People v. Matthew F. Rodriguez

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 1, 2022

2022COA98

No. 19CA1354, People v. Rodriguez — Criminal Law — Mental
Competency to Proceed — Judge’s Discretion to Reject
Inadequate Proffer — Good Faith Doubt Regarding Competency

A division of the court of appeals considers whether a

defendant who was twice previously found to be competent to

proceed is entitled to a third competency determination based on

the alleged deterioration of his mental condition. The division holds

that, under sections 16-8.5-102 and 16-8.5-103, C.R.S. 2021, a

trial court does not abuse its discretion by denying a defendant’s

subsequent motion to determine competency where (1) one or more

specialists previously examined the defendant and concluded he

was competent to proceed and (2) the subsequent motion presents

neither different indicia of the defendant’s lack of competency nor a

different medical or psychological explanation for why the
defendant, despite having previously been found competent, is no

longer competent to proceed.
COLORADO COURT OF APPEALS 2022COA98

Court of Appeals No. 19CA1354
City and County of Denver District Court No. 15CR5078
Honorable Shelley I. Gilman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew F. Rodriguez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Navarro and Graham*, JJ., concur

Announced September 1, 2022

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 Colorado statutes set forth the steps a court must take when

the court, defense counsel, or a prosecutor questions whether a

criminal defendant is mentally competent. But those statutes do

not address how the court should proceed in a case where a lawyer

asserts that the mental state of a defendant whom the court

previously found to be competent has deteriorated to the point

where the defendant may no longer be competent. This is such a

case.

¶2 Matthew F. Rodriguez appeals the judgment of conviction

entered on jury verdicts finding him guilty of sexual assault on a

child (pattern of abuse), two counts of sexual assault on a child

(position of trust), and aggravated incest. Rodriguez’s principal

argument challenges the district court’s denial of defense counsel’s

third motion for a competency evaluation (the third motion) and the

court’s related decision not to grant the defense another

continuance, after nearly three years of delays in the proceedings,

to allow Rodriguez to undergo further competency testing.

¶3 We affirm.

1
I. Background Facts and Procedural History

¶4 Rodriguez engaged in sexual intercourse with his daughter

G.L. G.L. gave birth to Rodriguez’s child shortly after she turned

fourteen. Based on this conduct, in September 2015, Rodriguez

was charged with sexual assault on a child (pattern of abuse), two

counts of sexual assault on a child (position of trust), and

aggravated incest.

¶5 Defense counsel filed three motions to determine Rodriguez’s

competency — in January 2016, in March 2017, and on February

26, 2019. The district court ordered competency evaluations for

Rodriguez following the filing of the first two motions. None of the

professionals who evaluated Rodriguez concluded that he was not

competent to proceed.

¶6 After Rodriguez’s counsel filed the third motion, the court

conducted a hearing at which it reviewed in detail the proceedings

following the first and second motions and the results of

Rodriguez’s previous competency evaluations. The court concluded

that Rodriguez was competent to proceed, primarily because no

professional had determined that he was not competent over three

years of evaluations and neurological testing.

2
¶7 In addition, at the conclusion of the hearing on the third

motion, defense counsel requested a “Bergerud hearing” to address

an alleged “direct conflict” between Rodriguez and his counsel. See

People v. Bergerud, 223 P.3d 686, 694-96 (Colo. 2010) (explaining

the circumstances under which a defendant is entitled to the

appointment of substitute counsel). Defense counsel asserted that,

in light of the purported conflict, Rodriguez was entitled to new

counsel.

¶8 The court set a Bergerud hearing before a different judge.

Following that hearing, at which Rodriguez spoke to the court, the

court denied defense counsel’s request for appointment of

substitute counsel.

¶9 The case proceeded to trial. A jury convicted Rodriguez of all

the charged counts.

II. Analysis

¶ 10 Rodriguez contends that the district court reversibly erred by

(1) denying the third motion, not granting him another continuance

to allow for a further competency evaluation, and not suspending

the proceedings sua sponte to declare a mistrial; and (2) denying

his request for appointment of substitute counsel.

3
A. Rodriguez’s Request for a Third Competency Evaluation

¶ 11 We reject Rodriguez’s assertion that the district court abused

its discretion by denying the third motion, not granting a

continuance for further evaluation, and not declaring a mistrial.

1. Standard of Review

¶ 12 We review a district court’s competency determination for an

abuse of discretion. People v. Mondragon, 217 P.3d 936, 939 (Colo.

App. 2009). A court abuses its discretion where its decision is

manifestly arbitrary, unreasonable, or unfair, or it applies an

incorrect legal standard. Id.

