Filip Chase Joseph Rosario, Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

In America, we do not try absent criminal defendants. Every defendant has a constitutional right to be present during trial, hear the State's evidence, confront and cross-examine all witnesses, and present any defense they wish to raise. But defendants who are not competent to stand trial are not present for that trial. For various reasons, they cannot participate, they cannot hear the evidence, they cannot confront and cross-examine, they cannot present a defense. Without a competent defendant, a criminal trial becomes a meaningless judicial exercise with only one side participating.

In Kansas, a district court may, in a collateral proceeding, look back and decide whether an accused was competent to stand trial after that accused has been convicted. Such a proceeding is referred to as a retrospective competency hearing. This appeal involves a civil proceeding where the competence of a defendant to stand trial was determined several years after the trial. This case is a review of a June 2019 K.S.A. 60-1507 habeas corpus motion and a retrospective competency hearing concerning Filip Chase Joseph Rosario, a prisoner in custody. After taking evidence in 2023 on the question of Rosario's competence to stand trial back in 2015, and after reviewing the materials found in the record of his prosecution, the habeas corpus court found that Rosario was competent when he was tried. The court then denied him any relief on his K.S.A. 60-1507 motion. Rosario appeals.

We review such procedures for an abuse of discretion. State v. Ford, 302 Kan. 455, 473, 353 P.3d 1143 (2015). Our review of this record reveals that substantial competent evidence supports the district court's holding in its retrospective competency determination. We detect no abuse of discretion and affirm the court's denial of habeas corpus relief.

Charged in 2013, Rosario was convicted in 2015.

After beating and abusing his girlfriend in 2013, Rosario was charged with several serious felonies. A jury, in 2015, found Rosario guilty of two counts of aggravated criminal sodomy, rape, aggravated kidnapping, aggravated battery, and criminal threat. The district court sentenced Rosario to 775 months in prison. The details of his crimes are summarized in our court's opinion affirming his convictions in Rosario's direct appeal. State v. Rosario, No. 114,224, 2017 WL 5015501, at *1-4 (Kan. App. 2017) (unpublished opinion). The Supreme Court denied Rosario's request for review.

Rosario's post-appeal pursuits focus on his trial competency.

After his unsuccessful appeal, Rosario brought this timely K.S.A. 60-1507 motion—alleging, among many claims, ineffective assistance of counsel and court errors related to his competency determinations. Rosario has amended this motion eight times but finally boiled his claims down only to those concerning his competency to stand trial.

The district court, in Rosario's presence, took evidence on Rosario's amended motion in October 2023. Rosario, his mother, and the trial prosecutor all testified at the hearing. By that time, both the district court judge who presided over Rosario's trial and Rosario's trial counsel had died. After taking the matter under advisement and reviewing the record of Rosario's prosecution, the court issued a written ruling that denied Rosario's request for relief.

Before we address the details of the district court's retrospective competency hearing, we must address two preliminary concerns. First, because a habeas corpus proceeding is not a substitute for an appeal, should we even consider this case? Second, was a competency hearing required by law under these circumstances?

Can this issue be legally addressed in a habeas proceeding?

Kansas Supreme Court Rule 183 regulates a district court's K.S.A. 60-1507 procedures. Rule 183(c)(3) states that a K.S.A. 60-1507 motion does not replace a second appeal of “mere trial errors.” 2026 Kan. S. Ct. R. at 241. But that rule does direct that “trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appear.” 2026 Kan. S. Ct. R. at 241. This rule directs that we must first decide whether this case deals with errors affecting constitutional rights; and if so, then, second, we must decide whether there are any exceptional circumstances that excuse the failure to raise these questions in the direct criminal appeal.

This case involves constitutional rights.

Rosario is making a procedural competency claim. He contends that the district court did not comply with the procedures commanded by K.S.A. 22-3302. According to K.S.A. 22-3302(a), at any time after a defendant is charged but before sentencing, a motion to determine the competency of the defendant to stand trial may be filed. If the judge finds “there is reason to believe that the defendant is incompetent to stand trial, the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” K.S.A. 22-3302(a). In contrast to this procedural competency claim, a substantive competency claim is based on allegations that a defendant was tried and convicted while, in fact, he or she was incompetent. McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001). We find no such claim here.

In Rosario's view, the district court violated this law in two ways: by not suspending the prosecution, and then by failing to hold a competency hearing. Instead, the court just proceeded to trial after Rosario had been evaluated.

