Court of Appeals Division III 

State of Washington
Opinion Information Sheet

Docket Number: 30003-0
Title of Case: State of Washington v. Blayne Jeffrey Coley
File Date: 10/09/2012

Appeal from Grant Superior Court
Docket No: 08-1-00396-8
Judgment or order under review
Date filed: 05/10/2011
Judge signing: Honorable Evan E Sperline

Authored by Dennis J. Sweeney
Concurring: Laurel H. Siddoway
Dissenting: Stephen M. Brown


Counsel for Appellant(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
D Angus Lee
Grant County Prosecuting Attorney
Po Box 37 Law And Justice Center
Ephrata, WA, 98823-0037

Carole Louise Highland
Attorney at Law
Grant Cnty Pros Atny Offc
Po Box 37
Ephrata, WA, 98823-0037

OCT. 9, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III


Respondent, )
v. )
Appellant. )

Sweeney, J. -- There is a general presumption in this state that a defendant is

competent to stand trial and assist in his own defense. Based on this presumption of

competency, the defendant bears the burden of proof to show that he is incompetent to

stand trial. Here, the court had concluded that the defendant was incompetent and sent

him for evaluation and treatment. In the follow-up competency hearing, the court

imposed the burden to prove incompetency on the defendant after erroneously concluding

that the most recent order declared the defendant competent. We conclude that this was

structural error and therefore reverse and remand for further proceedings.

No. 30003-0-III
State v. Coley


Grant County sheriff's deputies responded following an incident between Blayne

Coley and his girl friend on June 17, 2008. Deputies arrived at the home and Mr. Coley

told them that his girl friend's 13-year-old son, S.U., had molested him. The sheriff's

office later learned of two prior incidents between Mr. Coley and S.U. The State charged

Mr. Coley with two counts of second degree rape of a child.

Mr. Coley's competency became an issue during preliminary proceedings. His

attorney, John Perry, moved on July 15, 2008, for an order that Mr. Coley's mental status

be evaluated. The court granted the motion and ordered Mr. Coley transported to Eastern

State Hospital. The hospital concluded that Mr. Coley was not competent to stand trial.

The court stayed proceedings for 90 days on September 30, 2008. The court held a

competency hearing on December 8, 2008, and, following the hearing, concluded that

Mr. Coley had regained his competency to stand trial.

Mr. Coley asked the court if he could proceed pro se during the preliminary

proceedings. In February 2009, the court instructed Mr. Coley on proceeding pro se with

standby counsel, and Mr. Coley elected to represent himself. At a March 5, 2009

hearing, Mr. Coley took the witness stand and proceeded with direct examination by

questioning himself in the third person. On March 9, 2009, Mr. Coley elected not to

proceed pro se and the court again appointed Mr. Perry to represent him.

The court again questioned Mr.


No. 30003-0-III
State v. Coley

Coley's competency in April 2009. On April 10, 2009, Mr. Coley waived his right to a

jury trial and again moved to proceed pro se. The court held a hearing. Mr. Coley made

several incomprehensible arguments. And the judge expressed concern over whether he

was competent to proceed. The court ordered that Mr. Coley undergo another

competency evaluation. On July 16, 2009, the court entered an order for a 90-day stay of

the proceedings because Mr. Coley was not competent to proceed.

In October 2009, the case came before the court for entry of an order of

competency. Apparently, the reports of competency conflicted. The State and Mr. Perry

did not agree on whether Mr. Coley was competent or not. Mr. Perry did not have his

expert's report at that time. However, Mr. Perry indicated that he would schedule a

competency hearing. The court responded:

THE COURT: I don't mean for a hearing. As I understand the
statutory process once a competency evaluation has been done the question
before the Court is is there some reason based on the information now
available to doubt competency. There is not a reason given Eastern State's
report. If Dr. [E. Clay] Jorgensen's report suggests that there is a reason
then we would need to schedule a hearing otherwise I'll enter an order of
competency. So I think we need to do that rather promptly in maybe a
week if you think you'll have Dr. Jorgensen's report.

Report of Proceedings (RP) (Oct. 27, 2009) at 2-3. The court continued the hearing for

defense counsel to secure and present the report.