2. Applicable Law

¶ 13 Under the United States and Colorado Constitutions, the right

to due process bars the trial of an incompetent defendant. See

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); People v. Zapotocky,

869 P.2d 1234, 1237 (Colo. 1994). In Colorado, a defendant’s due

process right not to be tried while incompetent is further protected

by statute. See §§ 16-8.5-101 to -123, C.R.S. 2021.

¶ 14 Under the version of the competency statutes in effect when

defense counsel filed the third motion on February 26, 2019, a

defendant is “[i]ncompetent to proceed” if,

4
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 . . . , 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), C.R.S. 2018. (Where indicated, we cite to the

version of the competency statutes in effect at the time defense

counsel filed the third motion. The General Assembly subsequently

amended the statutes. The portions of the statutes most critical to

our analysis have not materially changed since 2018, however.) A

“[m]ental disability” is a “substantial disorder of thought, mood,

perception, or cognitive ability that results in marked functional

disability, significantly interfering with adaptive behavior.”

§ 16-8.5-101(12), C.R.S. 2018. Thus, a defendant is competent to

proceed if he or she has “both a factual understanding and cognitive

ability and perceptions and understandings that are rational and

grounded in reality.” Mondragon, 217 P.3d at 941.

¶ 15 “A defendant is presumed to be competent to stand trial.”

People v. Stephenson, 165 P.3d 860, 866 (Colo. App. 2007). The

5
party asserting that the defendant lacks the mental competency to

proceed bears the burden to prove incompetency by a

preponderance of the evidence. § 16-8.5-103(7), C.R.S. 2018.

¶ 16 The Colorado statutes provide two ways to challenge a

criminal defendant’s competency to proceed. First, if “either the

defense or the prosecution has reason to believe that the defendant

is incompetent to proceed, either party may file a motion in advance

of the commencement of the particular proceeding.”

§ 16-8.5-102(2)(b), C.R.S. 2018. Second, if the court “has reason to

believe that the defendant is incompetent to proceed, it is the

[court]’s duty to suspend the proceeding and determine the

competency or incompetency of the defendant.” § 16-8.5-102(2)(a),

C.R.S. 2018. The procedures a court must follow to determine a

defendant’s competency to proceed are outlined in section

16-8.5-103, C.R.S. 2018.

¶ 17 Under section 16-8.5-103(1), C.R.S. 2018, if a defendant’s

competency is called into question, “the court may make a

preliminary finding of competency or incompetency, which shall be

a final determination unless a party to the case objects within

fourteen days after the court’s preliminary finding.” If a party

6
objects to the court’s preliminary finding, or if the court determines

it has insufficient information to make a preliminary finding, the

court “shall order that the defendant be evaluated for competency”

by the department of human services and that the department

“prepare a court-ordered report.” § 16-8.5-103(2), C.R.S. 2018.

¶ 18 “Within fourteen days after receipt of the court-ordered report,

either party may request a hearing or a second evaluation.”

§ 16-8.5-103(3), C.R.S. 2018. “If a party requests a second

evaluation, any pending requests for a hearing shall be continued

until the receipt of the second evaluation report.” § 16-8.5-103(4),

C.R.S. 2018. However, “[i]f neither party requests a hearing or a

second evaluation within the applicable time frame, the court shall

enter a final determination, based on the information then available

to the court, whether the defendant is or is not competent to

proceed.” § 16-8.5-103(5), C.R.S. 2018.

3. The Court Did Not Abuse Its Discretion
by Denying the Third Motion

¶ 19 We disagree with Rodriguez’s contention that the district court

erred by denying the third motion and not suspending the court

proceedings further to allow for another competency evaluation.

7
¶ 20 As explained below, after a court makes a final determination

of competency, as the district court had already done twice here

before defense counsel filed the third motion, the court need not

order an additional competency evaluation where the new motion

raises the same issues as did the previous competency motions.

Under these circumstances, sections 16-8.5-102 and 16-8.5-103 do

not require the district court to address the defendant’s competency

again.

a. The Three Competency Motions

¶ 21 We begin our review of the court’s ruling on the third motion

by examining the allegations in the first and second competency

motions and the results of Rodriguez’s evaluations in 2016 and

2017.

¶ 22 Defense counsel filed the first motion to determine Rodriguez’s

competency (the first motion) in January 2016. In the first motion,

defense counsel said that Rodriguez was unable to discuss the facts

of his case in a meaningful capacity because he had difficulty

focusing on the issues and was easily distracted.

8
¶ 23 The district court granted the first motion and ordered a

competency evaluation (the 2016 evaluation) pursuant to section

16-8.5-103(2), C.R.S. 2018.

