People ex rel. A.C.E-D.

          Jefferson County District Court Nos. 13JD285 & 13JD424 Honorable Ann Gail Meinster, Judge

          Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Law Office of Diana M. Richett, Diana M. Richett, Lakewood, Colorado, for Juvenile-Appellant

          OPINION

          WEBB, JUDGE

         ¶ 1 Is the previous iteration of the competency statute for juveniles, section 19-2-1301(2), C.R.S. 2015, facially unconstitutional or unconstitutional as applied because it incorporated the definition of "incompetent to proceed" for adults in criminal proceedings set out in section 16-8.5-101(11), C.R.S. 2015? The juvenile, A.C.E-D., raised this novel question in seeking dismissal of the misdemeanor theft and harassment charges against him, asserting these statutes did not allow the court to consider A.C.E-D.'s age and maturity. The trial court rejected his constitutional arguments, found him competent to proceed, and convicted him of both charges, resulting in his adjudication and sentencing.

         ¶ 2 On appeal, A.C.E-D. challenges the adjudication on the same constitutional grounds. Alternatively, he asserts that the juvenile court abused its discretion in finding him competent. He also asserts evidentiary error in authenticating Facebook messages that supposedly constituted harassment and a one-year discrepancy between the dates of those messages as charged in the amended petition and as proven. The Attorney General concedes preservation of the constitutional and evidentiary contentions.

          ¶ 3 We affirm.

         I. Background

         ¶ 4 Following a complaint of shoplifting, police officers contacted A.C.E-D. He confessed, led them to the merchandise, and was charged with misdemeanor theft. In a separate case, A.C.E-D. was charged with misdemeanor harassment based on Facebook messages sent to his ex-girlfriend.

         ¶ 5 In both cases, A.C.E-D. pleaded guilty. But before sentencing, he moved to determine competency and later moved to withdraw his guilty pleas. Without addressing the pleas, the trial court ordered a competency evaluation. A psychologist evaluated A.C.E-D. and recorded his findings in a report. After receiving the psychologist's report, the court made a preliminary finding of competency. Then A.C.E-D. requested a competency hearing.

         ¶ 6 Before that hearing was held, A.C.E-D. moved to dismiss the charges based on a facial constitutional challenge to the juvenile competency statute. The court denied the facial challenge. At the competency hearing, the court also rejected an as-applied challenge and found A.C.E-D. competent to proceed based on the psychologist's testimony and his report.

         ¶ 7 Still, the court allowed A.C.E-D. to withdraw his guilty pleas and conducted a bench trial. The court found A.C.E-D. guilty of the charges and adjudicated him a juvenile delinquent.

         II. The Juvenile Competency Statute Is Constitutional

         A. Standard of Review

         ¶ 8 Constitutional challenges are reviewed de novo. Coffman v. Williamson, 2015 CO 35, ¶ 13. Because a statute is presumed constitutional, the party challenging it must prove unconstitutionality beyond a reasonable doubt. Anderson v. Colo. Dep't of Pers., 756 P.2d 969, 975 (Colo. 1988). A successful facial challenge must show that "the law is unconstitutional in all its applications." Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

         ¶ 9 An as-applied constitutional challenge succeeds if the statute is unconstitutional "under the circumstances in which the [plaintiff] has acted or proposes to act." Developmental Pathways v. Ritter, 178 P.3d 524, 534 (Colo. 2008) (quoting Sanger v. Dennis, 148 P.3d 404, 410 (Colo.App. 2006)). Unlike a successful challenge to facial validity, the result of "holding a statute unconstitutional as applied is to prevent its future application in a similar context, but not to render it utterly inoperative." Id. (quoting Sanger, 148 P.3d at 410).

         B. Law

         ¶ 10 Under the Children's Code, a juvenile "shall not be tried or sentenced if the juvenile is incompetent to proceed, as defined in section 16-8.5-101(11), C.R.S ....." § 19-2-1301(2). Under that statute,

"[i]ncompetent to proceed" means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

§ 16-8.5-101(11).

         ¶ 11 The party asserting the juvenile's incompetence bears the burden of submitting evidence, and bears the burden of persuasion by a preponderance of the evidence. § 19-2-1302(2).

