State of Utah v. Mitchell Edward Wolf

¶1 Mitchell 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

State v. Wolf

2. In reviewing the trial court's refusal to order a full competency

hearing and its sentencing decision, "we recite the facts in a light

most favorable to the trial court's findings.” Interwest Constr. v.

Palmer, 923 P.2d 1350, 1352 (Utah 1996).

20110726-CA 2 2014 UT App 18

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.

BACKGROUND2

Wolf's Threats

¶2 Wolf and B.W. met in 1980 and began an "off and on”

relationship. They moved in together and in 1990 had a child. Since

2000, B.W. has been employed at a kitchen equipment supply

company.

¶3 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

Wolf's 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 B.W. 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 co-workers

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.

State v. Wolf

20110726-CA 3 2014 UT App 18

¶4 Wolf's calls to B.W. began to follow a pattern. Each time he

called, he said, "[T]hree 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, "[Y]ou know what I'm going to do.” Wolf

made other statements that left B.W. with "serious concerns” for

their daughter's safety.

¶5 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 B.W. and made a threatening

statement in reference to Co-worker's son. In the following months,

Co-worker received numerous silent phone calls he believed were

from Wolf. Finally Co-worker obtained a stalking injunction

against Wolf. Wolf was not served with the injunction, however,

and the calls continued.

¶6 In one telephone conversation, Co-worker testified, Wolf

threatened Co-worker's family and other employees. According 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 scoped 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] carry out his

plan.”

Wolf's Trial

¶7 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 shoot 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

State v. Wolf

20110726-CA 4 2014 UT App 18

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:

[W]e 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 hospital]. He

had ER surgery. . . . [W]e 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.

Wolf's attorney sought a continuance but assured the court that he

would not be moving for a mistrial. While acknowledging that

defendants who are voluntarily absent can be tried in absentia,

Wolf's attorney stated that he believed he "could bring in

psychologists who would say that [Wolf shooting himself in the

stomach] showed he had gone to a level that . . . with his mental

illness . . . [his absence] isn't truly a voluntary absence.”

¶9 The State opposed a continuance, insisting that "this is

[Wolf's] pattern, this is what he does.” On "at least two prior

occasions,” the prosecutor said, "right in anticipation 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

State v. Wolf

20110726-CA 5 2014 UT App 18

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, "[T]he most likely scenario

is . . . that he's voluntarily absented himself and we can go

forward.” Wolf's attorney asked the court to reconsider continuing

trial to enable Wolf to receive a psychological evaluation. He also

specifically raised the issue of competency:

[S]omeone 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, "[W]e 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.

¶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 . . . .

State v. Wolf

3. See Utah Code Ann. § 76-5-106.5 (LexisNexis 2008) (stalking); id.

§ 76-5-107.3 (terroristic threat); id. § 76-9-201 (electronic

communication harrassment).

4. 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, 2007 UT 2, ¶¶ 7–9,

22–23, 151 P.3d 962. We grant the motion and strike Wolf's reply

brief.

20110726-CA 6 2014 UT App 18

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.”

¶12 The jury found Wolf guilty of electronic communication

harassment, making a terroristic threat, and two counts of stalking

(one a felony, the other a misdemeanor).3 On appeal, Wolf claims

the trial court erred in declining to hold a competency hearing, in

proceeding with the second day of trial in Wolf's absence, and in

sentencing Wolf based on his felony stalking offense instead of his

harassment offense.4

ISSUES AND STANDARDS OF REVIEW

¶13 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, 945

P.2d 665, 667 (Utah 1997). "The proper interpretation of the

statutory standard for competency is a question of law.” State v.

Robertson, 932 P.2d 1219, 1223 (Utah 1997) (citing State v. Lafferty,

749 P.2d 1239, 1243 (Utah 1988)), overruled on other grounds by State

State v. Wolf

20110726-CA 7 2014 UT App 18

v. Weeks, 2002 UT 98, 61 P.3d 1000. Challenges centered on factual

findings regarding competency, however, are "subject to a clearly

erroneous standard of review.” Woodland, 945 P.2d at 667.

¶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., 2003 UT 51, ¶ 131, 82 P.3d 1076.

¶15 Finally, Wolf contends that the trial court erred in failing to

amend his conviction under State v. Shondel, 453 P.2d 146 (Utah

1969). "Our review under the Shondel rule focuses on the trial

court's legal conclusions, which we review under a correction-oferror

standard, according no particular deference to the trial court's

ruling.” State v. Kent, 945 P.2d 145, 146 (Utah Ct. App. 1997).

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

circumstances presented to and known by the trial court regarding

Wolf's 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, Wolf 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.

