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Martin Dennis Victor IV v State of Alaska (8/12/2022) ap-2730

Martin Dennis Victor IV v State of Alaska (8/12/2022) ap-2730

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                                    E-mail:  corrections @ akcourts.gov
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MARTIN DENNIS VICTOR IV,  

                                                                   Court of Appeals No. A-13246  

                                   Petitioner,                  Trial Court No. 3AN-15-03304 CR  



                           v.  

                                                                           O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                   Respondent.                      No. 2730 - August 12, 2022  



                  Petition  for  Review  from   the  Superior  Court,  Third  Judicial  

                  District, Anchorage, Michael L. Wolverton, Judge.  



                  Appearances:   Renee McFarland, Assistant Public  Defender,  

                                                                                     

                  and  Samantha  Cherot,  Public  Defender,  Anchorage,  for  the  

                  Petitioner.  Nancy R. Simel, Assistant Attorney General, Office  

                                                                               

                  of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr.,  

                      

                  Acting Attorney General, Juneau, for the Respondent.  



                  Before:     Harbison,  Judge,  Mannheimer,  Senior  Judge,*  

                                                                                             and  

                                                                      *  

                  Suddock,  Senior  Superior  Court  Judge.   



                  Judge MANNHEIMER.  

                           



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                     This case requires us to interpret the provisions of Alaska law that govern  

                                                                                                                           



situations where a criminal defendant is found to be incompetent to participate in their  

                                                                                                                               



trial or their sentencing, and the defendant's incompetency persists so long that the court  

                                                                                                                              



is required to dismiss the criminal charges under AS 12.47.110(b).  

                                                                                                         



                     AS 12.47.110(b) declares that, in these situations, the dismissal of the  

                                                                                                                                 



criminal charges is "without prejudice" - that is, without detriment to, or derogation of,  

                                                                                                                                  



the State's right to re-initiate and pursue those charges.  The question presented in this  

                                                                                                                                 



case is whether, even though AS 12.47.110(b) declares that the dismissal of the charges  

                                                                                                                          



is without prejudice, the State is nevertheless barred from re-initiating the criminal  

                                                                                                                         



charges unless the superior court first finds that the defendant has become competent to  

                                                                                                                                   



stand trial.  

                  



                     As a general matter, it is of course true that  renewed litigation of the  

                                                                                                                                 



previously dismissed charges cannot go forward if the defendant remains incompetent  

                                                                                                      



to stand trial.  This follows directly from AS 12.47.100(a) - the statute which declares  

                                                                                                                          



that  when  a  mentally  ill  criminal  defendant  lacks  the  capacity  to  understand  the  

                                                                                                                                



proceedings against them or to assist in their own defense, the defendant cannot be tried,  

                                                                                                                              



found guilty, or sentenced.  

                                            



                     But in the present case, the superior court never ruled that the defendant  

                                                                                                                       



could be prosecuted even if he remained incompetent to stand trial.  Rather, the ruling  

                                 



at issue in this case is the superior court's procedural decision regarding how the State  

                                                                                                                         



can ask a trial court to re-initiate the litigation of the previously dismissed charges.  

                                                                                                                                 



                     The defendant in this case, Martin Dennis Victor IV, takes the position that  

                                                                                                                                 



the State should be barred from re-initiating the previously dismissed charges until after  

                                                                                                                               



the superior court affirmatively finds that the defendant is competent to stand trial.  In  

                                                                                                                 



the proceedings below, the superior court rejected this argument:  The court ruled that  

                          



the State could file a pleading to re-initiate the previously dismissed charges, and then  

                                                                                                                               



                                                               - 2 -                                                          2730
  


----------------------- Page 3-----------------------

the parties  could litigate the  issue of whether Victor was competent  to be  tried  and  

                                                                                                                                



sentenced, or whether he remained incompetent to stand trial.  

                                                                                                  



                     In this appeal, Victor contends that the superior court's ruling is inconsis- 

                                                                                                                        



tent with the Alaska statutes governing the treatment of mentally ill defendants who are  

                                                                                                                                  



found to be incompetent to stand trial.  Victor argues that, in cases like his, the  State  

                                                                                                                              



should not be allowed to re-initiate the previously dismissed charges until (1) the State  

                                                                                                                              



offers new "legally obtained, credible evidence  [that] the defendant's competence to  

                                                                                                                                   



stand trial has been restored", and then, based on this new evidence, (2) the superior  

                                                                                                                         



court affirmatively finds that the defendant is competent to stand trial.  

                                                                                                              



                     In other words, the issue presented here  is a procedural  one:  Must the  

                                                                                                                                 



government procure a preliminary ruling from the superior court that the defendant is  

                                                                                                                                   



competent  to  stand  trial  before  the  government  is  allowed  to  file  a  pleading  that  

                                                                                                                                



re-initiates the previously dismissed charges?  Or, as the superior court ruled in Victor's  

                                                                                                                          



case, is the State allowed to re-initiate the charges and then the parties can litigate the  

                                                                                                                                 



issue of the defendant's competency to stand trial?  

                                                                                 



                     For the reasons explained in this opinion, we conclude that the superior  

                                                                                                                         



court's resolution of this procedural issue was correct:  The re-initiation of the charges  

                                                                                                                          



- i.e., the State's re-invocation of the superior court's jurisdiction over the case - must  

                                                                                                                               



precede any renewed litigation on the question of the defendant's competency or lack of  

                                                                                                                                   



competency to stand trial.  

                                           



                     Victor's briefing of this issue does, however, raise a different but related  

                                                                                                                            



problem:  Because the pertinent Alaska statutes do not explicitly place limitations on the  

                                                                                                                                  



State's ability to re-initiate the previously dismissed charges, there is a possibility that  

                                           



the State could harass a mentally ill defendant by repeatedly litigating the same dismissed  

                                                                                                                       



charges - each time subjecting the defendant to judicial process, to potential pre-trial  

                                                                                                       



                                                               - 3 -                                                          2730
  


----------------------- Page 4-----------------------

incarceration, to renewed psychiatric evaluations, and (at the very least) to the anxiety  

                                                                                                                



of facing criminal proceedings again.  

                                                            



                    Because of this possibility,  at least one court (the Washington Court of  

                                                                                                                                  



Appeals) allows defendants in this situation to challenge the government's decision to  

                                                                                                                    



re-initiate  the  criminal  charges,  requiring  the  government  to  show  that  there  is  a  

                                                                                                                                   



reasonable basis for believing either that the defendant has become competent to stand  

                                                                                                                             



trial or that the defendant could be rendered competent through the regimen of treatment  

                                                                                                                       



authorized under the pertinent statutes.  See State v. Carneh, 203 P.3d  1073, 1076-77  

                                                                                                                       



(Wash. App. 2009).  

                                 



                    Under Carneh, the question is whether there is a reasonable basis for the  

                                                                                                                                      



government's decision to re-initiate the charges - some good reason to believe that the  

                                                                                                                                 



defendant has become competent to stand trial, or that the defendant could be rendered  

                                                                                                                        



competent to stand trial through authorized treatment. Thus, Carneh does not require the  

                                                                                                                                 



government to offer convincing proof (at this point) that the defendant is competent to  

                                                                                                                                  



stand trial.   Rather,  the  government need  only  convince the  trial  court that  there  is  

                                                                                                                                  



good reason to re-open the proceedings and re-assess the defendant's competency to  

                                                                                                                                  



stand trial.  

                  



                    As we explain in this opinion, we conclude that we need not decide whether  

                                                                                                                         



to adopt such a procedural rule in Alaska - because, even assuming that the State is  

                                                                                                                                  



required to offer the trial court a reasonable basis for asking the court to re-examine the  

                                                                                                                                 



question of the defendant's competency to stand trial, the State satisfied that burden in  

                                                                                                                                  



Victor's case.  

                       



                                                               - 4 -                                                          2730
  


----------------------- Page 5-----------------------

           Underlying facts,  and an overview of the pertinent statutes  

                                                                                         

  



                     (a)    Victor's indictment,  and  the superior  court's  initial finding  

                                                                                                                

               that Victor was not competent to stand trial  

                                                                            



                    Under Alaska law - specifically, AS 12.47.100(a) - criminal defendants  

                                                                                                                     



who are unable to understand the proceedings against them, or who are unable to assist  

                                                                                                                             



in their own defense, cannot be tried, convicted (i.e., found guilty), or sentenced.  

                                                                                                                               



                    If a court determines that a defendant is incompetent on either or both of  



the two grounds set forth in AS 12.47.100(a), the defendant cannot be brought to trial.  

                                                                                                                                      



If the defendant's trial has already begun, the trial cannot continue; or if the defendant  

                                                                              



has  already been  found guilty  and is  awaiting  sentencing, the  sentencing cannot  go  

                                                                                                                                 



forward.  Rather, the court must stay the criminal proceedings.  If (as in Victor's case)  

                                                                                                            



the  defendant is charged with  a felony, the court must  commit the  defendant to the  

                                                                                                                                



custody of the Department of Health and Social Services to see whether the defendant's  

                                                                                                                   



competency can be restored through mental health treatment.  AS  12.47.110.  

                                                                                                                         



                     (In the  discussion that  follows, for  simplicity's sake, we will refer to  a  

                                                                                                                                   



defendant's competency to "stand trial" rather than repeatedly using the more exact but  

                                                                                                                                



lengthier description, "competency to stand trial or be found guilty or be sentenced".)  

                                                                                                                 



                    The defendant in this case, Martin Dennis Victor IV, was charged with  

                                                                                                                              



stabbing and attempting to kill his parents.  More specifically, in April 2015, a grand jury  

                                                                                                                               



indicted Victor on two counts of attempted first-degree murder and two counts of first- 

                                                                                                                              



degree assault.  

                         



                    Early in the proceedings, the court acknowledged that Victor might not be  

                                                                                                                                  



competent to stand trial - and, pursuant to AS  12.47.100(b), the court ordered that  

                                                                                                                               



Victor be evaluated by a mental health professional.  

                                                                                  



                                                               - 5 -                                                          2730
  


----------------------- Page 6-----------------------

                   Under  the  terms  of  AS  12.47.100(c),  even  after  a  court  has  concluded  that  



there  is  reason to  question the  defendant's  competency  to  stand  trial  and the court  has  



ordered  a  psychiatric  evaluation  under  AS   12.47.100(b),  the  law  still  presumes  that  the  



defendant  is  competent.  Under  this  presumption,  a  defendant  is  deemed  competent  to  



stand   trial   unless   and   until   the   court   affirmatively   finds,   by   a   preponderance   of   the  



evidence,  that  the  defendant  is  not  competent.   



                   In  Victor's  case,  after  the   superior  court  received  the  results  of  Victor's  



psychiatric   evaluation   and   assessed   Victor's   competency   under   the   provisions   of  



AS   12.47.100(b) -  (h),   the   court   found   that   Victor   was   not   competent   to   stand   trial.   



Accordingly, as mandated by AS 12.47.110(a),  the court  committed Victor to the custody  



of  the  Department  of  Health  and  Social  Services  for  treatment,  to  see  if  Victor  could  be  



restored  to  competency  within  the  time  limits  set  forth  in  AS   12.47.110(b).   