Caselaw demonstrates that a procedural competency claim, such as Rosario's here, raises fundamental constitutional questions. The United States Supreme Court equates the prosecution of an incompetent person to the prohibition on trying an absent defendant. Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). Prosecuting criminal defendants in violation of their right to be present is structural error, requiring no demonstration of prejudice. In other words, prejudice is presumed. See State v. Calderon, 270 Kan. 241, 253, 13 P.3d 871 (2000).

After considering all of these legal points, we are satisfied that this appeal presents constitutional questions that satisfies the requirements of Rule 183(c)(3).

Are there any “exceptional circumstances” here?

As the United States Supreme Court noted in Drope, a criminal defendant who is incompetent to stand trial is effectively absent from his or her own trial. 420 U.S. at 171-72. In other words, trying an incompetent person is akin to trying an individual in his or her absence entirely. This is no different than prosecuting a person who does not understand English without providing adequate interpreter services. See Calderon, 270 Kan. at 253. The wholesale deprivation of the right to be meaningfully present at the criminal proceedings constitutes structural error. Such a deprivation of a right to be present is an extraordinary circumstance.

With this review of the record, we deem that Rosario has established the requisite exceptional circumstances according to the requirements of Rule 183, thus warranting our consideration of his claim.

Was a competency hearing required under the facts of this case?

In this collateral proceeding, the district court ruled and the State in this appeal contends that a competency hearing was not required because, after obtaining psychological evaluations, the trial court simply had no reason to believe Rosario was incompetent to stand trial. The district court relied on State v. Groschang, 272 Kan. 652, 660, 36 P.3d 231 (2001), to conclude that Rosario's evaluations did not trigger a competency hearing.

In Groschang, defense counsel filed notice of an intent to raise mental illness or defect as a defense. A defense expert diagnosed Groschang suffered from multiple mental health issues at the time the criminal offenses were committed. The State moved the court to order a competency evaluation at Larned State Hospital under K.S.A. 22-3302 and K.S.A. 22-3303. Because defense counsel did not oppose the motion, the court ordered Groschang to be committed to Larned for a competence evaluation. The Hospital later submitted its report, suggesting that Groschang was competent to stand trial. Without holding a hearing to determine competency, the district court continued the criminal prosecution proceedings.

On appeal, Groschang later challenged the lack of a competency hearing. The Kansas Supreme Court acknowledged the requirements of K.S.A. 22-3302(a) but concluded that a competency hearing was not required.

“We note that although Dr. Shlensky reported the presence of ․ mental disorders and syndromes, the doctor did not conclude that Groschang was incompetent to stand trial. The Larned report had concluded that Groschang was competent. The defense never requested a hearing to challenge that finding. Therefore, the trial court did not err by not holding a competency hearing.” 272 Kan. at 660.

That holding ignored the statutory requirement of suspending the prosecution of a criminal defendant while competency to stand trial is determined. See K.S.A. 22-3302(a). The opinion does not mention any suspension of the prosecution. Rosario now challenges the district court's reliance on Groschang, contending that Groschang's holding on the competency issue is inconsistent with the language of K.S.A. 22-3302(a) and with subsequent Kansas Supreme Court precedent. To us, the Groschang decision appears to be an anomaly.

In Groschang, the district court did not have a “reason to believe that the defendant is incompetent to stand trial” based on the defense expert's report that failed to address competency and the Larned evaluation that held Groschang was competent to stand trial. 272 Kan. at 659-60. But the Groschang court's discussion about defense counsel's failure to request a hearing seems misguided because nothing in the statute requires any party to request a hearing. Furthermore, the holding in Groschang that the district court was not required to hold a hearing even after the State requested a competency evaluation from Larned appears inconsistent with prior and subsequent Kansas Supreme Court precedent.

Under the statute, a request to determine competency from either party or by the court's own motion triggers the need for a competency hearing. K.S.A. 22-3302(a). Groschang has never been overruled, and the Kansas Supreme Court did not refer to the decision when it later decided two important competency cases. See State v. Murray, 302 Kan. 478, 353 P.3d 1158 (2015) (Murray II); Ford, 302 Kan. 455.

