State Of Washington, V. Alex Vevea

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two

August 9, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 55763-1-II

Appellant,

v.

ALEX CHARLES VEVEA, PUBLISHED OPINION

Respondent.

GLASGOW, C.J.—Alex Charles Vevea physically assaulted his mother and would not let

her leave the room for several hours. The State charged Vevea with kidnapping, assault, and

violation of a no contact order. The trial court found Vevea incompetent to stand trial and imposed

two 90-day periods of competency restoration.

When the State sought an additional 180-day restoration period, Vevea requested a jury

trial. During pretrial discovery, Vevea sought any treatment records from his previous restoration

commitments that the State’s expert relied on, but the State did not provide the requested records.

Vevea moved in limine to exclude testimony regarding treatment records that were not provided

to Vevea’s counsel. The trial court denied the motion, holding that the rules of civil procedure

applied to competency restoration proceedings and that defense counsel should have subpoenaed

the records. After trial, based on the jury’s verdicts, the trial court committed Vevea for a final

180-day restoration period. Vevea would have been released from this commitment in October

2021. *2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55763-1-II

On appeal, Vevea argues his competency hearing was a criminal proceeding subject to

criminal discovery rules, and the State was obligated to provide the requested treatment records

under CrR 4.7. The State now concedes that a competency restoration proceeding is a criminal

proceeding subject to CrR 4.7 but contends that this appeal is moot because Vevea’s restoration

period has expired.

We hold that even if we can no longer provide relief, the exception to mootness for a matter

of continuing and substantial public interest applies. We accept the State’s concession on appeal

and hold that competency restoration proceedings are subject to criminal discovery rules, including

CrR 4.7. Vevea does not seek further relief.

FACTS

Vevea was diagnosed with schizophrenia when he was 20 years old, and he has had a

history of involuntary commitments to receive mental health treatment. He was committed for

competency restoration on at least two prior occasions due to incompetency to stand trial for past

charges.

In 2020, Vevea lived with his mother, despite a no contact order prohibiting Vevea from

contacting her. In August 2020, Vevea’s mother was admitted to the hospital after Vevea assaulted

her, causing serious injuries, and kept her from escaping for several hours. Vevea was charged

with one count of first degree kidnapping, two counts of second degree assault, and one count of

violation of a no contact order.

A. Pretrial Competency Determination

Vevea’s attorney raised concerns about Vevea’s competency to stand trial due to his mental

health condition, and the trial court ordered an evaluation. Among other things, the evaluator *3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55763-1-II

considered Vevea’s mental health history, including his prior commitments and prior records from

the Office of Forensic Mental Health Services. The evaluator’s findings led the trial court to

conclude that Vevea lacked the capacity to “[a]ssist in [his] own defense as a result of mental

disease or defect.” Clerk’s Papers (CP) at 29. The trial court ordered the first 90-day restoration

period on September 9, 2020.

During the restoration period, Vevea “refuse[d] to take any psychiatric medications.” CP

at 35. The State petitioned for administration of involuntary medication because, according to

Vevea’s treating psychiatrist, medication had been shown to improve Vevea’s condition and help

restore competency in the past. The trial court granted the petition.

Following the conclusion of the first 90-day restoration period, the trial court found Vevea

was still incompetent to stand trial. However, psychiatric evaluations that considered in part

Vevea’s commitment history, showed there was a “substantial likelihood that additional

restoration will be successful.” CP at 82 (emphasis omitted). The trial court ordered a second 90-

day restoration period on December 21, 2020.

B. Competency Restoration Trial

Near the end of his second 90-day restoration period, Vevea requested a jury trial under

former RCW 10.77.086(3) and (4) (2019) to “determine whether [he] remained incompetent” and

whether additional restoration was warranted. CP at 85. To justify an additional 180-day

restoration period, the State had to prove that Vevea was either “a substantial danger to other

persons” or “presents a substantial likelihood of committing criminal acts jeopardizing public

safety or security” and that “there is a substantial probability that the defendant will regain

competency within a reasonable period of time.” Former RCW 10.77.086(4). *4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55763-1-II

Prior to the jury trial, Vevea asked the trial court to order the State to provide any and all

treatment records from his treatment facility that were created after the order for involuntary

medication and that the State’s evaluator relied on. The State did not produce the requested records.

Vevea then filed a motion in limine asking the trial court to limit testimony in the State’s

case to information that had been disclosed to the defense. The trial court reasoned that a

competency restoration trial was a civil trial and that Vevea’s counsel could have subpoenaed the

records under CR 26. The trial court concluded that the State was not obligated to produce the

records absent a subpoena, although the State would have been obligated to do so in a criminal

proceeding. Furthermore, the trial court reasoned that even if the criminal discovery rules did

apply, the State did not intend to offer the requested records at trial, regardless of whether the

State’s expert had relied on them. The trial court went forward with trial without requiring the

State to produce the requested records to Vevea.