                    (b)    The  subsequent  proceedings   under  AS   12.47.110(b)   relating  

               to   Victor's  lack  of  competency  to  stand  trial  



                   In  1972,  in  Jackson  v.  Indiana,  the  United  States  Supreme  Court  ruled  that  



it   is  unconstitutional  to   confine   a   criminal   defendant   for   an   indefinite  period   of  time   

"solely  on   account   of   [the   defendant's]  incompetency  to   stand  trial". 1  

                                                                                                                 

                                                                                                          The Supreme  



                                                                                                                          

Court declared that when a defendant is held in custody solely because they lack the  



                                                                                                              

competency to  stand trial, this period  of confinement cannot exceed "the reasonable  



                                                                                                                         

period of time necessary to determine whether there is a substantial probability that [the  



                                                                                       2  

                                                                             

defendant] will attain competency in the foreseeable future."                                                          

                                                                                          And if the criminal court  



                                                                                                                           

concludes that there is no substantial probability that the defendant will be restored to  



     1    Jackson v. Indiana ,  406 U.S. 715, 731; 92 S.Ct. 1845, 1854; 32 L.Ed.2d 435 (1972).  



     2    Id. , 406 U.S. at 738, 92 S.Ct. at 1858.  



                                                           - 6 -                                                       2730
  


----------------------- Page 7-----------------------

competency   in   the   foreseeable   future,   the   government   must   either   institute   civil  



                                                                                                      3  

commitment  proceedings  against  the  defendant  or  release  the  defendant.  



                   The   provisions   of   AS   12.47.110   and   AS   12.47.120   were   apparently  



intended  to  codify  procedures  that  would  comply  with  the  Supreme  Court's  holding  in  



Jackson  v.  Indiana .     



                   Under  AS   12.47.110(a)  and  (b),  the  length  of  an  incompetent  defendant's  



initial  commitment  is  limited  to  90  days.    



                   During   this   90-day   initial   commitment,   if   the   defendant's   treatment  



provider  concludes  that  the  defendant  has  become  competent  to  stand  trial,  the  court  is  



required   to   hold   another   competency   hearing   as   soon   as   conveniently   possible,   see  



AS  12.47.120(a),  and  if  the  court  concludes  that  the  defendant  has  regained  competency  



to  stand  trial,  the  court  must  release  the  defendant  from  their  competency  commitment,  



and  the  normal  criminal  process  resumes.   AS   12.47.120(b).   



                   But  even  if  the  defendant  is  not  released  before  the  end  of  the  initial  90-day  



commitment,   AS   12.47.110(b)   requires   the   court   to   again   address   the   issue   of   the  



defendant's  competency  at  the  end  of  this  initial  commitment.    



                   Even though,  in  this  situation,  the court has already affirmatively found that  



the  defendant  lacked  competency  to  stand  trial  (when  the  court  ordered  the  initial  90-day  



commitment),  AS  12.47.110(b)  specifies  that  the  presumption  of  competency  continues  



to apply.  That  is,  the  statute  declares  that t  he  defendant  will b              e  deemed  competent  to  



stand  trial  unless  "the  court   [again]  finds  by  a  preponderance  of  the  evidence  that  the  



defendant  remains  incompetent".    



                   In  Victor's  case,  at  the  end  of  his  initial  90-day  commitment,  the  superior  



court  found  by  a  preponderance  of  the  evidence  that  Victor  continued  to  be  incompetent  



     3   Ibid.  



                                                         - 7 -                                                     2730
  


----------------------- Page 8-----------------------

to stand trial.  In this situation, AS 12.47.110(b) authorizes a court to order a second 90- 

                                                                                                                                



day commitment for continued treatment.  The superior court exercised this statutory  

                                                                                                                       



authority and ordered Victor to be committed for another 90 days.  

                                                                                                       



                    Under AS 12.47.110(b), these two 90-day commitments are normally the  

                                                                                                                                 



outer limit of a court's authority to order the commitment of an incompetent defendant.  

                                                                                                                                      



In certain circumstances, the statute authorizes a court to order a third commitment for  

                                                                                                                                 



an additional 6 months - but only if the defendant is charged with a crime of violence,  

                                                                                                                       



and only if the court finds (1) that there is a substantial danger that the defendant will  

                                                                                                                               



cause physical injury to other persons if the commitment is ended, and (2) that there is  

                                                                                                                                   



also  a  substantial  probability  that  the  defendant  will  regain  competency  within  a  

                                                                                                                                   



reasonable period of time.  

                                          



                    In Victor's case, the superior court ruled that no third commitment was  

                                                                                                                               



allowed - because, even though Victor was charged with crimes of violence, the court  

                                                                                                                             



concluded  that  there  was  not  a  substantial  probability  that  Victor  would  regain  

                                                                                                                          



competency if he was committed and treated  for these additional months.   Thus, the  

                                                                                                                                



superior court had reached the limit of its authority under AS  12.47.110(b) to commit  

                                                                                                                         



Victor for treatment to restore his competency.  

                                                                          



                     (c)     The  dismissal  of   Victor's  criminal  charges  pursuant   to  

                                                                                                                       

               AS  12.47.110(b), and Victor's civil commitment  

                                                                       



                    AS 12.47.110(b) declares that if a defendant remains incompetent when the  

                                                                                                                                 



court reaches the limit of its authority to order further mental health commitment in the  

                                                                                                                                



criminal  case,  the  court  must  dismiss  the  charges  against  the  defendant  "without  

                                                                                                                       



prejudice" - that is, without detriment to, or derogation of, the State's right to re-initiate  

                                                                                                                      



                                                               - 8 -                                                          2730
  


----------------------- Page 9-----------------------

                                                                                                                                                           4  

  and pursue the charges.                                                                                                                                        If the charged crime is an unclassified felony or a class A                                                                                                                                                                                                                                                                                                                



  felony, the statute allows the charge to be re-initiated at any time. But if the charge is for                                                                                                                                                                                                                                                                                                                                                                                                                                       



  any lesser crime, it cannot be re-initiated after 5 years.                                                                                                                                                                                                                                                                                          



                                                                                    AS   12.47.110(b)   also   declares   that   when   the   court   in   a   criminal   case  



 reaches the limit of its authority to commit the defendant based on the defendant's lack                                                                                                                                                                                                                                                                                                                                                                                                                                     



  of competency to stand trial, any further commitment of the defendant must be pursued                                                                                                                                                                                                                                                                                                                                                                                                                



  in a civil commitment proceeding under AS 47.30.700                                                                                                                                                                                                                                                                                          et seq.                                   - the statutes that govern                                                                                           



  involuntary civil commitments of people who, because of mental illness, are either                                                                                                                                                                                                                                                                                                                                                                                                                               



  gravely disabled or pose a danger to themselves or others.                                                                                                                                                                                                                                                                                                                  



                                                                                    Accordingly, in Victor's case, the superior court gave the State a few days                                                                                                                                                                                                                                                                                                                                                             



 to file a petition for Victor's involuntary civil commitment, and then - in late January                                                                                                                                                                                                                                                                                                                                                                                                               



 2016 - the court dismissed the criminal charges against Victor.                                                                                                                                                                                                                                                                                                                                                   



                                                                                    When felony charges against a criminal defendant are dismissed because   



  of the defendant's lack of competency to stand trial, and the State then initiates civil                                                                                                                                                                                                                                                                                                                                                                                                                                  



  commitment proceedings against the defendant, Alaska law rebuttably presumes that                                                                                                                                                                                                                                                                                                                                                                                                                                             



 there are sufficient grounds for civilly committing the defendant.                                                                                                                                                                                                                                                                                                                                                       More precisely, the                                                                                        



  defendant "is rebuttably presumed to be mentally ill and to present a likelihood of serious                                                                                                                                                                                                                                                                                                                                                                                                                 



 harm to self or others".                                                                                                                          AS 12.47.110(e).                                                                                                    



                                                                                    In Victor's case, Victor either did not challenge this presumption or he                                                                                                                                                                                                                                                                                                                                                                            



  failed to rebut it, and so he was civilly committed under AS 47.30.700                                                                                                                                                                                                                                                                                                                                                                                et seq                                 .   



                      4                    See Alderman v. Iditarod Properties, Inc.                                                                                                                                                                                                         , 32 P.3d 373, 398 (Alaska 2001), declaring  



 that when a motion is denied "without prejudice", this means "that no rights or privileges of  

 the party concerned are to be considered ... waived or lost", except insofar as the court                                                                                                                                                                                                                                                                                                                                                                                                       

 may have expressly decided (or the party whose action was dismissed may have expressly                                                                                                                                                                                                                                                                                                                                                                          

  conceded).  See also  Bryan A. Garner,  A Dictionary of Modern Legal Usage                                                                                                                                                                                                                                                                                                                                                                                                (2nd edition,  

   1995), page 937, which explains that the phrase "without prejudice" is used to describe a   

judicial action "that in no way harms or cancels the legal rights or privileges of a party".  



                                                                                                                                                                                                                                                               -  9 -                                                                                                                                                                                                                                                           2730
  


----------------------- Page 10-----------------------

                     (d)  The prosecutor's  request for  disclosure of  Victor's treatment  

                                                                                                            

               records stemming from  his civil commitment, and the superior court's  

                                                                                                                

               ruling that is the subject of the present  appeal  

                                                                            



                    In early April 2017, about fourteen months after Victor's criminal charges  

                                                                                                                          



were dismissed under AS 12.47.110(b), the Anchorage District Attorney's Office filed  

                                                                                                                              



a motion in Victor's closed criminal case.  

                                                                   



                    In this motion, the District Attorney's Office asked the superior court to  

                                                                                                                                  



order the Alaska Psychiatric Institute to disclose Victor's treatment records to the District  

                                                                                                                          



Attorney's Office (i.e., the treatment records developed after January 2016 as a result of  

                                                                                                                                  



Victor's civil commitment).  The government's purpose in seeking disclosure of these  

                                                                                        



records was to allow the District Attorney's Office to evaluate whether there was reason  

                                                                                                                           



to believe that, during Victor's fourteen months of civil commitment and mental health  

                                                                                                                            



treatment, Victor had become competent to stand trial.  

                                                                                     



                    Victor's attorney opposed the government's motion on several grounds.  

                                                                                                                                     



                    First, Victor's attorney argued that the superior court no longer had subject- 

                                                                                                                         



matter jurisdiction to entertain a new motion in Victor's criminal case, given the fact that  

                                                                                                                                



Victor's criminal charges had been dismissed and his criminal case was closed.  

                                                                                                                           



                    Victor's attorney argued in the alternative that, even if the superior court  

                                                                      



had jurisdiction to entertain the prosecutor's motion, the court was required to deny the  

                                                                                                                                 



government's request for disclosure because AS 47.30.845 declares that all evaluation  

                                                                                                                     



and treatment records related to a civil commitment are confidential.  Victor's attorney  

                                                                                                                         



acknowledged that AS  47.30.845  allows disclosures that  are "authorized by a  court  

                                                                                                                             



order" (see  subsection (3) of that statute), but she argued that anyone seeking such a  

                                                                                                                                   



court order should be required to make a "substantive showing" that disclosure of the  

                                                                                                                                



treatment  records  was  proper  -  and  Victor's  attorney  asserted  that  the  District  

                                                                                                                         



Attorney's Office had failed to make such a showing.  