State v. Wolf

20110726-CA 8 2014 UT App 18

¶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 [Wolf's]

competency on the second day of trial.” Therefore, "the trial court

did not err in denying [Wolf] a competency hearing.”

¶18 "[T]he 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, 420 U.S. 162, 172 (1975) (citing Pate v. Robinson,

383 U.S. 375, 385 (1966)); accord State v. Arguelles, 2003 UT 1,

¶¶ 47–48, 63 P.3d 731. To protect that due process right, Utah law

mandates that "[n]o person who is incompetent to proceed shall be

tried for a public offense.” Utah Code Ann. § 77-15-1 (LexisNexis

2008).

¶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, 362 U.S. 402, 402 (1960);

accord State v. Holland, 921 P.2d 430, 433 (Utah 1996). However,

"'[t]he fact that a person is mentally ill, displays bizarre, volatile,

and irrational behavior, or has a history of mental illness, does not

mean that he or she is incompetent to stand trial. A defendant may

be fit for trial even though his mind is otherwise unsound.'” Jacobs

v. State, 2001 UT 17, ¶ 16, 20 P.3d 382 (quoting 21 Am. Jur. 2d

Criminal Law § 97 (1998)).

¶20 A court "may raise the issue of the defendant's competency

at any time.” Utah Code Ann. § 77-15-4 (LexisNexis 2008); see also

State v. Wolf

5. 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

(continued...)

20110726-CA 9 2014 UT App 18

State v. Bailey, 712 P.2d 281, 285 (Utah 1985). Defense counsel may

also raise the issue of the defendant's competency by filing a

competency petition. A competency petition must state that the

petition "is filed in good faith and on reasonable grounds to believe

the defendant is incompetent to proceed” and contain "a recital of

the facts, observations, and conversations with the defendant that

have formed the basis for the petition.” Utah Code Ann. § 77-15-3

(LexisNexis 2008). A competency petition may also be filed by "the

party alleged incompetent to proceed, any person acting on his

behalf, the prosecuting attorney, or any person having custody or

supervision over the person.” Id.; see also Arguelles, 2003 UT 1, ¶ 49

(same).

¶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, 383 U.S. at 385. But cf.

Bailey, 712 P.2d at 285 (applying an earlier version of Utah's

competency statute, which made a competency hearing

"mandatory . . . [upon] the filing of a petition” (emphasis added)).5

State v. Wolf

5. (...continued)

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).

20110726-CA 10 2014 UT App 18

¶22 A bona fide doubt as to a defendant's competency "is a

lesser standard than a preponderance of the evidence.” United

States v. Grist, 299 F. App'x 770, 778 (10th Cir. 2008); see also

McGregor v. Gibson, 248 F.3d 946, 954 (10th Cir. 2001) ("To prevail

on a procedural competency claim petitioner need not establish

facts sufficient to show he was actually incompetent or show he

was incompetent by a preponderance of the evidence.”). A

defendant "establishes a bona fide doubt if he shows that a

reasonable judge should have doubted” whether the defendant

"had 'sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding'” or "had 'a rational

as well as factual understanding of the proceedings against him.'”

McGregor, 248 F.3d at 954 (quoting Dusky, 362 U.S. at 402).

"'[E]vidence of a defendant's irrational behavior, his demeanor at

trial, and any prior medical opinion on competence to stand trial

are all relevant' to the bona fide doubt inquiry.” Walker v. Attorney

General of Okla., 167 F.3d 1339, 1346 (10th Cir. 1999) (quoting Drope,

420 U.S. at 180). "Other relevant factors include evidence of mental

illness and any representations of defense counsel about the

defendant's incompetence.” McGregor, 248 F.3d at 954 (citation and

internal quotation marks omitted).

¶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.

State v. Wolf

6. 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 assert that the trial court applied an incorrect

standard, we do not consider whether the court erred in this

regard.

20110726-CA 11 2014 UT App 18

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 as to his competency and was therefore entitled

to a full competency hearing.6

¶24 The United States Supreme Court's decision in Drope v.

Missouri controls. 420 U.S. 162 (1975). Drope was charged with rape

of his wife. Id. at 164. As the parties prepared for trial, Drope's

attorney obtained a continuance to allow Drope to "be examined

and receive psychiatric treatment.” Id. Drope's attorney later

represented that Drope was "not a person of sound mind” and

needed further psychiatric examination before trial. Id. at 165. The

trial court denied further examination and the case proceeded to

trial. Id. At trial, Drope's wife testified about Drope's psychiatric

health. Early in the case she had believed that Drope "was sick and

needed psychiatric care.” Id. at 166. But "she also stated that she

was not convinced [Drope] was sick after talking to his

psychiatrist,” and she testified that Drope had tried to choke and

kill her shortly before trial. Id.

