v. Ong , 2021 COA 113 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 19, 2021
2021COA113
No. 19CA2230, People v. Ong — Criminal Law — Competency to
Proceed — Certification, Reviews, and Termination of
Proceedings; Appeals — Final Appealable Order
A division of the court of appeals determines that an order
issued pursuant to section 16-8.5-116, C.R.S. 2020, finding a
defendant incompetent with no probability of restoration and
dismissing the criminal charges, is a final, appealable order. The
division clarifies that the stay of the dismissal order issued under
section 16-8.5-116(10) does not extend the finality of the order for
the purposes of timely appeal. The division concludes that the
People’s appeal was untimely filed because the stay did not extend
the finality of the order.
COLORADO COURT OF APPEALS 2021COA113
Court of Appeals No. 19CA2230
Larimer County District Court Nos. 16CR2625 & 17CR1635
Honorable Thomas R. French, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Earl Joseph Ong,
Defendant-Appellee.
APPEAL DISMISSED
Division II
Opinion by JUDGE DAVIDSON*
Harris and Lipinsky, JJ., concur
Announced August 19, 2021
Clifford E. Riedel, District Attorney, Joshua D. Ritter, Deputy District Attorney,
Fort Collins, Colorado, for Plaintiff-Appellant
Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for Defendant-
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 The People appeal the district court’s order finding Earl
Joseph Ong incompetent without likelihood of recovery, terminating
the criminal proceedings, dismissing the charges against him, and
staying the order of dismissal for twenty-one days to facilitate the
transition of the case from criminal to civil mental health
proceedings. Ong moved to dismiss the People’s appeal as untimely
filed. We grant Ong’s motion.
I. Background and Procedural Facts
¶2 On November 28, 2016, Ong was charged with sexual assault
on a child (pattern of abuse), sexual assault on a child (victim
incapable of appraising conduct), sexual assault on a child, sexual
exploitation of children, and sexual exploitation of a child. Ong was
released on bond. Although he was subsequently charged in
another case with violation of bail bond conditions and violation of
a protective order, he remained out on bond.
¶3 Section 16-8.5-116(4), C.R.S. 2020, provides that a court,
after four prior reviews finding a defendant incompetent,
shall review the competency of the defendant
every sixty-three days until the defendant is
restored to competency or the court
determines, based on available evidence, that
there is not a substantial probability that the
1
defendant will be restored to competency in
the foreseeable future and in that case, the
court shall dismiss the case.
¶4 Section 16-8.5-116(10) allows the court, after finding
incompetency and ordering the case dismissed under subsection
(4), to stay the order dismissing the criminal charges for up to
twenty-one days “so as to provide the department and the county
attorney or district attorney with the opportunity to pursue
certification proceedings or the provision of necessary services.”
¶5 On May 8, 2017, Ong’s defense counsel requested a
competency evaluation. The district court made a preliminary
finding that Ong was incompetent to proceed and, following a
hearing, found Ong to be incompetent. Because Ong was out on
bond, the district court ordered him to undergo outpatient
competency restoration therapy.
¶6 The doctor evaluating Ong submitted progress reports to the
court on June 18, 2018; November 12, 2018; and February 25,
2019. Each time, she reported that Ong’s mental or developmental
disability rendered him incompetent to proceed. In the February 25
report, she reported that Ong is “permanently incompetent to
proceed.”
2
¶7 On April 12, 2019, Ong’s counsel filed a motion to terminate
the proceedings and dismiss the criminal case under section
16-8.5-116. On June 4, 2019, the evaluating doctor submitted a
fourth report with the same findings and again opined that Ong was
“permanently incompetent to proceed.” Once more, defense counsel
requested that the court terminate the proceedings and dismiss the
criminal case under section 16-8.5-116. However, this time the
district attorney objected, arguing that this portion of the
competency statute does not apply to Ong because he was not in
custody — either in jail or another facility.
¶8 The court held additional competency review hearings and
heard argument and briefing on the legal issue the district attorney
had raised. On September 21, 2019, the court entered an order
granting defense counsel’s motion to terminate the proceedings,
and dismissed the criminal charges, as provided under section 16-
8.5-116(4). In addition, the court stayed the dismissal order for
twenty-one days as permitted under section 16-8.5-116(10).
¶9 Specifically, the court ordered:
Pursuant to C.R.S. § 16-8.5-116, the Court
finds that the Defendant is incompetent and
there is not a substantial probability that he
3
will be restored to competency in the
reasonably foreseeable future. The Court also
finds that the Defendant meets the
requirements for certification pursuant to
article 65 of title 27 of the Colorado Revised
Statutes because he is a danger to others
based upon the allegations in the offenses here
charged. The Court commences a mental
health case and refers the same to the Larimer
County Attorney. Pursuant to C.R.S. § 16-8.5-
116(4), (10), the Court dismisses the criminal
case but stays the dismissal for 21 days from
today.