In State v. Davis, 281 Kan. 169, 177, 130 P.3d 69 (2006), the Kansas Supreme Court held that when a court orders a competency determination—presumably because there is reason to believe the defendant is not competent to stand trial—pursuant to K.S.A. 22-3302 the criminal proceedings are suspended until the competency issue is determined. The Davis court emphasized that the determination could not be made without a hearing: “To proceed without conducting the hearing not only is a violation of the statute but also a violation of due process.” 281 Kan. at 177; see Ford, 302 Kan. at 471. Neither Davis nor Ford detail the type of hearing required.

In rejecting Rosario's claims, the district court also relied on State v. Costa, 228 Kan. 308, 613 P.2d 1359 (1980). In Costa, defense counsel requested an evaluation of the defendant by two qualified physicians to determine competency to stand trial. When the physicians had failed to submit reports by the time of trial a month later, the court denied a defense motion for continuance. The court had received a report from a psychologist opining that the defendant was competent to stand trial and had received no contrary evidence from the defense. Costa challenged the lack of an evidentiary competency hearing on appeal.

“The appellant contends that once the question of competency is raised, there must be an evidentiary hearing where the accused has the opportunity to present evidence and question the court appointed physicians. The appellant presents no authority supporting the need for a full blown adversary hearing to determine competency. Clearly, the statute does not require such a hearing. The statute and our prior decisions leave the question of the accused's competency in the discretion of the trial court. Absent an abuse of discretion the trial court's determination will not be reversed on appeal. The trial court provided a hearing on the question of competency, by giving the appellant's counsel the opportunity to present evidence of incompetency. No such evidence was presented. On the contrary, the evidence presented, in the form of physicians’ reports, points only to the appellant's competency. The trial court in making its own finding of competency remarked that all evidence supported competency. [Citations omitted.]” 228 Kan. at 317-18.

Costa is distinguishable from Rosario's case. In Costa, defense counsel requested a trial continuance and then presented the available reports to the district court. The district court, presumably on the record in open court, then made specific findings regarding Costa's trial competency. In Rosario's case, the trial court did not make any findings regarding Rosario's competency, presumably because no party was contesting competency after receiving the independent mental health evaluations.

Rosario's case is unique. The district court ordered competency determinations at two points in the criminal proceedings. The first occurred shortly after Rosario was arrested and confined in jail. Rosario's trial counsel apparently requested a competency determination, though he never filed a motion with the court. Even so, the court ordered a competency evaluation to be conducted by Kanza, the local mental health agency.

About two weeks after entering the order, the court held a hearing on the competency issue. At that time, defense counsel withdrew his motion, explaining that he had initially had difficulty communicating with Rosario, but that communication had improved. Based on defense counsel's statements, the district court lacked a reason to believe Rosario was not competent to stand trial. To the extent the withdrawal of the motion for a competency evaluation without a hearing and findings by the court violated K.S.A. 22-3302, the error was invited by the defense. See State v. Boorigie, 273 Kan. 18, 27, 41 P.3d 764 (2002).

The second request for a competency determination of Rosario came from the State after Kanza filed a report noting that Rosario received a Global Assessment of Functioning (GAF) test score of 40. The court held a hearing on the motion to discuss the functioning score and ultimately ordered a competency evaluation. Rosario's counsel arranged for two separate mental health evaluations and submitted those reports to the court. The district court did not hold a hearing on the reports and did not make findings regarding Rosario's competency.

Ford makes clear that any adequate competency hearing requires the criminal defendant's presence. 302 Kan. at 476. Since Rosario was not present when any competency determination was made—even under the most liberal interpretation of “hearing”—any “hearing” held in 2014 or 2015 was constitutionally inadequate.

In his pro se supplemental brief, Rosario contends that the lack of a competency hearing and a determination of his competence to stand trial deprived the district court of jurisdiction over his criminal prosecution. He argues that this court should vacate his convictions and sentences.

Rosario relies primarily on State v. Murray, 293 Kan 1051, 271 P.3d 739 (2012) (Murray I). Based on the language of K.S.A. 22-3302(a) and its earlier holding in Davis, 281 Kan. at 180—requiring suspension of the criminal prosecution when the court has reason to believe the defendant is incompetent and orders a competency evaluation—the Murray I court reasoned that any legal proceedings after the mandatory suspension of the proceedings were void and that the district court lacked jurisdiction to preside over further criminal proceedings until competency had been properly determined. 293 Kan. at 1054. That ruling is no longer effective as precedent.