¶ 24 The psychologist who conducted the 2016 evaluation (the first

psychologist) reported that Rodriguez mentioned a head injury from

a car accident nearly three years earlier. However, the first

psychologist noted that Rodriguez’s hospital records did not

indicate he had experienced a traumatic brain injury, an altered

mental status, or cognitive dysfunction before, during, or after the

car accident. Moreover, Rodriguez was “not taking medications,

was not engaged in mental health treatment, presented with

adequately intact memory and comprehension, and appeared to be

of approximately average to low average verbal intelligence.”

¶ 25 Notably, the first psychologist reported that Rodriguez

understood the nature of the charges against
him, potential outcomes and consequences if
found guilty of his charges, the adversarial
nature of court proceedings and personnel
roles, how to assist his attorney, his right
against self-incrimination, and the reasoning
underlying important decisions in his case. He
demonstrated the ability to behave
appropriately in the courtroom and to express
his desired approach to his case. . . . He
. . . demonstrated the ability to provide

9
pertinent detailed information regarding his
version of the alleged offenses [to his attorney]
and appeared willing to work with [her] and to
consider her advice.

The first psychologist opined that Rodriguez was competent to

proceed.

¶ 26 At a hearing on the first motion, the district court said it

would accept the first psychologist’s findings and make a final

determination that Rodriguez was competent to proceed unless the

defense requested a second evaluation within fourteen days.

Defense counsel did not request a second evaluation within that

time.

¶ 27 Based on the findings detailed in the first psychologist’s report

and the fact that defense counsel did not request a second

evaluation within the fourteen-day time period specified in section

16-8.5-103(3), C.R.S. 2018, the district court entered a final

determination that Rodriguez was competent to proceed pursuant

to section 16-8.5-103(5), C.R.S. 2018.

¶ 28 In March 2017, a new public defender entered her appearance

as counsel for Rodriguez and filed a second motion to determine

Rodriguez’s competency (the second motion). In the second motion,

10
defense counsel alleged that Rodriguez had “significant defects in

memory and comprehension and could not recall basic information

about attorney/client conversations for time periods as short as one

day.” Counsel also asserted that Rodriguez was unable to

demonstrate a rational ability to evaluate the information she

explained to him and was unable to make decisions that were

factually and rationally based.

¶ 29 The district court granted the second motion and ordered

another competency evaluation (the first 2017 evaluation). A

different psychologist (the second psychologist) conducted the first

2017 evaluation.

¶ 30 The second psychologist said that Rodriguez’s medical records

showed no neurological deficits following the car accident and that

Rodriguez’s “head was atraumatic” with “no abnormal test results”

and “no impairments.” She said that Rodriguez’s “abstract

reasoning abilities were fair to poor . . . but his judgment for

common dilemmas was good.” He “performed well on simple tasks

designed to measure his attention and concentration and he

maintained an adequate amount of both throughout the interview.”

The second psychologist noted that,

11
[a]lthough [Rodriguez] reported concerns with
his memory functioning and sometimes
indicated that he could not recall information,
there was no evidence of significant memory
impairment during the interview; he was able
to recall historical information about his life as
well as newly learned information during the
interview when he chose to do so.

¶ 31 Additionally, the second psychologist reported that she had

administered a test to assess “response styles and feigned deficits”

in legal knowledge. She opined that Rodriguez’s score on the test

suggested he was feigning deficits in his legal knowledge. The

second psychologist further found that Rodriguez was

“psychiatrically stable” and “did not present with cognitive deficits”

that would preclude him from having a “rational and factual

understanding of the proceedings against him as well as the ability

to consult with his attorney to assist in his defense.” Like the first

psychologist, the second psychologist opined that Rodriguez was

competent to proceed.

¶ 32 Following the completion of the first 2017 evaluation, defense

counsel requested a second evaluation (the second 2017

evaluation), which the district court ordered. A third psychologist

(the third psychologist) conducted the second 2017 evaluation.

12
¶ 33 The third psychologist said that Rodriguez “performed below

average on questions assessing verbal aspects of intelligence.”

However, the third psychologist observed that Rodriguez

was alert and attentive throughout the
[evaluation], and his overall level of attention
and concentration was sufficient for interview
purposes. He knew who he was, where he
was, [and] the approximate time of day, date,
day of the week, and season.

Long-term memory appeared to be intact, and
he described his past history in adequate
detail. He repeated three words immediately,
and he recalled one of them after
approximately 5 minutes.