Vevea then stipulated that he was “not competent to stand trial due to his inability to

understand the nature of the proceedings against him and to assist counsel in his defense as a result

of mental disease or defect.” CP at 140. On April 27, 2021, a jury found that Vevea was “a

substantial danger to other persons” or “present[ed] a substantial likelihood of committing criminal

acts jeopardizing public safety or security.” CP at 141. The jury also found that there was “a

substantial probability that [Vevea would] regain competency within a reasonable period of time.”

CP at 142. The trial court ordered a third competency restoration period of up to 180 days.

Vevea’s 180-day commitment expired, and the hearing date to determine his competency

was set for October 26, 2021. Our record does not indicate whether Vevea was found competent

to stand trial. Vevea appeals. *5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55763-1-II

ANALYSIS

I. MOOTNESS

The State contends that we cannot provide Vevea any effective relief because his 180-day

commitment has already expired and, therefore, this appeal is moot. Vevea argues that even if we

cannot provide effective relief, this appeal raises a matter of public importance that is subject to

repetition and requires review to provide future guidance. We agree with Vevea and hold that the

public interest exception to mootness applies.

A. Competency Restoration Proceedings

Whenever there is reason to doubt a defendant’s competency, a trial court may order a

competency evaluation. See RCW 10.77.060(1)(a).1 If the defendant is found to be incompetent,

the trial court may order them “to undergo competency restoration treatment.” RCW

10.77.084(1)(b).

The trial court may order a felony defendant who is found incompetent to be committed

for a period of up to 90 days. RCW 10.77.086(1). The defendant is entitled to a court hearing at

the end of the restoration period to reevaluate competency. RCW 10.77.084(1)(b). On expiration

of this first restoration period, if the trial “court finds by a preponderance of the evidence that a

defendant . . . is incompetent,” it may extend the order of commitment for an additional 90 days.

Former RCW 10.77.086(3). If on expiration of the second restoration period the defendant is still

deemed to be incompetent, and the trial court or jury finds the defendant is a “substantial danger

to other persons . . . or . . . presents a substantial likelihood of committing criminal acts jeopardizing

1 Sections of chapter 10.77 RCW were amended in 2022. Throughout, if the amendment did not affect the language of the section cited in this opinion, we cite to the current version of the statute.

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No. 55763-1-II

public safety or security” and “there is a substantial probability that the defendant will regain

competency within a reasonable period of time,” the court may order an additional commitment

period of up to 180 days. Former RCW 10.77.086(4).

If after the 180-day commitment period, or at any time during the above proceedings, the

trial court finds that “a defendant is not likely to regain competency, the court shall dismiss the

proceedings without prejudice and refer the defendant for civil commitment evaluation . . . if

appropriate.” RCW 10.77.084(1)(d). For a felony defendant whose charges have been dismissed,

civil commitment may be ordered upon findings that the defendant has “committed acts

constituting a felony, and as a result of a behavioral health disorder, presents a substantial

likelihood of repeating similar acts.” RCW 71.05.280(3).2

B. Mootness Exception

Even if the expiration of the commitment period means that this court cannot provide

effective relief, we may still decide a case if it involves “matters of continuing and substantial

public interest.” Eyman v. Ferguson, 7 Wn. App. 2d 312, 320, 433 P.3d 863 (2019). We typically

consider three factors: “‘(1) whether the issue is of a public or private nature[,] (2) whether an

authoritative determination is desirable to provide future guidance to public officers[,] and (3)

whether the issue is likely to recur.’” In re Marriage of Horner, 151 Wn.2d 884, 892, 93 P.3d 124

(2004) (internal quotation marks omitted) (quoting Westerman v. Cary, 125 Wn.2d 277, 286-87,

892 P.2d 1067 (1994)). “Cases involving interpretation of the constitution or interpretation of

statutes are public in nature” and tend to provide future guidance to officials. State v. Beaver, 184

2 This statute was amended in 2022. Because the language of this section was not affected, we cite to the current version of the statute.

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No. 55763-1-II

Wn.2d 321, 331, 358 P.3d 385 (2015). We may also consider “the level of adversity between the

parties.” Id.

The Washington Supreme Court has held involuntary civil commitment issues to be

“matters of continuing and substantial public interest” because they involve “a significant

deprivation of liberty that requires due process protection.” In re Det. of McLaughlin, 100 Wn.2d

832, 838, 676 P.2d 444 (1984). In Born v. Thompson, 154 Wn.2d 749, 758, 117 P.3d 1098 (2005),

we opined, and the Supreme Court expressly agreed, that chapter 10.77 RCW procedural questions

involving burden of proof bear substantial similarity to those arising from chapter 71.05 RCW and

are equally important in providing safeguards against improper governmental action against an

incompetent defendant.

