Peo v. Griffin

21CA1646 Peo v Griffin 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1646
El Paso County District Court No. 08CR595
Honorable Deborah J. Grohs, Judge
Honorable Larry E. Schwartz, Judge
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Theodore William Griffin III,

Defendant-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Yun and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Philip J. Weiser, Attorney General, Megan C. Rasband, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sean James Lacefield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Theodore William Griffin III, appeals his judgment

of conviction for one count of sexual assault on a child-pattern of

abuse and two counts of sexual assault on a child. For reasons

explained below, we vacate the judgment and remand this case to

the trial court for it to redetermine issues regarding Griffin’s

competency at the time of trial applying the proper legal standard.

I. Background

¶2 Griffin began a sexual relationship with C.C. At the time,

Griffin was twenty-one years old, and C.C. was fourteen years old.

Griffin and C.C.’s relationship lasted between November 2007 and

December 2007. On December 31, 2007, C.C.’s parents found out

about her relationship with Griffin and their relationship ended.

C.C.’s parents called the police, and on February 8, 2008, police

arrested Griffin. The District Attorney charged Griffin with one

count of sexual assault on a child-pattern of abuse and two counts

of sexual assault on a child.

A. Pretrial Competency Concerns

¶3 On March 3, 2008, Griffin’s defense counsel filed a “Motion for

Competency Evaluation.” In the motion, defense counsel stated

that Griffin “has difficulty in his thought process, has been in a

1
succession of mental health programs and institutions and is

presently in ongoing treatment.” Defense counsel indicated his

concern that Griffin’s “disability affects his reasoning and ability to

cooperate with counsel in his own defense.” In response to this

motion, the trial court ordered a competency evaluation on March

20, 2008.

¶4 John Crumlin, Ph.D., evaluated Griffin on April 16, 2008, and

in a report dated May 6, 2008, opined that “Mr. Griffin, provided he

remain sober and compliant with his medications, is currently

competent to proceed to adjudication.” (Emphasis omitted.)

B. Competency Concerns During Trial

¶5 On January 4, 2010, the case proceeded to a two-day trial

with the honorable Judge Grohs presiding over the trial. During

the trial, Griffin engaged in odd behavior including crying during

individual voir dire of jurors, either sucking his thumb or biting his

nails, and appearing to fall asleep at the defense table. A potential

juror who observed his behavior during voir dire responded to a

question about bias by stating,

bias has been created since I’ve sat in this
room and watching the posture of the accused
person, because he’s very disrespectful in his

2
demeanor and the rest of us are here
contributing our day completely awake and
aware and willing to contribute to his
innocence, and yet he’s sitting there sleeping
and sucking his thumb and not even sitting
aware.

Three other potential jurors expressly agreed with this statement.

¶6 Following the juror’s comment, the court spoke with Griffin

outside the presence of the jury and explained to him that his

actions were creating a bad impression and he needed to be

“thinking about the fact that these people [would] be judging [him].”

In response, Griffin stated that his “chest hurt[]” and he could

“barely breathe” because he was stressed and hadn’t slept in five

days. Griffin also stated that he hadn’t consumed any drugs or

alcohol.

¶7 On the second day of trial, Griffin refused to return to court to

hear the jury’s verdict. Griffin’s parents called his defense counsel

to inform him that “[Griffin] was adamant about not leaving his

house and was suicidal.”

¶8 Defense counsel didn’t raise competency concerns during the

trial. The jury convicted Griffin on all three charges.

3
C. Post-Trial Competency Concerns

¶9 During a sentencing hearing on April 7, 2010, Judge Grohs

asked defense counsel whether he had “any concerns regarding

[his] client’s competency.” When defense counsel pointed to his

2008 motion, the trial court stated that it had “concerns” about

Griffin’s competency during trial and that it was concerned that

“[defense counsel] thought it had already been raised and that it

was too late to raise it again.” The trial court then told defense

counsel that if he had “concerns regarding [his] client’s competency,

[he] need[ed] to raise it again.”