         C. Application

         1. Facial Challenge

         ¶ 12 A.C.E-D. makes three arguments why section 19-2-1301(2) is facially invalid: using the adult incompetency standard for juveniles violates their right to due process; the statute's requirement limiting juvenile incompetency to a finding of a mental or developmental disability is inconsistent with the test in Dusky v. United States, 362 U.S. 402, 402 (1960); and the statute violates due process because it places the burdens of submitting evidence and persuasion on juveniles. We address, and reject, each argument in turn.

         ¶ 13 A.C.E-D. first argues that because the United States Constitution offers greater protections to juveniles in some circumstances, an incompetency standard that applies equally to both juveniles and adults is unconstitutional. But A.C.E-D. does not cite, nor are we aware of, any Supreme Court or Colorado authority requiring different competency standards for juveniles.

         ¶ 14 Instead, A.C.E-D. cites to Supreme Court cases applying the Eighth Amendment to juveniles. But these cases are uninformative because they did not address juveniles' competency to stand trial. Rather, they addressed the constitutionality of executing a defendant for a homicide committed as a juvenile or sentencing a juvenile to life in prison without the possibility of parole. See Miller v. Alabama, 567 U.S. 460, 479 (2012) (mandatory sentence of life without the possibility of parole); Roper v. Simmons, 543 U.S. 551, 578 (2005) (death penalty).

         ¶ 15 In both cases, the Court recognized important differences between children and adults: children have a diminished sense of responsibility, are more vulnerable to peer pressure, and have greater prospects for reform. See Miller, 567 U.S. at 471-74; Roper, 543 U.S. at 569-70. While these differences are reasons for sparing juveniles from the harshest of criminal punishments, they do not address juveniles' ability to assist their attorneys or comprehend the meaning of an adjudication proceeding. A.C.E-D. admits as much in his reply brief, conceding that he is not suggesting the Eighth Amendment applies to juvenile competency evaluations. And in any event, the trial of an incompetent defendant involves the Due Process Clause of the Fourteenth Amendment. Pate v. Robinson, 383 U.S. 375, 378 (1966); accord People v. Zapotocky, 869 P.2d 1234, 1237 (Colo. 1994). Unsurprisingly, A.C.E-D. next argues that the statute violates the due process rights of juveniles.

         ¶ 16 In some circumstances, especially police interrogations and the waiver of certain rights, courts have considered youth and all its associated circumstances when deciding due process requirements. See, e.g., Gallegos v. Colorado, 370 U.S. 49, 55 (1962) (confessions to police); Haley v. Ohio, 332 U.S. 596, 600-01 (1948) (same); People in Interest of M.R.J., 633 P.2d 474, 476-77 (Colo. 1981) (same); People in Interest of J.F.C., 660 P.2d 7, 9 (Colo.App. 1982) (guilty pleas and waiver of right to trial). But A.C.E-D. does not explain why the factors that warrant special due process protections for juveniles under police interrogation or when waiving certain rights necessitate different competency standards for juveniles than for adults. Although juveniles may be more susceptible to police interrogation or an unwitting waiver of fundamental rights because of their age, inexperience, and intelligence, these factors do not necessarily show incapacity to assist counsel or to understand the nature of a juvenile adjudication. Indeed, the United States Supreme Court has held that juvenile adjudications do not need to conform with the due process requirements of a criminal trial. In re Application of Gault, 387 U.S. 1, 30 (1967). A juvenile adjudication, instead, requires "fundamental fairness." McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971).

         ¶ 17 Colorado and other jurisdictions recognize that juveniles have a fundamental right not to be tried while incompetent. People in Interest of W.P., 2013 CO 11, ¶ 37; accord Matter of W.A.F., 573 A.2d 1264, 1267 (D.C. 1990); In re K.G., 808 N.E.2d 631, 639 (Ind. 2004). And some states have gone further to consider factors unique to juveniles when making a competency determination. See In re Carey, 615 N.W.2d 742, 747-48 (Mich. Ct. App. 2000); accord In re J.M., 769 A.2d 656, 662 (Vt. 2001). But both Carey and J.M. involved states that had no statutory juvenile competency test and neither court held that due process requires a juvenile-specific test. See ...