¶ 34 The third psychologist also compared the results of the tests

he had administered to the results of the tests conducted by the

first and second psychologists. The third psychologist explained

that

[a]lthough there was no indication that Mr.
Rodriguez feigned memory deficits, tests
administered both by [the second psychologist]
and myself suggested the probability of
feigning competency abilities and of
insufficient motivation and effort when taking
performance tests. These test results call into
question the validity of the neuropsychological
and intelligence test results, as well as his
poor performance on my assessment of his
competency abilities. . . . Finally, and
importantly, although Mr. Rodriguez may have

13
difficulty comprehending complex material,
deficits in adaptive functioning were not
reported or observed in any of the evaluations.

¶ 35 Based on these observations, the third psychologist, like the

first and second psychologists, opined that Rodriguez was

competent to proceed.

¶ 36 Following the first and second 2017 evaluations, defense

counsel scheduled neurological testing for Rodriguez and requested

that the district court conduct a competency hearing after

Rodriguez completed the testing. Although section 16-8.5-103,

C.R.S. 2018, did not require the court to continue the competency

hearing to allow for neurological testing following a second

competency evaluation, the court nonetheless granted the defense’s

request for a continuance to complete the testing.

¶ 37 Over the next approximately eleven months, the district court

granted defense counsel’s requests for three additional

continuances to allow two doctors to complete the neurological

tests. Although the first doctor concluded that Rodriguez was

competent to proceed, the second doctor said that Rodriguez had

“some sort of traumatic brain injury, and it affects him.” But

because Rodriguez also had severe anxiety that he was not treating

14
with medication, the second doctor reported that she could not tell

“the extent that [the anxiety] affects him or whether it affects him[,]

but the results . . . are a result of malingering.” She could not

determine whether “this is an effect regarding incompetency or . . .

it’s malingering until he is medicated on anxiety medication.”

¶ 38 Defense counsel requested a continuance of the competency

hearing so she could either get Rodriguez to take his anti-anxiety

medication or, if he refused, have the second doctor retest him to

assess whether a traumatic brain injury affected his competency.

¶ 39 At that point, Rodriguez’s competency proceedings had already

delayed the case for approximately three years, and the victim was

expressing frustration that the case had not yet gone to trial. In

part due to the length of the delays, the district court denied

counsel’s new request for a continuance of the competency hearing

and set the hearing for August 2018.

¶ 40 At that competency hearing, defense counsel told the court

that she did not believe she had “sufficient legal grounds” to

“challenge the findings previously made by the doctors” and

therefore would not “go forward” with the second motion. Because

Rodriguez had not met his burden to prove that he was

15
incompetent, see § 16-8.5-103(7), C.R.S. 2018, the district court

made a final determination that Rodriguez was competent to

proceed.

¶ 41 Defense counsel filed the third motion on February 26, 2019

— approximately three years after defense counsel had filed the first

motion. In the third motion, defense counsel alleged that

Rodriguez’s competency had significantly deteriorated since he had

been taken into custody on new charges not involving G.L. Defense

counsel asserted that Rodriguez was unable to retain the

information his lawyers provided to him and that his ability to

understand any aspect of his case had diminished to the point of

nonexistence. Defense counsel specifically said that she had

noticed “additional and significant deterioration in Rodriguez’s

ability to communicate, understand and assist in his case.”

¶ 42 At a hearing conducted on February 28, 2019, the district

court noted that defense counsel had not presented any information

regarding Rodriguez’s competency that materially differed from the

allegations contained in the first and second motions. The court

described in detail the proceedings involving the first and second

16
motions and the results of the 2016 evaluation and the first 2017

evaluation.

¶ 43 The district court determined for a third time that Rodriguez

was competent to proceed, explaining that

[Rodriguez’s] competency to proceed has been
examined for almost three years now, and no
doctor has found [him] incompetent[.]
[Moreover,] . . . the neurological testing has not
been presented that indicates there’s any
concern, so the Court would find that it has
sufficient information to find that Mr.
Rodriguez is competent to proceed.

The court thus acknowledged that the representations in the third

motion did not allege a sufficient material change in Rodriguez’s

mental condition to warrant another competency evaluation.

¶ 44 In discussing the third motion again during Rodriguez’s trial a

few days later, the district court noted that it had already

authorized competency evaluations of Rodriguez and that, even

though “all of those competency evaluations found [he] was

competent to proceed,” the court had nonetheless granted him an

additional year “to conduct neuro and neurocognitive testing.” The

court observed that, following the additional testing, defense

counsel advised the court “there was not a good faith basis to

17
challenge [Rodriguez’s] competency.” The court then denied defense

counsel’s request for an additional competency evaluation.