¶ 10 The court’s order was duly entered into the court registry the
same day. The twenty-one day stay of the dismissal of the criminal
charges expired on October 12, 2019. A clerical notation in the
registry of actions dated October 15, 2019, reflects that Ong’s cases
were “closed-dismissed” and the mandatory protection order
vacated. The People filed their notice of appeal on December 3,
2019 — seventy-three days after entry of the September 21 order
and fifty-two days after the stay expired.
¶ 11 Ong filed a motion to dismiss the appeal as untimely. We
granted his request that we consider his motion as a threshold
matter before consideration of the merits of the appeal.
4
¶ 12 He asserts that the appeal is untimely because the September
21, 2019, order was a final, appealable order, and because the
People’s notice of appeal was filed seventy-three days after the entry
of that order. In response, while acknowledging that the order was
issued and entered on September 21, the People claim that the
court’s stay extended the finality of the order for purposes of appeal
until, according to the People, October 15, 2019, when the
administrative entry in the registry of actions noted that the case
was closed. Alternatively, even if the stay did not extend the
People’s deadline to file an appeal, the People request that we find
good cause to excuse their untimely filing.
¶ 13 We agree with Ong. We conclude that the September 21 order
was a final order and that the stay of the order did not impact its
finality. We also find no good cause for the untimely filing.
Because the timely filing of a notice of appeal is a prerequisite to
our jurisdiction, e.g., Estep v. People, 753 P.2d 1241, 1246 (Colo.
1988), we dismiss the appeal.
5
II. The People’s Appeal was Untimely Filed Because the
September 21 Order was a Final, Appealable Order and its
Finality was Unaffected by the Twenty-One Day Stay
¶ 14 The People are authorized to appeal questions of law arising
from a final order entered in a criminal proceeding. C.A.R. 1(a)(1);
§ 16-12-102(1), C.R.S. 2020. A prosecution appeal must be filed in
the court of appeals within forty-nine days after the entry of
judgment or order being appealed. C.A.R. 4(b)(2). “A judgment or
order is entered within the meaning of this section (b) when it is
entered in the criminal docket.” C.A.R. 4(b)(1). Any such appeal
must follow the procedural requirements of C.A.R. 4(a), including
that it be timely filed.
¶ 15 With exceptions not relevant here, see, e.g., C.A.R. 4.1; § 16-
12-102 (permitting interlocutory appeals in limited and specific
situations), only final judgments or orders are appealable.
Prosecution appeals, like appeals by other parties, are subject to
the final judgment requirement of C.A.R. 1.
A. The September 21 Order Terminating the Competency
Proceedings and Dismissing the Charges was a Final,
Appealable Order Because It Ended the Controversy and Left
6
the District Court with Nothing Further to do to Determine the
Rights of Ong and the Prosecution
¶ 16 A judgment is final for purposes of appeal when it is entered
“leaving nothing further for the court pronouncing it to do in order
to completely determine the rights of the parties involved.” People v.
Guatney, 214 P.3d 1049, 1051 (Colo. 2009). A judgment or order in
a criminal case is final when “the defendant is acquitted, the
charges are dismissed, or the defendant is convicted and sentence
is imposed.” Id.¶ 17 A judgment of dismissal in a criminal case is final and
immediately appealable. Dike v. People, 30 P.3d 197, 201 (Colo.
2001).
¶ 18 We agree with Ong that the September 21 order terminating
the competency proceedings and dismissing the charges was a final,
appealable order.
¶ 19 Pursuant to section 16-8.5-116, the controversy before the
district court was whether Ong was incompetent with no probability
of restoration. If it so determined, the court was required to order
dismissal of all pending criminal charges pursuant to section 16-
7
8.5-116(4).1 In addition, the court had the discretion to delay the
dismissal for twenty-one days to enable the transition to civil
mental health proceedings (the effect of which would keep Ong in
custody or on bond during that transition). § 16-8.5-116(10).
Ultimately, the court found Ong incompetent with no probability of
recovery and consequently, as mandated, issued an order
dismissing the criminal charges. In addition, finding Ong to be
dangerous to others, the court opened a mental health case and
stayed execution of the order of dismissal of the criminal charges
for the statutorily prescribed twenty-one days.
