to consult with his counsel and to participate in the proceedings against him with a reasonable degree of rational understanding." Id. § 77-15-2; see Dusky v. United States,
21 Under the statute in effect at the time of trial, a court receiving a competency petition is required to follow certain steps. First, the court must stay proceedings. Utah Code Ann,. § 77-15-5(1) (LexisNexis 2008). Second, the court must "pass upon the sufficiency of the allegations of incompetency." Id. If a party opposes the petition, the court must "hold a limited hearing solely for the purpose of determining the sufficiency of the petition" before it grants or denies the petition. Id. Third, if the court finds that the petition raises "a bona fide doubt as to the defendant's competency to stand trial," the court must "enter an order for a [full] hearing on the mental condition of the person who is the subject of the petition." Id.; see also Pate,
122 A bona fide doubt as to a defendant's competency "is a lesser standard than a preponderance of the evidence." United States v. Grist,
€23 The State contends that by pausing trial proceedings, discussing the voluntariness of Wolf's absence, and briefly discussing Wolf's mental status, the trial court satisfied the statutory requirements for a stay of proceedings and a limited hearing to determine the sufficiency of the competency petition. Without accepting that characterization, we assume without deciding that the requirements for a stay and for a limited hearing were met here. We thus turn to the question of whether Wolf raised a bona fide doubt
124 The United States Supreme Court's decision in Drope v. Missouri controls.
1 25 When Drope did not appear the next morning, the trial court ordered trial to proceed without him. Id. Drope's attorney informed the court that Drope had shot himself that morning and moved for a mistrial. Id. The court denied the motion, stating that Drope had brought the situation on himself. Id. It also ruled that Drope had voluntarily absented himself from trial. Id. at 167,
126 The United States Supreme Court's analysis focused on "whether, in light of what was then known" to the trial court, "the failure to make further inquiry into petitioner's competence to stand trial ... denied him a fair trial." Id. at 174-75,
127 The Supreme Court disagreed. It held that the trial court's failure to conduct a competency hearing denied Drope a fair trial:
[T}he record reveals a failure to give proper weight to the information suggesting incompetence which came to light during trial.... [When considered together with the information available prior to trial and the testimony of [Drope's] wife at trial, the information concerning [Drope's]l suicide attempt created a sufficient doubt of his competence to stand trial to require further inquiry on the question.
Id. at 179-80,
128 We base our determination of whether Wolf's behavior raised a bona fide doubt as to his competency on the information before the trial court on the second day of trial. When Wolf failed to appear that morning, his attorney informed the court
After speaking with him last night about the tape [of a conversation between Wolf and his daughter], he did not want it played-and I think this may have triggered it, I think hearing how horrible he was being to his daughter I think triggered him. [The deputy district attorney] indicated that she noticed that he was staring off into the wall silently.
Wolf's attorney also told the court that Wolf "does legitimately suffer from ... mental health issues." After questioning Wolf's attorney and the deputy district attorney for several minutes, the trial judge announced,
[I]f [the gunshot] was self-inflicted it's my determination that we're going to proceed with trial.... [Tlhe most likely seenario . based upon his disposition and the difficulty that took place yesterday in terms of having to hear things ... that may be difficult to hear ... [is] that he's voluntarily absented himself and we can go forward.
Just before lunch, Wolf's attorney again raised the issue of Wolf's absence: "If I may, Your Honor, ... case law [indicates al suicide attempt is more akin to a general medical emergency[,] ... and as I was saying earlier, I believe we need to look into [Wolf's] competency." The trial court responded, "Well, this is a pattern that's been well established ... in terms of what Mr. Wolf does."
129 After lunch, Wolf's attorney again raised the question of competency and filed a hastily prepared petition. He stated that he had "reviewed Mr. Wolfs mental health ree-ords as well as the docket" and found Wolf's earlier competency petition, which Wolf had withdrawn before the court held a competency hearing. That petition, Wolf's attorney stated, contained a competency evaluation from a licensed social worker.
[ 80 The new petition mirrored the earlier one. It stated that Wolf "has a long and extensive history of treatment for bipolar disorder and has a history of medication noncompliance." The petition also stated that Wolf "engaged in a serious 'hunger strike'" in July 2009, that he had "a long history of suicidal ideation and attempt," and that he had "been found incompetent to proceed in matters in Wyoming in May, 2009 prior to transfer to Utah." Given Wolfs history of mental illness and his suicide attempt, the petition asserted, Wolf's "current competency to proceed is in question." In the petition, Wolf's attorney also presented his own evaluation of Wolf's competency:
[Blased upon my information of [Wolf], I believe he lacks the ability to: comprehend and appreciate the charges ... against him; disclose to counsel pertinent facts, events, and states of mind; comprehend and appreciate the range and nature of possible pеnalties ... that may be imposed in the proceedings against him; engage in a reasoned choice of legal strategies and options; understand the adversary nature of the proceedings against him; manifest appropriate Courtroom behavior; and testify relevantly ....
The court received the petition but stated that "it's a little too late since we're in the middle of a trial."
