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SmithEsq
SmithEsq, Criminal Defense Lawyer
Category: Criminal Law
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My best friend has been in jail since 7/10 and has yet to go

Customer Question

My best friend has been in jail since 7/10 and has yet to go to court. He is severely mentally ill, but when he went to a mental hospital for a competency evaluation the told him that if he was found incompetent he would have to do a mandatory 13 years in the mental hospital so he better start acting as normal as he can, which he did. Is this true?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  SmithEsq replied 1 year ago.

SmithEsq :

Hi, i"m a licensed attorney and will be helping you with your question. I am very sorry for what you and your friend must be going through. I'm sure your are all extremely anxious and I want to help as much as i can but I need a little more information to help me answer your question. What are the charges pending against your friend? Has he seen any judge at all?


 


Please do not rate my response until we are done with our communications and you are satified with your answer. Until then, you can ask and answer questions here or in the question and answer format, if we switch from chat to that format.

SmithEsq :

Under what authority is your friend committed currently? If he has not seen a judge, he has certain rights that all defendants have. If they are holding him under a basic committment because he is a danger to himself or others, that is a public health laws issue until they bring him before a judge. If he is too ill for court, they can bring the judge to the hospital or do it by video conferencing-they reallly can! But a criminal case cannot commence against a defendant until he/she is arraigned and that means they are seen by a judge and told of their charges and entered a plea of guilty or, usually, not guilty.


 


 


 


 

SmithEsq :

I will do some research into the compentency regulations but I can tell you that how it normally works is that if a person is found unfit to stand trial, they are committed until a doctor finds them fit. This can take months or over a year in the hospital at times for the person to be well enough to understand enough to assist in his/her defense. But as to what the minimum or maximum wouldl be I will look into that because that sounds more like the amount of jail tie he or she may be looking at if they were convicted. Being convicted and found unfit are not the same.

SmithEsq :

I am switching to question and answer format to better communicate. I am not done answering your question so do not rate until you are satisfied. but continue to ask and answer me questions in the box below.

Expert:  SmithEsq replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

What happens now?

If you haven’t already done so, please rate your answer above. Or, you can reply to me using the box below.
Customer: replied 1 year ago.

Here is his entire case, what do you think??


 


 


 


 