¶ 45 A comparison of the factual allegations in the three motions

underscores why the court did not abuse its discretion by denying

the third motion:

Issue The first The second The third
motion motion motion
Defense Rodriguez’s Rodriguez gets Rodriguez Rodriguez is
Counsel’s inability to easily distracted cannot recall unable to retain
Assertions focus and to and has basic information
retain difficulty information from one
information. focusing on the about meeting to the
issues and attorney/client next.
conversations at conversations
hand. for time periods
as short as one
Rodriguez is day.
unable to focus
on one thought Rodriguez is
long enough to unable to
meaningfully demonstrate a
discuss the rational ability
facts and to evaluate the
circumstances information
of the case provided by
without counsel.
confusing facts He exhibits
and incidents. significant
defects in
memory and
comprehension.

18
Issue The first The second The third
motion motion motion
Rodriguez’s Rodriguez may Rodriguez has
cognitive be low insufficient
abilities. functioning or cognitive
may have facilities to be
experienced a able to proceed
traumatic brain to trial.
injury that
affects his ability
to consult with
and assist
counsel.
Rodriguez is
unable to make
decisions that
are factually and
rationally based.

Rodriguez’s It is unclear Rodriguez’s
understanding whether ability to
of the Rodriguez has a understand any
proceedings. complete aspect of his
understanding case has
of the court diminished to
proceedings and the point that it
possible is nonexistent.
penalties.

Rodriguez’s Rodriguez is Rodriguez’s
ability to unable to anxiety is
communicate discuss the debilitating, and
with his facts of his case he has become
counsel. in a meaningful more emotional,
capacity. resulting in
significant
deterioration in
his ability to
communicate,
understand,
and assist in
his defense.

¶ 46 As the chart indicates, counsel’s assertions in the third motion

were not materially different from the assertions of mental

incompetence in the first and second motions. The third motion did

19
not suggest any cause for the change in Rodriguez’s competency,

aside from his incarceration, and did not point to any indicia of his

incompetence that differed from those reported in the first and

second motions. Like the first and second motions, the third

motion referred to the car accident and noted Rodriguez’s

difficulties in understanding “the nature of the charges, the

workings of the criminal system and the possible penalties.”

Further, in the third motion, defense counsel acknowledged that

none of the prior competency evaluations had resulted in a

determination that Rodriguez was incompetent to proceed. And

nothing in the third motion suggested that a specialist who

conducted a third competency evaluation would arrive at a different

conclusion from that reached by the specialists who had previously

examined and tested Rodriguez.

¶ 47 In sum, defense counsel alleged both before and after

Rodriguez’s first two competency evaluations that Rodriguez lacked

the ability to retain the information he received from defense

counsel, had “low functioning” cognitive abilities, lacked a “rational

and factual understanding of the criminal proceedings,” and did not

have a “sufficient present ability to consult with his lawyer with a

20
reasonable degree of rational understanding in order to assist in the

defense.”

b. The Case Law Governing Competency Motions that Lack
Sufficient Facts to Support a Good Faith Doubt Regarding the
Defendant’s Competency

¶ 48 The supreme court’s reasoning in People v. Lindsey, 2020 CO

21, 459 P.3d 530 (Lindsey II), guides our analysis. Less than one

month before trial, Lindsey’s lawyer sought leave to withdraw, id. at

¶ 6, 459 P.3d at 532, in part because “Lindsey had failed to be

completely forthright with him, to keep promises to furnish

information and funds for an effective defense, and to diligently

work and communicate with him,” id. at ¶ 7, 459 P.3d at 532. The

court denied the motion to withdraw. Id.

¶ 49 Ten days later, defense counsel filed a motion seeking a

determination regarding Lindsey’s competency. Id. at ¶ 8, 459 P.3d

at 532. The specific facts alleged in the competency motion

“mirrored the factual allegations advanced in support of his motion

to withdraw: Lindsey had not been completely forthright with him,

had not kept promises to furnish information and funds for an

effective defense, and had failed to diligently work and communicate

with him.” Id.

21
¶ 50 Following a hearing, the court found that Lindsey was

competent to proceed, id. at ¶ 13, 459 P.3d at 534, in part because

the issues detailed in the competency motion “were related to

Lindsey’s lack of cooperation in this litigation and had nothing to do

with competency,” id. at ¶ 15, 459 P.3d at 534; see People v.

Lindsey, 2018 COA 96M, ¶ 12, 461 P.3d 553, 556 (Lindsey I),

rev’d, 2020 CO 21, 459 P.3d 530. The court then said that it would

not allow defense counsel to file an objection to its ruling. It

admonished defense counsel, “you presumed by simply following

the procedures in this statute, that you, in your mind, have

questioned the present ability of your client to proceed here today,

is wrong. So the motion is being dismissed.” Lindsey I, ¶ 13, 461

P.3d at 556. Lindsey was convicted as charged and filed an appeal.

Lindsey II, ¶¶ 16-17, 459 P.3d at 534.

