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ADVANCE SHEET HEADNOTE October 3, 2016

No. 16SA94, Higgins v. People—Criminal Law—Juvenile Law—Psychotherapist– Patient Privilege—Constitutional Law.

This companion case to People v. Johnson,

, P.3d , raises two

questions. First, does a trial court have statutory authority to order a juvenile charged

as an adult to undergo a state-administered mental health assessment for a reverse-

transfer proceeding? The supreme court answered that question in the negative in

Johnson, but does not answer that question here because it is hypothetical—the

question is not based on the facts of this case. Second, is a trial court required, before a

mental health assessment, to provide a juvenile with warnings based on the Fifth

Amendment right against self-incrimination? The supreme court does not answer that

question either, because (1) Higgins consented to the evaluation while represented by

counsel, and (2) any claims that ineffective assistance of counsel vitiated Higgins’s

consent are premature. Therefore, the supreme court vacates the order to show cause

and remands the case for further proceedings. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 16SA94 Original Proceeding Pursuant to C.A.R. 21 Douglas County District Court Case No. 16CR28 Honorable Paul A. King, Judge

In Re Plaintiff: The People of the State of Colorado, v. Defendant: Brooke Ann Higgins.

Vacate the Order to Show Cause and Remand for Further Proceedings en banc October 3, 2016

Attorneys for Plaintiff: George H. Brauchler, District Attorney, Eighteenth Judicial District Richard Orman, Senior Deputy District Attorney Centennial, Colorado

Attorneys for Defendant: Zonies Law LLC Sean Connelly Denver, Colorado

Eytan Nielsen LLC Iris Eytan Denver, Colorado

The McGuire Law Office, LLC Kathleen McGuire Denver, Colorado

CHIEF JUSTICE RICE delivered the Opinion of the Court. JUSTICE BOATRIGHT does not participate. ¶1 This companion case to People v. Johnson,

, P.3d , raises two

questions. First, does a trial court have statutory authority to order a juvenile charged

as an adult to undergo a state-administered mental health assessment for a reverse-

transfer proceeding? We answered that question in the negative in Johnson, but we do

not answer that question here because it is hypothetical—the question is not based on

the facts of this case. Second, is a trial court required, before a mental health

assessment, to provide a juvenile with warnings based on the Fifth Amendment right

against self-incrimination? We do not answer that question as well, because (1) Higgins

consented to the evaluation while represented by counsel, and (2) any claims that

ineffective assistance of counsel vitiated Higgins’s consent are premature. Therefore,

we vacate the order to show cause and remand the case for further proceedings.

I. Facts and Procedural History

¶2 This controversy began when the petitioner–defendant, Brooke Higgins, was a

juvenile respondent in front of a magistrate judge on December 17, 2015. The district

attorney requested, and Higgins’s then-defense-counsel agreed to, a state-administered

mental health assessment1 of Higgins. Because the parties agreed, the magistrate judge

ordered the mental health assessment.

¶3 On January 14, 2016, now in front of trial court Judge King, the district attorney

dismissed the juvenile charges against Higgins and charged her as an adult with two

counts of conspiracy to commit murder. Higgins sought, and the trial court granted, a

1 We use the term “mental health assessment” to cover all mental health or psychological screenings or assessments.

2 reverse-transfer hearing to determine whether she should remain in adult court or

return to juvenile court. On January 21, 2016, before the reverse-transfer hearing

occurred, Higgins, represented by different counsel, filed a motion to suppress the

mental health assessment and disqualify Judge King. Judge King denied both requests,

reasoning that, notwithstanding the parties’ stipulation to the state mental health

assessment, there was independent statutory authority for the magistrate judge to order

a state mental health assessment of Higgins.

¶4 Higgins then petitioned this court for relief under C.A.R. 21, arguing that (1) the

trial court lacked authority to order a juvenile charged as an adult to undergo a mental

health assessment for a reverse-transfer proceeding, and (2) the United States

Constitution precludes such orders and requires the trial court to advise a juvenile of

her Fifth Amendment rights in such an assessment. We issued a rule to show cause.

II. Original Jurisdiction

¶5 “This court will generally elect to hear C.A.R. 21 cases that raise issues of first

impression and that are of significant public importance.” People v. Steen,

,

. We granted review in this case as a companion to People v.

Johnson,

. This case raises two issues of first impression. First, one of the

issues we considered in Johnson, whether a trial court may order a juvenile who

requested a reverse-transfer hearing to submit to a mental health assessment by a state

doctor. Second, whether the Constitution requires a trial court to advise a juvenile of

her Fifth Amendment rights before such an assessment.