                                                                                    



                                                              - 10 -                                                          2730
  


----------------------- Page 11-----------------------

                    In addition, Victor's attorney argued that Victor's treatment records were  

                                                                                                                              



privileged under Alaska Evidence Rule 504 (the psychotherapist-patient privilege), and  

                                                                                                                                



that none of the exceptions listed in subsection (d) of that rule applied to Victor's  

                                                                                                                        



situation.  

                



                    After Victor's attorney filed thisopposition to the government's request for  

                                                                                                                                 



disclosure  of  Victor's  treatment  records,  the  District  Attorney's  Office  altered  its  

                                                                                                                                 



position:  The District Attorney's Office now conceded that it was improper to file the  

                                                                                                                                



disclosure motion in Victor's closed criminal case.   Instead, the District Attorney's  

                                                                                                                                      



Office announced that it would open a new criminal case against Victor by refiling the  

                                                                                                                                 



attempted   murder   and   assault   charges   that   had   been   dismissed   pursuant   to  

                                                                                                                                



AS  12.47.110(b)  -  and  then,  after  these  charges  were  re-initiated,  the  District  

                                                                                                                         



Attorney's Office would ask the court to order a new competency evaluation under  

                                                                                                                            



AS 12.47.100 and 110.  

                                      



                    In response to the government's new litigation position, Victor's attorney  

                                                                                                                         



argued that it would be unlawful for the District Attorney's Office to re-initiate the  

                                                                                                                                



charges in a new criminal case unless the government first presented the superior court  

                                                                                                                             



with an offer of proof - a recitation of new admissible evidence tending to prove that  

                                                                                                                               



Victor had become competent to stand trial.  

                                                                     



                    Victor'sattorneyconcededthatneither therelevant statutes nor therelevant  

                                                                                                                         



case law imposed this pre-filing requirement.  Nevertheless, Victor's attorney took the  

                                                                                                                                 



position  that  AS  12.47.110,  as  well  as  related  "constitutional  interests",  implicitly  

                                                                                                    



required the government to offer new evidence tending to prove that Victor had become  

                                                                                                                         



competent  to  stand  trial  before  the  government  would  be  allowed  to  re-initiate  its  

                                                                                                                                 



criminal charges.  

                            



                    The   superior   court   ultimately   rejected   Victor's   argument   that   the  

                                                                                                                               



government was required to prove that Victor was competent to stand trial before the  

                                                                                                                                



                                                              -  11 -                                                         2730
  


----------------------- Page 12-----------------------

government could re-initiate the dismissed charges.  Instead, the court declared that it  

                                                                                                                                    



would not prohibit the District Attorney's Office "[filing] whatever they want to file."  

                                                                                                                                       



                     In effect, the superior court ruled that the Statewas empowered to re-initiate  

                                                                                                                        



the charges against Victor without any prior judicial screening - thus implying that the  

                                                                                                                                  



court intended to defer the litigation of all of the other issues that the parties had raised  

                                                                                                                             



(most importantly, the issue of Victor's competency to stand trial) until after the State  

                                                                                                                         



re-initiated the charges.  

                                       



                     Victor's attorneypetitioned this Court to review the superior court's ruling,  

                                                                                                                            



and we granted this petition for review.  Now, for the reasons we are about to explain,  

                                                                               



we uphold the superior court's ruling.  

                                                             



          A general description of our ruling  

                                                                  



                     Both Victor and the State agree that when criminal charges are dismissed  

                                                                                                                       



without prejudice under the provisions of AS 12.47.110(b) - i.e., dismissed because the  

                                                                                                                                  



court finds that the defendant lacks the competency to stand trial - the State is entitled  

                                                                                                                           



to re-initiate the charges.  The question is how.  

                                                                           



                     Victor asserts that, in this situation, Alaska law implicitly prohibits the court  

                                                                                                                               



from allowing the State to re-initiate the previously dismissed charges unless the State  

                                                                                                                         



first proves that the defendant is competent to stand trial.  The superior court, on the  

                                                                                                                                 



other hand,  has ruled  that  the  State can re-initiate  the previously  dismissed  charges  

                                                                                                                          



without first proving (as a preliminary matter) that the defendant is competent to stand  

                                                                                                                              



trial - thus leaving until later the issue of the defendant's competency (assuming that  

                                                 



someone raises this issue).  

                                            



                     Although the relevant statutes found in AS  12.47 do not directly resolve  

                                                                                                                           



this question, we affirm the superior court's ruling for several inter-related reasons.  

                                                                                                                                   



                                                              - 12 -                                                          2730
  


----------------------- Page 13-----------------------

                                                                 First, thesuperior court's ruling is consistent with Alaska                                                                                                                                                                                                               law regarding the   



  State's ability to file the                                                                                       initial  criminal charges against a mentally ill defendant.                                                                                                                                                                                                                   Even  



 in cases where there are obvious reasons to doubt a person's competency to stand trial,                                                                                                                                                                                                                                                                                                               



 Alaska law allows the State to file criminal charges against the person - thus allowing                                                                                                                                                                                                                                                                                           



 the   court   to   establish   both   subject-matter   jurisdiction   over   the   case   and   personal  



jurisdiction over the defendant.                                                                                                                         



                                                                 Second, the superior court's ruling is consistent with the idea that, even                                                                                                                                                                                                                                                           



 when criminal charges are dismissed under AS 12.47.110(b) because of the defendant's                                                                                                                                                                                                                                                                                 



 persisting lack of competency to stand trial, the superior court still maintains subject-                                                                                                                                                                                                                                                                                             



 matter jurisdiction over the case and personal jurisdiction over the defendant.                                                                                                                                                                                                                                                                                                      



                                                                 This is, in fact, the view advocated by Victor in this appeal: that a dismissal                                                                                                                                                                                                                            



 of criminal charges under AS 12.47.110(b) is, legally speaking, a                                                                                                                                                                                                                                         long-termcontinuation   



 of the stay of the proceedings that takes effect under AS 12.47.110(a) when the superior                                                                                                                                                                                                                                                                                             



 court initially finds that a defendant is not competent to stand trial.                                                                                                                                                                                                                                                          



                                                                 Thesuperiorcourt'scontinuingsubject-matterjurisdictionoverthecriminal                                                                                                                                                                                                                                                 



 case and personal jurisdiction over the defendant are crucial - because, without this                                                                                                                                                                                                                                                                                                                     



jurisdiction, the court would have no authority to re-assess whether the defendant was                                                                                                                                                                                                                                                



 competent to stand trial.                                                                                            (Indeed, a court lacking jurisdiction would have no authority                                                                                                                                                      



                                                                                                                                                                                                                                                                                                                                   5  

 to conduct litigation regarding this or any other aspect of the case.)                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                                                                                  

                                                                 If  the  superior  court  remains  vested  with  subject-matter  and  personal  



                                                                                                                                                                                                                                                                                                                                                                                            

jurisdictionevenafter criminal charges aredismissed without prejudiceunder AS12.47.- 



                                                                                                                                                                                                                                                                                                                                                                                      

  110(b), this suggests that the State need only file some sort of pleading that actively  



                 5               See Cramer v. Wade                                                                             , 985 P.2d 467, 470 (Alaska 1999) ("A judgment is void if the   



 court that rendered it lacked personal jurisdiction over the defendant."); Jacko v. State , 981  

 P.2d 1075, 1078 (Alaska App. 1999) (same); State v. Gottschalk, 138 P.3d 1170, 1173-74  

 (Alaska App. 2006) (Judge Mannheimer, concurring).  



                                                                                                                                                                                                  -  13 -                                                                                                                                                                                                2730
  


----------------------- Page 14-----------------------

invokes the superior court's continuing jurisdiction over the case - and then the court  

                                                                                                                             



is authorized to conduct litigation to re-assess the defendant's competency to stand trial.  

                                                                                                                              



                    Third, the superior court's ruling resolves the related procedural question  

                                                                                                                        



of how the superior court is to conduct any renewed litigation regarding the defendant's  

                                                                                                                   



competency  to  stand  trial.                 The  Alaska  legislature  has  already  provided  detailed  

                                                                                                                        



procedures for a court to use when it evaluates a criminal defendant's competency to  

                                                                                                                                  



stand trial.  These procedures are set forth in AS  12.47.100(b) - (h).  But all of these  

                                                                                                                             



statutoryprocedures assume that the court has already acquired jurisdiction over the case  

                                                                                                                               



and over the defendant - so that, for example, the court has the authority to appoint one  

                                                                                                                                



or more psychiatrists or psychologists to examine the defendant, and so that the parties  

                                                                                                                           



(and the court itself; see Alaska Evidence Rule 614) are entitled to use court process to  

                                                                                                                                  



obtain  the  testimony  of  witnesses  and  other  evidence  relevant  to  the  issue  of  the  

                                                                                                                                



defendant's competency.  

                                        



                    Technically, the procedures listed in AS 12.47.100(b) - (h) apply only to  



the  superior court's initial series of evaluations of a defendant's competency - the  

                                                                                                                                



assessments that can be triggered at any time during the initial criminal litigation, up until  

                                                                                                                              



the time the defendant is sentenced.  (See the first clause of AS  12.47.100(b).)  

                                                                                                                           



                    But  given the number  and  specificity of these  statutory procedures  for  

                                                                                                                                



evaluating  a  defendant's  competency  to  stand  trial,  we  conclude  that  the  Alaska  

                                                                                                                          



legislature  assumed  that  any  renewed  litigation  regarding  a  criminal  defendant's  

                                                                                                                  



competency  to  stand  trial  would  be  carried  out  under  these  same  or  analogous  

                                                                                                                     



procedures.  

                    



                    We provide a more detailed explanation of these rationales in our opinion.  

                                                                                                                         



But  our  conclusion  is  this:               The  superior  court  was  correct  when  it  ruled  that,  in  

                                                                                                                                  



situations like Victor's case, the proper procedure is for the State to file pleadings to  

                                                                                                                                  



                                                              - 14 -                                                          2730
  


----------------------- Page 15-----------------------

re-initiate  the  criminal  case  and  then,  if  someone  questions  the  defendant's  competency  



to  stand  trial,  the  court  re-assesses  the  defendant's  competency.   



                   We   therefore   affirm   the   superior   court's   decision   to   allow   the   State   to  



re-initiate the criminal charges against Victor, and we remand this case to the  superior  



court   for   litigation   of   those   criminal   charges   -   including   litigation   of   Victor's  



competency  to  stand  trial  (since,  in  Victor's  case,  this  issue  has  already  been  raised).   



          The  interplay  between  AS  12.47.110(b)  and  the  civil  commitment  statutes,  

         AS 47.30.700 et seq.  

                                  



                   AS 12.47.110(b) - the statute that sets forth the procedures for situations  

                                                                                                                



where a criminal defendant is not competent to stand trial - was enacted as part of the  

                                                                                                                         



same  1981 session  law  that  enacted  Alaska's  involuntary  commitment  procedures,  

                                                                                                            



                                                                                                                      6  

AS 47.30.700 et seq.  (The relevant session law is SLA 1981, ch. 84, §§ 1 and 4.)    

                                                                                                                  



                                                                                                                        

                   Because the Alaska Legislature debated and passed these statutes as part  



                                                                                                                     

of a single legislative package, we must construe these statutes in light of each other,  



                                                                                                                       

treating them as a unified legislative approach to the problem of criminal defendants who  



     6    More precisely, this   1981   session law enacted AS 12.45.110(b) - the immediate  



predecessor of   our current statute, AS 12.47.110(b).   The following year, the legislature  

moved the provisions of  AS 12.45 dealing with insanity  and incompetency  to stand trial into  

a new chapter of the statutes, AS 12.47.  See SLA 1982, ch. 143, § 22.  