¶ 51 On appeal, Lindsey argued that the court erred by “refusing to

follow the statutory procedures for determining competency set

forth in sections 16-8.5-102 and -103.” Id. at ¶ 17, 459 P.3d at

534. He specifically contended that, once his lawyer filed the

competency motion, the court had only two choices: “(1) make a

preliminary finding of competency or incompetency, which, if timely

22
objected to by either attorney, would require a competency

evaluation; or (2) indicate that there was insufficient information to

make a preliminary finding, which would require a competency

evaluation.” Id.

¶ 52 In determining that the court had not erred by denying the

competency motion without following the procedures set forth in

sections 16-8.5-102 and 16-8.5-103, the supreme court noted,

among other points, that “the specific facts in the competency

motion were the same specific facts advanced by [defense counsel]

to show that he had a conflict with Lindsey that warranted

withdrawal as counsel of record.” Id. at ¶ 26, 459 P.3d at 536. For

that reason, the supreme court concluded that “the trial court did

not abuse its discretion in rejecting the motion as inadequate”

because it contained an “inadequate proffer”: Under the totality of

the circumstances present in the case, the motion “was bereft of

specific facts supporting a good-faith doubt regarding Lindsey’s

competency.” Id. at ¶ 35, 459 P.3d at 538.

¶ 53 Thus, Lindsey II stands for the proposition that a district

court’s finding of competency in response to a motion that fails to

“raise a good-faith doubt regarding competency,” id. at ¶ 13, 459

23
P.3d at 534, does not trigger the procedures set forth in sections

16-8.5-102 and 16-8.5-103:

The statutory mandate that instructs trial
courts to make a preliminary finding or
determine that there is insufficient information
to make such a finding is not triggered unless
the attorney raising the competency issue
satisfies certain threshold requirements in
section 16-8.5-102(2)(b). Specifically, counsel
must make his motion “in writing,” certify he
has “a good faith doubt that the defendant is
competent to proceed,” and “set forth the
specific facts that have formed the basis for
the motion.” § 16-8.5-102(2)(b). We conclude
that an attorney cannot adequately raise the
question of competency without complying
with these threshold requirements.

Lindsey II, ¶ 22, 459 P.3d at 535; see People v. Zimmer, 2021 COA

40, ¶ 20, 491 P.3d 554, 558 (“[T]he facts set forth in the

[competency] motion must actually support a good faith doubt

about the defendant’s competency. If the asserted facts do not, the

trial court has discretion to reject the motion without making a

preliminary finding, thereby not triggering any of the statutory

procedures.”) (citation omitted).

¶ 54 A division of this court considered similar facts to those

presented here when analyzing an earlier version of the competency

statutes. In People v. Davis, 851 P.2d 239, 242 (Colo. App. 1993),

24
defense counsel raised the issue of the defendant’s competency one

week before the fourth scheduled trial date, after five psychiatrists

had examined the defendant and determined he was “competent

(albeit malingering).” Under these circumstances, the division held

that the trial court had not abused its discretion by concluding that

the defense had not presented “a good faith basis for believing” that

the defendant was incompetent. Id.; see People v. Morino, 743 P.2d

49, 51 (Colo. App. 1987) (A court is not required to accept without

questioning defense counsel’s assertions regarding the defendant’s

competence; “[i]t is only when those representations, either alone or

in conjunction with other evidence, raise a substantial issue of a

defendant’s competence that a court violates due process if it

proceeds without determining the issue.”).

¶ 55 Following the analyses in Lindsey II, Zimmer, and Davis, we

hold that a successive competency motion that does not raise new

indicia of incompetency regarding a defendant who was previously

examined and determined to be competent does not “support a good

faith doubt about the defendant’s competency.” Zimmer, ¶ 20, 491

P.3d at 558. Therefore, the third motion did not trigger the

25
procedures set forth in sections 16-8.5-102 and 16-8.5-103. See

Lindsey II, ¶ 35, 459 P.3d at 538.

¶ 56 In this case, unlike in Lindsey II, the district court did not

expressly say it was dismissing the motion and would not allow

defense counsel to file an objection to its finding of competency.

But the court’s ruling from the bench made clear that it had no

intention of ordering another competency evaluation for Rodriguez,

stating “it has sufficient information to find that Mr. Rodriguez is

competent to proceed” based on the evaluations conducted over the

preceding three years.

