STATE v. THOMAS, 28604-1-II (Wash.App. 5-6-2003)

No. 28604-1-IIThe Court of Appeals of Washington, Division Two.
Filed: May 6, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 01-1-04659-6 Judgment or order under review Date filed: 02/19/2002

Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.

Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.

HUNT, C.J.

Sandra Thomas appeals a verdict of not guilty of assault by reason of insanity and her commitment to Western State Hospital. She argues that the record does not show that she entered her plea of not guilty by reason of insanity knowingly, intelligently, and voluntarily, a defect that the State concedes. Thomas also contends that the trial court should have ordered a less restrictive alternative than commitment to Western State Hospital. We remand for the trial court to conduct an evidentiary hearing to determine whether Thomas entered her plea knowingly, voluntarily, and intelligently.

FACTS I. Background
Sandra Thomas has a history of seven psychiatric hospitalizations for psychotic and substance use disorders. On her release from prison[1] in August 2001, she went to live with her former boyfriend, Neal Riggs, and his wife, Patricia.

On September 7, 2001, Thomas experienced auditory hallucinations, depression, and poor concentration. That night, she took several aspirin and Tylenol tablets to treat the voices and to help her sleep. Early the next morning, September 8, Thomas began hallucinating insects in the Riggs’s residence. She became agitated and started breaking things. When the Riggs attempted to stop her, Thomas swung a steak knife at them and stabbed a stereo; according to Thomas, she was trying to destroy a `bug’ on the stereo. Patricia Riggs knocked the knife from Thomas’s hand and restrained her until the police arrived.

The police thought that Thomas was under the influence of drugs or alcohol. She yelled and cursed incoherently, complaining about gallons of her blood being spilled. The State charged Thomas with two counts of second-degree domestic-violence assault.

II. Mental Health Evaluation
In January 2002, the trial court ordered a forensic psychological evaluation to determine Thomas’s competence to stand trial, her mental state at the time of the assault, and her future dangerousness. Doctors Gregory Leong and Margaret Dean examined Thomas on January 11. They informed Thomas of the purpose and non-confidential nature of the evaluation, her right not to answer any questions, and her right to have an attorney present. Thomas agreed to proceed with the evaluation.

Thomas told the doctors that (1) she had not taken her psychiatric medications for two weeks before the assault incident because she had `lost’ them on a bus; (2) she had used cocaine six days before the assault; (3) she suffered from chronic auditory hallucinations, which worsened during this time and caused her to see insects in the Riggs’s house; (4) she had grabbed the knife to stab a bug on the stereo; and (5) she had considered stabbing herself to cut out the bugs from underneath her skin.

On January 18, Dr. Leong submitted his report to the court and the parties. He found Thomas to be competent to stand trial. He opined that with ongoing psychiatric treatment, Thomas would likely continue to understand the nature of the proceedings against her and have the capacity to assist in her own defense. Dr. Leong also noted that Thomas (1) understood that she had two counts of felony assault pending against her; (2) was aware of the potential penal penalty and the possibility of an enhanced sentence because she was already on probation; (3) appeared to understand her legal options, including insanity and diminished capacity defenses; (4) `more likely than not was unable to tell right from wrong with reference to the particular act charged’; (5) suffered from a psychotic disorder at the time of the offense; and (6) likely qualified for an insanity defense, but not a diminished capacity defense. Clerk’s Papers (CP) at 8-9, 12.

III. Plea of Not Guilty by Reason of Insanity
On February 15, Thomas, represented by counsel, moved to enter a plea of not guilty by reason of insanity (NGI) and for judgment of acquittal under RCW 10.77.080, asserting that she had been insane at the time of the charged assaults. At trial, which began on February 19, Thomas presented a notice of intent to rely on the insanity defense, and a special verdict form modeled on RCW 10.77.040, which outlines the elements of a not guilty plea by reason of insanity. For purposes of her motion, Thomas stipulated that she had committed the charged offenses. The State stipulated to Thomas’s insanity clinical diagnosis. In accepting Thomas’s NGI plea, the trial court did not question her about whether she understood its consequences.

Instead, the trial court’s primary focus was whether Thomas’s and society’s best interests would be served by committing Thomas to Western State Hospital until her psychotic condition stabilized or by outpatient treatment of her psychosis, if such treatment became available. At issue was whether Thomas was a substantial danger to herself and others.

Dr. Leong testified that (1) Thomas suffers from a chronic psychosis that persists even when she is not using drugs; (2) she may present a substantial danger to others or of committing future criminal acts; (3) she should receive inpatient treatment until better able to be out in the community; and (4) he knew of no programs other than Western State Hospital where Thomas could receive the treatment she needed. Report of Proceedings (RP) at 11, 13, 19.

The trial court ruled that Thomas was a substantial danger to other people unless kept under some kind of supervision, in part because there was a chance that she would commit other criminal acts jeopardizing the safety of others or herself. The trial court agreed with Dr. Leong’s opinion that Thomas should be hospitalized until her psychosis was under control and ordered her committed to the custody of the Secretary of the Department of Social and Health Services.