That portion of Murray I was expressly overruled by the Ford court:

“Like the [People v.] Marks [1 Cal.4th 56, 820 P.2d 613 (1991)] court, we find nothing in the United States Supreme Court's precedent to suggest the failure to follow the procedure set out in a state's competency statute deprives a court of jurisdiction. Nor is K.S.A. 22-3302 phrased in terms that implicate jurisdiction. Thus, we may follow this emerging trend of recognizing that a court does not lose jurisdiction if it fails to comply with procedures relating to a determination of competency. Given the undercutting of the support relied on in Davis, we disapprove of Davis’ statement that ‘the district court had no jurisdiction’ simply because of a procedural error based on the failure to suspend criminal proceedings until a competency hearing was conducted. 281 Kan. at 180; see State v. Murray, 293 Kan. 1051, 1054-55, 271 P.3d 739 (2012) (Murray I) (following Davis).” Ford, 302 Kan. at 465.

We are bound by Kansas Supreme Court precedent unless there is some indication the court is departing from that precedent. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). We find no such indication. No appellate court has challenged Ford’s decision on jurisdiction. See State v. Roberts, 309 Kan. 420, 422-23, 435 P.3d 1149 (2019) (discussing, with approval, the jurisdictional issue in Ford); Yarbrough v. State, No. 122,077, 2020 WL 5740891, at *4 (Kan. App. 2020) (unpublished opinion) (distinguishing the circumstances in Ford). Accordingly, Ford controls this issue. A defect in the procedure for determining a criminal defendant's competency does not deprive the trial court of jurisdiction over the criminal prosecution. Ford, 302 Kan. at 465; see Roberts, 309 Kan. at 423.

Considering the history of this jurisprudence, we must conclude that the trial court erred when it ruled that the district court did not have to hold a hearing to determine Rosario's competence to stand trial. We turn to our review of the court's retrospective competency hearing.

The court made its determination in a collateral proceeding.

Finding a retrospective competency hearing feasible, the district court took evidence from Rosario and the State regarding Rosario's ability to understand the criminal prosecution proceedings and his ability to assist with his defense. Relying on testimony offered at the hearing and the documentary evidence within the record, the district court made findings of fact that led to its conclusion that Rosario was competent to stand trial when he was tried in 2015.

In concluding that Rosario was competent to stand trial, the district court relied on the psychological evaluations of Robert W. Barnett, Ph.D.; and George Hough, Ph.D., ABPP; and Mark D. Goodman, Ph.D., FPPR. The court also relied on Rosario's mental health evaluations from Kanza. Collectively, these reports stated that Rosario suffered from some mental health issues, but none of the reports said that Rosario was unable to understand the criminal proceedings or unable to meaningfully assist with his defense.

The district court considered Rosario's trial testimony, noting that evidence in the record contradicted Rosario's characterization of his mental state. The district court also placed substantial weight on comments made by Rosario's trial counsel that established counsel believed Rosario was competent to stand trial.

Supreme Court precedent guides us.

The Ford court looked at four factors a district court should consider when determining whether to hold a retrospective competency hearing:

“ ‘(1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial, including the trial judge, counsel for both the government and defendant, and jail officials. [Citation omitted.]’ ” 302 Kan. at 472.

The district court faithfully considered these four factors and concluded that a retrospective competency hearing was feasible in Rosario's case. We review those four factors.

Passage of Time

The district court held that the passage of time in Rosario's case did not preclude a retrospective competency hearing. The district court noted that a retrospective competency hearing was authorized in both Murray II and Ford, when the intervening periods were 30 years and 17 years, respectively. See Murray II, 302 Kan. at 485; Ford, 302 Kan. at 473. In contrast, the time elapsed between Rosario's criminal trial and the district court's consideration of a retrospective competency hearing was approximately 8 1/2 years.

Ford does not discuss the intent behind the passage-of-time factor, but Murray II provides some guidance. “[A] lengthy passage of time makes retrospective determinations inherently difficult, as competency is subject to change and witnesses’ memories fade.” 302 Kan. at 485. Inherent in this statement is a focus on the loss of reliable evidence of the criminal defendant's competency at the time of the trial.

Because both the judge and Rosario's trial counsel were deceased by the time Rosario brought this habeas corpus motion, the passage of time did lead to the loss of some evidence related to competency. The loss, however, is mitigated to a significant degree because Rosario's competency was raised and discussed by his trial counsel on the record before trial and because the State's attorney who prosecuted Rosario was still available to testify in the retrospective competency hearing. The district court was not hampered by the absence of any contemporary evidence of Rosario's trial competency, such as if the issue of competency had never been raised before trial.

