State v. Johnson

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 96,526

STATE OF KANSAS,
Appellant,

v.

SHAWN M. JOHNSON,
Appellee.


SYLLABUS BY THE COURT

1.
The connecting word "or" ordinarily means that the connected items are to be viewed in
the disjunctive. Accordingly, a person is statutorily defined as being incompetent to stand trial if
the person has either a mental illness or a mental defect, either of which causes that person to be
unable either to understand the nature and purpose of the criminal proceedings against the person
or to make or assist in making his or her defense.

2.
The issue of a defendant's competency to stand trial may be raised by the defendant, the
defendant's counsel, the prosecutor, or sua sponte by the judge at any time between the filing of
the charging document and the pronouncement of sentence. If the judge has reason to believe
that the defendant is incompetent to stand trial, the criminal proceedings are suspended and a
competency hearing must be held. The judge can order a psychiatric or psychological
examination of the defendant and may impanel a six-person jury to determine competency to
stand trial.

3.
If, after an initial competency hearing, a criminal defendant is found to be incompetent to
stand trial, the district court shall order that the defendant be committed for evaluation and
treatment to the state security hospital or any appropriate county or private institution; but such
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commitment shall not exceed 90 days. Within the 90-day commitment period, the chief medical
officer of the institution shall certify to the court whether the defendant has a substantial
probability of attaining competency to stand trial in the foreseeable future.

4.
If the institution to which a defendant has been committed for evaluation and treatment
certifies that the defendant does not have a substantial probability of attaining competency to
stand trial in the foreseeable future, the district court shall order the Secretary of Social and
Rehabilitation Services to commence an involuntary commitment proceeding pursuant to K.S.A.
59-2945 et seq., and amendments thereto.

5.
A person whose sole diagnosis is an organic mental disorder, such as traumatic brain
injury, is not a mentally ill person subject to involuntary commitment for care and treatment
under K.S.A. 59-2945 et seq.

6.
While K.S.A. 22-3303(1) purports to mandate that the district court order the Secretary of
Social and Rehabilitation Services to commence proceedings to involuntarily commit a
defendant who has been adjudged incompetent to stand trial with no substantial probability of
attaining competency in the foreseeable future, the Secretary cannot legally comply with that
order under K.S.A. 59-2945 et seq. if the incompetency is due to an organic mental disorder,
such as traumatic brain injury, and the modified definition of mental illness in K.S.A. 22-3303 is
inapplicable.

7.
The provisions of K.S.A. 22-3305 addressing the competency to stand trial procedures to
be employed after the Secretary of Social and Rehabilitation Services has commenced
involuntary commitment proceedings under K.S.A. 59-2945 et seq. cannot be applied where the
petition for involuntary commitment has been immediately dismissed for lack of probable cause
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to believe the proposed patient is a mentally ill person subject to involuntary commitment for
care and treatment.

8.
K.S.A. 22-3303(3) provides a mechanism for the district court to revisit the issue of the
defendant's competency to stand trial where reasonable grounds exist to believe that the
defendant has become competent.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 20, 2007. Appeal
from Reno district court; STEVEN R. BECKER, judge. Judgment of the Court of Appeals reversing and remanding
with directions to the district court is reversed. Judgment of the district court is affirmed. Opinion filed October 30,
2009.

Keith E. Schroeder, district attorney, argued the cause, and Karen S. Smart, assistant district attorney, and
Phill Kline, attorney general, were with him on the brief for the appellant.

Lane Williams, of Disability Rights Center of Kansas, of Topeka, argued the cause, and Kirk W. Lowry, of
the same firm, was with him on the briefs for the appellee.

The opinion of the court was delivered by

JOHNSON, J.: Shawn M. Johnson seeks review of the Court of Appeals' decision in State
v. Johnson, No. 96,526, unpublished opinion filed July 20, 2007 ("Johnson II"), which reversed
the district court's dismissal of the criminal charges against Johnson, directed the district court to
order Johnson to submit to a psychiatric or psychological examination, and instructed the district
court to hold a hearing to determine whether Johnson has now become competent to stand trial.
Finding that the district court followed the appropriate statutory procedures and that there were
no reasonable grounds to support an order for another competency hearing, we reverse the Court
of Appeals and affirm the district court's dismissal of the criminal proceedings.

This is the second time the Court of Appeals has reviewed this case and attempted to
interpret the provisions of K.S.A. 22-3301 et seq., dealing with the competency of a defendant to
stand trial. See State v. Johnson, No. 91,797, unpublished opinion filed July 22, 2005 ("Johnson
4

I"). Unfortunately, on both occasions, the panels failed to review the cross-referenced provisions
of Article 29 of Chapter 59 of the Kansas Statutes Annotated, relating to the involuntary
commitment of mentally ill persons. That failure apparently led to a misunderstanding of how
those involuntary commitment procedures could be applied in the competency determination of a
person who has suffered a traumatic brain injury, i.e., who does not fit the criteria for a "mentally
ill person" for involuntary commitment under K.S.A. 59-2945 et seq.