          The original 1982 version of  AS 12.47.110(b) was  almost the same as the predecessor  

statute, AS 12.45.110(b), except  that  the wording of  AS 12.47.110(b) was modified to be  

gender-neutral,  and  the  legislature  expanded  the  exceptions  to  the  5-year  limitation   on  

refiling the dismissed charges (by  making all unclassified and class A felony  charges exempt  

from  this 5-year limitation).  Since that time, AS 12.47.110(b) has been amended once, see  

SLA 2008, ch. 75, § 20, but this amendment was not substantive.  



                                                          - 15 -                                                      2730
  


----------------------- Page 16-----------------------

suffer   from   a   mental   illness   that   renders   them   incompetent   to   stand   trial   and  also  



                                                                                              7  

potentially dangerous, or gravely disabled, or both.                                              



                                                                                                                                                            

                        As  we  have  already  explained,  AS  12.47.110(b)  declares  that  if,  in  a  



                                                                                                                                                     

criminal proceeding, the defendant remains incompetent to stand trial when the court  



                                                                                                                                                       

reaches the limit of its authority to hold the defendant for treatment to remedy this  



                                                                                                                                                  

incompetency, thecriminal charges mustbedismissed without prejudice, andany further  



                                                                                                                                                          

commitment  proceedings  are  governed  by  the  provisions  of  Title  47  relating  to  



                                                          

involuntary civil commitment.  



                                                                                                                                                           

                         This fact - that a defendant's continued mental health commitment is  



                                                                                                                                                      

governed by the civil commitment statutes (AS 47.30.700 et seq.) - is one of the main  



                                                                                                                                         

sources of the legal controversy in Victor's case.  More specifically, this controversy  



                                                                                          

arises from two aspects of the civil commitment statutes.  



                                                                                                                                                         

                        First, the criteria for civil commitment are different from the criteria for  



                                                                                                                                       

commitment of an incompetent criminal defendant under AS 12.47.110.  And second,  



                                                                                                                                         

whenadefendant is civilly committed, the defendant's treatment records areconfidential  



                                                                                                                                                

and are no longer directly available to the court and the prosecutor's office who handled  



                                                                                      

the criminal proceedings.  See AS 47.30.845.  



                                                                                                                                                         

                         The test for whether a defendant in a criminal case can be committed for  



                                                                                                                                                           

mental  health  treatment  under  AS  12.47.110(b)  is  whether  the  court  finds,  by  a  



      7     See Peters v. State             , 943 P.2d 418, 420 (Alaska App. 1997):  " 'The guiding principle  



of statutory construction is to ascertain and implement the intent of the legislature ... .'                                

Millman v. State , 841 P.2d 190, 194 (Alaska App. 1992).  To that end, statutes dealing with  

the   same  or  related  subject  matter  should  be  construed  'as  harmoniously   as   possible.'  

Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 633-34 (Alaska 1993).   Such statutes  

 'should be read together as a whole in order that a total scheme evolves which maintains the  

integrity of each act and avoids ignoring one provision over another.'  Conner v. State, 696  

                                                                                                                                                        

P.2d 680, 682 n. 3 (Alaska App. 1985)."  



                                                                          -  16 -                                                                     2730
  


----------------------- Page 17-----------------------

preponderance of the evidence, that the defendant lacks the ability to understand the                                                           



nature of the proceedings against them, and/or lacks the ability to assist in their own                                                       



               8 

defense.    But this type of mental disability, and this "preponderance of the evidence"  



                                                                                                                     

burden of proof, are not sufficient to support an involuntary civil commitment under  



                                      

AS 47.30.700 et seq.  



                                                                                                                                                

                       Under therelevant provisionsofthecivil commitment statutes,aperson can  



                                                                                                                                          

be involuntarily  committed  to the custody  of the Department of  Health  and  Social  



                                                                                                                                               

Services  for  mental  health  treatment  only  if  the  superior  court  finds,  by  clear  and  



                                                                                                                                          

convincing evidence, that the person is mentally ill and that, because of this mental  



                                                                                                                                             

illness, the person is either gravely disabled or the person is likely to cause serious harm  



                                     9  

                                          

to themself or others.  



                                                                                                                                          

                       (For these purposes, a person is "gravely disabled" if, as a result of mental  



                                                                                                                                            

illness, (a) the person so completely neglects their basic needs and their personal safety  



                                                                                                                                            

as to make it highly probable that they will suffer serious accident, illness, or death  



                                                                                                                                         

unless they are committed to the care of others, or if (b) the person will, unless treated,  



                                                                                                                                              

experience severe and abnormal mental, emotional, or physical distress associated with  



                                                                                                                                                   

a significant impairment of their  judgement,  reason,  or  behavior,  thus leading  to  a  



                                                                                                                                                       

substantial deteriorationoftheirabilitytofunction independently. See AS47.30.915(9).)  



                                                                                                                                                 

                       Becausethecriteriafor involuntarycivil commitment aredifferentfromthe  



                                                                                                                                                

criteria for commitment of an incompetent criminal defendant under AS 12.47.110, and  



                                                                                                                                             

because civil commitment treatment records are confidential under AS 47.30.845, there  



      8     AS 12.47.100(a); Gamble v. State, 334 P.3d 714, 717 (Alaska App. 2014); Schade v.  



State, 512 P.2d 907, 914 (Alaska 1973) (decided under prior law).  



      9     See AS 47.30.735(c) (initial 30-day commitment), AS 47.30.745(b) and AS 47.30.- 



                                                                                                                                        

755(a) (subsequent 90-day commitment), and AS 47.30.770(b) - (c) (any ensuing 180-day  

commitments).  



                                                                      -  17 -                                                                2730
  


----------------------- Page 18-----------------------

are (broadly speaking) three possible scenarios that can arise after the superior court  

                                                                                                                             



reaches the limit of its authority under AS 12.47.110(b) to hold a criminal defendant for  

                                                                                                                                 



involuntary mental health treatment to restore the defendant's competency to stand trial.  

                                                                                                                                      



                    Scenario 1:  There will be times when a defendant who is incompetent to  

                                                                                                                                  



stand trial cannot be civilly committed under AS 47.30.700 et seq. because the State will  

                                                                                                                               



be unable to prove, by the higher standard of clear and convincing evidence, that the  

                                                                                                                                



defendant is gravely disabled or that the defendant is likely to cause serious harm to  

                                                                                                                                  



themself or others.  In this first scenario, the defendant must be released from custody.  

                                                                                                                                      



                    As we explained earlier, when a defendant is charged with one or more  

                                                                                                                         



felonies and the charges are dismissed because of the defendant's lack of competency to  

                                                                                                                                  



stand trial, Alaska law rebuttably presumes that the defendant can be committed on the  

                                                                                                                                 



grounds that the defendant is mentally ill and presents a likelihood of serious harm to  

                                                                                                                                  



themself or others. See AS 12.47.110(e). But not all felonies are crimes of violence, and  

                                                                                                                                



there will be times when this presumption of dangerousness is rebutted.  

                                                                                                                



                    Scenario 2: There will be times when a defendant who is not competent to  

                                                                                                                                  



stand  trial  is  civilly  committed  under  AS  47.30.700  et  seq.  and  later  -  after  the  

                                                                                                                                



defendant  has  received  mental  health  treatment  in  connection  with  their  civil  

                                                                                                                             



commitment - the defendant's mental illness is ameliorated to the point where the  

                                                                                                                                



defendant is no longer gravely disabled and no longer poses a danger of serious harm to  

                                                                                                                                  



themself or others.  

                                



                    In this situation, Alaska law requires that the defendant be released from  

                                                                                                                              



their civil commitment.   See AS 47.30.780.   However, subsection (b) of this statute  

                                                                                                                    



declares that in cases where a person has been civilly committed "after having been  

                                                                                                                              



found incompetent to proceed under AS 12.47.110" - i.e., in cases where criminal  

                                                                                                                        



charges were dismissed because the defendant was found to be incompetent to stand trial  

                                                                                                                               



and  the  defendant's  competency  could  not  be  restored  within  the time  allowed  by  

                                                                                                                                 



                                                              -  18 -                                                         2730
  


----------------------- Page 19-----------------------

AS 12.47.110(b) - the mental health professional in charge of the defendant's civil  

                                                                                                                             



commitment "[must]givetheprosecutingauthority10days' notice"beforethedefendant  

                                                                                                                      



is released from their civil commitment.  

                                                                



                    The fact that the legislature requires the defendant's treatment provider to  

                                                                                                                                 



notify the prosecutor of the defendant's impending release implies that the legislature  

                                                                                                                    



thought that prosecuting attorneys might wish to take some sort of action after receiving  

                                                                                                                      



news of the defendant's imminent release fromcivil commitment - e.g., action to revive  

                                                                                                                           



the  criminal  charges  that  were  earlier  dismissed  under  AS  12.47.110(b).                                        But  no  

                                                                                                                                



provision of AS 47.30 (nor any provision of AS 12.47) describes what a prosecutor is  

                                                                                                                 



supposed to do, or is authorized to do, after receiving this notice from the defendant's  

                                                       



treatment provider.  

                               



                    Conceivably,  the legislature included  this statutory notice requirement  

                                                                                                                 



because the legislature thought that the defendant's release from civil commitment was,  

                                                                                                                              



by itself, a sufficient justification for theprosecutor tore-initiate the criminal charges that  

                                                                                                                               



were dismissed earlier under AS 12.47.110(b).  

                                                                          



                    A defendant's release from civil commitment does not necessarily mean  

                                                                                                                            



that the defendant is now competent to stand trial - because, again, the criteria for  

                                                                                                                               



competence  to  stand  trial  are  different  from  the  criteria  for  involuntary  mental  

                                                                                                                         



commitment.  There may be times when, even though a defendant no longer meets the  

                                                                                                                                



criteria for involuntary civil commitment, the defendant nevertheless remains unable to  

                                                                                                                                 



understand the nature of the criminal proceedings or remains unable to assist in their own  

                                                                                                                              



defense.  

                



                    For this same reason, when a defendantis released froma civil commitment  

                                                                                                                 



pursuant to AS 47.30.780, the defendant's release will normally not be accompanied by  

                                                                                                                                



any  explicit  finding  by  the  defendant's  treatment  provider  regarding  whether  the  

                                                                                                                               



defendant has regained competency to stand trial - because the question of whether the  

                                                                                                                                



                                                             -  19 -                                                         2730
  


----------------------- Page 20-----------------------

defendant is competent to  stand trial has  only marginal relevance to the  question of  

                                                                                                                                  



whether the facts justify the defendant's continued civil commitment.  

                                                                                                            



                    But even though different standards govern competency to stand trial and  

                                                                                                                                



involuntary  civil  commitment,  the  legislature may  have  believed  that  a  defendant's  

                                                                                                                   



release from civil commitment was at least a good indication that the defendant had  

                                                                                                                               



regained their  competency to  stand trial -  and that, for this reason, the defendant's  

                                                                                                                   



release  from  civil  commitment justified  a  prosecutor  in  re-initiating  the  previously  

                                                                                                                    



dismissed charges.  