D-202-CR-201003304 - Saturday, August 18, 2012
STATE OF NEW MEXICO (DA)
v.
RAYMOND YANKOSKY
CASE DETAIL
CASE # XXXXX JUDGE FILING DATE COURT
D-202-CR-201003304 XXXXX, XXXXX W. 07/14/2010 ALBUQUERQUE District
PARTIES TO THIS CASE
PARTY TYPE PARTY DESCRIPTION PARTY # XXXXX NAME
BO Bond Company 1 AAAAA ALBUQUERQUE BAIL BONDS
D Defendant 1 YANKOSKY RAYMOND
ATTORNEY: MARCHMAN JOSEPH VOY
P Plaintiff 1 STATE OF NEW MEXICO (DA)
ATTORNEY: FAVIELL JUDITH A.
CRIMINAL CHARGE DETAIL
PARTY
COUN
T
SEQ # XXXXX CHARGE CLASS
CHARGE
DATE
CIT # XXXXX DISPOSITION DISP DATE
D 1 1 3 30-16-3(A) BURGLARY (DWELLING
HOUSE)
F3 12/11/2009
D 1 2 3 30-16-1 F3 LARCENY 2500-20000 F3 12/11/2009
HEARINGS FOR THIS CASE
HEARING DATE HEARING TIME HEARING TYPE HEARING JUDGE COURT COURT ROOM
08/24/2012 8:30 AM CHANGE OF PLEA HEARING XXXXX, XXXXX W. ALBUQUERQUE Courtroom 416
01/19/2011 9:00 AM GUILTY PLEA HEARING XXXXX, XXXXX W. ALBUQUERQUE
10/14/2010 9:00 AM PRE-TRIAL CONFERENCE XXXXX, XXXXX W. ALBUQUERQUE
07/26/2010 9:00 AM ARRAIGNMENT Sheppard, Reed S. ALBUQUERQUE
REGISTER OF ACTIONS ACTIVITY
EVENT DATE EVENT DESCRIPTION EVENT RESULT PARTY TYPE PARTY # XXXXX
08/09/2012 NTC: HEARING/CHANGE OF
PLEA
SET 8/24/12 AT 8:30 AM. CR 10-3304; 10-5438; 10-5892
06/26/2012 WITHDRAWAL/ ENTRY/
SUBSTITUTION OF
COUNSEL
NOTICE OF SUSBSTITUTION OF COUNSEL
06/21/2012 ORD: COMPETENT D 1
Order Finding Defendant Competent to Stand Trial
06/20/2012 WITHDRAWN
Withdrawal of Notice of issue of Defendant's Competence to Stand Trial
02/21/2012 ORD: PSYCHIATRIC/
DIAGNOSTIC EVALUATION
STIPULATED ORDER FOR COMMITMENT TO THE NEW MEXICO BEHAVIORIAL HEALTH INSTITUTE AT LAS VEGAS FOR COMPETENCY
TREATMENT AND TRANSPORT ORDER
CR 10-5438 CR 10-5892
12/07/2011 WITHDRAWAL/ ENTRY/
SUBSTITUTION OF
COUNSEL
BY (DEF) JOSEPH MARCHMAN DEMAND FOR SPEEDY TRIAL
05/17/2011 SEALED DOCUMENT
FILING SEALED PLEADING,
05/13/2011 ORD: STAYING
COMMITMENT
FILING ORDER TO STAY PROCEEDINGS PENDING DF'S COMPETENCY TO STAND TRIAL ON YANKOSKY
03/11/2011 ORD: ORDER
Page 2
D-202-CR-201003304 - Saturday, August 18, 2012
FILING ORDER QUASHING BENCH WARRANT PER JUDGE ROSS SANCHEZ ON ROMERO
03/04/2011 ORD: STAYING
COMMITMENT
FILING NOTICE OF COMPETENCY ISSUE AND ORDER STAYING PROCEEDINGS FOR COMPETENCY DETERMINATION ON YANKOSKY; CASE
STAYED PENDING DETERMINATION S TO DF'S COMPETENCY TO STAND TRIAL
01/18/2011 NTC: OF INTENT
FILING NOTICE OF INTENT TO CALL WITNESSES ON YANKOSKY
01/18/2011 DISCLOSURE REQUEST
FILING REQUEST FOR DISCLOSURE ON YANKOSKY
01/18/2011 CERTIFICATE OF
DISCLOSURE OF
INFORMATION
FILING CERTIFICATE OF DISCLOSURE OF INFORMATION ON YANKOSKY
01/18/2011 DEMAND FOR ALIBI