The event precipitating this case occurred on November 24, 2001, when Johnson drove a
vehicle into a tree, killing a passenger. Johnson was hospitalized with serious injuries, including
a coma-inducing traumatic brain injury. Several months later, on July 8, 2002, the Reno County
prosecutor's office charged Johnson with involuntary manslaughter, claiming that he was driving
under the influence when the fatality accident occurred. In October 2002, pursuant to K.S.A. 22-
3302(1), the district court ordered an evaluation at Horizon's Mental Health Center to assess
Johnson's competency to stand trial, and subsequently held hearings on December 18, 2002, and
January 2, 2003.

Delmar Thibault, a licensed masters-level psychologist from Horizons, testified on behalf
of the State that he had met with Johnson for approximately 2 hours and had performed some
limited testing, from which he concluded that Johnson was competent to stand trial. In contrast,
Johnson presented the testimony of Mitchel A. Woltersdorf, Ph.D., a clinical and forensic
neuropsychologist with the Midwest Brain Function Clinic. Dr. Woltersdorf gave a detailed
description of the extensive battery of tests performed on Johnson on January 10, 2002, and
repeated on July 31 and August 1, 2002, explaining that the nature of the testing done on head
injury patients made separate testing for competency to stand trial unnecessary. Johnson showed
some modest improvement on the second set of tests, but he still displayed widespread and
severe deficits in memory, nonverbal reasoning, sensory-perception, and processing speed,
indicating a permanent impairment in these areas. Dr. Woltersdorf opined that Johnson could
understand the nature and purpose of the criminal proceedings against him, but would be unable
to make or assist in making his defense, i.e., that Johnson was not competent to stand trial.

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The district court found that the conclusions of Dr. Woltersdorf, which were supported by
more objective scientific data, were more credible than the conclusions of Dr. Thibault.
Accordingly, the court held that Johnson was unable to assist his counsel in the making of a
defense or assist his counsel during trial or hearing and therefore was incompetent to stand trial.

Next, the district court ordered that Johnson be committed for evaluation and treatment,
pursuant to K.S.A. 22-3303(1), for a period not to exceed 90 days. Initially, the order was for
commitment to Larned State Hospital, but ultimately, on April 18, 2003, Johnson was ordered to
be committed to the Oklahoma NeuroRestorative Center (ONRC), a facility which presumably
was better equipped to address Johnson's diminished cognitive abilities resulting from the
traumatic brain injury. The facility's chief medical officer was directed to certify to the court
within 90 days whether Johnson had a substantial probability of attaining competency to stand
trial in the foreseeable future.

On June 4, 2003, ONRC filed a neuropsychological evaluation report with the court. In
the report, Dr. Roscoe G. Burrows opined that Johnson would be unable to effectively function at
trial and that the doctor did not expect any dramatic or meaningful changes in Johnson's
cognitive status. Based on the report, the district court found that there was not a substantial
probability that Johnson would attain competency to stand trial in the foreseeable future. In
accordance with K.S.A. 22-3303(1), the district court ordered the Secretary of Social and
Rehabilitation Services (SRS) to commence involuntary commitment proceedings pursuant to
Article 29 of Chapter 59 of the Kansas Statutes Annotated.

On December 3, 2003, SRS sent the prosecutor's office a letter acknowledging that
nothing further had been done in the matter and inquiring about Johnson's location. The State
then filed a motion for a status hearing. Attached to the motion was an affidavit from the lead
investigator on the case, Detective Stewart, who had observed Johnson engaged in a
conversation with a store clerk in which Johnson was able to discuss a computer program "in
some technical detail." Consequently, at the January 23, 2004, hearing on the motion, the State
asked the court to reconsider its incompetency order in light of the new evidence from the
detective. The court found that the detective's affidavit did not refute the expert evidence before
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the court and denied the request for reconsideration. The court took the matter of SRS's inaction
under advisement and temporarily stayed its order to commence involuntary commitment
proceedings.

In a subsequent memorandum opinion and order, the court reiterated that Johnson
remained incompetent to stand trial and that there had been no evidence proffered to the
contrary. Further, the court found that a letter submitted by Kansas Advocacy and Protective
Services, Inc. (KAPS) was persuasive on the question of the involuntary commitment
proceedings. The memorandum decision recited that the letter was "attached hereto and
incorporated by reference."

The KAPS letter pointed out that the evidence at the competency hearing established that
Johnson was diagnosed with a traumatic brain injury, which "means non-degenerative, structural
brain damage resulting in residual deficits and disability that have been acquired by external
physical injury. See Kansas Administrative Regulation 30-5-300(a)(48)." The letter succinctly
stated: "Traumatic brain injury is not mental illness." That statement was corroborated by
quoting the definitions of "mentally ill person" and "mentally ill person subject to involuntary
commitment for care and treatment" contained in K.S.A. 59-2946(e) and (f)(1).