¶ 20 From these facts, it is apparent that there was nothing more
for the district court to do in the competency proceedings to
determine the rights of the parties before it. See People in Interest of
C.Y., 2012 COA 31, ¶ 31 (in juvenile delinquency proceedings, the
1 In their briefs on appeal, the People contend that district court
had no authority to dismiss the charges against Ong because he
was not in custody of the department or otherwise confined under
section 16-8.5-116(4), C.R.S. 2020, but was receiving outpatient
competency restoration treatment. We do not address the merits of
this contention but presume, solely for the purposes of determining
jurisdiction, that the trial court had the proper authority to dismiss
the charges.
8
court’s finding that competency could not be restored and order for
a management plan ended the controversy and therefore was a
final, appealable order); People v. Galves, 955 P.2d 582, 583 (Colo.
App. 1997) (determining that a finding of not guilty by reason of
insanity, while not technically a judgment of conviction, ended the
controversy and, therefore, was the functional equivalent of a final
judgment of conviction); cf. People v. Zapotocky, 869 P.2d 1234,
1240-41 (Colo. 1994) (finding of no substantial probability that a
defendant will be restored to competency in the foreseeable future
required that the defendant be released); Parks v. Denver Dist. Ct.,
180 Colo. 202, 207, 503 P.2d 1029, 1032 (1972) (“If it becomes
apparent that the defendant is unlikely to ever regain competency
to stand trial, then civil commitment proceedings should be
instituted.”).
¶ 21 Contrary to the People’s suggestion that the court may have
retained continuing jurisdiction to resolve certain, limited issues
arising during Ong’s transition to civil proceedings, e.g.,
enforcement of the mandatory protection order, such continuing
jurisdiction did not affect the appealability of the September 21
order. C.Y., ¶ 31 (order determining that juvenile cannot be
9
restored to competency is final and appealable even though the
court maintains jurisdiction to establish and monitor a
management plan); Galves, 955 P.2d at 583-84 (where a court
enters a final, appealable order adjudicating a defendant not guilty
by reason of insanity, that court retains jurisdiction to resolve
questions relating to the defendant’s care and treatment); cf.
Strepka v. People, 2021 CO 58, ¶ 1 (a trial court retains jurisdiction
to rule on a motion for return of unlawfully obtained property after
a case is dismissed so long as the motion is filed before the appeal
deadline expires).
B. The Stay of the September 21 Order Had No Impact On Its
Finality
¶ 22 To the extent that the People suggest that the September 21
order did not become final and appealable until the expiration of the
twenty-one day stay granted by the court under section 16-8.5-
116(10), we disagree. To the contrary, because the order
terminating the proceedings and dismissing the criminal charges
was final and appealable when entered on September 21, the
court’s stay of that order merely suspended its enforcement and
had no effect on its finality for purposes of filing a timely appeal.
10
See People v. Gabriesheski, 262 P.3d 653, 657 (Colo. 2011) (“The
dismissal of all charges in a criminal prosecution clearly ends the
particular action in which the order of dismissal is entered and
therefore constitutes a final judgment for purposes of the People’s
request for appellate review of any ruling in the case” on a question
of law.); see also People v. Collins, 32 P.3d 636, 638 (Colo. App.
2001) (the dismissal of criminal charges is analogous to a final
judgment because the dismissal of a charge effectively terminates
prosecution of the charge); § 16-12-102(1) (the entry of an order
dismissing all charges in a criminal case is “immediately
appealable”); cf. People v. Figueroa-Lemus, 2020 CO 59, ¶ 10 (a
statutorily sanctioned deferred judgment and sentence is not a final
judgment; until and unless it is revoked, it is not subject to
appellate review); Kazadi v. People, 2012 CO 73, ¶ 18 (in deferring
judgment and sentence, the trial court has not yet imposed the
sentence and, therefore, a judgment of conviction has not entered
that is subject to postconviction or appellate review until the
deferred judgment is revoked and sentence is imposed); Ellsworth v.
People, 987 P.2d 264, 266 (Colo. 1999) (until a sentence is imposed
there can be no final judgment); see also C.A.R. 8.1(a)(4) (an order
11
placing an offender on probation remains in effect pending review
by an appellate court unless the court grants a stay of probation);2
see generally State v. Bachman, 675 S.W.2d 41, 44-45 (Mo. Ct. App.
1984) (explaining that a stay of imposition of a sentence and a stay
of execution of a sentence “are not the same thing,” as they do not
cause a trial court to continue its performance, and hence
jurisdiction, in the same way).