Relying on Born, we come to the same conclusion that procedural questions in competency

restoration proceedings present issues of continuing and substantial public interest. Competency

restoration proceedings occur often and involve protecting substantial rights of the accused as well

as public safety.

The procedures mandated by RCW 10.77.060, including the manner of conducting

evaluations, the procedural consequences of the order to conduct evaluations, and the defendant’s

right to have access to their own records, all demonstrate the legislature’s intent to protect

incompetent individuals from conviction before they can receive the proper treatment.

Resolving this issue can also offer future guidance. The parties have pointed to no other

Washington case that has definitively held that criminal discovery rules apply in competency

restoration proceedings. We have not located any, and the issue is not confined to a single set of *8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55763-1-II

facts in this particular case. The trial court found no authority and concluded the civil discovery

rules applied. This demonstrates that guidance is reasonably likely to be helpful.

Finally, this issue is likely to recur in future cases. It was the State that argued below that

the civil discovery rules applied, and the trial court explained that it could not find authority on the

question of whether civil or criminal discovery rules applied. We conclude that without clear

authority, this issue is likely to recur.

We therefore hold that the mootness exception applies. This appeal involves a matter of

continuing and substantial public interest and, without guidance, the issue is likely to recur at some

point in the future.

II. APPLICATION OF CRIMINAL DISCOVERY RULES TO A COMPETENCY RESTORATION HEARING

Vevea argues that a competency restoration hearing implicates the fundamental due

process right to avoid being tried while legally incompetent. Because competency evaluations are

part of the criminal process, the rules of criminal procedure should apply. He further contends that

by incorporating this procedure under Title 10 RCW, which governs criminal procedure, the

legislature revealed its intent for a competency restoration hearing to be criminal in nature.

The State now concedes that the criminal rules of discovery apply. The State also concludes

that courts have recognized this proceeding is criminal in nature because of the “fundamental

liberty interests of pretrial detainees awaiting competency restoration.” Br. of Resp’t at 6. We

accept the State’s concession and conclude that the criminal rules of discovery, including CrR 4.7,

apply to competency restoration proceedings in a criminal case.3

3 We note that CrR 4.6 and 4.8 also contain provisions related to discovery.

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No. 55763-1-II

RCW 10.77.050 provides that “[n]o incompetent person shall be tried, convicted, or

sentenced for the commission of an offense so long as such incapacity continues.” A person is

deemed incompetent if they lack the “capacity to understand the nature of the proceedings against

[them] or to assist in [their] own defense as a result of mental disease or defect.” RCW

10.77.010(17). In proceedings under chapter 10.77 RCW, defendants retain their right to counsel

and their right against self-incrimination, and they may retain an expert and present expert

testimony. RCW 10.77.020.

In State v. Hurst, the Supreme Court assumed competency proceedings, including

successive hearings about whether further commitment is necessary for restoration, were criminal

proceedings. 173 Wn.2d 597, 601, 603-05, 269 P.3d 1023 (2012). The Hurst court conducted a

due process analysis assuming the proceeding was part of the “state law governing criminal

procedures.” Id. at 603. Additionally, the Ninth Circuit Court of Appeals has recognized that

fundamental liberty interests are implicated when defendants are held in pretrial detention awaiting

competency determinations, which “‘lies at the heart of the liberty that [the Due Process] Clause

protects.’” Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 822 F.3d, 1037, 1042 (2016)

(quoting Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001)). Issues

relating to pretrial competency proceedings are integral to due process interests that arise in the

criminal context. Id. at 1043. Finally, as Vevea argues, chapter 10.77 RCW overall is criminal in

nature. *10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55763-1-II

We accept the State’s concession and conclude that criminal discovery rules, including

CrR 4.7, apply in competency restoration proceedings like the one at issue below.4 Vevea does not

seek further relief.

CONCLUSION

We hold that Vevea’s release from commitment for competency restoration does not

preclude review because the issue of whether civil or criminal discovery rules apply to competency

restoration proceedings is one of substantial public interest. We accept the State’s concession that

competency restoration proceedings are subject to criminal discovery rules, including CrR 4.7.

Glasgow, C.J. We concur:

Cruser, J.

Price, J.

4 The State makes a brief argument that the error was harmless. However, Vevea does not ask us to reverse his prior 180-day restoration order. He asks only that we invoke the exception to mootness for issues of substantial public importance and hold that criminal discovery rules applied in his competency restoration proceedings. As a result, we need not reach the issue of whether the discovery error was harmless.