Additionally, the letter explained the disconnect in K.S.A. 22-3303's mandate that the
court must order SRS to commence involuntary commitment proceedings pursuant to Article 29
of Chapter 59 of Kansas Statutes Annotated. For SRS to comply with that order, it must have a
petitioner who is willing to sign a verified petition that alleges, inter alia, that the petitioner has a
reasonable belief that the respondent "is a mentally ill person subject to involuntary
commitment." K.S.A. 59-2957(b)(1). All of the evidence contradicted such an allegation.

Accordingly, the district court found, based upon the previously admitted medical
testimony and reports, that Johnson was not a "mentally ill person" within the meaning of the
involuntary commitment statutes, i.e., the prerequisites for a petition under K.S.A. 59-2957 were
not present. The court then opined that the law should not require the performance of a futile act,
presumably meaning that SRS should not be required to file a perjurious or facially inadequate
7

petition. The court set aside its prior order for commencement of involuntary commitment
proceedings and dismissed the criminal case with prejudice.

The State appealed and the Court of Appeals reversed in Johnson I. Johnson I opined
that the language of K.S.A. 2004 Supp. 22-3303(1) is clear and mandatory in its requirement that
the district court issue an order to the Secretary of the SRS to commence involuntary
commitment proceedings. Slip op. at 11. The panel faulted the district court for failing to force
SRS to comply with the initial order to commence Chapter 59 proceedings by utilizing its
criminal contempt power, if necessary, and criticized the withdrawal of the order "based on the
judge's own belief that Johnson was not, in fact, mentally ill." Slip op. at 11. The panel
apparently ignored that portion of the district court's memorandum decision that incorporated the
KAPS letter and failed to review and discuss the involuntary commitment provisions of Article
29 of Chapter 59. Moreover, the opinion appeared to presume that a traumatic brain injury was a
mental illness.

Consequently, Johnson I remanded the case to the district court with directions to order
the Secretary of SRS to commence involuntary commitment proceedings pursuant to Article 29
of Chapter 59 of the Kansas Statutes Annotated. Slip op. at 15. The opinion also held that the
district court's failure to comply with K.S.A. 22-3303(1) resulted in an abuse of discretion in
denying a supplemental competency hearing and an erroneous dismissal with prejudice. Slip op.
at 14.

Inexplicably, the Supreme Court denied Johnson's petition for review, and the case was
remanded to the district court. Upon remand, the district court dutifully issued the mandated
order to SRS on November 7, 2005. On March 24, 2006, the Secretary of SRS filed a verified
petition in the District Court of Ness County. The pleading was carefully worded to clarify that
it was being filed pursuant to a court order, rather than alleging the petitioner's belief that
Johnson was a mentally ill person subject to involuntary commitment. The petition included the
statutorily required certificate from a qualified mental health professional, but that certificate
stated that "Mr. Johnson is a medical patient surviving a severe TBI & is not mentally ill." The
certificate contained the recommendation "that the patient not be detained and admitted to an
8

appropriate inpatient treatment facility for further observation and treatment pending court
proceedings." The petitioner also attached Dr. Woltersdorf's evaluation from August 2002 and
the ONRC evaluation from May 2003, as well as Johnson's Home & Community Based Services
TBI Waiver Plan of Care.

Upon receiving the Chapter 59 petition, the district court found that there had been no
showing of probable cause to believe that Johnson was a mentally ill person subject to
involuntary commitment, as that term is defined at K.S.A. 59-2946(f). The court noted that the
Secretary was required to file the petition under K.S.A. 22-3303, but opined that no useful
purpose could be fulfilled by proceeding further. To the contrary, continuing the proceedings
"any further would serve only to delay or interrupt the appropriate provision of services to Mr.
Johnson." The court dismissed the petition, released Johnson from the jurisdiction of the court,
and directed that the Reno County District Court be notified of the dismissal.

SRS apparently notified the district attorney's office that the Ness County District Court
had found that Johnson was not a mentally ill person. On March 29, 2006, the State filed a
request for a hearing to determine whether Johnson had been restored to competency,
specifically complaining that SRS had failed to comply with K.S.A. 22-3305(2), which requires
an opinion from the head of the treatment facility as to whether Johnson was now competent to
stand trial. The State argued that a new competency evaluation was justified because it had been
approximately 4 years since the last set of competency evaluations. Johnson objected to the
request, arguing that the State had presented no new evidence which would provide reasonable
grounds to conduct a new hearing pursuant to K.S.A. 22-3303(3).

Apparently, the district court advised the parties by letter that it was not ordering Johnson
to submit to a new competency evaluation, unless the State proffered new evidence to show that
Johnson had been restored to competency. However, that letter is not in the record on appeal.
On April 24, 2006, the prosecutor filed a motion requesting the district court to reconsider the
State's request for a competency evaluation. The district court issued an order denying the
State's requests for another competency evaluation and a hearing to determine whether
competency had been restored. The court also denied the request for a court order directing SRS
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to supplement its notification pursuant to K.S.A. 22-3305(2), based on the simple fact that
Johnson had not been detained or admitted to a psychiatric treatment facility during the pendency
of the involuntary commitment proceeding. The pending charges were dismissed without
prejudice.