On November 3, 2009, there was a follow-up hearing before a different judge.


No. 30003-0-III
State v. Coley

Mr. Perry indicated that the defense expert disagreed with the recent assessment received

from Eastern State Hospital. Also Mr. Coley believed he was competent. But his lawyer,

Mr. Perry, thought it was his responsibility to request an evidentiary hearing on

competency. The court was not sure how to proceed and asked counsel to research what

kind of competency hearing would be required.

On November 9, 2009, the judge concluded that the court initially determines

necessity (low-threshold), and then a jury decides the issue of competency. Mr. Perry

cited to volume 12, section 907 of Washington Practice. RP (Nov. 9, 2009) at 3. It


When the issue of the defendant's competency to stand trial is
raised, the issue is determined by the court, and if neither the prosecutor nor
defense counsel contests the findings contained in the report, the judge may
make his determination on the basis of the report. However, if the report of
the court-appointed experts is contested, the court must hold a hearing.
An accused has the burden of showing that he or she is incompetent
to stand trial by a preponderance of the evidence. This proof requirement is
based upon the presumption of sanity.
At that hearing, the experts or professional persons who joined in the
report may be called as witnesses. Both the prosecution and the defendant
may summon any other qualified expert or professional persons to testify.
The rules of evidence are applicable at the hearing.

12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure ยง 907,

at 177-78 (3d ed. 2004) (footnotes omitted). Mr. Perry thought the jury must determine

competency. The court continued the hearing for another week in order to determine its


No. 30003-0-III
State v. Coley

role in any further competency hearing. The court continued the case several times after

November 2009. At a March 30, 2010 hearing before The Honorable Evan Sperline, Mr.

Perry contested a proposal to have the judge decide competency solely on the reports:

MR. PERRY: Your Honor Dr. Jorgensen's report which it states
that it is his opinion that Mr. Coley was not competent to proceed to trial or
is not competent was done in October of 2009. There has been, there has
been no competency restoration formally that I am aware of since that day.
I would like Dr. Jorgensen to update that information. And so
THE COURT: I don't blame you at all that makes sense.

RP (Mar. 30, 2010) at 1. The parties later agreed that the judge would rule on whether Mr.

Coley was competent. Id.

The competency hearing took place before the Honorable John Antosz on June 11,

2010. Mr. Perry told the court the State had the burden to prove competence because the

most recent order declared Mr. Coley incompetent. The court asked for legal authority

on the burden of proof, and the State pointed the court to volume 12, section 907 of

Washington Practice. RP (Jun. 11, 2010) at 6-7. The court then discussed the matter

with counsel:

THE COURT: Before I look at that, Mr. Perry, I think your position
is based in part at least on a court order that found Mr. Coley to be
incompetent; is that right?
MR. PERRY [Defense Counsel]: Yes, sir.
THE COURT: Okay. What's the date of that order?
MR. PERRY: Well, there is an order -- there was an order on April
21st referring Mr. Coley at the basically sua sponte direction of the court
after an order of competency to Eastern for evaluation. There was then a
report from Dr. [William] Grant indicating that Mr. Coley was not


