Jefferson County District Court No. 12CR1487 Honorable Todd
L. Vriesman, Judge
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Ridley, McGreevy & Winocur, PC, Robert T. Fishman,
Denver, Colorado, for Defendant-Appellant
1 William Arthur Lindsey appeals the judgment of conviction
entered on jury verdicts finding him guilty of eight counts
of securities fraud and four counts of theft. We vacate and
remand the case for proceedings consistent with this opinion.
2 Over a thirteen-month period, Lindsey persuaded six
individuals to invest $3 million in new technology that would
allegedly use algae-based bioluminescent energy to light
signs and panels. Lindsey told his investors he had contracts
to sell his lighted signs and panels to the United States
Department of Defense, U-Haul, PetSmart, and the Super Bowl.
As it turns out, neither the technology nor the contracts
ever existed, and Lindsey allegedly spent the money on
repaying other investors and on personal expenses.
3 The People charged Lindsey with eight counts of securities
fraud and four counts of theft. After lengthy pretrial
proceedings that included multiple changes in Lindsey's
counsel, a jury convicted him as charged. The judge sentenced
Lindsey to twenty-four years in the Department of
4 Lindsey's primary contention is that the trial court
erred in refusing to order a competency evaluation where the
issue was raised by his counsel's motion before trial.
Because the trial court failed to follow the applicable
statutory procedure and the trial court is better positioned
to first determine if a retrospective competency
determination is feasible, we vacate the judgment and remand
for such a determination and for further proceedings based on
that threshold inquiry.
Applicable Law and Standard of Review
5 We review a trial court's determination of a
defendant's competency for an abuse of discretion.
People in Interest of W.P., 2013 CO 11, ¶ 10. A
trial court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, id.,
or it misapplies the law, People v. Garrison, 2017
COA 107, ¶ 30. Whether the court should have ordered a
competency evaluation is a question of law we review de novo.
See W.P., ¶ 10.
6 The People's primary argument on appeal is that the
standard to determine competency is whether the judge has a
"reason to believe" the defendant is incompetent.
Lindsey responds that the applicable statute provides
different ways to raise competency - under section
16-8.5-102(2)(a), C.R.S. 2017, the judge may raise competency
if he has reason to believe the defendant is incompetent,
or under section 16-8.5-102(2)(b), the defense or
prosecution, having reason to believe the defendant is
incompetent, may raise competency. The plain language of
section 16-8.5-102(2)(b) does not require that the judge have
a reason to believe the defendant is incompetent. See
People v. Nagi, 2014 COA 12, ¶¶ 9, 14 (using
"reason to believe" as the applicable standard in a
case where the judge raised the issue of the defendant's
competency after the defendant chose to proceed pro se),
aff'd, 2017 CO 12. But, as discussed below - and
as the prosecution conceded at trial - the motion the People
now challenge on appeal was facially valid and raised
7 A defendant is incompetent to proceed if, "as a result
of a mental disability or developmental disability," he
lacks "sufficient present ability to consult with [his]
lawyer with a reasonable degree of rational understanding in
order to assist in the defense, or . . . does not have a
rational and factual understanding of the criminal
proceedings." § 16-8.5-101(11), C.R.S. 2017.
8 When the question of a defendant's competency is
raised, the court makes a preliminary finding of competency.
§ 16-8.5-103(1), C.R.S. 2017. The preliminary finding
becomes a final determination unless a party objects within
fourteen days. Id. If the court lacks the
information necessary to make a preliminary finding of
competency or incompetency, or if either party objects to the
court's preliminary finding, the court must order a
competency evaluation. § 16-8.5-103(2); W.P.,
¶ 16 (discussing the 2008 statutory amendments that now
"mandate that a court order a competency evaluation
upon either party's timely objection to its preliminary
finding of competency or incompetency").
9 The attorney who ultimately represented Lindsey at trial,
David G. Tyler, entered his appearance in the case in May
2014, just days before Lindsey's trial setting. The court
granted Tyler a continuance to allow him time to prepare. At
the end of the continuation period, Tyler filed a motion to
withdraw, which the court denied. With Lindsey's trial
set to start on April 20, Tyler filed the competency motion
at issue on April 16, 2015.
10 The motion alleged that Lindsey displayed
"irrational" behavior and that Lindsey was unable
to appreciate the nature and consequences of the trial and
could not assist Tyler in defending him. Tyler later added
that on numerous occasions
I have repeatedly been assured with regard to this matter
about testimony, witnesses, the furnishing of new witnesses,
money for the hiring of experts, expert names, addresses,