The State again appealed to the Court of Appeals, which in Johnson II again reversed the
district court's order dismissing the criminal charges. The Court of Appeals opined that the
district court had "abused its discretion when it denied the State's motion for an evaluation and
hearing 'on the issue of whether or not the defendant has been restored to competency.' K.S.A.
2006 Supp. 22-3305(2)." Johnson II, slip op. at 12. It based that conclusion on several factors,
including the provisions of K.S.A. 2006 Supp. 22-3305(2) which direct a treatment facility to
render an opinion as to current competency; the fact that the evidence of competency at the
original hearing was controverted and limited to only one of the two statutory factors; the Court
of Appeals' assessment that the evidence available since the original determination suggests that
Johnson's mental processing, memory loss, and distractibility had shown some improvement
over time; the panel's own view of the significance of Johnson's 2002 performance on the Trail's
Test administered by ORNC; Detective Stewart's affidavit of the conversation he overheard
between Johnson and the store clerk; the panel's belief that Dr. Woltersdorf's recommendation
for computer-assisted cognitive rehabilitation was an acknowledgement that Johnson could get
better; and Dr. Woltersdorf's discussion of strategies or accommodations which could be
employed at trial to mitigate the effects of Johnson's brain injury.

The Court of Appeals then "endeavored to fashion a remedy that would provide relief to
the State yet facilitate the prompt resolution of whether Johnson has been restored to
competency." Johnson II, slip op. at 21. It remanded the case to the district court with directions
to order a psychiatric or psychological examination for the defendant in a manner provided by
K.S.A. 22-3302(3), and, upon receipt of the examination report, the district court was directed to
hold a hearing to determine whether the defendant has been restored to competency. Slip op. at
21.

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STATUTORY PROVISIONS
We begin by describing the path which must be traversed to comport with the statutes
governing a defendant's competency to stand trial, albeit with the knowledge that our journey
will dead end at the edge of a precipice which only the legislature can bridge. We will be called
upon to interpret the statutes governing competency to stand trial, K.S.A. 22-3301 et seq., and
the statutory provisions for the care and treatment for mentally ill persons, K.S.A. 59-2945 et
seq. The interpretation of a statute is a question of law over which this court has unlimited
review. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34
(2007).

Our journey is guided by certain rules of statutory construction:

"The fundamental rule of statutory construction to which all other rules are subordinate is that the
intent of the legislature governs if that intent can be ascertained. The legislature is presumed to
have expressed its intent through the language of the statutory scheme it enacted. When a statute
is plain and unambiguous, the court must give effect to the intention of the legislature as
expressed, rather than determine what the law should or should not be. [Citation omitted.]"
Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).

Although ordinary words are to be given their ordinary meanings, "'[t]echnical words and
phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in
law, shall be construed according to their peculiar and appropriate meanings.'" In re
Vanderblomen, 264 Kan. 676, 680, 956 P.2d 1320 (1998) (quoting Galindo v. City of Coffeyville,
256 Kan. 455, Syl. & 5, 885 P.2d 1246 [1994]). Nevertheless, a court may only go so far in
attempting to give effect to legislative intent.

"It is also well established that the doctrine of liberal construction does not allow this court to
delete vital provisions or supply vital omissions in a statute. No matter what the legislature may
have really intended to do, if it did not in fact do it, under any reasonable interpretation of the
language used, the defect is one which the legislature alone can correct. [Citation omitted.]"
Eveleigh v. Conness, 261 Kan. 970, 978, 933 P.2d 675 (1997).

11

The criteria for the underlying competency inquiry is set forth in the definition contained
in K.S.A. 22-3301(1):

"(1) For the purpose of this article, a person is 'incompetent to stand trial' when he is
charged with a crime and, because of mental illness or defect is unable:
(a) To understand the nature and purpose of the proceedings against him; or
(b) to make or assist in making his defense."

The connecting word "or" ordinarily indicates that the connected items are in the
disjunctive. See 82 C.J.S, Statutes ' 331 ("and" ordinarily conjunctive; "or" ordinarily
disjunctive). Thus, a person who is either unable to understand the criminal proceedings or
unable to assist with his or her defense is considered incompetent to stand trial. Further, the
reason for the defendant's inability to comprehend can be caused by either a mental illness or a
mental defect. In this case, it will be important to keep in mind that Johnson claimed to fall
within the definition of a person incompetent to stand trial because of a mental defect that
rendered him unable to make or assist in making his defense.