No. 30003-0-III
State v. Coley

competent. There's a report by Dr. Jorgensen indicating that he was not
competent. And then there was a report --
THE COURT: Pardon me, but is the status of this that there was an
order of competency and then Judge Sperline asked for another evaluation;
is that the status?
MR. PERRY: That is the status.
THE COURT: Okay. What I understood you to be saying was that
there was actually an order of incompetency. That's not the case. Instead
there's an order of competency and then Judge Sperline had some
questions about Mr. Coley's competency, and there were some more
evaluations done.
MS. HIGHLAND [Deputy Prosecutor]: Yes.
THE COURT: Do you agree with that also, Counsel?
MR. PERRY: I do.
MR. PERRY: And the most recent series of evaluations --
THE COURT: Well, what I need to know right now is the date of the
order of competency. What date was that entered?
MS. HIGHLAND: December 9th, 2008, your Honor.
THE COURT: Thank you. I'll look for that and mark it in the file.
That's pleading number 41, which I'll tab in the file. It's an order of
competency. And I do understand after that date Judge Sperline had
questions, that's evident in the reports themselves. So okay.
And then, Mr. Perry, I will allow you to make an opening statement,
but first I do need to address the burden of proof and what the law says on
that. So I'll look to Ferguson, which is Volume 12 of Washington Practice,
Section 907; is that correct?
MS. HIGHLAND: Yes, your Honor. And in mine it's page number
THE COURT: Okay. Thank you. I'll read that.
MS. HIGHLAND: And it would be the first full paragraph.
THE COURT: Is your Section 908 -- did you say 908?
MS. HIGHLAND: I said 907, your Honor.
THE COURT: Oh, okay.
MS. HIGHLAND: On 178. Perhaps that's where I -- and it would
be the first full paragraph on page 178.
THE COURT: Section 907 is page 176 on the --
MS. HIGHLAND: Right. It goes through to the middle of 178.


No. 30003-0-III
State v. Coley

MS. HIGHLAND: It's quite a long section.
THE COURT: I see the second to the last paragraph of Section 907
states that "An accused has the burden of showing that he or she is
incompetent to stand trial." Is that the section?
MS. HIGHLAND: Yes, your Honor.
THE COURT: Okay. I'll tab that. And that's based on RCW
10.77.090(2). I'll look at the pocket part to see if there's any updates to
There's no update to that in the pocket part.
And also cited is the case of Medina vs. California, a 1992 Supreme
Court case, and Cooper vs. Oklahoma, a 1996 United States Supreme Court
Okay. Mr. Perry, why do you take the position, then, that the burden
of proof is on the state?
MR. PERRY: Your Honor, I'll withdraw that.
. . . .
THE COURT: Thank you, Mr. Perry.
Miss Highland, I want to thank you again for the citation to
Ferguson, that not only helped me understand the very important question
that the judge has is, okay, who's got the burden of proof and what is that
burden And then you've also then cited me to probably a very helpful
section of Washington Practice anyway just generally on this hearing. We
don't conduct these hearings every day, so I appreciate that.
Do you wish to make any opening statement?
MS. HIGHLAND: No, your Honor.
THE COURT: Okay. Thank you.
I do find that the defendant has the burden of proof in the
competency hearing to establish his lack of competency. Maybe there
would be a different question if a defendant is originally found to be
incompetent and then there's a hearing. Perhaps. Perhaps not. But here
there's already an order that finds him to be competent and I do
understand that Judge Sperline later had some questions about
competency. But that's for me to decide today based upon the evidence
produced in court whether or not Mr. Coley is competent to stand trial.
So I think I need to hear from the defendant first, since the defendant
has the burden of proof to put on evidence.

RP (Jun. 11, 2010) at 7-14 (emphasis


No. 30003-0-III
State v. Coley


The court proceeded with the hearing. Mr. Perry called Dr. E. Clay Jorgensen, a

clinical psychologist. During the direct examination of Dr. Jorgensen, Mr. Coley

objected, and the court reminded him that only his attorney could object. The State

objected to "the reference to reports prior to the finding of competency by the court in

December of 2008." RP (Jun. 11, 2010) at 25 (emphasis added). Ultimately, Dr.

Jorgensen opined that Mr. Coley understood the nature of the proceedings against him,

but could not assist his attorney in his defense.

The State then called Dr. William Grant, a psychiatrist employed by Eastern State

Hospital. Dr. Grant opined that Mr. Coley understood the nature of the proceedings

against him. He further opined that Mr. Coley was capable of assisting in his defense,

but maybe was not willing to do so. The court then viewed a 57-minute video interview

of Mr. Coley conducted by Dr. Grant. The video concluded and the court questioned Dr.


Next, Mr. Coley, against Mr. Perry's advice, took the stand and testified that he

believed he was competent. He testified that he understood the nature of the proceedings;

however, the court reminded him several times to stay on topic. In response to a specific

inquiry from the court, Mr. Coley testified that he could provide his attorney with

information and would cooperate with his case.