31 The information before the trial court raised a bona fide doubt as to Wolf's competency to stand trial. Like Drope, Wolf entered trial with a long history of mental illness. Like Drope, Wolf shot himself between the first and second days of trial. And like Drope, Wolf was absent whеn the trial court considered his competency for the final time, leaving the court with no opportunity to assess in person the relationship between Wolfs mental illness and his competency to stand trial. See Drope v. Missouri,
132 We hold that Wolf's history of mental illness, punctuated mid-trial with a possible suicide attempt and underscored by his attorney's assertions, raised a bona fide doubt as to Wolf's competency to stand trial and therefore "required] further inquiry." See Drope,
183 Where a defendant is tried notwithstanding having established a bona fide doubt as to competency, the proper remedy is to vacate the conviction. See Maszwell v. Roe,
134 We note that our supreme court-as well as the United States Supreme Court-has ruled that a defendant's competency cannot be retrospectively determined. In State v. Holland, our supreme court stated, "No matter how well-intentioned the effort, we fail to see how the trial court could, on the basis of the record befоre it, adequately determine whether [the defendant] was competent three years earlier."
II. Shondel
135 We base our decision to vacate Wolf's conviction on the trial court's failure to hold a competency hearing. But because the parties fully briefed and argued the application of State v. Shondel,
136 Wolf contends that under Shondel he "should have been sentenced for a class B misdemeanor under [Utah's] electronic communication harassment statute, rather than a third-degree felony under {[its] domestic violence stalking statute," because the two statutes are "nearly identical" and "the evidence from trial supports a conviction under either statute." The State responds that "[tlhe erimes of domestic violence stalking and electronic communications harassment do not criminalize exactly the same conduct" and that therefore the trial court properly sentenced Wolf under Utah's domestic violence stalking statute. The State is correct.
137 "Equal protection of the law guarantees like treatment of all those [defendants] who are similarly situated." State v. Bryan,
138 Utah's electronic communication harassment statute applies when a defendant "makes repeated contact" with the victim "by means of electronic communications" "with intent to annoy, alarm, intimidate, offend, abuse, threaten, harass, frighten, or disrupt the electronic communications of another." Utah Code Ann. § 76-9-201 (LexisNexis 2008). Utah's domestic violence stalking statute applies when a defendant
(2) ... intentionally or knowingly engages in a course of conduct directed at a speсific person and knows or should know that the course of conduct would cause a reasonable person:
(a) to fear for the person's own safety or the safety of a third person; or
(b) to suffer other emotional distress.
Id. § 76-5-106.5(2). Domestic violence stalking constitutes a third-degree felony if the offender "has been or is at the time of the offense a cohabitant" of the victim. Id. § T76-5-106.5(7), (7)(e).
T 39 Third-degree felony domestic violence stalking requires cohabitation between the defendant and the victim. Electronic communication harassment does not. Without delving more deeply into the statutory elements, we note that the domestic violence stalking statute's cohabitation requirement means that the two statutes are not "wholly duplicative," Bryan,
CONCLUSION
1 40 Wolf's history of mental illness and his possible suicide attempt raise a bona fide doubt as to his competency to stand trial. The trial court thus erred when it refused to order a full competency hearing. We therefore reverse Wolf's convictions and remand for further proceedings consistent with this opinion. Under Shondel, the domestic violence stalking statute and the electronic communications harassment statute are not whol
Notes
. In reviewing the trial court's refusal to order a
. See Utah Code Ann. § 76-5-106.5 (LexisNexis 2008) (stalking); id. § 76-5-107.3 (terroristic threat); id. § 76-9-201 (electronic communication harassment).
. At oral argument before this court, the State moved to strike Wolf's reply brief as irrelevant and scandalous. See Utah R.App. P. 24(k); Peters v. Pine Meadow Ranch Home Ass'n,
. Our legislature amended the competency statute in 2012. See Competency to Stand Trial Amendments, ch. 109, sec. 1, § 77-15-5(1)(b)i)-(v), 2012 Utah Laws 365, 365; Amendments Regarding Competency to Stand Trial, ch. 311, sec. 1, § 77-15-5(11), 2012 Utah Laws 1480, 1481. The 2012 amendments clarify the two-step competency inquiry, but the "bona fide doubt" standard in effect at the time of Wolf's trial survived the 2012 amendments. The statute now reads: 'The district court in which the [competency] petition is filed ... shall order an examination of the defendant and a hearing on the defendant's mental condition if the court finds that the allegations [contained in the petition] raise a bona fide doubt as to the defendant's competency to stand trial." Utah Code Ann. § 77-15-5(1)(b) (LexisNexis 2012).
. It is unclear from the record whether the trial court applied the correct statutory standard. The record does not reflect a finding that Wolf failed to raise a "bona fide doubt" as to his competency. See Utah Code Ann. § 77-15-5 (LexisNexis 2008). However, because Wolf does not аssert that the trial court applied an incorrect standard, we do not consider whether the court erred in this regard.
. The State argues that even if the trial court erred in failing to order a full competency hearing, that failure constitutes harmless error. The cases the State cites to support that proposition, however, differ substantially from the present case. One case, Taylor v. State, involved a claim of ineffective assistance of counsel.