No Judicial Preapproval for Refilling Charges After NCNR; Dangerousness Trials Require Pending Charges and Apply Retroactively

Introduction

In a consolidated decision arising from a protracted procedural history, the Supreme Court of Arizona resolved foundational questions at the intersection of competency, prosecutorial discretion, and public safety. The Court held that the State may refile criminal charges against a defendant previously found not competent and not restorable (NCNR) without first obtaining judicial preapproval, explicitly overruling paragraphs 22–27 of Johnson v. Hartsell (App. 2023). Reaffirming Rider v. Garcia (App. 2013) as the controlling standard, the Court concluded that due process is satisfied so long as the State possesses a reasonable belief that the defendant’s competency may have been restored, with the presumption of incompetency to be addressed after charges are filed.

The Court further clarified that Arizona’s dangerousness trial mechanism under A.R.S. § 13-4517(A)(4): (1) may be invoked only while criminal charges are pending (the statute’s present-tense “is charged” language), (2) may rely on a prior NCNR finding where the petition relates to the same underlying conduct (with a charge-specific approach), and (3) applies retroactively because it is procedural and civil-regulatory rather than punitive. These rulings reshape the post-NCNR landscape, rebalancing separation-of-powers principles, competency protections, and community safety concerns.

Background

Joel McClain Carson was charged in 2018 with first-degree murder and related felonies. After Rule 11 proceedings, the court in 2021 found him incompetent, and in 2022 found him NCNR, dismissing the 2018 case without prejudice and ordering civil evaluation. Valleywise Behavioral Health discharged Carson shortly thereafter. The State reindicted in 2022 on the same conduct (adding a weapons charge), then refiled again in 2023 after interim proceedings.

Amid shifting appellate guidance—first Johnson v. Hartsell (requiring judicial permission before refiling after an NCNR dismissal), then a series of special actions and stays—courts alternately authorized, rejected, or remanded refiling and dangerousness proceedings. The Court of Appeals in Carson II applied Johnson to vacate refiling authorization. The Supreme Court accepted review and, by decision order and now this opinion, vacated Carson II, overruled Johnson’s preapproval rule, and provided a comprehensive roadmap distinguishing the refiling threshold from the presumption-rebuttal standard and situating dangerousness trials within the criminal process.

Summary of the Opinion

Due process does not require judicial preapproval for refiling charges against an NCNR defendant. The Court overrules Johnson v. Hartsell (¶¶ 22–27) and reaffirms Rider v. Garcia as the controlling standard.
Rider standard: The State may refile if it has a reasonable belief that the defendant may have regained competency. This is a low, threshold standard distinct from rebutting the presumption of incompetency.
Once charges are refiled, the State must either (a) attempt to rebut the presumption of incompetency to proceed with prosecution or (b) seek a dangerousness trial under § 13-4517(A)(4). Any party or the court may request a competency exam at any time after refiling (A.R.S. § 13-4503(A)).
Dangerousness trials require pending charges. The “is charged” language in § 13-4517(A)(4) ties the dangerousness proceeding to an active criminal case.
Charge-specific approach: The State may rely on a prior NCNR finding for a dangerousness petition that relates to the same conduct; new charges arising from new offenses require their own Rule 11 determination.
Retroactivity: § 13-4517(A)(4) is procedural and civil-regulatory; it applies retroactively and does not violate the Ex Post Facto Clauses.
The 21-month timeline in § 13-4517(A) limits restoration efforts but does not impose a deadline for choosing among the statute’s disposition options, including dangerousness trials.
The Court vacates Carson II, affirms the superior court’s authority to permit refiling in the 2022 case, and remands for the State to either seek to rebut the presumption or file a dangerousness petition consistent with the opinion.