At the close of testimony, the court


No. 30003-0-III
State v. Coley

directed Mr. Perry to give his closing argument first because the defendant had the

burden of proof. Following Mr. Perry's closing statement, Mr. Coley again requested to

represent himself. But the judge noted that Mr. Coley's answers to questions about pro

se representation could influence how he decided competency. And the court refused to

allow Mr. Coley to represent himself.

The court concluded that Mr. Coley understood the nature of the proceedings

against him. The court considered the testimony of the two doctors and Mr. Coley, the

video interview of Mr. Coley, and observed Mr. Coley's demeanor in court and

concluded that Mr. Coley could assist counsel and was competent to go forward. The

court did not mention the burden of proof in its oral ruling. On June 22, 2010, the court

entered an order of competency.

Mr. Coley's first trial resulted in a mistrial. After the second trial, a jury returned

a guilty verdict on both counts of second degree rape of a child. At sentencing on

May 10, 2011, Mr. Perry raised the issue of competency and asked for time. The court

sentenced Mr. Coley to an indeterminate sentence between 120 months and life.


Burden of Proof -- Competency

Mr. Coley contends that he was denied due process of law because the court

placed the burden of proof on him to prove he was incompetent when he was

incompetent. The State responds that while


No. 30003-0-III
State v. Coley

the law is unclear as to who had the burden of proof, the court heard from both sides and

"[a]ny error is thus theoretical and not manifest." Br. of Resp't at 9.

Whether Mr. Coley or the State bore the burden of proof is a question of law that

we will review de novo. See In re Det. of Petersen, 145 Wn.2d 789, 807, 42 P.3d 952

(2002). "[T]he Due Process Clause of the Fourteenth Amendment prohibits the criminal

prosecution of a defendant who is not competent to stand trial." Medina v. California,

505 U.S. 437, 439, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992). This prohibition "has

deep roots in our common-law heritage." Id. at 446. Washington law builds on this

federal standard and "affords greater protection by providing that '[n]o incompetent

person may be tried, convicted, or sentenced for the commission of an offense so long as

such incapacity continues.'" In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16

P.3d 610 (2001) (alteration in original) (quoting RCW 10.77.050). A person is

incompetent if he or she "lacks the capacity to understand the nature of the proceedings

against him or her or to assist in his or her own defense as a result of mental disease or

defect." Former RCW 10.77.010(14) (2005).

The United States Supreme Court has held that states may impose the burden to

prove incompetence on the defendant. Medina, 505 U.S. at 449. It is a bit murky as to

who bears the burden of proof here in Washington. The Supreme Court, in State v. Benn,

held that "[a] criminal defendant may be required to prove his incompetence." 120

Wn.2d 631, 662 845 P.2d 289 (1993)


No. 30003-0-III
State v. Coley

(emphasis added) (citing Medina, 505 U.S. 437). But no case holds that a defendant must

prove incompetency. Nor does the language of RCW 10.77.086 help. It says that "[i]f

the court finds by a preponderance of the evidence that a defendant charged with a felony

is incompetent," then it may order the defendant committed for treatment. RCW

10.77.086(3). Nor does the statutory scheme set out in chapter 10.77 RCW address the

burden of proof when a defendant has been declared incompetent.

There is a presumption that an incompetent person remains incompetent until

adjudicated otherwise. Cf. State v. Platt, 143 Wn.2d 242, 251 n.4, 19 P.3d 412 (2001)

(noting that "Washington law since 1905 has presumed the mental condition of a person

acquitted by reason of insanity continues"); In re Estate of Miller, 10 Wn.2d 258, 268,

116 P.2d 526 (1941) (adjudicating someone as insane carries a presumption that the

person is incompetent to make a will); Criez v. Sunset Motor Co., 123 Wash. 604, 606,

213 P. 7 (1923) (continuing presumption of lack of testamentary capacity once general

insanity is shown). Indeed, in other contexts, after a declaration of incompetency, the

burden of proving that competency has been restored shifts -- i.e., the burden of proving

"mental restoration . . . shifts to him who asserts such facts." In re Estate of Peter, 43

Wn.2d 846, 862, 264 P.2d 1109 (1953) (addressing who has the burden to establish

testamentary capacity once a lack thereof is established).