¶ 10 On April 20, 2010, Griffin filed a motion for a new trial. The

motion noted Griffin’s odd behavior during trial and argued that it

showed Griffin “could not assist counsel in his own defense.” The

motion also noted that Griffin suffered from bipolar disorder and

that defense counsel “contacted Griffin’s prior therapist . . . on a

referral from [Griffin’s] parents, and during the course of the

conversation, was advised that [Griffin] had not been taking his

medication.”

¶ 11 On April 29, 2010, the trial court ordered a retrospective

competency evaluation but denied the motion for a new trial. The

4
People suggested that Dr. Crumlin perform the retrospective

evaluation because he already had Griffin’s “background” and

“history.”

¶ 12 On May 28, 2010, Dr. Crumlin conducted a retrospective

competency evaluation of Griffin and, in a report dated June 10,

2010, opined that, at the time of trial, Griffin “was suffering from a

mental disease or defect that rendered him incapable of

participating or assisting in his defense, and of cooperating with his

defense counsel” and that he was “Incompetent to Proceed to

adjudication.” (Emphasis omitted.) In forming his opinion,

Dr. Crumlin relied on the definition of incompetent to proceed in

force at the time of Griffin’s arrest in February 2008.

¶ 13 On June 24, 2010, after Dr. Crumlin filed his report, the

People filed a motion to recuse Judge Grohs. That same day, the

People filed a motion for a second opinion on Griffin’s competency.

In the motion, the People requested a second retrospective

competency evaluation and a hearing on the issue of Griffin’s

competency. In support of this request, the People stated only that

they “believe[d] that Dr. Crumlin’s conclusion [was] not supported

by the evidence.”

5
¶ 14 Judge Grohs recused herself and the honorable Judge

Schwartz began presiding over Griffin’s case. Judge Schwartz held

a hearing on July 12, 2010, and addressed the People’s motion for a

second competency evaluation stating, “[the People] are entitled to a

second opinion” before continuing the case for defense counsel to

look at the motion. (Emphasis added.) On July 19, 2010, the court

held another hearing on the second competency evaluation during

which defense counsel confessed the People’s motion for a second

competency evaluation.

¶ 15 On August 9, 2010, the People requested that Jane Cleveland,

Psy.D., perform the second competency evaluation. Defense

counsel didn’t object, and the trial court issued an order granting

the motion for a second retrospective competency evaluation.

¶ 16 Dr. Cleveland evaluated Griffin on September 14, 2010, and

issued a report on October 1, 2010, stating “[it] is . . . my opinion

that Mr. Griffin is currently competent to proceed to adjudication.”

That same day, Dr. Cleveland submitted an addendum to her report

at the request of the People stating, “[g]iven the inherent limitations

of a retrospective analysis of competence, after reviewing the

available evidence in this case it is my professional opinion that it

6
was more likely than not that Mr. Griffin was competent at the time

of his trial in January of 2010.” In forming her opinion,

Dr. Cleveland relied on the 2010 version of the competency statute.

¶ 17 At a later competency hearing, Dr. Cleveland and Dr. Crumlin

both testified consistent with their reports. The court made oral

findings regarding Griffin’s competency on July 5, 2011. In its

findings, the court stated that it found both witnesses credible but

that “Dr. Cleveland’s conclusions were the most convincing.”

Following this ruling, the trial court let Griffin’s conviction stand.

Griffin appeals.1

II. Analysis

¶ 18 In this appeal, Griffin contends that the trial court made

several errors during trial, specifically by (1) allowing the People to

analogize the reasonable doubt standard; (2) excluding evidence

under the rape shield statute and CRE 403; and (3) denying

1 This 2010 conviction is before us on direct appeal because Griffin

successfully pursued post-conviction relief based on his counsel’s
failure to perfect a direct appeal. See People v. Griffin, (Colo. App.
No. 18CA229, May 13, 2021) (not published pursuant to C.A.R.
35(f)); see also People v. Hill, 296 P.3d 121, 125 (Colo. App. 2011)
(the proper remedy for ineffective assistance of counsel based on a
failure to perfect a direct appeal is reinstatement of the right to file
a direct appeal).

