Opinion
I.D. Nos. 0107004031 0107019620
Submitted: April 12, 2002
Decided: July 30, 2002
Stephen R. Welch, Jr., Esquire Department of Justice 102 West Water Street Dover, Delaware 19901.
Paul S. Swierzbinski, Esquire Office of the Public Defender 45 The Green Dover, Delaware 19901.
Dear Counsel:
The Court has before it the State's Motion for Confinement in the Delaware Psychiatric Center pursuant to 11 Del. C. § 404(a). The defense objects to this confinement contending that this 72-year-old man, recovering from a broken hip, cannot safely walk any significant distance from this ailment as well as cataracts. He is of no danger to the public and should be able to continue on his unsecured bond status.
The defendant is charged with one count of Unlawful Sexual Contact 2nd Degree which allegedly occurred on July 6, 2001 and one count of Non-Compliance with Bond which allegedly occurred on July 25, 2001. The defendant has been evaluated by Dr. Abraham J. Mensch for the defense and by the staff of the Delaware Psychiatric Center for the State and it has been determined that he is incompetent to proceed to trial.
The defense does not seek to elect a prima facie hearing pursuant to 11 Del. C. § 404(a) to determine defendant's competency to stand trial. Therefore, this Court need only decide whether it must order the accused to be confined at the Delaware Psychiatric Center until he is capable of standing trial or whether the statute contemplates a discretionary standard.
The test of competency to stand trial is set forth in 11 Del. C. § 404(a) as follows:
"Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or mental defect, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused's own behalf or to instruct counsel on his own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial."
By its plain language, this standard clearly permits the Court to have the discretion to order the accused person to be confined or not to be confined in the Delaware Psychiatric Center. Therefore this Court will not, at this time, order confinement for the reasons set forth in Dr. Mensch's report and confirmed by the Delaware Psychiatric Center.
IT IS SO ORDERED.