Under these circumstances, the passage of time here does not make a retrospective competency hearing unfeasible.

Contemporaneous Medical Evidence

The availability of contemporaneous medical evidence mitigates the problems inherent with the passage of time. Murray II, 302 Kan. at 485; Ford, 302 Kan. at 473. The record contains reports from three mental health evaluations conducted within two weeks of trial. The record also contains reports from various mental health evaluations conducted of Rosario by Kanza while he was in jail awaiting trial. While these records may have various limitations in assessing trial competency, they provide snapshots of Rosario's overall mental health around the time of his trial. They provide much of the information the trial court would have considered if it had held a competency hearing at the time the competency evaluation was ordered.

The availability of so many mental health evaluations heavily supports the feasibility of a retrospective competency determination.

Criminal Defendant's Statements in the Trial Record

The third feasibility factor involves a criminal defendant's recorded statements at trial. See Ford, 302 Kan. at 473. While Rosario did not testify in his own defense at trial, he did participate in pretrial hearings and at his sentencing. These recorded statements provide a glimpse into Rosario's mental functioning at the time of trial. This factor also weighs in favor of the feasibility of a retrospective competency hearing.

Availability of Others Who Interacted with Criminal Defendant

The fourth and final Ford feasibility factor examines the availability of witnesses who interacted with the criminal defendant at trial or at the time of the trial. Ford, 302 Kan. at 472. Again, this factor suggests that a retrospective competency hearing was feasible for Rosario. Not only was Rosario capable of testifying about his own mental state at the time of trial, but also the prosecutor could testify about her impressions of Rosario. The inability to call Rosario's trial counsel is an obstacle to a retrospective competency determination. But, as discussed, trial counsel provided his impressions of Rosario's competency in several places in the district court record.

As we have previously mentioned, the court examined and used the various psychological evaluations in making its determination. Reviewing this information from the record persuades us that holding a retrospective competency hearing was feasible and not an abuse of discretion by the district court.

Psychological Evaluations

In the criminal prosecution, the district court had ordered a mental health evaluation of Rosario due to Rosario's inadequate self-care after his arrest. At that time, the Kanza therapist who evaluated Rosario noted that his speech was logical and coherent with no thought disorders noted, though Rosario's mind seemed to race. The therapist noted no impairment of Rosario's memory but noted poor insight. The therapist concluded: “Client does not meet criteria for psychiatric hospitalization. Inpatient is not recommended at this time.” The therapist also noted a GAF score of 35. Nothing in the report suggested whether Rosario had a working understanding of his criminal prosecution, but the report found Rosario articulate and intelligent, so presumably communication was not an issue.

Trial counsel sought a competency determination, not based on this Kanza report, but on his own interactions with Rosario. But, within five days, Rosario's condition had improved enough that trial counsel asked to withdraw the request for a competency evaluation. In requesting the court to withdraw the order for a competency evaluation, trial counsel stated, “I no longer have a doubt that he is not at least presently competent to proceed.” The district court then questioned Rosario about his understanding of the criminal prosecution and his ability to assist his attorney. Based on Rosario's responses, the district court also found no reason to continue with a competency evaluation at that time.

About a year later, Rosario requested another therapy session with Kanza. After evaluating Rosario, the therapist noted obsessive and grandiose thought processes but observed no delusions or hallucinations. Rosario appeared oriented to time and place and appeared to have no memory issues. Again, nothing in this report suggested that Rosario was unable to assist in his defense or understand the proceedings.

Even so, because this test report revealed a GAF score of 40—an increase from the earlier evaluation but still low—the State sought a competency evaluation. At the hearing on the State's request, trial counsel questioned the GAF score, believing Rosario could communicate with his attorney and assist with the defense. Trial counsel told the court, “It's hard. Not impossible. Not impossible, but it would be hard for someone talking to you to think that you're at a GAF [score of] 40 and also not think that you were sufficiently impaired to be presently incompetent to stand trial in a case that if you lose is going to get you about 50 years.” Accordingly, trial counsel did not contest the State's request for a competency evaluation but expressed reservations about the therapist who had evaluated Rosario. Trial counsel obtained court approval to find two independent qualified mental health evaluators to conduct the competency evaluation.