3 ¶6 These issues are of significant public importance because they will impact when

a district attorney files adult charges against a juvenile and when a trial court may order

mental health assessments for juveniles. Therefore, original relief is appropriate in this

case.

III. Standard of Review

¶7 The interpretation of statutes and the United States Constitution are questions of

law, which we review de novo. See Bostelman v. People,

(Colo. 2007).

IV. Analysis

¶8 Under section 19-2-517(1), C.R.S. (2016), district attorneys have the power to

direct file adult criminal charges against a juvenile. After a district attorney has direct

filed against a juvenile, the juvenile can request a reverse-transfer hearing—seeking

transfer of the case to juvenile court—pursuant to section 19-2-517(3). After a juvenile

requests a reverse-transfer hearing, the trial court “shall consider” eleven factors to

decide whether it should reverse-transfer the case to juvenile court. See § 19-2-517(3)(b).

Of those factors, one is relevant to this appeal: Section 19-2-517(3)(b)(VI) states that the

trial court shall consider “[t]he current and past mental health status of the juvenile as

evidenced by relevant mental health or psychological assessments or screenings that are

made available to both the district attorney and defense counsel.” Here, we first

consider whether a trial court may order a juvenile who requested a reverse-transfer

hearing to submit to a mental health assessment by a state doctor. Next, we consider

whether the U.S. Constitution requires trial courts to advise a juvenile of her Fifth

Amendment rights before such an assessment.

4 A. We do not reach the first issue because it did not occur in Higgins’s case.

¶9 Higgins asks this court to decide whether the trial court possessed authority to

order a juvenile to submit to a state mental health assessment. We answered that

question in the negative in Johnson,

, but we decline to address that question

here. Higgins was not ordered by a trial court to undergo a state mental health

assessment. Rather, Higgins (via defense counsel) agreed to submit to the state mental

health assessment while in front of a magistrate judge in juvenile court. Because we do

not “give advisory opinions based on hypothetical fact situations,” we decline to decide

Higgins’s first issue. Tippett v. Johnson,

(Colo. 1987).

B. We do not reach the second issue because it is premature.

¶10 Higgins argues that the mental health assessment should be suppressed because

(1) the trial court did not provide Fifth Amendment warnings prior to the mental health

assessment, and (2) any consent Higgins gave to the mental health evaluation was

vitiated by her defense counsel’s ineffective assistance in violation of Higgins’s Sixth

Amendment rights. Because these arguments are premature, we decline to reach them.

¶11 First, the Fifth Amendment to the U.S. Constitution guarantees that no person

“shall be compelled in any criminal case to be a witness against [her]self.” But we

decline to reach Higgins’s claimed deficient Fifth Amendment warnings because

Higgins consented to the state mental health evaluation and had defense counsel to

provide her advice. The cases Higgins cites for her argument that her Fifth Amendment

rights were violated by a lack of warning from the trial court are distinguishable,

5 because in those cases the defendant either (1) objected to the mental health assessment

but was forced to participate anyway or (2) did not have access to counsel at the time

the trial court ordered the assessment. See, e.g., People v. Branch,

(Colo. 1991) (requiring trial court to give defendant warnings when he did not have

counsel present); People in Interest of A.D.G.,

(Colo. App. 1994)

(holding that court could not force juvenile to submit to state psychological examination

after juvenile objected).

¶12 Second, the Sixth Amendment guarantees that a defendant have access to

effective assistance of counsel. Carmichael v. People,

(Colo. 2009).

But we do not consider Higgins’s argument that her consent to the mental health

evaluation was vitiated by ineffective assistance of counsel in violation of her Sixth

Amendment rights because that argument is premature. To show ineffective assistance

of counsel, a defendant must show that (1) an attorney’s performance was “deficient,”

and (2) the defendant suffered prejudice as a result of this deficient performance.

at

805–06 (citing Strickland v. Washington,

(1984)). “The prejudice

determination is a mixed question of law and fact.”

. A finding of ineffective

assistance of counsel requires findings of fact that have yet to occur, and “[a]s an

appellate court, we will not engage in fact finding.” People v. Matheny,

(Colo. 2002). Therefore, we do not decide Higgins’s second issue.

V. Conclusion

¶13 We do not reach either of Higgins’s arguments. The first argument is based on a

hypothetical fact situation. The second argument is premature and would require this

6 court to improperly engage in fact finding. Therefore, we vacate the order to show

cause and remand the case for further proceedings.

JUSTICE BOATRIGHT does not participate.

7