7
Griffin’s motion for a new trial because he was incompetent at the

time of trial. As to the competency issue, Griffin asserts that the

trial court erred by (1) granting the People’s request for a second

retrospective competency evaluation without a showing of good

cause; (2) applying the incorrect competency standard when it

found that Griffin was retrospectively competent; and (3) finding

that Griffin was retrospectively competent.

¶ 19 We agree with Griffin that the trial court erred by granting a

second retrospective competency evaluation without a showing of

good cause and by applying the incorrect competency standard

when it found that Griffin was retrospectively competent. Because

we agree with these two contentions and because the issue of

Griffin’s retrospective competency needs to be resolved under the

proper legal standard, we vacate his conviction and remand this

case to the trial court for it to redetermine issues regarding Griffin’s

competency at the time of trial applying the proper legal standard.

A. The Requirement of a Showing of Good Cause When
Requesting a Second Competency Evaluation

¶ 20 Griffin contends that the trial court erred by granting the

People’s request for a second competency evaluation in the absence

8
of the People demonstrating good cause. In response, the People

contend that Griffin waived this claim and, in any event, that the

People demonstrated good cause for their request. We conclude

that Griffin forfeited, but didn’t waive, his claim and that because

the People failed to demonstrate good cause as required by statute,

the trial court erred by granting the People’s motion without first

making the requisite findings.

1. A Showing of Good Cause was Required

¶ 21 As an initial matter, we address whether the People were

statutorily required to show good cause when requesting a second

competency evaluation.

¶ 22 At the time of Griffin’s offenses in 2007, the legislature hadn’t

adopted specific language addressing a second competency

evaluation. Instead, section 16-8-106(1), C.R.S. 2007, governed

requests for an additional competency evaluation. Specifically,

section 16-8-106(1) stated, “[f]or good cause shown, upon motion of

the prosecution or defendant, or upon the court’s own motion, the

court may order such further or other examination, including

services of psychologists, as is advisable under the circumstances.”

(Emphasis added.)

9
¶ 23 In 2008, the legislature promulgated an act revising the

competency statutory scheme. Ch. 389, sec. 1, 2008 Colo. Sess.

Laws 1837. As part of this revision, the legislature added a new

article devoted to the determination of a defendant’s competency to

proceed. Ch. 389, sec. 2, §§ 16-8.5-101 to -119, 2008 Colo. Sess.

Laws 1838-50. In this new article, the legislature defined “second

evaluation” and laid out parameters for requesting a second

evaluation. § 16-8.5-101(14), C.R.S. 2008; § 16-8.5-103(3), C.R.S.

2008. Notably, in reference to a second evaluation, section 16-8.5-

103(3), C.R.S. 2008, didn’t require a showing of good cause, stating

only that “[w]ithin ten days after receipt of the court-ordered report,

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

¶ 24 Regarding the changes to the statutory scheme, the legislature

stated that “[t]his act shall take effect July 1, 2008, and shall apply

to offenses committed on or after said date.” Ch. 389, sec. 20, 2008

Colo. Sess. Laws 1860 (emphasis added). The 2008 changes to the

guidelines for requesting a second competency evaluation remained

in effect at the time of Griffin’s trial in 2010. See § 16-8.5-103(3),

C.R.S. 2010.

10
¶ 25 Because Griffin’s sexual relationship with C.C. ended in

December 2007, the 2008 version of section 16-8.5-103 didn’t apply

to Griffin’s case. Rather, the trial court was required to follow the

earlier procedure established in section 16-8-106(1), C.R.S. 2007.

Accordingly, a showing of good cause was required before a second

evaluation could be ordered. See § 16-8-106(1), C.R.S. 2007.

2. Waiver Versus Forfeiture

¶ 26 The People argue that Griffin waived any claim that the People

failed to show good cause when they requested a second

competency evaluation. We disagree that this claim was waived.

¶ 27 “Waiver is ‘the intentional relinquishment of a known right or

privilege.’” Forgette v. People, 2023 CO 4, ¶ 28 (quoting People v.