Trial counsel obtained the professional services of Dr. Barnett and Dr. Hough. Dr. Hough's report included his observations of Rosario during his interview and related Rosario's scores on several analytical tools used to assess cognitive functioning and appreciation of Rosario's circumstances. Significantly, one of the analytical tools was designed specifically to address competence to stand trial. While Rosario's scores were low, they did not reveal a significant impairment. Dr. Hough concluded, among other things, that Rosario presented concerns about his prosecution, but those concerns were not the result of thought disorder or delusions:

“When discussing his own case on the Appreciation section, Mr. Rosario believes that he cannot obtain a fair trial due to the following assumptions that he makes: (a) the potential for racially biased decisions by the jury; (b) the assumed prejudices of a small town jury when trying a minority defendant who is from a larger city outside of the local community; (c) the negative perceptions and biases associated with mixed-race relationships—in particular black male and white female.

“It is noted, however, that Mr. Rosario's views about his own case are not tainted by elements of thought disorder or delusion. His views are reflective of prevailing social ideas about bias and race that many minority defendants typically express, and which they would assume would apply to their own case in court. It is also noted that he acknowledged he may not have told his attorney everything his attorney needs to know to defend him and he intends to do so.”

Dr. Hough decided that Rosario was competent to stand trial. He stated why he thought Rosario was psychologically stable and demonstrated clear mental status functioning:

“Mr. Rosario has been provided with a comprehensive psychological evaluation in order to evaluate his capacity for competency to proceed to trial. Over the course of his approximately 15 months of incarceration he has had the opportunity to experience detoxification from the poly-substances he had been using prior to intoxication (with notable use of PCP). At present, despite the magnitude of the severe psychiatric symptoms that were observed with the last evaluation, he now presents as psychologically stable and demonstrates clear mental status functioning. The exception to this observation is the presence of his persistent perceptual distortions (visual geometric shapes and/or faces) that occur in an episodic and transient manner. These perceptual distortions do not upset his focus, and he has become habituated to their occurrence. He understands that these experiences may well be a permanent byproduct of his protracted use of hallucinogenic substances. On a standardized instrument to assess capacity for competency for adjudication, he does express his concern that he may be subject to racial bias with a jury. However, these views are not the product of delusion or other forms [of] mental illness; these are commonly held beliefs frequently articulated by minority defendants. He likes his attorney and regrets having previously tried to have him replaced off his case. There was no evidence for any effort to malinger or feign mental disturbance and he responded honestly to several measures designed to assess these conditions.”

Dr. Hough acknowledged that Rosario suffered from some mental health issues but also concluded that none of the issues rendered him incompetent to stand trial. At the hearing in this matter, Rosario's attorney tried to use the caveat provided at the end of Dr. Hough's report—that the opinions Dr. Hough formed were based on currently available data—to suggest that Dr. Hough's opinions were not based on complete data. Still, Dr. Hough acknowledged Rosario's long history of mental illness, including schizophrenia, bipolar disorder, attention deficit hyperactivity disorder, and post-traumatic stress disorder, in addition to Rosario's heavy drug use. Accordingly, contrary to Rosario's arguments, Dr. Hough considered his mental health history in arriving at his conclusion.

Dr. Barnett's evaluation was similar. While Dr. Barnett did not specifically address Rosario's competency to stand trial, his conclusions did not suggest that Rosario was incapable of understanding the criminal prosecution or assisting his attorney with the defense:

“Mr. Rosario presents as a psychologically intact individual who is showing no current signs or symptoms of any major mental disease or defect such as psychosis, major depressive disorder, personality disorder etc. He has a pronounced substance abuse disorder, which is currently in remission due to being in jail. He gives the impression of functioning in the average range, and I note that he has high average reading skills.

“Based on the testing and the mental status examination in this interview, Mr. Rosario appears to be suffering from anxiety disorder, not otherwise specified, with panic episodes, and there appears to be some residual symptoms of attention deficit disorder. As mentioned earlier, he has a polysubstance dependence disorder that is in remission due to institutional placement. While Mr. Rosario did not tell me that he was self-medicating with illicit drugs, it is certainly possible that he was using drugs to reduce anxiety.”

Again, Dr. Barnett did not specifically address competency to stand trial or either of the two statutory requirements for competency, but nothing in his report suggested that Rosario was incompetent to stand trial.