Analysis

Precedents Cited and Their Influence

Johnson v. Hartsell, 254 Ariz. 585 (App. 2023): Imposed a novel “judicial preapproval” requirement before refiling after an NCNR dismissal. The Supreme Court overrules Johnson’s paragraphs 22–27, faulting it for (1) conflating the threshold to refile with the standard to rebut the presumption of incompetence, and (2) intruding into charging decisions reserved for the executive branch.
Rider v. Garcia, 233 Ariz. 314 (App. 2013): Endorsed as the correct standard. The State may refile charges where it has a reasonable belief that the defendant may have regained competency. Rider’s low threshold guards against “revolving door” concerns without intruding on core executive discretion.
State v. Bradley, 102 Ariz. 482 (1967), overruled in part on other grounds by Harvill (1970): Addresses the presumption of continuing incompetency and how it may be rebutted. Johnson misapplied Bradley to the refiling question; the Supreme Court restores Bradley to its proper role (presumption-rebuttal, not refiling gateway).
Medina v. California, 505 U.S. 437 (1992); Drope v. Missouri, 420 U.S. 162 (1975); Jackson v. Indiana, 406 U.S. 715 (1972): Establish fundamental due process principles barring prosecution of incompetent defendants, set procedural safeguards, and highlight concerns of indefinite pendency. These inform Arizona’s reading of due process but do not mandate judicial preapproval at the charging stage.
United States v. Texas, 599 U.S. 670 (2023); Wayte v. United States, 470 U.S. 598 (1985); United States v. Armstrong, 517 U.S. 456 (1996); Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005): Delineate charging as a core executive function and underscore broad prosecutorial discretion. The Court relies on this separation-of-powers line to reject Johnson’s gatekeeping rule.
Arizona separation-of-powers and charging-discretion authorities: State v. Murphy (1976); State v. Prentiss (1989); State v. Frey (App. 1984); Villalpando v. Reagan (App. 2005); J.V. v. Blair (App. 2023). These confirm that prosecutors decide if and when to charge; courts intervene only for illegality or abuse.
Nowell v. Rees, 219 Ariz. 399 (App. 2008): The 21-month cap limits restoration efforts and triggers selection among statutory dispositions. The Court extends Nowell’s structural logic to dangerousness trials added later by statute.
Martin v. Reinstein, 195 Ariz. 293 (App. 1999); Kansas v. Hendricks, 521 U.S. 346 (1997): Civil commitments—aimed at treatment and public safety—are not punitive for ex post facto purposes. This underpins the retroactive application of § 13-4517(A)(4).
State v. Trujillo, 248 Ariz. 473 (2020); Shane B. (In re), 198 Ariz. 85 (2000); Aranda v. Industrial Commission, 198 Ariz. 467 (2000); Krol v. Industrial Commission, 565 P.3d 1013 (Ariz. 2025): Framework for distinguishing procedural from substantive changes and analyzing retroactivity.
Lewis, Blazak, Hehman: Arizona cases recognizing the rebuttable presumption of continued incompetency after an initial finding.
Ethical and remedial constraints: Pool v. Superior Court (1984); Arizona Rules of Professional Conduct ER 3.1 and 8.4(d); Lacey v. Maricopa County (9th Cir. 2012); Overson v. Lynch (1957). These are cited to show institutional checks against abusive refiling.

Legal Reasoning

1) Separation of powers and charging discretion

The Court emphasizes that charging decisions reside with the executive. Johnson’s “preapproval” requirement wrongly inserted a judicial veto into the decision to refile after an NCNR dismissal. While due process bars trying or punishing an incompetent defendant, initiating charges is a distinct stage in the prosecution and does not itself result in conviction or punishment. The Court therefore rejects a judicial gatekeeping rule not grounded in statute, rule, or longstanding practice.

2) Due process: refiling threshold versus presumption rebuttal

The Court draws a bright-line distinction between two standards:

Refiling threshold (Rider): The State needs a reasonable belief that the defendant may have regained competency—often evidenced by developments such as discharge from inpatient treatment, medication compliance, or improved functioning. This is a low bar to responsibly restart proceedings without prolonging indefinite limbo.
Presumption rebuttal (Bradley and its progeny): After refiling, the State cannot proceed to trial unless it rebuts the presumption of continued incompetency through appropriate evidence and Rule 11 procedures. This is a distinct, higher standard, and safeguards due process at the adjudicative stage.

Johnson conflated these standards; Carson II repeated that error by evaluating the State’s evidence under a presumption-rebuttal lens at the refiling stage. The Supreme Court vacates Carson II for that reason and reinstates Rider’s architecture.

3) Procedural safeguards short of preapproval

Due process concerns about “revolving door” prosecutions are addressed without preapproval via:

Immediate availability of Rule 11 motions after refiling (A.R.S. § 13-4503(A)), allowing courts to promptly assess current competence.
The standing presumption of incompetency until rebutted.
Ethical duties and potential sanctions for frivolous or abusive charging practices.
Potential civil remedies for malicious prosecution and public accountability for elected prosecutors.

4) Dangerousness trials: pending charges required

Section 13-4517(A)(4) authorizes a dangerousness trial only if the defendant “is charged with a serious offense.” The present-tense phrasing, interpreted in context with § 13-4521 and the broader statutory scheme, means a dangerousness trial is tethered to an active criminal case. If charges are dismissed, a court lacks authority to proceed under this subsection. This construction also avoids due process concerns about indefinite detention untethered to an active case.

5) Charge-specific NCNR reliance and the 21-month period

Charge-specific presumption: Incompetency is defined by reference to a particular proceeding and defense needs. The State may rely on a prior NCNR finding when seeking a dangerousness trial for the same underlying conduct. However, a newly added charge (e.g., misconduct involving weapons) requires its own competency assessment.
21-month restoration window: The statutory 21-month cap limits restoration efforts, not the timing of subsequent disposition. After that period, a court must choose among the statutorily authorized paths (dismissal, civil commitment/guardianship, or dangerousness trial). The expiration does not bar later pursuit of a dangerousness trial in an otherwise active case.