Rediger, 2018 CO 32, ¶ 39). In contrast, forfeiture occurs when a

party fails “to make the timely assertion of a right.” Rediger, ¶ 40

(quoting United States v. Olano, 507 U.S. 725, 733). Unlike waiver,

“forfeiture generally occurs through neglect.” Forgette, ¶ 29

(emphasis added). “This distinction is important because a waiver

extinguishes error, and therefore appellate review, but a forfeiture

does not.” Rediger, ¶ 40. Thus, forfeiture permits appellate review

under the plain error standard. Id. A party can waive or forfeit

11
both their constitutional and statutory rights. Richardson v. People,

2020 CO 46, ¶ 24.

¶ 28 “Whether a claim is waived is a question of law we review de

novo.” Id. at ¶ 21.

¶ 29 When Griffin’s counsel confessed the motion for a second

competency examination, counsel stated,

the DA wants . . . a reevaluation under the
statute. And I think they’re entitled to it,
actually, so I’ll confess the motion for another
competency evaluation. And I have no
objection to that as long as it centers on was
he competent during the trial? Whether he’s
competent today or not doesn’t mean anything.
Competent during the trial is the issue.

Nothing in this statement or in the record evinces defense counsel’s

intent to relinquish the statutory requirement of a good cause

showing. We therefore conclude that defense counsel’s confession

of the People’s motion constituted forfeiture, not waiver.

¶ 30 The People contend that defense counsel’s confession

constituted waiver because defense counsel “affirmatively agreed”

that the People were entitled to a second competency evaluation

after having a week to consider the People’s motion. While defense

counsel had a week to consider the People’s motion for a second

12
competency evaluation, there is no indication that defense counsel

knew that section 16-8-106(1), C.R.S. 2007, applied and required a

showing of good cause. Defense counsel’s erroneous belief that the

People were entitled to a second evaluation without showing good

cause demonstrates that defense counsel neglected to read and

apply the proper statute, not that he intended to relinquish the

statutory requirement that the People demonstrate good cause.

¶ 31 Thus, Griffin forfeited rather than waived his claim regarding

the People’s failure to show good cause when they requested a

second competency evaluation.

3. The Trial Court Plainly Erred

¶ 32 Griffin argues that the trial court erred by ordering a second

competency evaluation without a showing of good cause. We agree.

¶ 33 We review constitutional and nonconstitutional errors “that

were not preserved by objection for plain error.” Hagos v. People,

2012 CO 63, ¶ 14. “Plain error is obvious and substantial” and we

reverse “only if the error ‘so undermined the fundamental fairness

of the trial itself so as to cast serious doubt on the reliability of the

judgment of conviction.’” Id. (quoting People v. Miller, 113 P.3d 743,

750 (Colo. 2005)). Generally, an error must “be so obvious that a

13
trial judge should be able to avoid it without the benefit of an

objection.” Scott v. People, 2017 CO 16, ¶ 16, abrogated on other

grounds by Whiteaker v. People, 2024 CO 25. “For an error to be

this obvious, the action challenged on appeal ordinarily ‘must

contravene (1) a clear statutory command; (2) a well-settled legal

principle; or (3) Colorado case law.’” Id. (quoting People v. Pollard,

2013 COA 31M, ¶ 40).

¶ 34 The trial court plainly erred when ordering a second

retrospective competency evaluation without a good cause showing

from the People.

¶ 35 First, the error was obvious. Griffin’s sexual relationship with

C.C. lasted between November 2007 and December 2007. Because

the legislature expressly stated that the 2008 amendment of section

16-8.5-103(3) applied only to offenses committed on or after July 1,

2008, it should have been clear to the trial court that section 16-8-

106(1), C.R.S. 2007, governed the People’s request for a second

competency evaluation. See Scott, ¶ 16. It also should have been

clear that the People didn’t establish good cause in their motion for

a second competency evaluation. In their motion, the People stated

only that they “believe[d] that Dr. Crumlin’s conclusion [was] not

14
supported by the evidence.” This isn’t enough to establish good

cause. See People v. Garcia, 87 P.3d 159, 163 (Colo. App. 2003)

(concluding that the trial court erred by ordering a second

psychiatric evaluation to determine the defendant’s sanity at the

time of the offense because “[t]he court did not articulate reasons to

support a showing of good cause” and “there must be some basis,

other than counsel’s opinion, for showing that the first examination

was inadequate or unfair.”), aff’d in part and rev’d in part on other

grounds, 113 P.3d 775 (Colo. 2005).