¶ 57 The reasoning of Lindsey II is essential to avoid unnecessary

delays in criminal proceedings. As the supreme court observed,

requiring district courts to follow the procedures in sections

16-8.5-102 and 16-8.5-103 every time a lawyer files a competency

motion, even one that fails to raise a good faith doubt regarding the

defendant’s competency, “would risk adverse consequences to the

efficiency of our criminal justice system, as it would jeopardize our

trial courts’ ability to manage their dockets and control the

proceedings over which they preside.” Lindsey II, ¶ 31, 459 P.3d at

537. Stripping district courts of their discretion to decline to order

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a competency evaluation where no such evaluation is warranted

would allow lawyers to delay trials for years, if not decades, by filing

competency motion after competency motion. No reasonable

reading of sections 16-8.5-102 and 16-8.5-103 would allow criminal

cases to become trapped in such a time loop.

¶ 58 Consistent with Lindsey II’s admonition that “a trial court

should only order competency evaluations when they are

warranted,” id. at ¶ 36, 459 P.3d at 538, we hold that a court does

not abuse its discretion by denying a defendant’s subsequent

motion for a determination of competency where (1) one or more

specialists previously examined the defendant and concluded he or

she was competent to proceed and (2) the subsequent motion

presents neither previously unexamined indicia of the defendant’s

lack of competency nor a different medical or psychological

explanation for why the defendant, despite having previously been

found competent, is no longer competent to proceed. Significantly,

here, in denying the third motion, the district court considered the

number of specialists who had evaluated Rodriguez and determined

that he was competent. Except for the doctor who could not

determine whether Rodriguez was or was not competent to proceed,

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every specialist who examined him concluded that he was

competent despite his low intelligence and anxiety. While Rodriguez

is unquestionably a low functioning individual, nothing in the

record shows that the court abused its discretion by relying on the

medical and psychological specialists who found that Rodriguez’s

level of functioning did not dip below the level of competency.

¶ 59 Accordingly, we conclude that the district court did not abuse

its discretion by denying defense counsel’s third motion and not

suspending the court proceedings until a new competency

evaluation could be conducted. (Rodriguez’s argument that the

court erred by not sua sponte suspending the trial and declaring a

mistrial is undeveloped. Specifically, he does not explain why the

court should have declared a mistrial after it had already denied the

third motion and found Rodriguez competent to proceed. For this

reason, we do not address the merits of Rodriguez’s argument

concerning the court’s alleged failure to act sua sponte. See

People v. Liggett, 2021 COA 51, ¶ 53, 492 P.3d 356, 365.) Thus, we

affirm the district court’s denial of the third motion.

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B. The Motion for Appointment of Substitute Counsel

¶ 60 We also disagree with Rodriguez’s assertion that the district

court violated his right to counsel by denying his request for

appointment of substitute counsel on the grounds of an alleged

complete breakdown in communication between him and defense

counsel.

1. Standard of Review and Applicable Law

¶ 61 We review a district court’s denial of a defendant’s request for

substitution of counsel for an abuse of discretion. People v. Garcia,

64 P.3d 857, 863 (Colo. App. 2002).

¶ 62 The right to counsel is a fundamental right guaranteed by the

Sixth Amendment to the United States Constitution and is

considered essential to a fair trial. People v. Arguello, 772 P.2d 87,

92 (Colo. 1989). The Sixth Amendment guarantees competent

representation. Id. A court is not required to appoint substitute

counsel “unless it verifies that the defendant has a well-founded

reason for believing that the appointed attorney cannot or will not

competently represent him.” People v. Johnson, 2016 COA 15, ¶ 30,

381 P.3d 348, 355.

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¶ 63 “If the defendant establishes good cause, such as a conflict of

interest, a complete breakdown in communication, or an

irreconcilable conflict that may lead to an apparently unjust verdict,

the court must appoint substitute counsel.” People v. Kelling,

151 P.3d 650, 653 (Colo. App. 2006). “The type of ‘total breakdown’

in communication which would warrant substitution of counsel

must be evidenced by proof ‘of a severe and pervasive conflict with

[the defendant’s] attorney or evidence that he had such minimal

contact with the attorney that meaningful communication was not

possible.’” People v. Faussett, 2016 COA 94M, ¶ 24, 409 P.3d 477,

483 (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.

2002)).

2. Additional Facts

¶ 64 At the conclusion of the February 28, 2019, hearing, defense

counsel requested a Bergerud hearing to address an alleged conflict

between Rodriguez and his counsel relating to “the defense of

[Rodriguez’s] case and how [Rodriguez] wishes to present the

defense.” The district court set a Bergerud hearing later that day

before a different judge.

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¶ 65 At the Bergerud hearing, counsel said that she had

represented Rodriguez for about two and a half years. During that

time, she “tried meeting with him one-on-one, . . . with him with his

mother present, . . . [and] with him with his mother and sister

present.” She explained that, during those meetings, she did not

believe that Rodriguez understood the information that she was

attempting to communicate to him.

