Criminal Law

Ryan M. Borden
Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth,
NH with a focus on bankruptcy representation of
trustees, creditors and debtors, corporate law and commercial litigation.

No. 2018-0318
January 10, 2020
Affirmed in Part, Reversed in Part

  • Whether the trial court erred in denying defendant’s motion to dismiss on grounds that State failed to comply with RSA 135:17-a in bringing indictments against him in 2016
  • Whether the trial court erred in denying defendant’s motion for a competency hearing prior to sentencing
  • Whether the trial court erred in imposing a no-contact condition on a stand-committed sentence


In 2013, after the defendant’s wife in- formed the defendant she wanted a divorce, he attacked the victim with a knife while she slept. The victim was able to escape. The defendant then stabbed himself in the stomach. Both the defendant and victim survived. The defendant was indicted, but two doctors concluded he was not competent to stand trial. The parties agreed, and the court found, that his competency could be restored. The defendant was ordered to receive treatment at a secured facility to restore competency. The court ordered the State to proceed with civilly committing the defendant. It did, and committed him at the Secure Psychiatric Unit at the state prison for up to three years. The defendant received treatment to restore competency while at the SPU.

A year after being found not competent, the trial court found he had not been restored to competency and dismissed his case with- out prejudice. The defendant was transferred to the State Hospital, which created a discharge plan for him.

Approximately four months later, the State again indicted the defendant on the previously dismissed charges. At arraignment, the defendant moved to dismiss the indictments before arraignment on the grounds he could not be re-indicted without a showing of restored competency. The motion was denied, but arraignment was postponed.

The defendant underwent three subsequent competency evaluations, after which the trial court found him competent. At trial

the defendant was convicted. Prior to sentencing, the defendant filed a motion for additional competency determination, wherein defense counsel stated he had legitimate doubt about the defendant’s competency with respect to sentencing. The State objected and the motion was denied.

On appeal, the defendant challenged the trial court’s failure to dismiss the subsequent indictments because the State had not established his competency was restored. Specifically, the defendant argued that the State failed to comply with the provision of the statute permitting the State to request further competency evaluations during involuntary commitment period if there is a reasonable basis to find competency may have been affected by instead bringing new indictments.

The Court found that the statute gives the trial court authority to order further competency evaluations after a case is dismissed, if there is a reasonable basis to believe conditions have changed affected the defendant’s competency to stand trial. The statute only requires dismissal in two cases: when competency has not been restored within twelve months of the initial determination, or if the trial court finds, after treatment, competency has not been restored. The statute requires that in both cases, the case be dismissed without prejudice.

The Court found that the statute did not bar subsequent indictments, subject to statute of limitations and speedy trial considerations. Rather, the statute deals with what the trial court must find before ordering further evaluations. The Court stated that dismissal based upon incompetence does not defeat the presumption of incompetence, and the State must still demonstrate a reasonable basis exists to believe the defendant’s condition has changed.

The Court found that, where the original arraignment had been postponed, the State had been ordered to review the defendant’s mental health records and make a determination on whether a reasonable basis existed to believe the defendant’s condition had changed, and the fact that the defendant had indicated at the second arraignment he would be seeking a further evaluation and the trial court thereafter ordered an evaluation, the trial court did not err in denying the motion to dismiss.

In challenging the trial court’s denial of his request for a competency hearing prior to sentencing, the defendant argued that there was no bona fide dispute as to his competency, and thus the denial deprived him of his due process rights. On this issue, the Court held that the evidence in record established multiple competency evaluations had taken place after the second indictment, the State’s expert’s testimony that the defendant was malingering was credible, and that because there was no bona fide dispute as to competency, the trial court did not err in refusing to order a further evaluation. The record sup- ported the finding that the defendant under- stood the nature of the proceedings.

The Court agreed with the defendant that the no-contact order  as  part  of his sentence was in error, as the State had conceded. Under the applicable statute, a no-contact order was only permissible if a portion of the defendant’s sentence was suspended, deferred, a probationary sentence or conditional discharge where the violation of a condition may lead to imposition of the sentence or revocation of probation. Here, no part of the defendant’s sentence was suspended or deferred, and the Court reversed the no-contact order.


Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State. Thomas Bardnard, senior assistant appellate defendant, Concord, for the defendant.