COMMONWEALTH v. KWESI ENOS HOPE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a District Court judge (motion judge) dismissing the charge pending against the defendant and from the motion judge's denial of reconsideration. The motion judge dismissed the charge pursuant to G. L. c. 123, § 16 (f), which provides that, “[i]f a person is found incompetent to stand trial,” the charges against him must be dismissed on the date he would have been “eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted.” The Commonwealth argues that dismissal under § 16 (f) was improper because there has been no judicial finding that the defendant is incompetent. We agree and thus vacate the order of dismissal.

Background. On July 3, 2024, a complaint issued against the defendant charging him with threatening to commit a crime. See G. L. c. 275, § 2. A few days later, the defendant was ordered to undergo a competency examination pursuant to G. L. c. 123, § 15 (a).¹ In the ensuing months, the defendant refused to cooperate with scheduling the examination. When he also failed to appear for a pretrial conference, a default warrant issued, and he was taken into custody on October 31, 2024. The court clinician attempted to conduct an in-court examination that day, but the defendant refused to cooperate. After the court clinician then recommended that the defendant undergo further examination pursuant to G. L. c. 123, § 15 (b),² the defendant was committed to Bridgewater State Hospital (BSH) for twenty days.

On November 19, 2024, a BSH psychologist issued a report opining that the defendant was not competent to stand trial and that he did not meet the criteria for involuntary hospitalization. At a status conference the same day, the Commonwealth expressed surprise at the report, suggested that it was based on incomplete information, and asked that the defendant be ordered to undergo further evaluation. Noting that there was “a dispute relative to competency,” a judge scheduled a competency hearing for November 25, 2024, and ordered that the defendant be held without bail until that time.

On November 25, 2024, a different judge (hearing judge) conducted an evidentiary hearing at which the BSH psychologist testified consistently with her report that the defendant was not competent. At the close of the testimony, the Commonwealth argued that “based on the lack of information and frankly the lack of cooperation of the defendant inside of [BSH], ․ there's just not enough information at this point for the Court to make a finding of whether or not the defendant is competent.” The hearing judge agreed, finding that the BSH psychologist's opinion was neither “well-informed, nor necessarily credible” and that there was not “clear, objective, and reliable information before this Court with regard to the defendant's determination of competency.” The hearing judge thus ordered that the defendant undergo a second evaluation under § 15 (b), this time at a Department of Mental Health facility, and that he be held without bail pending the availability of a bed.³ A further hearing was scheduled for December 20, 2024.

Meanwhile, the defendant filed an emergency petition to a single justice of the Supreme Judicial Court, who on December 18 ordered that the defendant be released immediately on bail. The single justice denied, however, the defendant's request for an order directing the District Court to enter a finding as to competency and to dismiss the case. Instead, the single justice ordered that “[t]he competency hearing currently scheduled for December 20, 2024, may go forward.”⁴

Also on December 18, defense counsel filed a motion to withdraw, which was later allowed, and successor counsel was appointed. Because of delays associated with the change in counsel, the case was continued to January 8, 2025, and again to February 26, 2025. When the parties appeared in court on February 26, successor counsel stated that he intended to file a motion to dismiss and asked that a date be set for a nonevidentiary hearing on the motion. The Commonwealth did not object, and a hearing was set for April 17, 2025. This date was then continued to June 5, 2025, at the Commonwealth's request.

On April 3, 2025, the defendant filed a motion to dismiss under G. L. c. 123, § 16 (f), which the Commonwealth opposed. After a nonevidentiary hearing on June 5, the motion judge, who was not the hearing judge, allowed the motion. While acknowledging that the hearing judge did not make a finding on competency and that she had the discretion to defer making such a finding in order to take additional evidence, the motion judge reasoned that “[t]hat discretion is not limitless” and “[a]ny additional evidence obtained at the cost of [the defendant's] freedom should have been presented, and a finding as to competency should have been made, promptly after his detention ended.” On that basis the motion judge concluded that “the Commonwealth has not met its burden and that the defendant is incompetent to stand trial,” stating further that he was “mak[ing] that finding nunc pro tunc to January 8, 2025, the date to which the December 20, 2024 competency hearing was continued.” The motion judge then ordered that the charge against the defendant be dismissed under § 16 (f) because it had been pending for one-half of the six-month maximum penalty the defendant faced. See G. L. c. 275, § 4.