The issue of a defendant's competency to stand trial may be raised by the defendant, the
defendant's counsel, the prosecutor, or sua sponte by the judge at any time between the filing of
the charging document and the pronouncement of sentence. If the judge has reason to believe
that the defendant is incompetent to stand trial, the criminal proceedings are suspended and a
competency hearing must be held. K.S.A. 22-3302(1). The judge can order a psychiatric or
psychological examination of the defendant and may impanel a six-person jury. K.S.A. 22-
3302(3).

After the hearing, if the defendant is found to be competent, the criminal proceedings are
resumed. K.S.A. 22-3302(4). If the defendant is found to be incompetent to stand trial, the
defendant shall be committed for evaluation and treatment to the state security hospital or any
appropriate county or private institution; such commitment shall not exceed 90 days. K.S.A. 22-
3302(5); K.S.A. 22-3303(1). Within that 90-day period, the chief medical officer of the
commitment institution "shall certify to the court whether the defendant has a substantial
probability of attaining competency to stand trial in the foreseeable future." K.S.A. 22-3303(1).
12

If such probability exists, the defendant is ordered to remain in the institution for 6 months from
the date of the original commitment or until he or she attains competency to stand trial,
whichever occurs first. K.S.A. 22-3303(1).

If the institution's certification states that a substantial probability of attaining
competency does not exist or if a detained defendant does not attain competency within 6 months
of the original date of commitment, the court "shall order the secretary of social and
rehabilitation services to commence involuntary commitment proceedings pursuant to article 29
of chapter 59 of the Kansas Statutes Annotated, and any amendments thereto." K.S.A. 22-
3303(1), (2). However, for certain high severity level crimes, which are not involved in this
case, the definition of a "mentally ill person subject to involuntary commitment for care and
treatment" is modified. That modification will be briefly discussed below.

To this point in our case, the district court had strictly followed the statutory scheme.
The issue of competency was timely raised, and the district court formed a belief that Johnson
was incompetent to stand trial. The judge referred Johnson to Horizons for a competency
evaluation. The defendant obtained an evaluation from Dr. Woltersdorf and submitted a report
with his own motion for a competency hearing. A full hearing was conducted, after which the
district court made findings on the credibility of the evidence presented and on the ultimate issue,
declaring that Johnson was not competent to stand trial. The court committed Johnson to ONRC
for up to 90 days. Dr. Burrows, the chief medical officer of ONRC, made the requisite
certification to the district court, which then made the finding that there was not a substantial
probability that Johnson was likely to be competent to stand trial in the foreseeable future.
Pursuant to K.S.A. 22-3303(1), the district court ordered the Secretary of SRS to commence
involuntary commitment proceedings under Article 29 of Chapter 59 of the Kansas Statutes
Annotated.

Then, however, progress on the case halted. In Johnson I, the Court of Appeals appeared
perplexed as to why SRS had not commenced the involuntary commitment proceedings and why
the district court had not invoked its contempt powers to force SRS to do so. Perhaps if the panel
had carefully considered that portion of the district court's memorandum decision that
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incorporated by reference the KAPS letter, it would have discerned that the answers were to be
found in the provisions of K.S.A. 59-2945 et seq.

Again, we will begin our review of the applicable statutory provisions by looking at the
fundamental definitions underlying the Act. K.S.A. 59-2946 provides:

"When used in the care and treatment act for mentally ill persons:

. . . .

"(e) 'Mentally ill person' means any person who is suffering from a mental disorder
which is manifested by a clinically significant behavioral or psychological syndrome or pattern
and associated with either a painful symptom or an impairment in one or more important areas of
functioning, and involving substantial behavioral, psychological or biological dysfunction, to the
extent that the person is in need of treatment.

"(f)(1) 'Mentally ill person subject to involuntary commitment for care and treatment'
means a mentally ill person, as defined in subsection (e), who also lacks capacity to make an
informed decision concerning treatment, is likely to cause harm to self or others, and whose
diagnosis is not solely one of the following mental disorders: Alcohol or chemical substance
abuse; antisocial personality disorder; mental retardation; organic personality syndrome; or an
organic mental disorder."

Prior to the 1996 enactment of the current Care and Treatment Act for Mentally Ill
Persons, K.S.A. 59-2945 et seq., the predecessor act, the Treatment Act for Mentally Ill Persons,
K.S.A. 59-2901 et seq., only contained a definition for "mentally ill person," which was found in
K.S.A. 59-2902(h). See In re Vanderblomen, 264 Kan. at 680. In providing separate definitions
for "mentally ill person" and "mentally ill person subject to involuntary commitment for care and
treatment," the new Act clarified "'that there are certain mentally ill persons who should not be
subject to involuntary proceedings to restrict their liberty.'" In re Vanderblomen, 264 Kan. at
682 (quoting comments of the Care and Treatment Advisory Committee of the Judicial Council).
The mental disorders listed in K.S.A. 59-2946(f)(1) as being specifically not subject to
involuntary commitment were intentionally excluded because they "'are generally professionally
14

recognized as unresponsive to psychiatric treatment.'" In re Vanderblomen, 264 Kan. at 682
(quoting comments of the Care and Treatment Advisory Committee of the Judicial Council).