                                



                    Alternatively,  the  legislature  might  have  thought  that  the  defendant's  

                                                                                                                  



release from civil commitment was at least a sufficient justification for the prosecutor to  

                                                                                                                                  



seek  an  order  from the  superior  court  authorizing the  disclosure  of the  defendant's  

                                                                                                                   



mental health treatment records to the prosecutor under AS 47.30.845(3) - so that the  

                                                                                                                                 



prosecutor could then assess whether there was reason to believe that the defendant had  

                                                                                                                                



regained competency to stand trial and, if so, whether the dismissed criminal charges  

                                                                                                                         



should be re-initiated.  

                                    



                    But none  of this  is  explained  in the pertinent  statutes.   The  legislature  

                                                                                                                     



clearly thought that there was some good reason to require the defendant's treatment  

                                                                                                   



provider to notify the prosecutor that the defendant was about to be released from civil  

                                                                                                                              



commitment.  But the legislature did not explain what the prosecutor was expected to do  

                                                                                                                                  



with this information.  

                                   



                    Scenario 3: Because a defendant's continued civil commitment hinges on  

                                                                                                                                 



the defendant's disability and/or dangerousness, and not on their lack of competency to  

                                                                                                                                  



stand trial, there will be times when a defendant who has been civilly committed will  

                                                                                                                               



become competent to stand trial after they have received mental health treatment, even  

                                                                                                                              



though the grounds for the defendant's involuntary civil commitment still exist.  

                                                                                                                             



                                                              - 20 -                                                          2730
  


----------------------- Page 21-----------------------

                    In other words, even though a defendant remains gravely disabled and/or  

                                                                                                                           



a danger to themself or others because of their mental illness, there will be times when  

                                                                                                                            



the defendant's mental health improves to the point where they can understand the nature  

                                                                                                                           



of the criminal proceedings and are capable of assisting in their own defense.  

                                                                                                                        



                    Under AS47.30.780,thedefendant's civil commitmenttreatmentproviders  

                                                                                                                      



have a duty to periodically re-assess whether the defendant still meets the criteria for  

                                                                                                                               



civil commitment (i.e., whether the defendant remains gravely disabled, or continues to  

                                                                                                                                 



pose a threat of serious harm to themself or others, or both).  But AS 47.30 does not  

                                                                                                                               



impose a corresponding duty on these treatment providers to periodically re-assess  

                                                                                                                      



whether the defendant has likely become competent to stand trial - even though these  

                                                                                                                            



treatment providers undoubtedly have some of the most important information on this  

                                                                               



question.  

                 



                    Thus, even if the defendant's treatment providers affirmatively conclude  

                                                                                                                      



that the defendant's mental health has improved to the point where the defendant is likely  

                                                                                                                            



competent to stand trial, these treatment providers have no duty to report this change in  

                                                                                                                                 



the defendant's mental health status to the court or to the prosecuting authority.  In fact,  

                                                                                                                              



absent a court order, these treatment providers are seemingly forbidden  from alerting the  

                                                                                                                                



prosecuting authority that the defendant has likely regained their competency to stand  

                                                                                                                            



trial - because all information and  treatment records arising from a person's civil  

                                                                                                                             



commitment are confidential under AS 47.30.845, and treatment providers are barred  

                                                                                                                          



from  disclosing  this  information  unless  the  disclosure  is  authorized  by  one  of  the  

                                                                                                                               



exceptions listed in that statute.  

                                                   



                    None  of  these  exceptions  listed  in  AS  47.30.845  expressly  apply  to  

                                                                                                                                



situations where (1) criminal charges against a defendant were dismissed because of the  

                                                                                                                                



defendant's lack of competency, (2) the defendant was civilly committed, and (3) the  

                                                                                                                               



mental health treatment provided during the defendant's civil commitment has improved  

                                                                                                                      



                                                             - 21 -                                                          2730
  


----------------------- Page 22-----------------------

the defendant's mental health to the point where there is good reason to believe that the  

                                                                                                                                



defendant is competent to stand trial.  

                                                           



                    The only  statutory exception that potentially  applies to this  situation is  

                                                                                                                                  



AS 47.30.845(3), which allows disclosures that are "authorized by a court order".  But  

                                                                                                                                



the  legislature  has  not  prescribed  any  procedure  by  which  a  prosecutor  in  these  

                                                                                                                            



circumstances  might  obtain  information  from  the  defendant's  treatment  providers  

                                                                                                                      



regarding the defendant's likely competence to stand trial - the information that might  

                                                                                                                            



provide  a  basis  for  the  prosecutor  to  seek  a  court  order  disclosing  the  defendant's  

                                                                                                                   



treatment records.  

                               



          The procedural question of how the State is to re-initiate criminal charges  

                                                                                                               

          against a defendant after those charges have been dismissed because of  

                                                                                                                        

          the defendant's lack of competence to stand trial  

                                                                               



                    As we have just explained, the interplay between AS 12.47.110(b) and the  

                                                                                                                                 



civil commitment statutes gives rise  to many questions -  and these  statutes do not  

                                                                                                                                



supply, or only hint at, the answers to these questions.  But for purposes of the present  

                                                                                                                          



appeal, we need  answer only one of these questions:  the question of the procedural  

                                                                                                                    



method  that  the  government  should employ to re-initiate  criminal  charges  against a  

                                                                                                                       



defendant after those charges have been dismissed because of the defendant's lack of  

                                                                                                                                  



competence to stand trial.  

                                         



                    AS   12.47.110(b)  declares  that   any   dismissal   of   charges   in  these  

                                                                                                                            



circumstances shall be "without prejudice" - a phrase which, under established Alaska  

                                                                                                                           



law, means that the dismissal is without detriment to, or derogation of, the State's right  

                                                                                                                              



                                                              - 22 -                                                          2730
  


----------------------- Page 23-----------------------

to pursue the criminal charges, so long as the circumstance that required the dismissal                                                      

is remedied.           10  



                                                                                                                                            

                         In order for the superior court to entertain any renewed litigation pertaining  



                                                                                                                                                        

to the previously dismissed charges, there must be a procedural mechanism for the  



                                                                                                                                                       

government to invoke the subject-matter jurisdiction of the superior court (i.e., the  



                                                                                                                                                        

 court's authority over the criminal case) and the court's personal jurisdiction over the  



                    11  

 defendant.     



                                                                                                                                          

                         In Victor's case (as we described earlier in this opinion), the Anchorage  



                                                                                                                                   

District Attorney's Office first attempted to invoke the superior court's jurisdiction by  



                                                                                                                                                          

 filing a motion for discovery in the earlier criminal case - a motion asking the court to  



                                                                                                                                               

 order disclosure of Victor's civil commitment treatment records.  But Victor's attorney  



                                                                                                                                                  

 argued that it was improper to file any new motions in the earlier case, since that earlier  



                                                                                                                                               

 case had been closed. In response, the District Attorney's Office conceded that Victor's  



                                                                                                                                                

 attorney  was  right  -  and,  therefore,  they  decided  to  invoke  the  superior  court's  



                                                                                                                                          

jurisdiction by re-filing the previously dismissed charges in a new criminal case.  



                                                                                                                                            

                         This  procedural  history  raises  two  questions.                                      One  of  these  questions  



                                                                                                                                                  

involves   substantive   law,   while   the   other   question   involves   matters   of   court  



                                                   

 administration and clerical practices.  



                                                                                                                                              

                         The substantive question is this:  How is a party to invoke the superior  



                                                                                                                                              

 court's subject-matter jurisdiction over the defendant's criminal case and its personal  



       10    See footnote 4.
  



       11   See, e.g., State v. Carneh, 203 P.3d 1073, 1076-77 (Wash. App. 2009). 
 



                                                                         - 23 -                                                                      2730
  


----------------------- Page 24-----------------------

jurisdiction over the defendant?                          For without jurisdiction, the court has no authority to                                    



                                                                                                                   12  

issue any binding ruling against either the State or the defendant.                                                      



                                                                                                                                                     

                        The Washington Court of Appeals confronted this problem in  State v.  



               13  

                                                                                                                                           

 Carneh,           a case involving a defendant whose criminal charges were dismissed because  



                                                                                                                                                

the defendant lacked the competency to stand trial, and where the government later  



                                                                

 attempted to re-initiate the charges.  



                                                                                                                                              

                        When the government attempted to re-initiate the charges, Carneh raised  



                                                                                                                                    

 essentially the same argument that Victor raises here: the contention that the government  



                                                                                                                                                   

 should not be allowed to re-initiate the previously dismissed criminal charges until the  



                                                                                                                                                  

court had first re-assessed the defendant's mental status and had affirmatively found that  



                                                                            14  

                                                                                  

the defendant was competent to stand trial.  



                                                                                                                                                 

                        But  as  the  Washington  Court  of  Appeals  explained  in  Carneh,  this  



                                                                                                                                          

 argument is inconsistent with the legal principle that a court must have both subject- 



                                                                                                                                       

matter jurisdiction over the controversy and personal jurisdiction over the defendant  



                                                                                                                                                    

before the court entertains litigation concerning the issues in the case - for example, the  



                                                                                                                       15  

                                                                                                               

issue of whether the defendant is currently competent to stand trial.      



                                                                                                                                                    

                        For this reason, the Washington court rejected Carneh's argument that the  



                                                                                                                                                     

charges could not be refiled until after a court found the defendant to be competent to  



                                                                                                                                                   

 stand trial.  Instead, the Washington court held that the government was entitled to file  



      12    See Cramer v. Wade                 , 985 P.2d 467, 470 (Alaska 1999) ("A judgment is void if the   



court that rendered it lacked personal jurisdiction over the defendant.").  



      13    203 P.3d 1073 (Wash. App. 2009).   



      14    Id. , 203 P.3d at 1075-76.  



      15    Ibid.  



                                                                       - 24 -                                                                   2730
  


----------------------- Page 25-----------------------

pleadings  that  re-initiated  the  charges,  and  then  a  trial  court  would  re-assess  whether  the  



                                                        16  

defendant  was  competent  to  stand  trial.      



                   For  much  the  same  reasons,  we  reject  Victor's  argument  in  this  appeal.    



                   In    cases    like   Victor's,   where    charges  have   been    dismissed   under  



AS   12.47.110(b)   because   of   the   defendant's   lack   of   competency   to   stand   trial,   it   is  



essential  for  the  superior  court  to  have  jurisdiction  over  the  case  and  over  the  defendant  



before   the   court   conducts   any   new   litigation   to   re-assess   whether   the   defendant   is  



competent  to  stand  trial.    



                   Potentially,  AS   12.47.110(b)   could  be   construed   as  meaning  that,  when  



charges  are  dismissed  because  of  the  defendant's  lack  of  competency,  the  superior  court  



loses  jurisdiction  over  the  case  and  loses  personal  jurisdiction  over  the  defendant.   Under  



this  "loss  of  jurisdiction"  interpretation  of  AS  12.47.110(b),  if  the  State  wished  to  restart  



any litigation pertaining to the previously dismissed criminal  charges,  the State would  



have  to  take  the  same  steps  required in any  new  criminal  case  to  establish  the  court's  



subject-matter   jurisdiction  (by   filing   a   set   of   charges)   and   to   establish   the   court's  



personal  jurisdiction  over  the  defendant  (either  by  arresting  the  defendant  or  by  serving  



the  defendant  with  a  summons  based  on  the  newly  filed  charges).    