2 We are not persuaded by the cases the People cite in their
response to the motion to dismiss to support their assertion that,
because the order was stayed, the September 21 order was not final
and appealable. In those cases, unlike here, the trial courts’ rulings
did not end the actions leaving nothing further to be done in
determining the rights of the parties involved; in each case, there
remained unresolved claims or parties who were still a part of the
litigation. Berry v. Westknit Originals, Inc., 145 Colo. 48, 49-50, 357
P.2d 652, 653 (1960) (court’s order dismissing some but not all
parties was not a final, appealable order because it did not
determine the action as to all parties); Dist. 50 Metro. Recreation
Dist. v. Burnside, 157 Colo. 183, 186-87, 401 P.2d 833, 835 (1965)
(trial court’s order granting defendants’ motion to dismiss not a
final, appealable order when the court did not enter a final
judgment after granting the motion); Things Remembered, Inc. v.
Fireman’s Ins. Co., 924 P.2d 1089, 1091 (Colo. App. 1996) (court
order staying proceedings pending resolution of another case
involving similar issues was not final where not all the parties in the
cases were the same and it was disputed whether the other
proceeding would resolve the claims in this case).
12
¶ 23 Therefore, just as an imposed sentence or a probationary
sentence that has been stayed constitutes a final judgment, but a
deferred judgment does not, the entry of the September 21 order
was the event that created finality and triggered the time for filing a
notice of appeal. The dismissal entered on September 21 did not
need to be re-entered to take effect after the expiration of the stay.
That is why it is of no moment that the stay expired on October 12,
but the minute order noting the closure of the case was not entered
until October 15. The minute order did not re-enter the dismissal
order; it simply closed the case because the charges had been
dismissed.
¶ 24 Indeed, as Ong points out, if the September 21 order was not
appealable until the expiration of the stay, by granting the stay, the
district court would effectively have extended the time for appeal for
an additional forty-nine days past the entry of a final order,
something it had no authority to do. See P.H. v. People in Interest of
S.H., 814 P.2d 909, 912 (Colo. 1991) (finding that, under C.A.R.
4(a), a trial court is without authority to grant an extension of time
to file the notice of appeal; unlike the former version of C.A.R. 4(a),
such power is now vested in the appellate court); Estep, 753 P.2d at
13
1247 (trial court has no authority to extend the time for filing an
appeal); cf. People v. Retallack, 804 P.2d 279, 279-80 (Colo. App.
1990) (a motion filed after the entry of the order challenged on
appeal does not extend the time for the prosecution to file its notice
of appeal).3
¶ 25 We conclude that the September 21 order was final and
appealable and, because the stay of that order did not affect its
finality, the People’s notice of appeal, filed seventy-three days later,
was untimely.
III. We Find No Good Cause to Accept the Appeal Out of Time
¶ 26 In the alternative, the People argue that, if we determine that
the order entered on September 21 was final, good cause exists to
accept the appeal out of time because of their good-faith reliance on
the trial court’s imposition of the stay of the order of dismissal. We
disagree.
3 Indeed, nothing in section 16-8.5-116(10) can be understood to
grant the trial court the discretion to extend the time to file an
appeal. To the contrary, the statute allows the court to enter a stay
of a dismissal order solely to facilitate the safe transition of a
permanently incompetent but dangerous defendant from criminal to
civil commitment proceedings, that is, to allow time for the proper
agency to begin civil commitment proceedings and allow for the
transfer of jurisdiction without losing oversight of Ong.
14
¶ 27 C.A.R. 4(b)(2), unlike C.A.R. 4(b)(1), does not include language
providing additional time to file a notice of appeal upon a showing
of excusable neglect or justifiable excuse. Rather, the People must
demonstrate good cause for the late filing of a notice of appeal.
People v. Gilmore, 97 P.3d 123, 128 (Colo. App. 2003).
¶ 28 Good cause under C.A.R. 26(b) requires a showing that
surrounding circumstances would cause a reasonably prudent
person similarly to overlook a required act in the performance of
some responsibility. Farm Deals, LLLP v. State, 2012 COA 6, ¶ 20.
¶ 29 The People do not claim that they were unaware of the
September 21 order. And, as discussed, the dismissal order was a
final, appealable order stayed, per the statute, not to allow further
proceedings as to the underlying case or Ong’s competency, but
simply to allow for the commencement of civil commitment
proceedings. Because the stay did not affect the finality of the order
dismissing the case, the People’s reliance on the court’s entry of the
stay does not constitute good cause for their failure to timely file the
notice of appeal.
IV. Conclusion
¶ 30 The appeal is dismissed.
15
JUDGE HARRIS and JUDGE LIPINSKY concur.
16