According to all of the evidence in the record, including all of the professional diagnoses,
Johnson was afflicted with a traumatic brain injury. We have previously clarified that a
traumatic closed head injury resulting from a motor vehicle accident is an "'organic mental
disorder,' which . . . [is] one of those diagnoses which will not justify an involuntary
commitment." In re Vanderblomen, 264 Kan. at 683. Like Vanderblomen, Johnson was not a
mentally ill person subject to involuntary commitment for care and treatment because his sole
diagnosis was an organic mental disorder.

Armed with that knowledge, we proceed to consider what the SRS had to do to
commence the court-ordered involuntary commitment proceedings. K.S.A. 59-2957 sets forth
the requirements of a petition to obtain a judicial determination of mental illness, an obvious
prerequisite to an involuntary mental illness commitment. First, the petition must be verified,
i.e., the petitioner must swear an oath that the statements contained in the petition are true and
correct. One of the statements required to be contained in the petition is "[t]he petitioner's belief
that the named person is a mentally ill person subject to involuntary commitment and the facts
upon which this belief is based." K.S.A. 59-2957(b)(1). Thus, the first hurdle for the Secretary
of SRS was how to swear an oath that the Secretary believed Johnson to be a mentally ill person
subject to involuntary commitment and how to state the true and correct facts upon which that
belief was based when all of the facts available to the Secretary refuted such a belief. Because
Johnson was solely diagnosed with an organic mental disorder, he was statutorily excluded from
the definition of a mentally ill person subject to involuntary commitment, and the Secretary
could not swear otherwise.

Furthermore, the petition must be accompanied by a certificate from a physician,
psychologist, or qualified mental health professional stating that such professional has personally
examined the person and any available records and has found that the person, in such
professional's opinion, is likely to be a mentally ill person subject to involuntary commitment for
care and treatment under the Act. K.S.A. 59-2957(c)(1). The provision provides an exception
15

where the proposed patient has been so uncooperative as to prevent an examination, but that was
not the case here. Johnson had cooperated with all of the examiners and, presumably, SRS had
access to the reports from Dr. Woltersdorf, Dr. Burrows, and Mr. Thibault. However, none of
those professionals' diagnoses would support an allegation that Johnson was mentally ill for
involuntary commitment purposes. SRS was simply unable to comply with the certificate
requirement.

Thus, we have reached our first statutory dead end. Although K.S.A. 22-3303(1)
mandates that the district court order SRS to commence proceedings to involuntarily commit a
defendant who has been adjudged incompetent to stand trial with no substantial probability of
attaining competency in the foreseeable future, SRS cannot legally comply with that order under
K.S.A. 59-2945 et seq. if the incompetency is due solely to an organic mental disorder such as
traumatic brain injury. The district court understood that dilemma, as evidenced by the statement
in the memorandum decision that the law should not require a futile act. Even the legislature
apparently understood the problem as early as 2001, when it enacted K.S.A. 22-3306, entitled
"Task force to study programs for alleged offenders with disabilities who are potentially
incompetent to stand trial and make recommendations," which provides:

"The secretary of social and rehabilitation services shall convene a task force to study
current programs and laws for alleged offenders with disabilities that render such offenders
potentially incompetent to stand trial, but who do not meet the criteria for involuntary commitment
under Kansas law. The task force shall review and make recommendations on the adequacy of
Kansas programs and services, and current Kansas law, in protecting public safety and in
providing services and support to such alleged offenders. The secretary shall report to the
judiciary committee during the 2001 interim and shall make a final report including programmatic
and statutory recommendations to the 2002 legislature." (Emphasis added.)

As the legislature noted, the competing interests are protecting public safety on the one
hand, and providing services and support for persons with disabilities on the other. If a person is
incompetent to stand trial and also cannot be committed for mental illness treatment, that person
is simply returned to the community without supervision, in derogation of public safety. Yet, if a
person has a condition that cannot be improved through treatment, e.g., a traumatic brain injury,
16

then involuntarily committing that person under K.S.A. 59-2945 et seq. is akin to a life sentence
without possibility of parole. In 2001, the legislature struck a balance between the competing
interests by amending K.S.A. 22-3303(1) to add a provision which would permit the involuntary
commitment of persons who are incompetent to stand trial because of one of the excepted
diagnoses listed in K.S.A. 59-2946(f)(1), but who have been charged with certain crimes. The
added provision states:

"When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3
felony, or a violation of K.S.A. 21-3504 [aggravated indecent liberties with a child], 21-3511
[aggravated indecent solicitation of a child], 21-3518 [aggravated sexual battery], 21-3603
[aggravated incest] or 21-3719 [aggravated arson], and amendments thereto, and commitment
proceedings have commenced, for such proceeding, 'mentally ill person subject to involuntary
commitment for care and treatment' means a mentally ill person, as defined in subsection (e) of
K.S.A. 59-2946, and amendments thereto, who is likely to cause harm to self and others, as
defined in subsection (f)(3) of K.S.A. 59-2946, and amendments thereto. The other provisions of
subsection (f) of K.S.A. 59-2946, and amendments thereto, shall not apply." (Emphasis added.)
K.S.A. 22-3303(1).