FILING DEMAND FOR NOTICE OF INTENTION TO CLAIM ALIBI AND/OR ENTRAPMENT ON YANKOSKY
01/18/2011 EXHIBIT DESIGNATION P 1
FILING ENTRY OF APPEARANCE BY CARLOS F. PACHECO FOR THE STATE ON YANKOSKY
11/29/2010 NTC: HEARING (CRIMINAL)
FILING NTC: HEARING (CRIMINAL) SET FOR WEDNESDAY, JANUARY 19, 2011 AT 8:30 AM BEFORE THE HONORABLE CHARLES W. BROWN FOR:
GUILTY PLEA
11/15/2010 WITHDRAWAL/ ENTRY/
SUBSTITUTION OF
COUNSEL
D 1
FILING NOTICE OF UNAVAILABILITY BY VINCENT A MARTINEZ (DEF) ON YANKOSKY; FROM DECEMBER 15, 2010 - JANUARY 15, 2011
10/19/2010 NTC: PRE-TRIAL
CONFERENCE
FILING NTC: PRE-TRIAL CONFERENCE SET FOR THURSDAY, NOVEMBER 18, 2010 AT 1:30 PM BEFORE THE HONORABLE CHARLES W. BROWN
FOR: PRE-TRIAL CONFERENCE
09/10/2010 NTC: HEARING (CRIMINAL)
FILING NTC: HEARING (CRIMINAL) SET FOR THURSDAY, OCTOBER 14, 2010 AT 1:30 PM BEFORE THE HONORABLE CHARLES W. BROWN FOR:
PRE-TRIAL CONFERENCE
09/02/2010 BOND POSTED
FILING APPEARANCE/APPEAL BOND ON YANKOSKY IN THE AMOUNT OF $7,500 SURETY POSTED BY AAAAA ALBUQUERQUE BAIL
08/17/2010 ENTRY OF APPEARANCE D 1
FILING ENTRY OF APPEARANCE, REQUEST FOR DISCOVERY, AND DEMAND FOR SPEEDY TRIAL BY VINCENT A MARTINEZ (DEF) ON
YANKOSKY
08/02/2010 ORD: CONDITIONS OF
RELEASE
FILING REDACTED ORDER SETTING CONDITIONS OF RELEASE ON YANKOSKY; BOND OF $7,500 C/S;
08/02/2010 SEALED DOCUMENT
FILING SEALED RECORD ON YANKOSKY
07/26/2010 ORD: CONDITIONS OF
RELEASE
FILING REDACTED ORDER SETTING CONDITIONS OF RELEASE ON YANKOSKY;BOND OF $7,500 C/S;OR ATHORIZED THIRD PARTY RELEASE TO
PRETRIAL SERVICES PETER BOYLES;
07/26/2010 SEALED DOCUMENT
FILING SEALED RECORD ON YANKOSKY
07/16/2010 NTC: OF ARRAIGNMENT
FILING NOTICE OF ARRAIGNMENT ON YANKOSKY, SET 07/26/2010 @ 8:30 BEFORE REED S SHEPPARD FOR CHARLES W. BROWN
07/15/2010 SEALED DOCUMENT
FILING SEALED PLEADING ON YANKOSKY
07/15/2010 WAR: BENCH WARRANT
CANCELED/ QUASHED
D 1
FILING CANCELLATION OF WARRANT ISSUED 7/14/10 ON YANKOSKY; ARRESTED BY APD ON 7/14/10
07/14/2010 SEALED DOCUMENT
FILING SEALED DOCUMENT ON YANKOSKY
07/14/2010 WAR: BENCH WARRANT
ISSUED
D 1
ISSUING & FILING BENCH WARRANT ON YANKOSKY; $15,000 CASH/ SURETY CATEGORY 2
07/14/2010 ORD: PRESENTATION
ORDER
FILING INDICTMENT PRESENTATION ORDER; SEND NOTICE ON YANKOSKY, ISSUED BENCH WARRANT FOR $15,000 CASH/SURETY CATEGORY
2
Page 3
D-202-CR-201003304 - Saturday, August 18, 2012
07/14/2010 SEALED DOCUMENT
FILING SEALED DOCUMENT ON YANKOSKY
07/14/2010 OPN: GRAND JURY
INDICTMENT
FILING GRAND JURY INDICTMENT ON YANKOSKY DA# XXXXX METRO # XXXXX 11266-10
JUDGE ASSIGNMENT HISTORY
ASSIGNMENT DATE JUDGE NAME SEQ # XXXXX EVENT DESCRIPTION
07/14/2010 XXXXX, XXXXX W. 1 INITIAL ASSIGNMENT