                   This  appears  to  have  been  the  position  that  Victor's  attorney  took in the  



superior  court.   But  as  we   explained  earlier  in  this  opinion,  Victor  does  not  argue  on  



appeal  that  the  superior  court  loses  subject-matter  jurisdiction  over  the  criminal  case  or  



personal  jurisdiction  over  the defendant when charges are dismissed under  AS   12.47.- 



110(b).     Rather,   Victor   takes   the   position   that   a   dismissal   without   prejudice   under  



AS   12.47.110(b)  should  be  viewed  as  a  continued  stay  of  the  prosecution  based  on  the  



defendant's  lack  of  competency.    



     16  Id. at 1076-77.  



                                                         - 25 -                                                    2730
  


----------------------- Page 26-----------------------

                                               Under this view, the superior court remains vested with jurisdiction to                                                                                                                                                                                   



conduct renewed proceedings pertaining                                                                                                               to   the previously                                               dismissed   charges   - in   



particular,   litigation   regarding   the   defendant's   competency  to  stand   trial   on   those  



charges.   



                                               These questions - the superior court's jurisdiction to entertain renewed                                                                                                                                                           



litigation   pertaining   to   the   dismissed   charges,   and   the   procedures   that  should   be  



employed   to   invoke or                                                             re-invoke that jurisdiction - are not addressed                                                                                                                                   (much less   



answered) in the pertinent provisions of AS 12.47.                                                                                                                                          But we conclude that it is more                                                                   



consistent with these statutes to view a dismissal without prejudice under AS 12.47.-                                                                                                                                                                                                  



 110(b) as, in effect, a continuation of the stay that began when the superior court initially                                                                                                                                                                                        



found the defendant incompetent to stand trial.                                                                                                                        See  AS 12.47.110(a).                                                          This means that                              



the superior court has a continuing, albeit dormant, jurisdiction over the case and over                                                                                                                                                           



the defendant.                                      We reach this conclusion for several reasons.                                                                                                                       



                                               First, the view that the superior court has continuing jurisdiction over the                                                                                                                                                                          



case and over the defendant is more consistent with the legislature's decision that any                                                                                                                                                                                                            



dismissal under AS 12.47.110(b) is "without prejudice".                                                                                                                                                   



                                               As   we   have   explained,   the   phrase   "without   prejudice"   means   that   the  



                                                                                                                                                                                                                                                                                 17  

dismissal is without detriment to the State's ability to re-initiate the charges.                                                                                                                                                                                                       Under  



                                                                                                                                                                                                                                                                                               

Alaska law, a dismissal without prejudice means that "no rights or privileges of the party  



                                                                                                                                                                                                                                                                              

concerned are waived or lost" except insofar as the trial court may have expressly  



                                                                    18  

                                                                            

decided otherwise.  



            17          See  Bryan A. Garner, A Dictionary of Modern Legal Usage  (2nd edition, 1995), page  



937, stating that the phrase "without prejudice" describes a judicial action "that in no way                                                                                                                                                                 

harms or cancels the legal rights or privileges of a party".   



            18         Alderman v. Iditarod Properties, Inc. , 32 P.3d 373, 398 (Alaska 2001).  



                                                                                                                                              - 26 -                                                                                                                                             2730
  


----------------------- Page 27-----------------------

                     For  example, in felony prosecutions, a dismissal of the charges under  

                                                                                                                             



AS 12.47.110(b) will normally occur after the defendant has been indicted by a grand  

                                                                                                                             



jury (because, under Alaska Criminal Rule 10(a), the superior court does not arraign a  

                                                                                                                                    



criminal defendant until the defendant has been indicted or has waived the right of  

                                                                                                                                   



indictment).          If  the  State  later  re-initiates  proceedings  on  the  previously  dismissed  

                                                                                                                      



charges, the fact that the earlier dismissal was "without prejudice" means that the State  

                                                                                                                              



would not need to procure a new grand jury indictment (unless the defendant had also  

                                                                                        



successfully attacked the indictment in pre-trial motion practice before the charges were  

                                                                                                                               



dismissed).  

                     



                     Similarly, a dismissal "without prejudice" implies that the State does not  

                                                                                                                                 



need to re-establish the superior court's subject-matter jurisdiction over the case or its  

                                                                                                                       



personal jurisdiction over the defendant.  This jurisdiction carries over in the event the  

                                                                                                                                 



 State re-initiates the charges.  

                                               



                     Second, if the superior court has continuing jurisdiction over the case and  

                                                                                                                                 



over the defendant, this allows the court and the parties to utilize the detailed procedures  

                                                                                                                     



set  forth  in  AS  12.47.100(b)  -  (h),  and  to  utilize  court  process  to  obtain  relevant  

                                                                                                                         



evidence, when the court conducts any new assessment of the defendant's competency  

                                                                                                                    



to stand trial.  

                      



                     When Victor argues that the State is barred from re-initiating the criminal  

                                                                                                                         



charges until after the superior court finds that the defendant is competent to stand trial,  

                                                                                                                               



Victor is implicitly arguing that the superior court's re-assessment of the defendant's  

                                                                                                                    



competency  must  take  place  outside  the  confines  of  the  criminal  case,  leaving  the  

                                                                                                                                 



 superior court with no ready procedures to conduct this litigation and to re-assess the  

                                                                                                                                 



defendant's competency.                    But in  AS 12.47.100(b)  -  (h),  the Alaska legislature has  

                                                                                                                                



already specified, in substantial detail, the procedures that a court is to employ when the  

                                                                                                                                  



court evaluates a criminal defendant's competency to stand trial.  

                                                                                                     



                                                              - 27 -                                                          2730
  


----------------------- Page 28-----------------------

                             Allofthesestatutory procedures                                        assumethat               the court          has  already  acquired  



jurisdiction over the case and over the defendant - so that, for example, the court has                                                    



the   authority   to   appoint one or                                    more psychiatrists or                            psychologists to examine                                  the  



 defendant, and so that the parties (and the court itself;                                                             see  Alaska Evidence Rule 614)                             



 are entitled to use court process to obtain the testimony of witnesses and other evidence                                                                               



relevant to the issue of the defendant's competency.                                                               



                             Technically, the procedures listed in AS 12.47.100(b) - (h) apply only to  



the superior court's                          initial   series of evaluations of a defendant's competency - the                                                                      



 assessments that can be triggered at any time during the initial criminal litigation up until  

                                                                                                                                                                                  



                                                                              19  

the time the defendant is sentenced.                                                                                                                                       

                                                                                   The Alaska legislature has not explicitly directed  



                                                                                                                                                                                  

the superior court to employ these same procedures in cases where charges have been  



                                                                                                                                                                        

 dismissed withoutprejudice under AS 12.47.110(b) and the Statelaterseeks to re-initiate  



                                  

those charges.  



                                                                                                                                                                                              

                             But given the number and specificity of the procedures that the legislature  



                                                                                 

 established in AS 12.47.100(b) - (h) for evaluating a defendant's competency to stand  



                                                                                                                                                                        

trial,  we  conclude  that  the  Alaska  legislature  assumed  that  any  renewed  litigation  



                                                                                                                                                                                      

regarding  the  defendant's  competency  would  be  carried  out  under  these  same  or  



                                                                                                                                                                    

 analogous procedures.  In other words, the legislature anticipated that the procedures  



                                                                                                                                                                              

 governing any later re-assessment of the defendant's competency to stand trial would  



                                                                                                                                                                     

resemble the procedures that the superior court and the parties employed during the  



                                                                     

 original round of assessments.  



                                                                                                                                                                                 

                             Indeed, without such procedures -in particular, the court's power to order  



                                                                                                                                                                                 

 one or more psychiatric evaluations of the defendant, and the parties' power to use court  



                                                                                                                                                                            

process to procure other relevant evidence - it would be all but impossible for the  



        19     See AS 12.47.100(b) (first sentence).  



                                                                                        - 28 -                                                                                    2730
  


----------------------- Page 29-----------------------

superior court to make a reasoned assessment of the defendant's competency to stand  

                                                                                                                              



trial.  

         



                     Despite all this, Victor contends that the State must be required to prove  

                                                                                                                             



that the defendant is competent to stand trial before the superior court allows the State  

                                                                                                                         



to re-initiate the previously dismissed criminal charges.  

                                                                                        



                     Victor acknowledges that, after the criminal charges are re-initiated, either  

                                                                                                                              



his attorney or the superior court (or even the prosecutor) is entitled to raise the issue of  

                                                                                                                                   



Victor's competency to stand trial - and, if it is shown that Victor is not competent, then  

                                                                                                                                



the proceedings cannot go forward.  

                                                           



                     But Victor argues that,  in situations like his, these protections are not  

                                                                                                                                 



enough.  He contends that in cases where criminal charges were previously dismissed  

                                                                                                                       



under AS 12.47.110(b), the fact that the defendant was previously found incompetent to  

                                                                                                                                   



stand trial is sufficient, by itself, to justify a rule requiring the government to offer  

                                                                                                                              



affirmativeproofofthedefendant'scompetencybeforeany other proceedingstakeplace.  

                                                                                                                             



Moreover, Victor argues, a court should not grant the prosecutor a hearing on the issue  

                                                                                                                              



of the defendant's competency to stand trial until the prosecutor first offers admissible  

                                                                                                                      



evidence suggesting a material change in the defendant's mental status.  

                                                                                                                 



                     We acknowledge that Victor's proposed procedural rule would protect  

                                                                                                                           



defendants against the possibility that a prosecutor might abuse the State's right to refile  

                                                                                                                              



the charges - harassing a defendant when there was no reason to believe that there had  

                                                                                                                                 



been any alteration in the defendant's mental status. We discuss this problem in the next  

                                                                                                                                



section of our opinion.  

                                     



                     But it would defeat the ends of justice if we adopted a procedural rule that  

                                                                                                                                



required the State to prove the defendant's competency to stand trial before the State  

                                                                                                                              



could avail itself of court process to gather evidence to support this claim - because, in  

                                                                                                                                   



a typical case, it is unclear how a prosecutor might gather evidence of a defendant's  

                                                                                                                    



                                                              - 29 -                                                          2730
  


----------------------- Page 30-----------------------

competency to stand trial, or even evidence of a material change in the defendant's  

                                                                                                                   



mental state, unless the prosecutor could invoke the processes of the court.  

                                                                                                                     



                    In  cases  where  criminal  charges  have  been  dismissed  because  of  the  

                                                                                                                                



defendant's lack of competency to stand trial, and where the defendant has subsequently  

                                                                                                                 



been civilly committed under Title 47, most (if not all) of the information relevant to  

                                                                                                                                  



assessing  the  defendant's  mental  status,  and  whether  the  defendant  has  become  

                                                                                                                        



competent to stand trial, will be in the hands of the defendant's civil treatment providers.  

                                                                                                                                      



                    As we explained earlier in this opinion when we described "Scenario 3",  

                                                                                                                                 



there will be times when the mental condition of a civilly committed defendant improves  

                                                                                                                       



to the point where the defendant is competent to stand trial, even though the defendant's  

                                                                                                                   



mental condition still justifies their civil commitment (because the defendant remains  

                                                                                                                         



gravely  disabled  and/or  dangerous  on  account  of  their  mental  illness).                                         But  the  

                                                                                                                               



defendant's mental health providers are not required to periodically assess whether the  

                                                                                                                                 



defendant has become competent to stand trial.  Rather, those treatment providers are  

                                                                                                                                



only required to periodically re-assess whether the grounds for the defendant's civil  

                                                                                                                              



commitment still exist.  