Thomas then asked to address the court directly. She then explained why she had not been taking her medications at the time of the attack.

ANALYSIS I. Acquittal by Reason of Insanity
The State concedes that the record is inadequate to establish that Thomas entered her NGI plea voluntarily and intelligently, and that, therefore, we should remand for an evidentiary hearing. We agree.

Due process requires that a defendant understand both the nature of the charges against him and the consequences of the plea before entering a voluntary and intelligent plea of not guilty by reason of insanity. State v. Brasel, 28 Wn. App. 303, 311, 623 P.2d 696 (1981) (citing to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Specifically, the defendant must understand:

(1) the essential elements of the offense charged; (2) that by making the motion he admitted to committing the acts charged and that, if acquitted, he might not later contest the validity of his detention on the ground that he did not commit the acts charged; (3) that by making the motion he waived his rights to remain silent, to confront his accusers, and to be tried by a jury; and (4) that, if acquitted, he could be committed to a state hospital for the criminally insane for a term up to the maximum possible penal sentence for the offense charged.

Brasel, 28 Wn. App. at 313.

In its `Findings of Fact,’ the trial court found that Thomas understood the nature of the proceedings, was able to assist her attorney in her defense, that she understood the elements of the offense, and that she knew, if acquitted, she could be committed to a state hospital for a term up to the maximum possible penal sentence for the offense charged, all four Brasel components. But the record before us does not support these findings, and the State concedes that the trial court did not elicit this information from Thomas.

In Brasel, we remanded for an evidentiary hearing and entry of findings as to whether the defendant understood his rights and consequences of his plea of not guilty by reason of insanity. Brasel, 28 Wn. App. at 313. We held that if the defendant understood the nature of the charges against him and the consequences of his motion for acquittal by reason of insanity, then the judgment would stand; if not, due process required the judgment to be vacated. Brasel, 28 Wn. App. at 313.

When the record of a plea-taking procedure fails to demonstrate that constitutional standards were satisfied, but the procedure conformed to all applicable statutes and court rules, the State must make `a clear and convincing showing that the plea was in fact knowingly and understandably entered,’ but may introduce evidence extrinsic to the plea hearing record in making this showing. Wood v. Morris, 87 Wn.2d 501, 507, 554 P.2d 1032
(1976).

Brasel, 28 Wn. App. at 312-13.

Accordingly, as we ordered in Brasel, here, too, we remand for an evidentiary hearing and the entry of findings as to whether [Thomas] was informed of and understood: (1) the essential elements of the offense charged; (2) that by making the motion [s]he admitted to committing the acts charged and that, if acquitted, [s]he might not later contest the validity of [her]detention on the ground that [s]he did not commit the acts charged; (3) that by making the motion [s]he waived [her] rights to remain silent, to confront [her] accusers, and to be tried by a jury; and (4) that, if acquitted, [s]he could be committed to a state hospital for the criminally insane for a term up to the maximum possible penal sentence for the offense charged.

Brasel, 28 Wn. App. at 313.

II. Less Restrictive Alternative
Thomas next contends that the trial court erred by committing her to Western State Hospital, focusing on Dr. Leong’s testimony that there was no other less restrictive alternative. The State counters that substantial evidence supports the commitment. We agree.

When the trial court finds that a defendant should be acquitted by reason of insanity, it then makes a series of specific findings. RCW 10.77.040(5); RCW 10.77.080. One finding is whether it is `in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital.’ RCW 10.77.040(5); RCW 10.77.080. We affirm a trial court’s findings when substantial evidence supports them. State v. Gans, 76 Wn. App. 445, 447, 886 P.2d 578 (1994).

Here, the trial court found that Thomas was a substantial danger to herself and others. Supporting this finding are Dr. Leong’s report and trial testimony and Thomas’s criminal history (multiple felony and misdemeanor illegal drug, prostitution, and theft convictions). Dr. Leong testified that (1) Thomas suffered from a psychotic disorder, for which she had been previously hospitalized at least five times; (2) Thomas had a long history of drug use, especially cocaine; (3) in spite of attending past treatment programs, Thomas had failed to abstain from using illegal substances; (4) if released into the community, Thomas would present a substantial danger to others or could commit other criminal acts; (5) there was evidence that Thomas had problems taking her prescribed psychiatric medication on a regular basis; (6) he did not know of any program in Washington that would provide adequate supervision and monitoring of Thomas’s medication to ensure compliance with a treatment program if Thomas were an outpatient;[2] and (7) thus, inpatient treatment at Western State Hospital was best for Thomas.

Accordingly, we find substantial evidence in the record to support the trial court’s commitment of Thomas to Western State Hospital. Thus, if on remand, the trial court finds that Thomas understood the nature and consequences of her RCW 10.77.080 NGI plea, then the judgment of acquittal and commitment to Western State Hospital shall stand. If, however, the trial court finds that Thomas did not understand the nature and consequences of her RCW 10.77.080 plea, the judgment of acquittal by reason of insanity must be vacated.

Reversed and remanded.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

MORGAN and BRIDGEWATER, JJ., concur.