Other jurisdictions are in accord. State v. Chavez, 143 N.M. 205, 211-12, 174

P.3d 988 (2007) ("the longstanding rule . . .


No. 30003-0-III
State v. Coley

[is] that a criminal defendant initially bears the burden of proving by a preponderance of

the evidence that he or she is incompetent to stand trial, whereupon the burden shifts to

the State to prove by the same standard, a preponderance of the evidence that the

defendant is competent to stand trial" (emphasis omitted)); King v. State, 387 So. 2d 463,

464 (Fla. Dist. Ct. App. 1980) (once a court rules that a defendant is incompetent, a

presumption of incompetency continues and the burden to prove competency shifts to the

State); Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim. App. 1987) (Under Texas

law, when there is a prior, outstanding order that declares the defendant incompetent to

stand trial, the State has to prove beyond a reasonable doubt that the defendant is

competent before proceeding to trial.).

Here, the court placed the burden of proof on Mr. Coley. That decision was based

on the understanding that the most recent order was in December 2008, and it declared

Mr. Coley competent. It was not the most recent order. The most recent order was dated

July 16, 2009, and it declared Mr. Coley incompetent to stand trial, and stayed the

proceedings for 90 days. CP at 38-39; RP (Jul. 16, 2009) at 3. We conclude then that the

operative presumption should have been that Mr. Coley was incompetent to stand trial.

And the burden should then have shifted to the State to prove that he was competent.

This is consistent with our reading of this statute. Former RCW 10.77.084 (2007) states,

in part:


No. 30003-0-III
State v. Coley

(1)(a) If at any time during the pendency of an action and prior to
judgment the court finds, following a report as provided in RCW 10.77.060,
a defendant is incompetent, the court shall order the proceedings against the
defendant be stayed except as provided in subsection (4) of this section.
. . . .
(c) At the end of the mental health treatment and restoration period,
or at any time a professional person determines competency has been, or is
unlikely to be, restored, the defendant shall be returned to court for a
hearing. If, after notice and hearing, competency has been restored, the
stay entered under (a) of this subsection shall be lifted. If competency has
not been restored, the proceedings shall be dismissed. If the court
concludes that competency has not been restored, but that further treatment
within the time limits established by RCW 10.77.086 or 10.77.088 is likely
to restore competency, the court may order that treatment for purposes of
competency restoration be continued. Such treatment may not extend
beyond the combination of time provided for in RCW 10.77.086 or

(Emphasis added.)

The language in RCW 10.77.084 suggests that when the defendant returns from

treatment, the hearing is to determine if "competency has been restored." Thus, when the

defendant returns and the hearing proceeds, the presumption is necessarily that he is


The procedure the court followed when it first declared Mr. Coley incompetent

also supports this presumption. First, the court entered a 90-day stay that declared Mr.

Coley incompetent. Then, the court held a competency hearing, ruled that Mr. Coley was

competent, and entered an order to that effect. Here, prior to entry of a court order that

Mr. Coley regained his competency, he was not competent or, at least, a presumption

attached that he was not competent. Of


No. 30003-0-III
State v. Coley

course, there would be no need for the court to enter an order of competency for an

already competent defendant.

Mr. Coley had a fundamental right not to stand trial while incompetent. And to

require an incompetent defendant (someone who is presumably unable to understand the

proceedings or assist in his own defense) to prove that he remains incompetent is, for us,

unconstitutional. C.f. People v. Bender, 20 Ill. 2d 45, 53-54, 169 N.E.2d 328 (1960)

("Let us assume that defendant is in fact unable to co-operate with counsel and present

his case in a rational manner. It would be a strange rule, indeed, to impose upon him the

burden of proving his own incompetence, for the very disability which he would be

seeking to prove renders him incapable, either logically or legally, of sustaining the

burden of proof."). We conclude that the State bore the burden of proof to show that Mr.

Coley's competence had been restored and the court erred when it concluded otherwise.