                                    



                    Moreover, those treatment providers operate under a statutory mandate of  

                                                                                                                                  



confidentiality.  Thus, even if a defendant's treatment providers were to conclude that  

                                                                                                                 



the defendant had become competent to stand trial, they would seemingly be forbidden  

                                                                                                                      



from informing the prosecuting authority of this change in the defendant's mental status  

                                                                                                                             



-  because,  under  AS  47.30.845,  this  information  could  not  be  revealed  to  the  

                                                                                                                               



prosecuting authority without a court order.  

                                                                     



                     So if, as Victor argues, a prosecutor should not be allowed to litigate the  

                                                                                                                                



question  of  the  defendant's  competency  until  after  the  prosecutor  offers  evidence  

                                                                                                                       



suggesting a material change in the defendant's mental status, this would effectively put  

                                                                                                                                



the government in a "Catch-22" situation - because, in most cases, the information  

                                                                                                                   



                                                              -  30 -                                                         2730
  


----------------------- Page 31-----------------------

needed for this              prima facie           showing would be the very information that is withheld from                                             



the prosecutor under the confidentiality provisions of AS 47.30.845.                                                                 



                         Of course,             there may            be   other   people besides a defendant's treatment                          



providers who have knowledge of the defendant's mental status.                                                                Family members or                 



                                                                                                           20  

                                                                                                                                                      

close friends may attend the civil commitment hearings                                                          and they may have visiting  



                                                                                                                                                             

privileges at the defendant's treatment facility.   Because these family members and  



                                                                                                                                         

friends are not treatment providers, they would not be constrained by the confidentiality  



                                                                                                                                                            

provisions of AS 47.30.845, and thus they could reveal any pertinent knowledge they  



                                                                                                    

might have regarding the defendant's mental status.  



                                                                                                                                                              

                         But in many cases, these relatives and friends will wish to protect the  



                                                                                                                                                                  

defendant from renewed prosecution, and they would not willingly cooperate with a  



                                                                                                                                                           

prosecutor's efforts to refile the charges.  Unless the prosecutor was able to use court  



                                                                                                                                                

process to depose these witnesses or otherwise procure their testimony, the prosecutor  



                                                                                                                                  

would never have access to these witnesses' information pertaining to the defendant's  



                             

mental status.  



                                                                                                                                                        

                         Victor's case appears to represent the less common situation where family  



                                                                                                                                                                 

members who have first-hand knowledge of the defendant's mental status are willing to  



                                                                                                                                                           

voluntarily share their knowledge with the prosecutor (without the compulsion of court  



                                                                                                                                                                      

process) and to cooperate with the prosecutor's efforts to renew the criminal charges.  



                                                                                                                                                             

But in many other cases, if the defendant remains civilly committed, the State may face  



                                                                                                                                                        

insurmountable difficulties in obtaining information relevant to the defendant's mental  



                                                                                                                                                              

status, much less the defendant's ultimate competence to stand trial, unless the State has  



                                                                                                                                                

access to judicial process to compel disclosure of this information. Thus, the procedural  



      20     See  AS 47.30.735(b)(3) and AS 47.30.750 (commitment hearings may be open or                                                                        



closed to the public, at the respondent's election).  



                                                                            -  31 -                                                                        2730
  


----------------------- Page 32-----------------------

rule that Victor suggests would, in many instances, effectively defeat the State's right to  

                                                                                                                                   



re-initiate the charges.  

                                     



                     For all these reasons, we conclude that the superior court's procedural view  

                                                                                                                               



of Victor's case was correct:  the State must be allowed to file a pleading that invokes  

                                                                                                                          



the superior court's continuing jurisdiction over the criminal case, and then the court is  

                                                                                                                                    



authorized to conduct litigation to re-assess the defendant's competency to stand trial.  

                                                                                                                                       



                     By ruling that the State is entitled to re-initiate the charges without prior  

                                                                                                                               



judicial approval, we do not mean to say that the State is entitled to arrest defendants and  

                                                                                                                                 



remove them from their involuntary civil commitments.   Under the terms of Alaska  

                                                                                                                           



Criminal Rule 4(a)(2), when criminal charges are filed against a person, the court must  

                                                                                                                               



issue a summons (as opposed to an arrest warrant) unless the court finds that an arrest  

                                                                                                



is necessary to ensure the defendant's presence in court or to prevent the defendant from  

                                                                                                                               



posing a danger to other persons or the community. If a defendant remains involuntarily  

                                                                                                                  



committed to the legal and physical custody of the Department of Health and Social  

                                                                                                                            



 Services at the time the State re-initiates the previously dismissed charges, Criminal  

                                                                                                                        



Rule 4(a)(2) will normally require that the defendant be summoned rather than arrested.  

                                                                                                                                       



                     One subsidiary procedural issue remains: What sort of pleading should the  

                                                                                                                                  



 State file?  

          



                     In Victor's case (as we explained earlier), the District Attorney's Office  

                                                                                                                            



first attempted to re-initiate the proceedings by filing a motion in Victor's original  

                                                                                                                          



criminal case - a case that apparently had been closed by the clerk's office after the  

                                                                                                                                 



charges against Victor were dismissed under AS 12.47.110(b). Because the earlier case  

                                                                                                                                



was  closed,  Victor's  attorney  urged  the  superior  court  to  reject  the  government's  

                                                                                                                



pleading - arguing that it was improper for either party to file a motion in a closed case.  

                                                                                                                                       



In response, the District Attorney's Office told the superior court that Victor's attorney  

                                                                                                                         



was right, and that the government would file new charges that reiterated the previously  

                                                                                                                      



                                                              -  32 -                                                         2730
  


----------------------- Page 33-----------------------

 dismissed charges.                                                           The superior court ultimately allowed the litigation to go forward in                                                                                                                                                                                                



 this procedural posture.                                                                          



                                                      The applicable statutes do not explain which of the two procedures the                                                                                                                                                                                                                 



 Alaska legislature had in mind -                                                                                                      i.e., whether the legislature intended for a prosecutor                                                                                                              



 to file a motion to re-open the earlier criminal case or, instead, to re-file the previously                                                                                                                                                                                                                   



 dismissed charges in a new criminal case. But whichever course of action the legislature                                                                                                                                                                                                                        



 contemplated, the State's act of filing the renewed charges against Victor was clearly                                                                                                                                                                                                                                        



 sufficient to invoke the superior court's subject-matter jurisdiction to entertain renewed                                                                                                                                                                                                                              



 proceedings pertaining to the previously dismissed charges.                                                                                                                                                                                       



                                                      This follows from the fact that the legislature obviously contemplated that                                                                                                                                                                                                           



 the government should have                                                                                      some method                                          for reviving the dismissed charges, and (given                                                                                                             



 the circumstances of Victor's case) the State's pleading was clearly intended to invoke                                                                                                                                                                                                                                       



 the superior court's continuing but dormant jurisdiction over the previously dismissed   



 charges.   In fact,                                                both  the State's motion in the previously dismissed criminal case and                                                                                                                                                                                                  



 its filing of renewed charges in a new criminal case clearly had this same goal.                                                                                                                                                                                                                                             



                                                      Under Alaskalaw,thecharacter ofanypleading                                                                                                                                                 is determinedby                                                    itssubject   



                                                                                                                                                            21  

 matter, not by its title or designation.                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                        Thus, regardless of what the State called its  



                                                                                                                                                                                                                                                                                                          

 pleadings (and regardless of which procedure the legislature envisioned), the superior  



                                                                                                                                                                                                                                                                                                                               

 court could properly treat either of the State's pleadings as an invocation of the court's  



                                                                                                                                                                                                                                                                                                                                       

jurisdiction over the previously dismissed charges (and its personal jurisdiction over  



                                  

 Victor).  



                                                                                                                                                                                                                                                                                                                                     

                                                      Indeed, because the procedure for re-invoking the superior court's juris- 



                                                                                                                                                                                                                                                                                                                          

 diction in this type of case is not specified by either a statute or a court rule, the superior  



              21            Shorthill v. State, 354 P.3d 1093, 1113 (Alaska App. 2015); Crawford v. State, 337  



 P.3d 4, 15 (Alaska App. 2014).  



                                                                                                                                                                  -  33 -                                                                                                                                                                 2730
  


----------------------- Page 34-----------------------

court  and the  clerk's  office probably  have  the  authority to  adopt the  administrative  

                                                                                                                



procedures they think best.  

                                             



                     Here, for example, the clerk's office closed Victor's earlier case after the  

                                                                                                                                  



charges were  dismissed under AS  12.47.110(b), rather than keep the  case open in a  

                                                                                                                                    



"stayed" status.  Based on the clerk's action, both Victor and the District Attorney's  

                                                                                                                     



Office (at different times) took the position that the proper way for the government to  

                                                                                                                                   



re-initiate the charges against Victor was to file new charges that reiterated the old ones.  

                                                                                                                              



                     We  see no need to  interfere with the clerk's decision - nor would we  

                                                                                                                                 



interfere if the clerk's office had decided to keep the earlier case open. For our purposes,  

                                                                                                                        



the important thing is to acknowledge the superior court's continuing jurisdiction  over  

                                                                                                                               



the matter, as well as the State's ability to re-invoke that jurisdiction.  

                                                                                                             



                     If, for administrative purposes, it makes more sense for the clerk's office  

                                                                                                            



to close the original case, and to require the government to file a new case if and when  

                                                                                                                              



the government wishes to re-initiate the previously dismissed charges, this is no problem  

                                                                                                                          



- so long as the court, the parties, and the clerk's office all understand that this "new"  

                                                                                                                            



case is, for substantive purposes, a continuation of the closed case.  

                                                                                                         



           The  question  of  whether,  after  the  State  re-initiates  the  previously  

                                                                                                           

          dismissed  criminal  charges,  but  before further   litigation  ensues,  the  

                                                                                                                      

          defendant should have the right to require the State to show  that it has  

                                                                                                                      

          re-initiated the charges in good faith  

                                                             



                     To reiterate:  Victor argues in this appeal that, when criminal charges are  

                                                                                                                                  



dismissed without prejudice under AS 12.47.110(b), the State should not be allowed to  

                                                                                                                                   



re-initiate  those  charges  until  the  superior  court  has  affirmatively  found  that  the  

                                                                                                                                 



defendant is competent to stand trial - and that the superior court should deny the State  

                                                                                                                               



any hearing on this question until the State has first offered evidence of a material change  

                                                                                                                            



                                                              - 34 -                                                          2730
  


----------------------- Page 35-----------------------

in the defendant's mental status (i.e., a change suggesting that the defendant is competent  

                                                                                                                       



to stand trial).  

                        



                     Victor acknowledges that the pertinent statutes do not set forth any such  

                                                                                                                               



rule.  Nevertheless, Victor argues that policy considerations require  such a rule.  He  

                                                                                                                                 



asserts that defendants in his situation will be unfairly prejudiced, and will potentially  

                                                                                                                      



be subject to governmental harassment, if the State is allowed to re-initiate the previously  

                                                                                                                      



dismissed  criminal  charges  without  first  obtaining judicial  permission  to  do  so, by  

                                                                                                                                  



proving that the defendant has regained their competency to stand trial.  

