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.
and Richman, JJ., concur.
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
[¶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 Corrections' custody.
[¶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., 295 P.3d
514, 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, 411 P.3d 270, 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., ¶
[¶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, 396 P.3d 60, 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, 389 P.3d 875, 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 Lindsey's competency.
[¶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