Rule 5-602.2. Proceedings after a finding of incompetency.

A. Scope. This rule governs proceedings after a defendant has been found incompetent to stand trial under Rule 5-602.1 NMRA. This rule does not apply to a defendant charged with a felony whose incompetency is believed to be primarily due to developmental or intellectual disability. Those proceedings are governed by Rule 5- 602.3 NMRA. B. Definitions. For purposes of this rule, the following definitions shall apply. (1) Community-based competency restoration. A court-approved program that is designed to restore a defendant to competency provided in an outpatient setting in the community where the defendant resides. (2) Competency. The terms competency, competence, and competent are used interchangeably throughout this rule and refer to whether the defendant has, (a) sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding, (b) a rational as well as factual understanding of the proceedings against the defendant, and (c) the capacity to assist in the defendant’s own defense and to comprehend the reasons for punishment. (3) Dangerous. A defendant who is not competent is dangerous if the court finds by clear and convincing evidence that the defendant presents a serious threat of: (a) committing murder in the first or second degree, as provided in NMSA 1978, Section 30-2-1; (b) inflicting great bodily harm, as defined in NMSA 1978, Section 30-1-12, on another person; (c) committing criminal sexual penetration, as provided in NMSA 1978, Section 30-9-11; (d) committing criminal sexual contact of a minor, as provided in NMSA 1978, Section 30-9-13; (e) committing abuse of a child, as provided in NMSA 1978, Section 30-6- 1(D); (f) violating a provision of the Sexual Exploitation of Children Act; (g) committing human trafficking, as provided in NMSA 1978, Section 30-52- 1; (h) committing aggravated arson, as provided in NMSA 1978, Section 30-17- 6; or (i) committing any “serious violent offense” enumerated in NMSA 1978, Section 33-2-34(L)(4)(a)-(n) with the use of a firearm. (4) Department. The term Department means the New Mexico Department of Health. C. Cases transferred to the district court and restoration to competency. If a defendant is restored to competency in a case that was transferred to the district court under Rules 6-507.1 or 8-507.1 NMRA, the district court shall remand the case to the originating court within two (2) days of the finding of competency. D. Dangerousness determination. In every case where a defendant is found not competent, the court shall consider whether there is clear and convincing evidence that the defendant is dangerous under NMSA 1978, Section 31-9-1.2(A). Unless the court approves a stipulation by the parties, the court shall hold a hearing to determine dangerousness. A determination of the defendant’s dangerousness shall take into account only evidence relevant to whether the defendant presents a serious threat of committing one of the enumerated crimes listed in Section 31-9-1.2(A). E. No finding of dangerousness. If the court does not find that the incompetent defendant is dangerous under Paragraph D of this rule, the court may order the defendant to participate in a community-based competency restoration program or dismiss the case without prejudice in the interests of justice. On dismissal, the court may advise the district attorney to consider initiation of proceedings under NMSA 1978, Section 43-1-10 or 43-1-11 of the Mental Health and Developmental Disabilities Code and order the defendant confined for a maximum of seven (7) days to facilitate preparation and initiation of a petition under that code. In the alternative, the court may advise the district attorney to consider initiation of proceedings under NMSA 1978, Section 43-1B-4 to file a petition for assisted outpatient treatment. (1) Community-based competency restoration program. The court can order a defendant to participate in a community-based competency restoration program for no more than ninety (90) days as required under Section 31-9-1.2(C). F. Finding of dangerousness. (1) Commitment for competency restoration. If the court finds that an incompetent defendant is dangerous, the court may commit the defendant for inpatient competency restoration in a secured, locked facility, where the defendant shall remain under the supervision of the Department. The order also shall provide for return of the defendant to the local facilities within seventy-two (72) hours of the defendant’s restoration to competency, completion of the competency restoration program, or as otherwise required by the court. (2) Inability to treat defendant. If the Department determines that it does not have the ability to meet the needs of the defendant, the Department’s Secretary or Secretary’s Designee may refuse admission by providing written certification to the committing court and parties of the Department’s inability to meet the needs of the defendant. The certification shall be made within seven (7) days of receipt of the court’s order of commitment and receipt of necessary and available documents reasonably required for admission. Within ten (10) days of receipt of the certification, the court shall set a hearing to determine disposition of the criminal case. (3) Initial assessment and report. Unless the Department certifies that it is unable to meet the needs of the defendant, within thirty (30) days of the defendant’s admission for competency restoration, the person supervising the defendant’s competency restoration shall file with the court and serve on the state and the defendant the following: (a) an initial assessment and treatment plan; (b) a report on the defendant’s amenability to competency restoration; (c) an assessment of the Department’s capacity to provide treatment for the defendant; and (d) an opinion about the probability of the defendant being restored to competency within nine (9) months from the date the court determined the defendant is not competent to stand trial. (4) Status-review hearing. Within ninety (90) days of the court’s determination the defendant is not competent, the court shall hold a hearing, unless waived by the defense, to review whether the defendant has been restored to competency, and if not, whether the defendant is making progress