¶ 36 Second, the error was substantial. If the People couldn’t

establish good cause for the second retrospective evaluation, then

Dr. Crumlin’s report opining that Griffin was retrospectively

incompetent would have been the only opinion for the trial court to

rely on. Because of this, the trial court likely would have found that

Griffin was incompetent at the time of trial.

¶ 37 Because the trial court likely would have found Griffin

retrospectively incompetent if the People couldn’t establish good

cause, the trial court’s error so undermined the fundamental

fairness of the trial itself that it casts serious doubt on the

reliability of the judgment of conviction. See Hagos, ¶ 14.

15
¶ 38 We therefore conclude that the trial court plainly erred.

B. The Trial Court’s Application of the 2010 Competency
Standard Instead of the 2007 Standard

¶ 39 Griffin next contends that the trial court erred by applying the

2010 competency standard to retrospectively determine Griffin’s

competency at the time of trial instead of the 2007 competency

standard. We agree.

1. Legal Principles

¶ 40 At the time of Griffin’s offenses in late 2007 and at the time of

his arrest in February 2008, the definition of “[i]ncompetent to

proceed” was “the defendant is suffering from a mental disease or

defect which renders him incapable of understanding the nature

and course of the proceedings against him or of participating or

assisting in his defense or cooperating with his defense counsel.”

§ 16-8-102(3), C.R.S. 2007. The statute further defined “[m]ental

disease or defect” as

only those severely abnormal mental
conditions that grossly and demonstrably
impair a person’s perception or understanding
of reality and that are not attributable to the
voluntary ingestion of alcohol or any other
psychoactive substance; except that it does not
include an abnormality manifested only by

16
repeated criminal or otherwise antisocial
conduct.

§ 16-8-102(4.7), C.R.S. 2007.

¶ 41 With the addition of section 16-8.5-101 in 2008, the

legislature changed the definition of “[i]ncompetent to proceed.” Ch.

389, sec. 2, § 16-8.5-101(11), 2008 Colo. Sess. Laws 1839; § 16-

8.5-101(11), C.R.S. 2008. The definition of incompetent to proceed

in section 16-8.5-101(11), C.R.S. 2008, read as follows:

“Incompetent to proceed” means that, 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 that, as a result of a mental
disability or developmental disability, the
defendant does not have a rational and factual
understanding of the criminal proceedings.

Because the language in the new definition changed to “mental

disability or developmental disability,” the previous definition of

“mental defect or disease” was no longer relevant. As a result, the

legislature added a definition for “mental disability” and a definition

for “developmental disability.” The definition of “mental disability”

read as follows:

17
“Mental disability” means a substantial
disorder of thought, mood, perception, or
cognitive ability that results in marked
functional disability, significantly interfering
with adaptive behavior. “Mental disability”
does not include acute intoxication from
alcohol or other substances, or any condition
manifested only by antisocial behavior, or any
substance abuse impairment resulting from
recent use or withdrawal. However, substance
abuse that results in a long-term, substantial
disorder of thought, mood, or cognitive ability
may constitute a mental disability.

§ 16-8.5-101(12), C.R.S. 2008.

¶ 42 Again, the legislature provided that “[t]his act shall take effect

July 1, 2008, and shall apply to offenses committed on or after said

date.” Ch. 389, sec. 20, 2008 Colo. Sess. Laws 1860 (emphasis

added). The 2008 changes to the definitions of “incompetent to

proceed” and “mental disability” remained in effect at the time of

Griffin’s trial in 2010. See § 16-8.5-101(11), (12), C.R.S. 2010.

¶ 43 Because Griffin didn’t object to the competency standard

applied by the court at the time of trial, we review for plain error.

See Hagos, ¶ 14.