Finally, Rosario's trial counsel asked Dr. Goodman to perform a separate mental health evaluation two weeks after Dr. Hough's and Dr. Barnett's evaluations. This evaluation was designed to investigate the possible effects of Rosario's ingestion of PCP at the time of the offenses. During his evaluation, Dr. Goodman reported on specific tests and their results that raised no concerns about Rosario's competence to stand trial:

“[Rosario] was oriented to time, place and person. He knew the correct day of the week. He knew his correct address, city, state and social security number, date of birth and chronological age. He knew the current and previous US presidents. He knew the correct season of the year. He can tell time on a conventional watch. His affect was inappropriate at times. He smiled at times for no apparent reason. His intellectual judgment was below average, but not defective. He did not know what he should do if while in the movies he were the first person to see smoke and fire nor why land in the city costs more than land in the country. He knew why one needs to get a doctor's prescription to buy certain drugs and the proverb ‘strike while the iron is hot.’ He also knew the proverb ‘fall seven times get up eight times.’ His immediate auditory recall was satisfactory. He remembered six digits forwards and six digits backwards. His insight is fair. He was able to count backwards from 20 to 1. He knew the days of the week and the months of the year in order. He knew the letters of the alphabet. He was able to count by serial threes. He knew the prices of common everyday foods such as a pound of hamburger, loaf of bread, dozen eggs and a gallon of milk. He knew the correct price of a gallon of gasoline. He has no car nor driver's license. He is aware of world events such as ISIS and the situation in Israel and the Ukraine crisis. He was able to say three unrelated words correctly. He has no significant physical restrictions of daily activities.”

Considered alone, Dr. Goodman's reports do not establish Rosario's competency to stand trial. But nothing within the report cast doubts on the evaluations performed by Drs. Hough and Barnett.

Additional evidence was admitted.

At the hearing on his habeas corpus motion, Rosario testified that, during his incarceration before trial and during the trial, he suffered delusions. He did not specify the nature of these delusions, but he claimed he was unaware whether he had bonded out or was in jail and could not specify whether his attorney discussed any competency evaluations with him. He also claimed he did not understand what was going on during his trial. As an example of his lack of understanding, Rosario pointed to his rejection of an offer by the State to plead guilty to one count of aggravated battery. Because of his delusions, he believed his attorney was working with the prosecutor to “send him up the river.”

Even so, Rosario also admitted that, even when he had delusions, he could sound rational, claiming that he successfully hid his mental conditions during his mental health evaluations because of the social stigma attached to mental illness. Yet all the evaluators concluded that Rosario was not prevaricating. Rosario also admitted that he had periods of lucidity; his delusions were intermittent. He admitted that he sent a letter to his attorney requesting a plea deal that would involve probation. Rosario also admitted that he believed he was guilty of nothing greater than domestic battery and did not want to accept a plea offer of an aggravated battery charge.

Rosario admitted that he understood the purpose of the venue study implemented by his attorney. He understood that he had a right to testify in his own defense. Rosario advocated for himself when his attorney had not obtained permission from the jail to show Rosario a video, getting the court to order a special viewing at the jail.

While Rosario's testimony supports the idea that he may have suffered from delusions up to and including his trial, those delusions, by his own admission, were intermittent and easily concealed, even from licensed mental health professionals. The ability to control the delusions to the extent that no one could recognize Rosario was suffering from them undercuts his argument that the delusions affected his relationship with his trial counsel and his ability to assist with his defense. In other words, the delusions, to the extent Rosario had them, did not make his interactions with trial counsel so unusual that it caused counsel to question Rosario's reasoning. None of Rosario's interactions with trial counsel, after his initial visit, made counsel question whether Rosario could understand what counsel tried to relate or made counsel believe that Rosario could not assist with the defense.

Rosario's testimony about his ability to understand the proceedings or assist with his defense is the only evidence in the record that supports a conclusion that Rosario was not competent to stand trial under K.S.A. 22-3301.

Rosario's Participation at Trial

In concluding that a retrospective competency hearing established that Rosario understood the proceedings and assisted with his defense, the district court cited several places in the trial record where Rosario advocated for his own case.

At the hearing on trial counsel's competency evaluation request on March 10, 2014, Rosario was present and responded appropriately to the district court's questions about his ability to understand the proceedings and assist with his defense. At his preliminary hearing, Rosario responded appropriately to the court's questions about his willingness to waive his statutory speedy trial rights, and Rosario claimed he understood the charges and the consequences of his pleas. At sentencing, Rosario spoke about his motion for change of venue, expressing a significant depth of understanding about the issue. While none of these court interactions were particularly complicated or substantial, Rosario's appropriate responses did not signal any lack of understanding about the proceedings.