¶ 66 Counsel also told the court that she had arranged for a

different public defender to meet with Rodriguez to determine

whether her difficulty in communicating with Rodriguez arose from

a “language issue, a sex issue, or a race issue.” In the week before

the hearing, the other public defender met with Rodriguez for more

than seven hours and similarly concluded that Rodriguez was

unable to understand him.

¶ 67 The court then questioned Rodriguez. Although he had

difficulty answering some of the court’s questions and began crying

on the witness stand, Rodriguez said it was hard for him to

remember things and that he liked his lawyers.

¶ 68 At the conclusion of the Bergerud hearing, the court found

there had not been a complete breakdown in communication

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between defense counsel and Rodriguez. The court said, “What I do

see is . . . lawyers who are really working hard to try and do the

best that they can for Mr. Rodriguez, and I don’t think Mr.

Rodriguez thinks differently . . . and in fact, he says he trusts you.”

The court denied defense counsel’s request to appoint substitute

counsel for Rodriguez.

3. The Court Did Not Err by Denying Rodriguez’s Request to
Appoint Substitute Counsel

¶ 69 We conclude that, for two reasons, the district court’s denial

did not constitute error.

¶ 70 First, based on the court’s colloquy with Rodriguez at the

Bergerud hearing and the length of defense counsel’s relationship

with him, we conclude that the district court did not abuse its

discretion by determining that the relationship between counsel

and Rodriguez had not deteriorated to the point where counsel

could not provide effective assistance. See People v. Jenkins,

83 P.3d 1122, 1127 (Colo. App. 2003).

¶ 71 Although the record demonstrates that Rodriguez and defense

counsel experienced difficulty communicating with one another, the

court did not abuse its discretion by concluding that such difficulty

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did not constitute an irretrievable breakdown in communications.

See People v. Thornton, 251 P.3d 1147, 1151 (Colo. App. 2010)

(holding that communication difficulties do not demonstrate a

complete breakdown of communication, particularly when counsel

has assured the court that he has been in contact with the

defendant and continued to represent the defendant’s interests); see

also Jenkins, 83 P.3d at 1126 (finding that a complete breakdown of

communication was not established even though defense counsel

only met with the defendant once in nine months, had not

discussed potential witnesses with him, and had not given him

copies of discovery materials).

¶ 72 Second, the record demonstrates that any lawyer would have

experienced the same challenges in communicating with Rodriguez.

After defense counsel discussed her difficulties in communicating

with Rodriguez, the court said, “[B]ased on what you just told me[,]

that would be true whoever represented him.” The record

establishes that appointing new counsel for Rodriguez would have

been a futile exercise; new counsel would have experienced no

greater ability to explain the case and the proceedings to Rodriguez

than did his counsel at the time of the trial. Rodriguez’s difficulties

33
in understanding what his lawyers were trying to tell him could

have delayed his trial indefinitely, as new lawyer after new lawyer

attempted without success to communicate with him, resulting in

yet another judicial time loop. Rodriguez’s communication

difficulties were not attributable to his inability to understand any

particular lawyer, but, rather, to his low intelligence and high level

of anxiety.

¶ 73 We also note that, at the Bergerud hearing, defense counsel

advised the court that other judges had previously deemed

Rodriguez competent to proceed despite the “severe limitations to

his processing and communicating ability.” Defense counsel

explained that “[d]octors have found that he has a very low IQ and

. . . a severe anxiety disorder” that make it “very difficult for him to

answer questions and to articulate what he’s thinking.” The court

acknowledged this point and noted that “[t]his is sounding more

like a competency hearing and less like a Bergerud hearing.” The

record confirms the accuracy of this observation; the motion for

leave to withdraw and the three competency motions all arose from

the mental and emotional challenges that Rodriguez consistently

34
manifested throughout this case. They made him a difficult client

but not an incompetent one.

¶ 74 After carefully reviewing the extensive record in this case, we

cannot say that the district court’s denial of the motion for

appointment of substitute counsel was “manifestly arbitrary,

unreasonable, or unfair,” or that the court applied “an incorrect

legal standard.” Mondragon, 217 P.3d at 939; see People v.

Rubanowitz, 688 P.2d 231, 242-43 (Colo. 1984) (holding that, in

determining whether to appoint substitute counsel, a court may

consider “the possibility that any new counsel would be faced with

similar difficulties” to those that current defense counsel is

experiencing). Thus, we conclude that the district court did not

abuse its discretion by declining to appoint substitute counsel for

Rodriguez.

III. Conclusion

¶ 75 The judgment of conviction is affirmed.

JUDGE NAVARRO and JUDGE GRAHAM concur.

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