2. Analysis

¶ 44 Again, Griffin’s sexual relationship with C.C. lasted between

November 2007 and December 2007. Because section 16-8.5-101,

18
C.R.S. 2008, didn’t apply to offenses committed before July 1, 2008,

the definition of incompetent to proceed in section 16-8-102(3),

C.R.S. 2007, rather than the new definition adopted in 2008,

applied to Griffin’s case. Despite this, both the trial court and

Dr. Cleveland relied on the 2010 standard for incompetency rather

than the 2007 standard for incompetency.

¶ 45 It became clear during the competency hearing that

Dr. Cleveland applied the 2010 competency standard and

Dr. Crumlin applied the 2007 standard. The following exchange

indicates how the trial court planned to handle the discrepancy in

the evaluator’s application of standards:

[The People]: Did Dr. Crumlin testify that he
did not apply the current standard of
competency in this case?

T[he] C[ourt]: He’s saying the standard he
applied, as I understood him, was the one that
he felt was in effect at the time that he did his
original testing. I assume that’s what you
meant?

[Dr. Crumlin]: Correct. The instructions I got
from the Mental Health Institute were that the
standard that applies is the standard that was
in force at the time of the offense.

[The People]: I’m gonna move to strike his
entire opinion. A competency -- the court . . .

19
asked him to do a competency determination
at the point of trial. If we’re going back to the
point of the time of the offense, he’s already
ruled that, at least in 2008, he was competent,
so I’m not sure why going back and all of [a]
sudden changing the opinion that back on the
date of the offense it applies.

T[he] C[ourt]: I understand what you’re getting
at. I’m not going to strike his testimony.
That’s a function of legal argument amongst
the lawyers and a decision I have to make.
And it goes to the weight, not its admissibility.

(Emphasis added.)

¶ 46 When ruling on Griffin’s retrospective competency, the trial

court recognized that Dr. Cleveland and Dr. Crumlin applied two

different competency standards and stated, “the difference is

probably minimal at best. Nor is it particularly significant in my

ultimate determination in this case.” Ultimately, the court agreed

with Dr. Cleveland’s analysis stating,

[s]o the question becomes whether
retrospectively he was or was not competent at
the time of trial. Based on the current
standard. I conclude that . . . Dr. Cleveland’s
opinion is most satisfactory and most reliable
in that determination. Concluding that her
opinion is the most convincing, I conclude that
[Griffin] was not suffering from a mental
disability or developmental disability that
resulted in [him] not having sufficient present
ability at the time of trial to consult with his

20
lawyer with a reasonable degree of rational
understanding. In order to assist in the
defense. Or that as a result of mental or
developmental disability [Griffin] did not have
[a] rational and factual understanding of the
criminal proceedings. Accordingly, I conclude
that [Griffin] was competent during the course
of trial. Accordingly, the motion for [a] new
trial must be denied.

¶ 47 We conclude that the trial court plainly erred when ruling on

Griffin’s competency using the improper standard.

¶ 48 That the 2007 version of the statute applied to Griffin’s

competency evaluation should have been obvious to the trial court

because the legislature expressly stated that the 2008 definition of

“incompetent to proceed” applied only to offenses committed on or

after July 1, 2008, so the new definition clearly didn’t apply to

Griffin’s case. Ch. 389, sec. 20, 2008 Colo. Sess. Laws 1860; see

Scott, ¶ 16.

¶ 49 The trial court’s error was also substantial. Although the trial

court noted that, in its view, the differences between the 2007 and

2010 “incompetent to proceed” standards are “minimal,” we can’t

conclude based on our review of the record that the trial court’s

finding that Griffin was retrospectively competent didn’t stem from

the trial court’s erroneous conclusion that Dr. Cleveland correctly

21
applied the 2010 standard, and that Dr. Crumlin incorrectly applied

the 2007 standard. Indeed, the trial court indicated that the

standard applied by each evaluator would go to the “weight” of the

evidence. And the court’s primary task in weighing the evidence

was deciding the relative weight to accord Drs. Cleveland’s and

Crumlin’s conflicting opinions. Because the trial court incorrectly

believed that the 2010 standard applied, it’s possible that the trial

court was more persuaded by Dr. Cleveland’s standard because she

similarly applied the incorrect standard. By this logic, however, it’s

Dr. Crumlin’s evaluation that should have been viewed more

favorably because he properly applied the 2007 standard. Because

the trial court’s improper application of the 2010 standard may

have influenced its conclusion that Dr. Cleveland’s opinion of

Griffin’s competency was more persuasive, the trial court’s error

was substantial.