towards competency restoration within nine (9) months of the finding of incompetency and whether the defendant remains dangerous. (a) If the court finds the defendant is restored to competency, the court shall set the matter for trial or, in a case transferred to the district court under Rules 6-507.1 or 8-507.1, remand the case within two (2) days to the originating court. The court may order continued care or treatment until the conclusion of the criminal proceedings if the defendant is in need of continued care or treatment and the Department agrees to continue to provide it. (b) If the court finds the defendant is not competent but is making progress toward being restored to competency within nine (9) months from the date the court determined the defendant is not competent, the court may continue or modify its original order entered under Subparagraph (F)(1) of this rule, but the court shall review the defendant’s competency again no later than nine (9) months after the original finding of incompetency and the treatment supervisor shall submit a written progress report at least seven (7) days prior to the hearing. (c) If the court finds that the defendant remains not competent and is not making progress towards being restored to competency, and that there is not a substantial probability that the defendant will be restored to competency within nine (9) months of the original finding of incompetency, the court shall proceed under Paragraph G of this rule. Additionally, the court may order continued care or treatment until the conclusion of the criminal proceedings if the defendant is in need of continued care or treatment and the Department agrees to continue to provide it. G. Competency restoration ineffective for defendant. If at any time the court determines there is not a substantial probability that a defendant is likely to be restored to competency within nine (9) months from the original finding of incompetency, the district court shall do either of the following: (1) hold a criminal commitment hearing in accordance with NMSA 1978, Section 31-9-1.5 within three (3) months if the defendant is charged with one of the offenses set forth in Section 31-9-1.5(A); or (2) if the defendant is not charged with an offense set forth in Section 31-9- 1.5(A), the district court may (a) dismiss the criminal case with prejudice; or (b) dismiss the criminal case without prejudice in the interest of justice. On dismissal, if the treatment supervisor reports to the court that the defendant satisfies the criteria for involuntary commitment under the Mental Health and Developmental Disabilities Code, the Department shall initiate proceedings under Section 43-1-10 or 43-1-11, and the court may order the defendant confined for a maximum of seven (7) days to facilitate the initiation of a petition under that code. In the alternative, the district attorney may initiate involuntary commitment proceedings in the Department’s stead. H. Criminal commitment; hearing. If the court determines that there is not a substantial probability that a defendant charged with an offense set forth in NMSA 1978, Sections 32A-9-1.4(A) or 32A-9-1.5(A) will be restored to competency within nine (9) months of the original finding of incompetency, the court shall hold a commitment hearing to determine whether there is clear and convincing evidence of the defendant’s guilt if the defendant is charged with one of the enumerated charges outlined in Section 31-9-1.5(A). The court shall decide the issue without a jury, and may admit hearsay or affidavit evidence on secondary matters as permitted by law. (1) If the court does not find clear and convincing evidence that the defendant committed the crime charged, the court shall dismiss the case with prejudice. (2) If the court finds clear and convincing evidence that the defendant committed the crime charged but does not find that the defendant is dangerous, the court shall dismiss the case without prejudice. (3) If the court finds clear and convincing evidence that the defendant committed the crime charged and enters a finding that the defendant remains not competent and dangerous, the court shall, (a) order that the defendant shall be detained by the Department in a secure, locked facility until further order of the court or until the expiration of the period of time equal to the maximum sentence to which the defendant would have been subjected had the defendant been convicted in a criminal proceeding; (b) order the Department to report to the district court and the parties any significant changes in the defendant’s condition, including but not limited to competency and dangerousness; and (c) on notice to the parties and to the Department, conduct a hearing at least every two (2) years to review whether the defendant remains incompetent and dangerous. (i) If the court finds that the defendant is competent, the court shall continue with the criminal proceeding. (ii) If the court finds that the defendant continues to remain not competent and dangerous, the court shall review the defendant’s competency every two (2) years until expiration of the period of commitment equal to the maximum sentence to which the defendant would have been subject had the defendant been convicted in a criminal proceeding. (iii) If the defendant is not committed under this rule or if the court finds on its two (2)-year review that the defendant is no longer dangerous, the defendant shall be released. (4) At any time, the Department or the district attorney may initiate civil involuntary commitment proceedings under NMSA 1978, Section 43-1-10 or 43-1-11 of the Mental Health and Developmental Disabilities Code, and the court may order the defendant confined for a maximum of seven (7) days to facilitate the initiation of those proceedings. In the alternative, the Department or district attorney may initiate proceedings under Section 43-1B-4 to file a petition for assisted outpatient treatment. I. Automatic sealing of court records. Any motion, response, assessment, treatment plan, report, or other paper filed under this rule shall be automatically sealed without motion or order of the court as provided in Rule 5-123(C)(2) NMRA. An order issued under this rule shall not be sealed except on motion and order under Rule 5-123.