¶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. The

Missouri Supreme Court affirmed. Id. at 168.

State v. Wolf

20110726-CA 12 2014 UT App 18

¶26 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. The lower

courts had uniformly held that Drope never "acted in a manner

that would cause the trial court to doubt his competence.” Id. at

178. In fact, at sentencing the court concluded that Drope's suicide

attempt implied competence: "the 'fact that Mr. Drope shot himself

to avoid trial suggests very strongly an awareness of what was

going on.'” Id. at 178–79.

¶27 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. . . . [W]hen considered

together with the information available prior to trial

and the testimony of [Drope's] wife at trial, the

information concerning [Drope's] suicide attempt

created a sufficient doubt of his competence to stand

trial to require further inquiry on the question.

Id. at 179–80. The Court made several observations relevant here.

First, "[e]ven when a defendant is competent at the commencement

of trial, a trial court must always be alert to circumstances

suggesting a change that would render the accused unable to meet

the standards of competence to stand trial.” Id. at 181. Second,

"[w]hatever the relationship between mental illness and

incompetence to stand trial, in [Drope's] case the bearing of the

former on the latter was sufficiently likely that, in light of the

evidence of petitioner's behavior including his suicide attempt, and

there being no opportunity without his presence to evaluate that

bearing in fact, the correct course was to suspend the trial until

such an evaluation could be made.” Id. Third, the fact that a stay to

determine competency might "abort[] the trial is a hard reality,

but . . . such a result might have been avoided by prompt

State v. Wolf

20110726-CA 13 2014 UT App 18

psychiatric examination before trial, when it was sought by

petitioner.” Id. at 181–82.

¶28 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 that Wolf

had shot himself in the stomach, that medical personnel were

working to stabilize him, and that the hospital expected to treat

Wolf for approximately six days before transferring him to another

hospital for psychiatric observation. Wolf's attorney then told the

court about a conversation he had with Wolf the day before:

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. . . . [T]he most likely scenario . . . 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 a] suicide

attempt is more akin to a general medical emergency[,] . . . and as

State v. Wolf

20110726-CA 14 2014 UT App 18

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.”

¶29 After lunch, Wolf's attorney again raised the question of

competency and filed a hastily prepared petition. He stated that he

had "reviewed Mr. Wolf's mental health records 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.

¶30 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 non-compliance.” 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 Wolf's

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:

[B]ased 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

penalties . . . 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 . . . .

State v. Wolf

7. 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,

(continued...)

20110726-CA 15 2014 UT App 18

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 when the trial court considered his

competency for the final time, leaving the court with no

opportunity to assess in person the relationship between Wolf's

mental illness and his competency to stand trial. See Drope v.

Missouri, 420 U.S. 162, 181 (1975). The competency petition also

cited Wolf's "long and extensive history of treatment for bipolar

disorder” and his "long history of suicidal ideation and attempt.”

According to the petition, a Wyoming court found Wolf

incompetent in a separate 2009 case. And Wolf's attorney, who "is

in the best position to determine whether the defendant's

competency is suspect,” see Watts v. Singletary, 87 F.3d 1282, 1288

(11th Cir. 1996), averred that Wolf was unable to "comprehend and

appreciate the charges . . . against him,” "engage in reasoned choice

of legal strategies and options,” or "disclose to counsel pertinent

facts, events, and states of mind.”

¶32 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 "require[d] further

inquiry.” See Drope, 420 U.S. at 180; see also Utah Code Ann. § 77-15-

5 (LexisNexis 2008). Accordingly, the requirements of the

competency statute were not satisfied.7

State v. Wolf

7. (...continued)

Taylor v. State, involved a claim of ineffective assistance of counsel.

2007 UT 12, ¶¶ 90–96, 156 P.3d 739. One who asserts such a claim

bears the burden of proving prejudice, that is, that "counsel's errors

were so serious as to deprive the defendant of a fair trial.” See

Strickland v. Washington, 466 U.S. 668, 687 (1984). Wolf is not

asserting ineffective assistance of counsel here. The other cases

cited by the State, State v. Lafferty and State v. Robertson, involved

procedural missteps that did not affect the defendants' substantial

rights. State v. Lafferty, 2001 UT 19, ¶ 35, 20 P.3d 342 (holding that

the trial court erred by conducting a competency hearing too soon

after receiving psychiatrists' reports); State v. Robertson, 932 P.2d

1219, 1226–27 (Utah 1997) (holding that the trial court erred by not

granting a formal stay while competency proceedings were

pending), overruling recognized by State v. Maestas, 2012 UT 46, 299

P.3d 892. Where a defendant was denied a competency hearing

altogether, controlling cases have not required a showing of

prejudice. See, e.g., Drope v. Missouri, 420 U.S. 162, 178–82 (1975);

Pate v. Robinson, 383 U.S. 375, 384–86 (1966).