¶ 50 Because the trial court improperly weighed the evaluator’s

contrasting opinions, the trial court’s error so undermined the

fundamental fairness of the trial itself that it casts serious doubt on

the reliability of the judgment of conviction. See Hagos, ¶ 14.

22
¶ 51 Thus, the trial court plainly erred in applying the incorrect

competency standard.

III. Disposition and Instructions on Remand

¶ 52 Because we conclude that the trial court plainly erred by

(1) failing to require a showing of good cause before ordering a

second retrospective competency evaluation and (2) applying the

wrong legal standard to its retrospective competency determination,

we vacate the judgment and remand for further proceedings. A

remand is required because, based on the record before us, we can’t

say with confidence whether, if required to do so, the People could

have established good cause for a second evaluation or whether,

had the court applied the correct legal standard to its retrospective

competency determination, it would or wouldn’t have found Griffin

competent at the time of his trial. Instead, the trial court needs to

make both of these determinations in the first instance. And

because the answers to both questions may be dispositive of this

appeal, we opt to vacate the judgment and remand this case to the

trial court to conduct further proceedings on the issue of

retrospective competency, after which the trial court may reinstate

23
the judgment of conviction or order a new trial, depending on the

outcome of the proceedings on remand.

¶ 53 Specifically, on remand, the trial court must (1) determine

whether good cause exists to order a second competency evaluation;

and (2) based on that determination, decide whether Griffin was

retrospectively competent at the time of trial applying the proper

legal standard. Should the trial court answer the first question in

the negative, then the trial court shall strike and disregard

Dr. Cleveland’s evaluation and make its retrospective competency

determination based on Dr. Crumlin’s evaluation (and the 2007

legal standard). If, on the other hand, the trial court concludes that

there was good cause for a second evaluation, the trial court shall

make a retrospective competency determination considering both

evaluations and applying the proper legal standard. It is within the

trial court’s discretion to determine whether to take and consider

additional evidence or permit further briefing or argument from the

parties on remand.

¶ 54 If the court determines (1) it is not able to make a retrospective

competency determination, or (2) it can make a retrospective

competency determination and finds Griffin wasn’t competent

24
during his 2010 trial, then the judgment shall remain vacated and a

new trial will be required. See People v. Lindsey, 2018 COA 96M,

¶ 23 (first citing United States v. Bergman, 599 F.3d 1142, 1149

(10th Cir. 2010); then citing State v. Bostwick, 988 P.2d 765, 773

(Mont. 1999)), rev’d and remanded on other grounds, 2020 CO 21,

¶ 23. If a new trial is warranted because the court is unable to

make a retrospective competency determination on remand, the

court on its own or either counsel may question Griffin’s

competency at that new trial, thus triggering the statutory

procedures for making such a determination. Id. If a new trial is

warranted because the court finds that Griffin wasn’t competent

during his trial, the prosecution must prove that Griffin has been

restored to competency before he can be retried. Id.

¶ 55 If the court concludes that a retrospective competency

determination is feasible and further finds — applying the proper

legal standard discussed above — that Griffin was competent

during his 2010 trial, then the court shall reinstate the judgment of

conviction, subject to Griffin’s right to appeal that determination

and raise any issues properly raised on direct appeal (including

those issues advanced in his opening brief but not addressed in this

25
opinion). Id. at ¶ 24; but cf. Bergman, 599 F.3d at 1149 (even if the

defendant was competent at the time of the original trial, “the court

may still, in its discretion, vacate [the defendant’s] conviction and

conduct a new trial”).

JUDGE YUN and JUDGE LUM concur.

26