Argued and Submitted May 29, 2014
Marion County Circuit Court 11C51195. Vance D. Day, Judge.
Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for appellant. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Daniel C. Bennett, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Judge.
[264 Or.App. 323] HASELTON, C. J.
In this pretrial appeal, the state contends that the trial court erred in dismissing the criminal charges against defendant, pursuant to ORS 161.370(9)(a), on the ground
that it lacked authority to order the involuntary administration of medication for the purpose of restoring defendant's competence to stand trial. Recently, in State v. Lopes, 355 Or. 72, 322 P.3d 512 (2014), the Supreme Court held that Oregon trial courts have such authority under ORS 161.370. Accordingly, we vacate and remand for reconsideration in light of Lopes.
The facts are procedural and undisputed. Based on conduct that allegedly occurred in 2011, defendant was charged with two counts of third-degree robbery, ORS 164.395, which is a Class C felony, and third-degree theft, ORS 164.043, which is a Class C misdemeanor. Thereafter, in December 2011, in response to a motion filed by defense counsel, the trial court issued an order finding that defendant was " unfit to proceed" and committing him " to the custody of the Superintendent of the Oregon State Hospital [(OSH)] for evaluation and treatment as appropriate pursuant to the provisions of ORS 161.370[.]"
[264 Or.App. 324] In February 2012, a psychologist at OSH evaluated defendant and issued a report in which she rendered her opinion that defendant " is not a substantial danger to others" but that he suffers from a mental disease and, as a result, defendant " is currently unfit to proceed with the criminal matter pending against him" and that there is " no substantial probability that, in the foreseeable future, his psychiatric condition will improve enough (regain) for him to participate meaningfully in his legal defense." (Boldface omitted.) The evaluator explained that her opinion was " based on the fact [that defendant] is unwilling to take psychotropic medication" and " does not meet involuntary medication criteria and his * * * symptoms are unlikely to remit without this type of intervention."
Thereafter, defendant moved for dismissal of the criminal charges against him in light of OSH's evaluation. In response, the state sought an order directing OSH to involuntarily medicate defendant. At the subsequent hearing, the parties and trial court focused on two issues-- viz., whether the trial court had authority to order the involuntary administration of medication for the purpose of restoring defendant's competence to stand trial and, if it did, whether the state had proved that such an order would comport with the constitutional limitations described in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). In support of its motion, the state offered evidence on the factors required to support a Sell order.
Following the hearing, the court issued a letter opinion in which it made the following findings:
[264 Or.App. 325] " 1) The defendant suffers from mental disorders which render him unable to aid and assist ...