20110726-CA 16 2014 UT App 18

¶33 Where a defendant is tried notwithstanding having

established a bona fide doubt as to competency, the proper remedy

is to vacate the conviction. See Maxwell v. Roe, 606 F.3d 561, 576–77

(9th Cir. 2010) (reversing the district court's habeas corpus denial

when "the state trial and appellate courts unreasonably determined

[the defendant] was not entitled to a competency hearing”); United

States v. Giron-Reyes, 234 F.3d 78, 83 (1st Cir. 2000) (vacating a

defendant's conviction because the court was "not confident that

[the defendant's] substantive rights were unaffected” by the trial

court's failure to determine his competency); United States v.

Nevarez-Castro, 120 F.3d 190, 192 (9th Cir. 1997) (vacating a

defendant's conviction when "the district court erred in denying

[his] request for a competency hearing”); United States v. Purnett,

910 F.2d 51, 56 (2d Cir. 1990) (reversing a defendant's conviction

when trial court "allowed [the defendant] to proceed without

counsel at pretrial proceedings when his competency was at

State v. Wolf

20110726-CA 17 2014 UT App 18

issue”). We therefore vacate Wolf's convictions and remand for

further proceedings consistent with this opinion.

¶34 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

before it, adequately determine whether [the defendant] was

competent three years earlier.” 921 P.2d 430, 435 (Utah 1996).

Invoking the rationale of "Dusky and its progeny,” the court held

that when a defendant's past competency is at issue, "the trial court

must hold a hearing to determine the defendant's present

competency.” Id. (citing Dusky v. United States, 362 U.S. 402, 403

(1960)); accord Drope, 420 U.S. at 183 (holding that retrospective

competency hearings present "inherent difficulties” even "under

the most favorable circumstances”); Pate v. Robinson, 383 U.S. 375,

387 (1966) (reasoning that retrospective competency hearings do

not allow the jury "to observe the subject of their inquiry” and

force expert witnesses "to testify solely from information contained

in the printed record”); Dusky, 362 U.S. at 403 (acknowledging the

"difficulties of retrospectively determining” a defendant's

competency). The bar on retrospective competency hearings

articulated in Dusky and Holland applies here. The State may retry

Wolf, but only if "at the time of such trial he is competent to be

tried.” See Drope, 420 U.S. at 183 (emphasis added).

II. Shondel

¶35 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,

453 P.2d 146 (Utah 1969), and because the Shondel issue is

"necessary to the final determination of the case” if Wolf is retried,

see Utah R. App. P. 30(a), we exercise our discretion to address that

issue on appeal "for purposes of providing guidance on remand.”

State v. Wolf

20110726-CA 18 2014 UT App 18

See State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867; accord State v. James,

819 P.2d 781, 795 (Utah 1991).

¶36 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

"[t]he crimes 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.

¶37 "Equal protection of the law guarantees like treatment of all

those [defendants] who are similarly situated.” State v. Bryan, 709

P.2d 257, 263 (Utah 1985). Therefore, "where there is doubt or

uncertainty as to which of two punishments is applicable to an

offense an accused is entitled to the benefit of the lesser.” Shondel,

453 P.2d at 148; see also State v. Williams, 2007 UT 98, ¶ 8, 175 P.3d

1029. But the Shondel doctrine applies only when the "two statutes

are wholly duplicative as to the elements of the crime.” Bryan, 709

P.2d at 263. When analyzing statutes under Shondel, the critical

question is "whether the two statutes at issue proscribe exactly the

same conduct, i.e., do they contain the same elements?” State v.

Gomez, 722 P.2d 747, 749 (Utah 1986); see also State v. Kent, 945 P.2d

145, 147 (Utah Ct. App. 1997).

¶38 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

State v. Wolf

20110726-CA 19 2014 UT App 18

(2) . . . intentionally or knowingly engages in a course

of conduct directed at a specific 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. § 76-5-106.5(7), (7)(e).

¶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, 709 P.2d at 263, nor do

they "contain the same elements,” Gomez, 722 P.2d at 749.

Accordingly, Wolf's sentence did not run afoul of Shondel.

¶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 wholly duplicative,

and therefore the trial court did not err in sentencing Wolf.