Expert:  SmithEsq replied 1 year ago.

Hello again and thank you for that extensive information. It looks like from what you have provided this is what happened and is happening, in July 2010 the defendant was indicted by the grand jury and that means, officially charged with various crimes, all of which are not listed on the above document because as you can see, some have been sealed (see notation for 7/14/2010) BUT it states that bail was set at that time, meaning your friend appears to have been released on bond in September of 2010 and the underlying bench warrant was expunged. THen, it is hard to make out but something happened in November where the court was informed the defendant's attorney would not be available until after January 2011. I assume and it appears that the bail bond revoked the bond at some point here and bail was reinstated at $7,500 (I am trying to read a code, so bear with me). There was a conference January 18, 2011 where all the traditional legal notices were served and preserved for your friend by his lawyer. March 4, 2011 was the first time his commitment was brought into the case as a matter of record in that the record reflects that the judge ordered any commitment or decisions to be stayed (held off) until the ruling on his fitness. I see that on June 20, 2012 he was found FIT to proceed. His next court date is August 24, 2012. I have a feeling that if he is saying he has not been to court it is not that his case has not been proceeding it is a situation where his attorney has been waiving his appearance, meaning, the attorney and the court have proceeded without him because it was probably a lot easier for them to do a lot of those procedural things without transporting him. Now, if anything is to happen, like a plea or a trial, of course he has to be there. And, if he is not aware these things have been going on for two years, he needs to talk to his criminal defense lawyer. He should not listen to other people in the hospital or jail or doctors for legal advice. They already found him fit, according to your document, meaning he has enough capacity to understand who everyone is, who is his lawyer what they do, what is going on and able enough to assist in his defense. It is pretty hard to be found unfit, but as I stated, you only remain in limbo until you are found fit again, which occurs often when the person is stabilized to some degree. Whether or not he goes to court, he needs to demand to speak to his lawyer, call him/her and find out what's going on. It is unclear from the above document if the underlying charge is Larceny or criminal destruction of property, because the codes don't match, but if he is charged with burglary, he must also be charged with committing a felony within the dwelling he supposedly burgarlized. Larceny in the second degree is a felony with a significant jail possibility, but the penal code they list doesn't match Larceny, which is what they name in the above document. More info to come....

 

The New MExico Statute about incompetent defendants shows that your friend's doctor or whoever gave him that information is incorrect as the law clearly states; (I BOLDED AND UNDERLINED RELEVANT pORTIONS)

 

31-9-1.4. Determination of competency; incompetent defendants.

If at any time the district court determines that there is not a substantial probability that the defendant will become competent to proceed in a criminal case within a reasonable period of time not to exceed nine months from the date of the original finding of incompetency, the district court may:

A. hear the matter pursuant to Section 31-9-1.5 NMSA 1978 within three months if the defendant is charged with a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

B. release the defendant from custody and dismiss with prejudice the charges against him; or

C. dismiss the criminal case without prejudice in the interest of justice. If the treatment supervisor has issued a report finding that the defendant satisfies the criteria for involuntary commitment contained in the Mental Health and Developmental Disabilities Code [43-1-2 NMSA 1978], the department of health shall commence proceedings pursuant to Chapter 43, Article 1 NMSA 1978, and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to the Mental Health and Developmental Disabilities Code. The district court may refer the defendant to the district attorney for possible initiation of proceedings under the Mental Health and Developmental Disabilities Cod

(This is me now) The New Mexico Law also is very clear about when the defendant is found fit and states that " If the district court finds the defendant to be competent, the district court
shall set the matter for trial, provided that if the defendant is in need of
continued care or treatment and the supervisor of the defendant's treatment
agrees to continue to provide it, the district court may enter any order it
deems appropriate for the continued care or treatment of the defendant by the
facility or program pending the conclusion of the criminal proceedings." in no event, assuming that the worse case scenario would have been a finding of unfitness would your friend be permitted to remain unprosecuted for more than 9 months at a time without a new evaluation for compentency.
Expert:  SmithEsq replied 1 year ago.
Based on my review, they can't hold your friend for more than nine months at a time without a reevaluation. They certainly can't hold him for any definitive period of time, let alone 13 years, without a plea or finding of guilty. Now that they have found him fit though, his case can proceed normally. If bail is set, he should be able to post it. He also may enter a plea Or go to trial. He may be facing significant jail time if he found guilty at trial, but that is no certainty, and no one can say so to him with any kind of foreknowledge. If you have any questions please ask me in the box below. I am here to answer all your questions pertaining to this question. Trusting you have found my answer helpful, please rate it positively, as it is the only way I receive credit for my work. If you are dissatisfied please refrain from rating at this time and communicate with me how I can help you further. Once you rate, you may continue to come back to this page to ask follow up questions. Thank you!
Expert:  SmithEsq replied 1 year ago.
Hello. I trust that you found my answer helpful. Please, if you would be so kind as to rate it three or more stars so that I get credit for my work, I'd appreciate it. Thank you. If you have further questions, please ask me here and I'll gladly be of service.
Expert:  SmithEsq replied 1 year ago.
Hi Amber,


I'm just following up with you to see how everything is going. Did my answer help?


Let me know,
Elizabeth

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