                                                                                                                 



                     Specifically, Victor contends that if the State is allowed to re-initiate the  

                                                                                                                                 



charges without first obtaining a judicial ruling that the defendant is competent to stand  

                                                                                                                              



trial, the State will be able to harass mentally ill defendants by repeatedly filing the same  

                                                                                                                              



dismissed charges - each time subjecting the defendant to arrest (or at least the service  

                                                                                                                           



of a summons), as well as subjecting the defendant to potential pre-trial incarceration,  

                                                                                                                 



anxiety, and "public opprobrium".  

                                                        



                     We have already explained why we reject the main component of Victor's  

                                                                                                                          



argument  -  his  contention  that  the  State  should  be  barred  from  re-initiating  the  

                                                                                                                                



previously dismissed charges until the State first proves that the defendant is competent  

                                                                                                                      



to stand trial.  Instead, we affirm the superior court's ruling that the State can re-initiate  

                                                                                                                       



the charges without first litigating the defendant's competency to stand trial - and that  

                                                                                                                                



the litigation of this issue should take place after the State re-initiates the charges.  

                                                                                                                                 



                     But there is another component to Victor's argument:  his contention that  

                                                                                                                                



Alaska  law  should provide  some procedure  to  stop prosecutors  from repeatedly  re- 

                                                                                                                                 



initiating criminal proceedings against a mentally ill defendant when there is no reason  

                                                                                                                            



to believe that the defendant has become competent to stand trial, or that the defendant  

                                                                                                                       



could become competent within a reasonable time through authorized treatment.  

                                                                                                                              



                                                              - 35 -                                                          2730
  


----------------------- Page 36-----------------------

                    There is little case law on this point -which is somewhat surprising, given  

                                                                                                                             



the fact that so many states have competency statutes like Alaska's (i.e., statutes that call  

                                                                                                                                



for the dismissal of criminal charges "without prejudice" when the defendant is adjudged  

                                                                                                                       



incompetent to stand trial).  

                                            



                    However,  one  court  -  the  Washington  Court  of  Appeals  -  has  

                                                                                                                               



acknowledged the possibility that a prosecuting authority might abuse the government's  

                                                                                                                



power to re-initiate the charges.  In State v. Carneh, 203 P.3d 1073, 1076-77 (Wash.  

                                                                                                                          



App. 2009), the Washington court held that a defendant was entitled to challenge a  

                                                                                                                                   



prosecutor's decision to re-initiate the previously dismissed charges - and that such a  

                                                                                                                                   



challenge requires the prosecutor to show some reason to believe either (1) that the  

                                                                                                                                



defendant  has  already  become  competent  to  stand  trial,  or  (2)  that  mental  health  

                                                                                                                           



treatment as outlined in Washington's competency statutes will lead to the restoration  

                                                                                                                     



of the defendant's competency to stand trial.  

                                                                       



                    We need not resolve this issue in Victor's case.  Even if we assume that,  

                                                                                                                              



in these circumstances, Alaska law should require the State to offer a reasonable basis  

                                                                                                         



for asking the court to re-open the proceedings and re-assess the defendant's competency  

                                                                                                                   



to stand trial, we conclude that the State's offer of proof in Victor's case satisfied this  

                                                                                                                                



standard.  

                



                    We first note that the rationale of Victor's proposed rule is to serve as a  

                                                                                                                               



check on prosecutors who might otherwise re-initiate criminal charges without any basis  

                                                                                                                              



for  believing  that  the  defendant's  mental  condition  had  changed  -  i.e.,  re-initiate  

                                                                                                                      



charges with no reason to think that the defendant would be found competent to stand  

                                                                                                        



trial.  Thus, the question is not whether the State ultimately succeeds in proving that the  

                                                                                                                                 



defendant is competent to stand trial.  Rather, the question is whether the prosecuting  

                                                                                                                   



authority has a reasonable basis for asking the court to re-open the proceedings and  

                                                                                                                               



re-assess the defendant's competency to stand trial.  

                                                                                 



                                                              -  36 -                                                         2730
  


----------------------- Page 37-----------------------

                    Victor was indicted for stabbing and attempting to kill his parents.  Two  

                                                                                                                             



years after these charges were dismissed and Victor was civilly committed, a paralegal  

                                                                                                                       



from the District Attorney's Office interviewed Victor's parents and Victor's sister to  

                                                                                                                                 



find out if Victor might be competent to stand trial.   Based on these interviews, the  

                                                                                                                               



paralegal prepared a memorandum, which the prosecutor then filed in the superior court  

                                                                                                                            



as an offer of proof to support the State's effort to re-initiate the charges against Victor.  

                                                                                                                                     



                    According to the paralegal's memorandum, Victor's father said that Victor  

                                                                                                                           



was "doing okay" - that he recognized his parents and knew who they were; that he  

                                                                                                                          



knew what day it was, and where he was; and that he was able to engage in conversation  

                                                                                                                 



(although he would occasionally say bizarre things).  Victor's father added that Victor  

                                                                                                                          



knew that he was on medication - although Victor announced that he was going to stop  

                                                                                                                              



taking the medication as soon as he "got out of [there]".  

                                                                                        



                    Victor's sister (who was interviewed the next day) told the paralegal that  

                                                                              



she had attended Victor's commitment hearings, and it appeared to her that Victor  

                                                                                                                          



understood why he was in court.   On another occasion in May 2017, Victor's sister  

                                                                                                                            



participated in a face-to-face visit at the Alaska Psychiatric Institute with Victor and their  

                                                                                                                             



father - a visit prompted by the fact that it was Victor's birthday. According to Victor's  

                                                                                                                        



sister, Victor recognized both her and their father, and Victor knew that it was his  

                                                                                                                               



birthday.   Victor's sister also told the paralegal that, during prior court proceedings,  

                                                                                                                



Victor's treatment providers mentioned  that Victor was being allowed to leave the  

                                                                                                                               



Institute on passes (with an escort) to see movies.  

                                                                             



                    The observations of Victor's family members, and their accounts of their  

                                                                                                                             



conversations with Victor, provided a reasonable basis for the prosecutor to ask the  

                                                                                                                               



superior court to re-assess Victor's competency to stand trial. Even though these family  

                                                                                                                           



members acknowledged that there were abnormal aspects to Victor's conversation, their  

                                                                                                                              



reports reasonably suggest that Victor was aware of his circumstances, that he was  

                                                                                                                              



                                                             -  37 -                                                         2730
  


----------------------- Page 38-----------------------

oriented in time, and that Victor's treatment providers apparently thought that he could  

                                                                                                                              



safely leave the psychiatric facility under escort to attend movies.  

                                                                                                       



                     We  also  note  that,  according  to  Victor's  family  members,  Victor  was  

                                                                                                                                



willingly  taking  medication  as  part  of  his  treatment  (although  he  declared  that  he  

                                                                                                                                  



intended to stop taking the medication as soon as he was allowed to leave the hospital).  

                                                                                                                                       



This fact alone - that Victor was taking medication - suggests that there may have  

                                                                                                                               



been a significant change in Victor's mental status.  

                                                                                  



                     During Victor's original competency hearings - the competency hearings  

                                                                                                                         



that preceded the dismissal of the charges under AS 12.47.110(b) - the two doctors who  

                                                                                                                                



evaluated  Victor  told  the  superior  court  that  one  of  the  main  factors  impeding  the  

                                                                                                                                 



improvement  of  Victor's  mental  status  was  the  fact  that  he  refused  to  take  the  

                                                                                                                                



medications that were standard treatment for his condition - medications that he had  

                                                                                                                                 



taken on previous occasions, and to which he had responded well.  Thus, the fact that  

                                                                                                                                



Victor was taking medications as part of his civil commitment treatment represented a  

                                                                                                                                    



significant change that would reasonably justify  the  superior court in re-opening the  

                                                                                                                                 



question of Victor's competence to stand trial.  

                                                                         



                     In  sum:       Even  if  Alaska  law  allowed  a  defendant  in  this  situation  to  

                                                                                                                                  



challenge the State's re-initiation of the charges, by requiring the State to show that it  

                                                                                                                             



had  a  good-faith  basis  for  asking  the  superior  court to  re-open  the  question  of  the  

                                                                                                                                 



defendant's competency to  stand trial, we  conclude that the  State's offer of proof  in  

                                                                                                                                   



Victor's case satisfied this standard.  

                                                          



                     Because  the  State's  offer  of  proof  in  Victor's  case  would  satisfy  this  

                                                                                                                                



proposed rule, we need not definitively decide whether Alaska law incorporates such a  

                                                                                                                                     



rule.  Nor do we need to decide whether this proposed rule might be satisfied by a lesser  

                                                                                                                              



offer of proof than the State presented here.  

                                                                      



                                                              - 38 -                                                          2730
  


----------------------- Page 39-----------------------

                    In particular, we need not decide whether the passage of time might itself  

                                                                                                                              



be a sufficient reason for the superior court to re-assess a defendant's competence to  

                                                                                                                                  



stand  trial  in  cases  like  Victor's,  where  the  defendant  is  civilly  committed  under  

                                                                                                                           



AS 47.30.715 et seq. after the criminal charges are dismissed, and where the defendant  

                                                                                                                      



has remained in the custody of the Department of Health and Social Services since that  

                                                                                                                                



time, receiving mental health treatment.  

                                                               



                     (We note that the legislature has specified that, when criminal charges are  

                                                                                                                                 



dismissed under AS 12.47.110(b), there are many instances where the State has only five  

                                                                                                                                



years to re-initiate the charges.)  

                                                   



          Our directions to the superior court  

                                                          



                    We affirm the superior court's decision to allow the State to re-initiate the  

                                                                                                                                 



previously dismissed criminal charges against Victor.  

                                                                                     



                    If Victor still asserts that he is incompetent to stand trial, or if the superior  

                                                                                                                         



court on its own motion raises the question of Victor's competency to stand trial, the  

                                                                                                                                



court should initiate proceedings under AS 12.47.100(b) to assess whether Victor is now  

                                                                                                                               



competent to stand trial.  

                                       



                    If  the  superior  court  finds  that  Victor  is  competent  to  stand  trial,  the  

                                                                                                                                



criminal case against him shall proceed.  

                                                               



                    However, assuming that Victor has remained in involuntary civil commit- 

                                                                                                                        



ment since the time his charges were originally dismissed, if the superior court again  

                                                                                                                             



finds  that  Victor  is  not  competent  to  stand  trial,  we  conclude  that  the  continued  

                                                                                                                     



commitment,  mental  health  treatment,  and  re-evaluation  procedures  set  forth  in  

                                                                                                                                 



AS  12.47.110 should not apply.  Rather, the  superior court should again dismiss the  

                                                                                                                                



charges without prejudice, and Victor should remain in his civil commitment.  

                                                                                                                         



                                                              - 39 -                                                          2730
  


----------------------- Page 40-----------------------

          Conclusion  



                    The decision of the superior court is AFFIRMED.  The State can re-initiate  

                                                                                                                  



the previously dismissed criminal charges against Victor, and the superior court should  

                                                                                                                      



proceed as we have described in the preceding section of this opinion.  

                                                                                                          



                    We express no views regarding any other issues that the parties raised in  

                                                                           



the superior court.  

                             



                                                           - 40 -                                                        2730
  

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