The Commonwealth moved for reconsideration, arguing that § 16 (f) did not apply because the defendant had not been found incompetent after an evidentiary hearing. After giving the Commonwealth an opportunity to file an offer of proof describing the evidence it would present “to meet its burden of proof as to [the] defendant's competency,” the motion judge denied reconsideration in a margin order.

Discussion. By its terms, G. L. c. 123, § 16 (f), applies only “[i]f a person is found incompetent to stand trial.” The purposes of § 16 (f) are to “protect[ ] mentally ill defendants from the indefinite pendency of criminal charges as a result of their incompetency to stand trial” and to “protect[ ] the public from potentially dangerous persons.” Commonwealth v. Calvaire, 476 Mass. 242, 246 (2017). See Foss v. Commonwealth, 437 Mass. 584, 589 (2002). Further to those ends, “[t]he statute is narrowly tailored to allow the Commonwealth some time to pursue the legitimate and proper purpose of prosecuting charged crimes, but not for a period of time longer than is reasonably necessary to ascertain the defendant's chances of regaining competency.” Calvaire, supra.

Here, the motion judge erred in dismissing the case under § 16 (f) where the defendant had not been found incompetent to stand trial after an evidentiary hearing. As mentioned, after the evidentiary hearing on November 25, 2024, the hearing judge concluded that she did not have sufficient reliable information to make a finding on competency one way or the other and ordered that the defendant undergo further examination. Although the record does not reflect whether that examination was completed before the single justice ordered the defendant's release on December 18, it is undisputed that no additional competency hearing had been held by the time the motion judge ruled on the defendant's motion to dismiss. Thus, at that point, the defendant had not been found incompetent, and so § 16 (f) did not give the motion judge the authority to dismiss the case. See Calvaire, 476 Mass. at 244; Foss, 437 Mass. at 589.

We are unpersuaded by the defendant's argument that dismissal under § 16 (f) was proper because the motion judge himself made a determination of the defendant's incompetency. While the motion judge made certain observations of the defendant's demeanor and behavior at the motion hearing and appears to have carefully reviewed the record, he did not take any evidence and thus could not have made a factual finding that the defendant was currently incompetent. Nor did he purport to do so. Instead, it is plain that the basis of the motion judge's decision was his concern about the Commonwealth's delay in marshaling the evidence needed to meet its burden of proof as to competency. On that point we grant that the Commonwealth could have been more diligent in seeking a date for a second competency hearing, although we note that some of the delay appears to have been attributable to the change in defense counsel. That said, § 16 (f) does not authorize dismissal of criminal charges on grounds of delay in determining the defendant's competency; rather, it comes into play only after the defendant has actually been found incompetent. See Commonwealth v. Brown, 431 Mass. 772, 775 (2000) (“When the language of a statute is plain and unambiguous, it must be given its ordinary meaning”). Because no such finding was made here, the motion judge erred by dismissing the case under § 16 (f).

Conclusion. The order dated June 13, 2025, allowing the defendant's motion to dismiss is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

1.   “Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial ․, it may at any stage of the proceedings after ․ the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists.” G. L. c. 123, § 15 (a).

2.   “After the examination described in paragraph (a), the court may order that the person be hospitalized at a facility or, if such person is a male and appears to require strict security, at the Bridgewater state hospital, for a period not to exceed twenty days for observation and further examination, if the court has reason to believe that such observation and further examination are necessary in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial ․” G. L. c. 123, § 15 (b).

3.   The District Court docket reflects that a bed became available on December 2, 2024, and that the defendant was transported to the facility on that date.

4.   The defendant disputes that the December 20 court date was for the purpose of holding a new competency hearing, as opposed to a status review. We need not address this issue, as it is not material to our analysis.