6) Retroactivity and civil-regulatory character

Applying § 13-4517(A)(4) to an NCNR finding that predates the statute does not violate the Ex Post Facto Clauses and is permissible under Arizona’s retroactivity doctrine because the provision is procedural and facilitates a civil, treatment-oriented mechanism. Commitment under § 13-4521 depends on present mental condition and dangerousness, is capped (not punitive), ends upon regained competence or lack of dangerousness, and results in dismissal of the criminal charges upon commitment. Taken together, the scheme shows a regulatory aim—treatment and public safety—rather than retribution or deterrence.

Impact

A. Prosecutors

May refile charges after an NCNR dismissal without judicial preapproval, provided they have a reasonable belief that competency may have been restored.
Best practice: contemporaneously inform the court and defense of the prior NCNR determination and articulate the factual basis supporting the Rider threshold (e.g., discharge to outpatient status, sustained medication compliance, improved functioning).
After refiling, choose a path: (1) attempt to rebut the presumption of incompetency to proceed to trial; or (2) petition under § 13-4517(A)(4) for a dangerousness trial—so long as charges are pending.
Can rely on a prior NCNR finding for the same conduct; obtain a fresh Rule 11 determination for any new offense added to the indictment.

B. Defense counsel

Immediately consider moving under § 13-4503(A) for a new competency exam upon refiling; insist on the presumption of continued incompetency until rebutted.
Challenge whether the State met the Rider threshold when the factual predicate is weak or speculative.
Where refiling appears harassing or frivolous, seek dismissal with prejudice and consider ethical complaints or civil remedies.
Monitor whether the State’s dangerousness petition is filed while charges remain pending; object to any attempt to proceed absent an active case.

C. Trial courts

Do not require preapproval to refile; instead, upon notice of refiling after NCNR, promptly set Rule 11 status and consider immediate examinations as warranted.
Resolve Rider-threshold challenges on a concise record; recognize this is a low threshold distinct from presumption rebuttal.
Ensure that § 13-4517(A)(4) petitions are filed and adjudicated only while charges are pending; dismiss the petition or deny relief if the case is no longer active.
Apply the charge-specific approach to reliance on prior NCNR findings; require fresh Rule 11 for new offenses.
Use sanctions (including dismissal with prejudice) and ethical referrals in rare cases of repeated, unjustified refilings.

D. Systemic effects

Separation-of-powers jurisprudence is reinforced: judicially invented charging gatekeepers are disfavored absent legislative authorization.
Public safety tools are clarified: dangerousness trials are available retroactively but only within an active case, preventing indefinite unmoored detention.
Mental health coordination: discharge and outpatient care become material facts at the refiling threshold, incentivizing integrated communication between prosecutors and treatment providers.

Complex Concepts Simplified

NCNR (Not Competent and Not Restorable): A court finding that a defendant is currently incompetent and unlikely to be restored within the statutory period (generally 21 months from the initial incompetency finding).
Rider threshold: The State may refile after NCNR if it has a reasonable belief the defendant may have regained competency. This is a low bar based on new or changed information.
Presumption of incompetency: Once found incompetent, a defendant is presumed to remain so unless the State affirmatively proves otherwise. This presumption prevents prosecution while incompetent.
Dangerousness trial (A.R.S. § 13-4517(A)(4)): In cases involving serious offenses, the court may hold a trial to determine whether an NCNR defendant is dangerous and should be involuntarily committed under § 13-4521. It is a civil, treatment-oriented proceeding that results in dismissal of the criminal charges if commitment is ordered.
Why pending charges matter: The statute authorizes a dangerousness trial only when the defendant “is charged” with a serious offense. No active case, no dangerousness trial.
Charge-specific competency: Incompetency is evaluated in relation to particular charges and the needs of the defense in that proceeding; a prior NCNR finding can support dangerousness for the same conduct but does not automatically control new, different charges.
Retroactivity: Procedural statutes that change how cases proceed (but not what conduct is criminal or what punishment applies) can usually be applied to earlier events. Dangerousness trials are procedural and civil-regulatory, so § 13-4517(A)(4) applies to older NCNR findings.
21-month cap: Limits how long restoration efforts can continue; after that, the court must pick a disposition (dismissal, civil commitments/guardianship, or dangerousness trial). It is not a deadline to complete those dispositions.

Conclusion

This opinion clarifies Arizona law in three consequential ways. First, it restores prosecutorial discretion to refile charges after an NCNR dismissal without judicial preapproval, while preserving due process through the presumption of incompetency and ready access to new competency evaluations. Second, it anchors dangerousness trials to pending criminal cases, adopts a charge-specific approach to leveraging prior NCNR findings, and confirms that the 21-month cap limits restoration efforts rather than subsequent dispositions. Third, it authorizes retroactive application of § 13-4517(A)(4), grounded in the statute’s civil-regulatory purpose of treatment and public protection rather than punishment.

By overruling Johnson’s preapproval rule and reaffirming Rider’s practical threshold, the Court delineates a coherent framework that respects separation of powers, protects incompetent defendants from prosecution, and provides clear pathways—rebuttal or dangerousness—for resolving cases involving serious offenses and complex mental health trajectories. The decision supplies concrete guidance to trial courts and practitioners alike, reducing procedural confusion and promoting both fairness and safety in Arizona’s criminal justice system.