APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CR-2012-704-1. HONORABLE ROBIN F. GREEN, JUDGE.
Robert M. " Robby" Golden, for appellant.
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellees.
M. MICHAEL KINARD, Judge. GRUBER and BROWN, JJ., agree.
M. MICHAEL KINARD, Judge
Jamaal Dulane Simpson appeals from his convictions of delivery of a controlled substance (cocaine) and possession of drug paraphernalia, for which he was sentenced as a habitual offender to consecutive prison terms totaling sixty-five years. He contends that the trial court erred in denying his request for a competency hearing and in denying his attorney's motion to withdraw. We find merit in appellant's first point, and we remand for the trial court to hold a hearing to determine whether appellant was fit to proceed to trial.
In February 2013, appellant's attorney filed notice of his intent to raise mental disease or defect as a defense. Pursuant to Arkansas Code Annotated section 5-2-305(a) (Repl. 2013), the trial court ordered that appellant be examined by a psychologist to determine his fitness to proceed and his mental capacity at the time of the alleged offenses. Appellant was seen by Cara Hartfield, Ph.D., on two days in late July 2013. She filed her report in August. Among other things, she found that appellant suffered from major depressive disorder, post-traumatic stress disorder, cocaine abuse, antisocial personality disorder, borderline personality traits, and mild mental retardation. Ultimately, however, she concluded that appellant had the capacity to understand the proceedings against him and to assist his attorney in his own defense. She also concluded that, although appellant did have a mental defect and may have had a mental disease at the time of the alleged offenses, he did not lack either the capacity to appreciate the criminality of his conduct or the capacity to conform his conduct to the requirements of the law.
In November 2013, appellant and his attorney filed separate motions seeking a competency hearing. Counsel stated that, in light of both Dr. Hartfield's observations in her report and counsel's own observations of appellant in their recent interactions, he believed that there was substantial evidence that appellant was incompetent to stand trial, and he requested a hearing to determine appellant's competency. The trial court noted that appellant had already had two mental evaluations and denied counsel's motion. Appellant challenges the trial court's refusal to grant the requested hearing in his first point on appeal.
Arkansas Code Annotated section 5-2-309 (Repl. 2013) provides:
( a) If the defendant's fitness to proceed becomes an issue, the issue of the defendant's fitness to proceed shall be determined by the court.
(b) If neither party contests the finding of the report filed pursuant to § 5-2-305, the court may make the determination under subsection (a) of this section on the basis of the report.
(c) If the finding of the report is contested, the court shall hold a hearing on the issue of the ...