Unfortunately, Johnson I did not appear to pick up on the legislatively recognized
problem, because it remanded with directions for the district court to reinstate and enforce the
order for SRS to commence involuntary commitment proceedings, even though Johnson had not
been charged with one of the crimes with a modified definition of mentally ill person subject to
involuntary commitment for care and treatment. One can only imagine the consternation and
frustration the district court and SRS must have experienced when faced with an appellate court
mandate to do that which could not be done.

As it turned out, the district court's prediction was accurate. The filing of the
commitment petition was truly a futile and superfluous act, correctly resulting in an immediate
dismissal for lack of probable cause to believe that Johnson was a mentally ill person subject to
involuntary commitment. See K.S.A. 59-2959(d)(3) (at temporary custody hearing, court must
find probable cause or, lacking probable cause, "the court shall terminate the proceedings and
release the person"); K.S.A. 59-2962 (court must find probable cause to order mental evaluation;
lacking probable cause, "the court shall terminate the proceedings").
17


With the dismissal of the involuntary commitment petition, the disconnect with the
competency statutes continued. Both Johnson I and Johnson II discuss K.S.A. 22-3305, which
addresses what is to happen after SRS has commenced the Chapter 59 involuntary commitment
proceedings. If the defendant is not admitted as a patient in the treatment facility to which he or
she was sent for evaluation, the defendant is to remain in that institution and the SRS is to notify
the court and prosecutor of the county where the criminal proceedings are pending. K.S.A. 22-
3305(1). Also, if a defendant has been admitted as a patient but is thereafter to be discharged, he
or she is to remain at the institution while the court and prosecutor are notified. K.S.A. 22-
3305(2). When giving the required notification to the court and prosecutor, the treatment facility
is to include "an opinion from the head of the treatment facility as to whether or not the
defendant is now competent to stand trial." K.S.A. 22-3305(2). The prosecutor may then
request a hearing on the issue of competency restoration, but if such request is not made within
10 days of receipt of the treatment facility notification, "the court shall order the defendant to be
discharged from commitment and shall dismiss without prejudice the charges against the
defendant." K.S.A. 22-3305(2).

Obviously, this provision does not contemplate an immediate dismissal of the involuntary
commitment petition for lack of probable cause to believe the patient is mentally ill, because
without probable cause the defendant cannot be sent to a treatment facility for evaluation. If the
defendant never gets to a treatment facility, then that non-existent facility cannot continue to
detain the defendant and the head of the phantom facility cannot form an opinion as to the absent
defendant's competency to stand trial.

In Johnson II, the Court of Appeals chastised SRS for failing to comply with the plainly-
stated mandate of K.S.A. 22-3305(2) to provide a competency opinion from the head of the
treatment facility. Again, the Court of Appeals looked solely at the competency statutes, without
considering the interface with K.S.A. 59-2945 et seq., and opined that SRS should have done the
impossible. This time, however, it was not only legally impossible for SRS to comply with the
provisions of the competency statutes, but it was physically impossible as well because there was
18

no treatment facility from which to obtain an opinion. Accordingly, Johnson II's reliance on a
violation of K.S.A. 22-3305(2) is misplaced.

Finally, we come to the only statute which has any relevance to Johnson's case at this
time. K.S.A. 22-3303(3) provides a mechanism for the district court to revisit the competency
issue. It states, "When reasonable grounds exist to believe that a defendant who has been
adjudged incompetent to stand trial is competent, the court in which the criminal case is pending
shall conduct a hearing in accordance with K.S.A. 22-3302 and amendments thereto to determine
the person's present mental condition." K.S.A. 22-3303(3).

REHEARING ON COMPETENCY

The Court of Appeals applied an abuse of discretion standard of review, presumably
relying on the language in K.S.A. 22-3305(2) that says the court "may" set a hearing after
notification of discharge from the treatment facility. Here, we are dealing with K.S.A. 22-
3303(3), which says the court "shall conduct a hearing." Nevertheless, in determining whether
reasonable grounds existed to revisit the competency issue, we should afford a great deal of
deference to the trial court that conducted the original proceedings.

On the existence of reasonable grounds to believe that Johnson had become competent to
stand trial, the district court made the following findings:

"2. The defendant was found incompetent to stand trial as a result of brain trauma and
the evidence established the effects of the trauma are permanent and irreversible, and therefore,
the passage of time is not a reasonable ground to believe the defendant is competent.

"3. The recent dismissal of involuntary commitment proceedings in Ness County District
Court Case No. 2006-CT-02 does not provide reasonable grounds to believe that the defendant is
competent as contemplated by K.S.A. 2005 Supp. 22-3303(3)."

