Rehearing Denied March 10, 2014.
Jonathan R. Byers, Bismarck, N.D., for plaintiff and appellee; on brief.
Blake D. Hankey, Grand Forks, N.D., for defendant and appellant; on brief.
Mitchell D. Holbach, self-represented, Jamestown, N.D., defendant and appellant; on brief.
[¶ 1] Mitchell Holbach appeals from an order: (1) finding he was not competent to understand the proceedings against him and assist in his defense in a criminal prosecution for terrorizing; (2) suspending the prosecution against him; (3) ordering him committed to the care and custody of the State Hospital with directions for annual evaluations to determine whether he has attained competency to understand the proceedings against him and assist in his defense; and (4) ordering dismissal of the charges if he has not attained competency by March 2016. Holbach argues the district court clearly erred in finding he was not competent to assist in his defense. We conclude the court did not clearly err in finding Holbach was not competent to assist in his defense. We also conclude that Holbach's pretrial commitment to the State Hospital under N.D.C.C. § 12.1-04-08 must comply with the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. We modify the order, and as modified, we affirm.
[¶ 2] In March 2011, the State charged Holbach with terrorizing, a class C felony punishable by up to five years in prison, alleging he had sent letters or filed documents with the court threatening various public officials, law enforcement officers, and court-appointed attorneys involved in his prior convictions. See State v. Holbach, 2009 ND 37, 763 N.W.2d 761; State v. Holbach, 2007 ND 114, 735 N.W.2d 862. Holbach was arrested on the charge and incarcerated in the Ward County Jail, bail was set at $250,000, and he has been in custody since his arrest.
[¶ 3] The district court determined Holbach was indigent and counsel was appointed to represent him. The record nevertheless reflects Holbach, without counsel, has personally filed numerous documents with the court raising issues about his prior convictions and other matters. In November 2011, the court granted the State's motion to prohibit Holbach from collaterally challenging the validity of his prior convictions during the trial of the terrorizing charge. Without counsel, Holbach continued to file numerous requests and documents with the court. Holbach's court-appointed attorney moved for a determination that Holbach had functionally waived his right to counsel or to withdraw as counsel, claiming Holbach insisted on filing the requests and pursuing objectives that undermined counsel's trial strategy.
[¶ 4] In January 2012, the district court ordered that Holbach be detained at the State Hospital for a period not to exceed 30 days for examination under N.D.C.C. § 12.1-04-06, to determine whether he lacked the capacity to understand the proceedings against him and to assist in his own defense. The order said Holbach would be transported back to the Ward County Jail after the examination. Holbach, through counsel, moved to quash the order for the examination at the State Hospital. In March 2012, the court denied Holbach's counsel's motion to quash, stating that " based on the conduct of [Holbach] at numerous proceedings before this Court and the papers filed, there is reason to doubt [his] fitness to proceed and his ability and capacity to assist in his own defense and understand the proceedings."
[¶ 5] This record is not clear about the outcome of that examination, and in August 2012, defense counsel moved for an independent examination of Holbach by Dr. Robert Riedel to determine Holbach's capacity to assist in his defense. The district court issued an order authorizing Dr. Riedel to examine Holbach at the Ward County Jail. Dr. Riedel observed Holbach at the Ward County Jail, but Holbach did not participate in an interview with Dr. Riedel. Dr. Riedel did review audio recordings of hearings, transcripts, and other documents in preparing a report, which was filed with the court in October 2012.
[¶ 6] After further proceedings and evidentiary hearings in October and December 2012, the district court found by a preponderance of the evidence that Holbach was not competent to understand the proceedings against him and to assist in his defense, but that he may become competent in the foreseeable future. The court suspended the criminal prosecution against Holbach and ordered him committed to the care and custody of the State Hospital. The court's order required the State Hospital to prepare an annual evaluation addressing whether Holbach had attained competency and stated that if he did not attain competency to assist his defense by March 2016, the criminal prosecution ...