Harmless Error

Mr. Coley contends that the court's misallocation of the burden of proof here is

not harmless. The State responds that there was no prejudice because the court heard

evidence from both parties before it ruled.

The State bears the burden of showing that any error is harmless beyond a

reasonable doubt. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). But

structural error is never harmless. State v. Levy, 156 Wn.2d 709, 725, 132 P.3d 1076

(2006). That is because it is analytically


No. 30003-0-III
State v. Coley

impossible for any court of review to isolate and then evaluate the potential impact of an

error that is structural:

structural errors "infect the entire trial process." Structural errors are said
to "defy" harmless error review because they "deprive defendants of basic
protections without which a criminal trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence . . . and no criminal
punishment may be regarded as fundamentally fair." Such errors include
total denial of counsel, a biased trial judge, racial discrimination in jury
selection, denial of self-representation at trial, and denial of a public trial.

State v. Zimmerman, 130 Wn. App. 170, 176,121 P.3d 1216 (2005) (alteration in

original) (citations omitted) (internal quotation marks omitted) (quoting Neder v. United

States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). Our Supreme Court

has recognized as much when it held that the proper course of action for the appellate

court is to remand the case when a trial court places the burden of proof on the wrong

party. Nissen v. Obde, 55 Wn.2d 527, 529-30, 348 P.2d 421 (1960). That court stated:

[W]e are confronted with the question of whether to review the record to
determine whether these findings are sustainable under a correct application
of the burden of proof rule, or to remand the case to the trial court for
reconsideration of the findings in conformity with the views expressed
herein. Since it is the function of the trial court and not of this court to
consider the credibility of witnesses and to weigh the evidence in order to
determine whether it preponderates in favor of the party having the burden
of proof, we are convinced that the proper course for us to follow is to

Id. Other jurisdictions are in accord with the general rule "'that it is reversible error to

place the burden of proof on the wrong party or to place an unwarranted burden of proof

on one party.'" Boles Trucking v. United


No. 30003-0-III
State v. Coley

States, 77 F.3d 236, 241 (8th Cir. 1996) (quoting Voigt v. Chicago Nw. Ry., 380 F.2d

1000, 1004 (8th Cir. 1967)); see also Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d

454, 455 (9th Cir. 1986) ("Although Hawaii has not addressed the issue, other

jurisdictions have consistently recognized that placing the burden of proof on the wrong

party in a civil action generally constitutes reversible error."); Mitchell v. United States,

396 F.2d 650, 651 (6th Cir. 1968) (reversing and remanding when the trial court placed

the burden of proof on the wrong party); Hui v. Philadelphia Parking Auth., 913 A.2d

994 (Pa. Commw. Ct. 2006) ("Where the fact-finder places the burden of proof on the

wrong party, this court cannot determine whether the fact-finder would have reached the

same conclusions under the correct allocation of the burden of proof. Thus, it is

appropriate to vacate the fact-finder's order and remand for a determination with the

burden of proof placed on the correct party." (citation omitted)); Kirchner v. Wilson, 251

Neb. 56, 60, 554 N.W.2d 782 (1996) ("since an instruction which misstates the burden of

proof has a tendency to mislead the jury, it is prejudicially erroneous"); Atl. & Pac. Ins.

Co. v. Barnes, 666 P.2d 163, 165 (Colo. App. 1983) ("The proper allocation for the

burden of proof is a substantial right of the parties. It is reversible error if the trial court

allocates the burden of proof to the wrong party.").

Certainly, when the defendant is unable to assist counsel or understand the

proceedings, "[t]he entire conduct of the trial from beginning to end is obviously

affected." Arizona v. Fulminante, 499 U.S.


No. 30003-0-III
State v. Coley

279, 309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Thus, when a court assigns the

burden of proof to show incompetency to an already incompetent defendant, the entire

proceeding is tainted.

Here, the trial court allocated the burden of proof to Mr. Coley, who, by RCW

10.77.084, was already legally incompetent. The court agreed that who carried the

burden of proof might be different if Mr. Coley were incompetent. This was structural

error and therefore not harmless.

We reverse and remand for further proceedings.

I CONCUR: Sweeney, J.

Siddoway, A.C.J.