The district court was absolutely correct in its assessment of the relevance of the
dismissal of the involuntary commitment proceedings. That action simply meant that there was
no probable cause to believe that Johnson was a mentally ill person subject to involuntary
19

commitment for care and treatment because his sole diagnosis was an organic mental disorder.
An organic mental disorder is, however, a mental defect within the meaning of the competency
statutes. As noted previously, the district court understood the distinction; the prosecutor should
have understood it as well.

The district court's finding as to the nature and extent of Johnson's traumatic brain injury
is directly supported by the opinions of both Dr. Woltersdorf and Dr. Burrows. Even Mr.
Thibault, who testified for the State, did not dispute the diagnosis, but rather he simply disputed
the effect of the injury on Johnson's ability to assist with his defense. Even then, Mr. Thibault
acknowledged that Dr. Woltersdorf's testing was considerably more thorough. The district court
specifically found Dr. Woltersdorf's testimony to be more credible.

Nevertheless, it is not the function of an appellate court to weigh conflicting evidence, to
evaluate witnesses' credibility, or to redetermine questions of fact. Hodges v. Johnson, 288 Kan.
56, 65, 199 P.3d 1251 (2009). The Court of Appeals appeared to do all three in Johnson II.

One of factors the Court of Appeals cited as supporting a new competency evaluation and
hearing was a belief that the original competency hearing "was both controverted and limited in
scope." Johnson II, slip op. at 16. A determination of whether reasonable grounds existed to
have a second competency hearing should not lead an appellate court to redetermine the factual
questions from the original hearing. Moreover, as we noted, incompetency can occur if the
defendant is either unable to understand the nature and purpose of the proceedings against him
or unable to make or assist in making his defense. The fact that only one of the alternative
definitions of incompetency was present in the case does not provide reasonable grounds to
believe that competency has been restored.

The Court of Appeals not only weighed the evidence, it endeavored to provide its own
analysis of the significance of certain test scores. That task was best left to the experts. Two of
those experts, Dr. Woltersdorf and Dr. Burrows, opined that, given the lapse of time since the
accident, they would not expect to see any significant improvement in Johnson's cognitive
abilities. In rendering those opinions, the experts had the benefit of Johnson's results on the base
20

line tests in January 2002 and the results from the same tests which were given subsequently.
Although the experts noted slight improvement on the later tests, part of that was attributed to the
patient's familiarity with the tests the second time around. Nevertheless, the experts had the test
results when opining that Johnson would not significantly improve. We should not question the
credibility of those opinions based upon our own lay analysis of what the test results show.

Moreover, the experts' opinions directly refute Johnson II's assertion that the passage of
time since the last medical evaluation of Johnson's cognitive abilities provides a reasonable
ground to believe he is now competent. If the diagnosis is permanent and irreversible brain
damage, the relative date of that assessment is immaterial.

Further, any reliance on the detective's affidavit setting forth the conversation he
overheard between Johnson and a store clerk is suspect. The State provided no foundation as to
the detective's knowledge of computer programs to give context to his statement that the
conversation contained "some technical detail." For the uninformed, gibberish can sound like
technical detail. Moreover, we do not know whether Johnson's part of the conversation was
responsive to that of the clerk. Nevertheless, the district court considered the affidavit and
opined that it did not override the expert opinions that were contained in the court file. We
agree. If the State wanted an assessment of what the conversation may have meant on the issue
of competency, it should have submitted the information to an expert for analysis.

Also, we question the Court of Appeals' characterization of Dr. Woltersdorf's
recommendation that Johnson engage in computer-assisted cognitive rehabilitation. Johnson II
viewed it as an acknowledgment that Johnson could be rehabilitated to competency to stand trial.
We are unwilling to put those words in the doctor's mouth. The more likely reason for the
treatment recommendation was to assist Johnson in reaching some level of independent living,
rather than to attain competency to stand trial.

Finally, the Court of Appeals believed it was a factor that Dr. Woltersdorf had testified
about "certain strategies or accommodations which could be employed by the district court
during a trial of this matter in an effort to mitigate the effects of Johnson's brain injury." Johnson
21

II, slip op. at 20. However, the doctor discussed those possible strategies while giving his
opinion that Johnson was incompetent to stand trial; he did not say that the strategies would
resolve the problem. To the contrary, the doctor said that he knew of no adjustments in the
courtroom which could compensate for Johnson's slow mental processing, which emanated from
a nonhealing area of the brain.

In conclusion, the district court's finding that the State had not proffered any evidence to
establish reasonable grounds to believe that Johnson had been restored to competency to stand
trial is supported by the record. In fact, the record provides reasonable grounds to believe that
Johnson will never be restored to competency to stand trial. Accordingly, we reverse the Court
of Appeals' decision and affirm the district court's order dismissing the criminal proceedings
without prejudice.