Contemporaneous Witnesses

The prosecutor in Rosario's criminal case discussed her impressions of Rosario throughout the trial. She testified that the jail never contacted her about obtaining a care-and-treatment order for Rosario. She claimed that she never observed any behavior by Rosario during the trial that made her question his competency, and he appeared at trial much the same as he appeared at the habeas corpus hearing, where Rosario testified coherently. The prosecutor reported that Rosario took notes during the trial and often conferred with his attorney.

Finally, the court relied on trial counsel's pretrial and postconviction statements to the court that suggested counsel's belief that Rosario was competent throughout the proceedings. Counsel withdrew his initial competency evaluation request, believing Rosario was beyond doubt presently competent to stand trial. Later, when the State requested a competency evaluation, counsel did not object but disagreed with the need based on a GAF score. Finally, at sentencing, counsel sought placement of Rosario at a facility where he could get mental health assistance but reiterated his position that Rosario was competent.

Who has the burden of proof and what is our standard of review?

No prior Kansas case addresses the standard of appellate review of a district court's retrospective competency determination. In Ford, our Supreme Court held that the State had the burden of showing compliance with the statute, once the movant had presented a colorable claim of a violation of procedural competence, i.e., proof that there was “reason to believe he was incompetent to stand trial and a reason to believe the requirements of K.S.A. 22-3302 had not been satisfied.” 302 Kan. at 468, 469. The State's burden consisted of producing “ ‘evidence to fill in the gaps in the reconstructed record to show that a competency hearing occurred.’ ” See 302 Kan. at 469. The Ford court did not address which party carried the burden of proof to establish trial competency once the court determined the feasibility of a retrospective competency hearing. Not wanting to complicate this procedure, we look to the criminal court first for guidance.

When competency is challenged in criminal prosecutions, the party who raises the challenge about competency to stand trial has the burden of proof by a preponderance of the evidence. In the absence of evidence to the contrary, a criminal defendant is presumed competent to stand trial. State v. Mitchell, 317 Kan. 792, 794, 539 P.3d 218 (2023).

Likewise, in this collateral proceeding where Rosario claims that he was incompetent to stand trial, we hold that, as the party making that challenge to his competency, Rosario has the burden to prove, by a preponderance of the evidence, that he was incompetent to stand trial.

In the same vein, we hold that our review of a district court's retrospective competency determination is subject to the same standard as that of a competency determination made at the time of trial—an abuse of discretion. State v. Hill, 290 Kan. 339, 366-67, 228 P.3d 1027 (2010). The framework for evaluating an abuse of judicial discretion involves an error of law; an error of fact; or arbitrary, capricious, or unreasonable conduct. Ford, 302 Kan. at 473. When reviewing the district court's findings of fact, an appellate court does not reweigh conflicting evidence or assess the credibility of witnesses. If a district court's exercise of discretion is challenged for an error of fact, the appellate court examines the record for substantial competent evidence to support the decision. Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023).

In our view, courts should carefully consider the position of defense counsel in a competency determination because counsel works most closely with the defendant. “[A]lthough ‘the concerns of counsel alone are insufficient to establish doubt of a defendant's competency,’ ‘[d]efense counsel is often in the best position to determine whether a defendant's competency is questionable.’ ” McGregor, 248 F.3d at 959-60.

Conclusion

At first, it is somewhat disconcerting to consider the fundamental issue raised in this appeal: the legitimacy of a court finding a defendant competent to stand trial several years after that defendant's trial and conviction. But upon reflection, courts of law routinely determine the legal significance of prior events. The rulings in child in need of care cases often hinge on past events. Many civil claims are based on prior actions and conditions. Additionally, this is a procedural competency question where the criminal court failed to suspend the prosecution and determine Rosario's competence. After our review of the record, we have no misgivings about the rulings of the district court in its retrospective competency hearing.

The district court correctly and carefully considered the four factors set out by Ford. The record evidence fully supports the district court's conclusion in its retroactive competency determination. A preponderance of the evidence supports the court's conclusion that Rosario was competent at the time of his trial. Substantial competent evidence supports the district court's decision. Accordingly, the competency determination here is not an abuse of judicial discretion.

Affirmed.

Hill, J.: