People v. McGee (2026): Timely Second-Opinion Competency Evaluations Are Mandatory After a CMHHIP Evaluation, and Trial Courts May Not Retroactively Undo the Initial Order

I. Introduction

People v. McGee addresses a narrow but consequential question within Colorado’s competency-to-proceed statutory framework: once a trial court has ordered a competency evaluation at the Colorado Mental Health Hospital in Pueblo (“CMHHIP”) and that evaluation has been completed, may the court deny a party’s timely request for a second-opinion competency evaluation?

The parties were the People of the State of Colorado (prosecution) and Austin Rhys McGee (defendant), charged with multiple felony sexual offenses involving a child. Over several years, multiple competency evaluations had been conducted, repeatedly finding McGee competent. In 2025, after the district court granted another defense request for a CMHHIP evaluation and CMHHIP again opined competency, the defense timely sought a second-opinion evaluation. The district court denied the second-opinion request, reasoning (among other things) that there were no “new indic[i]a of incompetency,” that McGee was not entitled to a “fifth competency evaluation,” and that the earlier request had been accommodated “merely for the benefit of the Defense” despite the court’s view that the defense was delaying the case.

The Colorado Supreme Court exercised original jurisdiction and held the district court had no discretion to deny the timely second-opinion request after the CMHHIP evaluation was completed. The Court further rejected the district court’s attempt to justify denial by retroactively characterizing the initial evaluation order as improvidently granted.

II. Summary of the Opinion

Justice Samour, writing for the Court, made absolute the order to show cause and remanded. The Court held that Colorado’s statutory framework gives a party the right to a second-opinion competency evaluation if requested within the statutory time period after receipt of the CMHHIP report. No statutory provision grants trial courts discretion to deny a timely second-opinion request once the CMHHIP evaluation is complete.

Specifically, the Court identified three errors:

• The district court improperly required the defense to demonstrate “new indic[i]a of incompetency” or a different explanation to obtain a second-opinion evaluation.
• The district court improperly treated the request as an impermissible “fifth competency evaluation,” rather than a statutorily authorized second-opinion challenge to the most recent CMHHIP report.
• The district court improperly attempted to retroactively nullify the earlier order granting the CMHHIP evaluation by deeming it dilatory after the evaluation was completed.

III. Analysis

A. Precedents Cited

1. Original jurisdiction under C.A.R. 21

• In re People in Int. of S.G.H., 2025 CO 59: The Court relied on this decision for the general proposition that exercising original jurisdiction under C.A.R. 21 is discretionary and the remedy is “narrow in scope.” This framed the threshold inquiry: whether immediate review was warranted rather than deferring to direct appeal.
• People v. Rowell, 2019 CO 104 (quoting Wesp v. Everson, 33 P.3d 191 (Colo. 2001)): These cases supplied the familiar criteria for C.A.R. 21 intervention—particularly when an appellate remedy is inadequate, irreparable harm may occur, or the petition raises issues of significant public importance not previously considered. McGee slots the statutory second-opinion question into the “issue of first impression” category with high systemic importance because competency errors infect the fairness of the entire proceeding.
• In re People in Int. of J.D., 2025 CO 14: This case grounded the Court’s “irreparable harm” rationale: the harm from an erroneous competency ruling occurs when a defendant is forced through proceedings while incompetent, and later appellate review cannot fully cure that harm. By invoking J.D., the Court underscored why competency disputes are especially suitable for extraordinary review.

2. Statutory interpretation and competency framework

• People v. Hollis, 2025 CO 54: Cited for the standard of review—statutory interpretation is reviewed de novo. This allowed the Court to treat the question as a pure legal issue: what the statutes require once a CMHHIP evaluation is complete and a timely second-opinion is requested.
• People v. Lindsey, 2020 CO 21: Lindsey was the central competency precedent. The Court used it to: (a) summarize the general statutory mechanism for raising competency issues, and (b) reaffirm that an initial motion raising competency must satisfy threshold requirements in section 16-8.5-102(2)(b) (writing, good faith doubt, and specific facts). But McGee sharply distinguishes Lindsey: Lindsey concerns a court’s discretion to deny a competency evaluation when threshold requirements are not met; McGee concerns the absence of discretion to deny a timely second-opinion evaluation after a CMHHIP evaluation has already been completed.
• People in Int. of W.P., 2013 CO 11: Used as supporting context (in a footnote observation) that amendments gave defendants the right to a timely requested second-opinion evaluation. While not the primary interpretive engine, W.P. provided confirmatory legislative backdrop for the Court’s reading that the second-opinion mechanism is a right, not a discretionary indulgence.

B. Legal Reasoning

1. The Court separates two statutory “gates”: (i) access to the initial CMHHIP evaluation, and (ii) access to a second-opinion evaluation

The Opinion implicitly builds a two-stage structure within the statutory scheme:

• Stage 1 (initial competency litigation and CMHHIP evaluation): Triggered when a party properly raises competency under section 16-8.5-102(2)(b) and the court cannot make a preliminary finding (or a party timely objects). At this stage, Lindsey recognizes limited trial-court discretion to deny “the rare” motion that fails the threshold requirements.
• Stage 2 (post-CMHHIP report, second-opinion request): Governed by section 16-8.5-103(3)–(6) and related sections (including 16-8.5-106 and 16-8.5-107). At this stage—once the CMHHIP evaluation has been completed—the statutory text provides a right to request a second-opinion evaluation within fourteen days, and the Court finds no textual grant of discretion to deny it.

This separation is the Opinion’s most important analytical move: it prevents a trial court from importing Lindsey-type discretion (about whether to order an evaluation at all) into the later statutory entitlement (to obtain a second opinion after CMHHIP has spoken).

2. Textual and structural statutory reading: “may request” + mandatory court duties = entitlement

The Court does not treat the second-opinion provisions as permissive in effect. Instead, it emphasizes that the statutory framework:

• Defines a second-opinion evaluation (section 16-8.5-101(18));
• Allows either party to request it within fourteen days after receipt of the CMHHIP report (section 16-8.5-103(3));
• Requires sequencing rules when a hearing is also requested (section 16-8.5-103(4));
• Gives the defense the ability to choose its evaluator and commands the court to provide that evaluator a “reasonable opportunity” to perform the evaluation (section 16-8.5-106(1));
• Requires court payment for indigent defendants (section 16-8.5-107).

The Opinion’s bottom line is structural: these provisions make little sense if trial courts could deny timely requests based on ad hoc criteria not found in the statute (such as “no new indicia,” “too many prior evaluations,” or skepticism about motive).

3. The Court rejects “extra-statutory” hurdles

The district court required a showing of “new indic[i]a of incompetency” or a “different medical or psychological explanation.” The Supreme Court held that requirement had no foundation in the statutory text governing second opinions. The legislature already balanced efficiency and fairness by imposing a short deadline (fourteen days) and by structuring the process (report exchange, sequencing of hearings, burden of proof at hearing). Courts may not add a further merits screen before a second opinion is permitted.

4. The “fifth evaluation” framing is legally irrelevant once the statutory trigger is met

The Court treated the district court’s “fifth competency evaluation” reasoning as a category error. The relevant statutory question is not the total number of prior evaluations in the case; it is whether, after a completed CMHHIP evaluation, a party timely requested a second-opinion evaluation to test or challenge that particular CMHHIP report. Under the statute, that timely request is sufficient.

5. No retroactive nullification after completion: finality of the “ordered and completed” evaluation

A key practical holding is the Court’s rejection of retroactivity. Even if the district court believed the May 2025 request was dilatory or should not have been granted under Lindsey, once the court did grant it and the CMHHIP evaluation was completed, the court could not later “undo” that decision to defeat the statutory second-opinion right. In the Court’s words, by then “the proverbial train related to the propriety of the initial evaluation had left the station.”

C. Impact

• Bright-line administrability: Trial courts must now treat a timely second-opinion request as mandatory once a CMHHIP evaluation has been completed. This reduces inconsistent, discretionary practices across districts and removes judge-made “gatekeeping” criteria not found in the statutes.
• Defense and prosecution parity: Because either party may request a second opinion, the decision strengthens symmetrical access to second-opinion testing of CMHHIP reports. (In practice, it will often be defense-initiated, but the rule is facially bilateral.)
• Limits on docket-control tools in competency litigation: Courts remain able—under People v. Lindsey—to deny an initial competency evaluation motion that fails statutory threshold requirements. But after a CMHHIP report issues, the court’s interest in preventing delay cannot override the legislatively prescribed second-opinion mechanism.
• Strategic consequences: Parties and judges will likely focus more attention on the threshold sufficiency of the initial competency motion (section 16-8.5-102(2)(b)), because once the CMHHIP evaluation is ordered and completed, the second-opinion “right” becomes difficult to avoid if timely invoked.
• Procedural predictability in competency hearings: By enforcing the statutory sequencing (no hearing set until after the second-opinion report when both are requested), McGee reinforces orderly development of the record before competency is finally adjudicated.

IV. Complex Concepts Simplified

• Competency to proceed: A defendant is “incompetent to proceed” if, because of a mental or developmental disability, the defendant cannot adequately consult with counsel or understand the proceedings (section 16-8.5-101(12)). An incompetent defendant may not be tried or sentenced (section 16-8.5-102(1)).
• CMHHIP evaluation: A court-ordered competency evaluation performed at the state facility (Colorado Mental Health Hospital in Pueblo) under the statutory scheme.
• Second-opinion competency evaluation: An additional competency evaluation performed by a qualified evaluator who is not performing work “by or under the direction of, or paid for by” the Department of Human Services (section 16-8.5-101(18)). It is meant to test or challenge the CMHHIP evaluator’s conclusions.
• Timely request (the 14-day rule): After receiving the CMHHIP report, either party may request a second-opinion evaluation and/or a hearing within fourteen days (section 16-8.5-103(3)). If timely requested, McGee holds the court must grant the second-opinion evaluation.
• Threshold requirements (for the initial motion raising competency): Under section 16-8.5-102(2)(b) and People v. Lindsey, the motion must be in writing, certify good faith doubt, and state specific facts forming the basis. A court may deny the rare motion that fails these requirements. McGee does not decide whether McGee’s May 2025 motion satisfied them.
• C.A.R. 21 original jurisdiction: A discretionary, extraordinary procedure allowing the Colorado Supreme Court to intervene immediately when ordinary appeal is inadequate—often because the harm would occur before appeal could be taken.
• De novo review: The Court gives no deference to the trial court on pure questions of statutory interpretation (citing People v. Hollis).
• Preponderance of the evidence (at a competency hearing): The party claiming the defendant is incompetent must prove it is more likely than not (section 16-8.5-103(7)).

V. Conclusion

People v. McGee establishes an important procedural guarantee in Colorado competency litigation: once a CMHHIP competency evaluation has been completed, a party who timely requests a second-opinion competency evaluation is statutorily entitled to it. The decision prevents trial courts from layering discretionary “new indicia” requirements onto the statute, from rejecting second opinions as “too many evaluations,” and from retroactively negating a previously granted CMHHIP evaluation to defeat the second-opinion mechanism.

In the broader legal context, McGee reinforces the legislature’s chosen balance between accuracy and efficiency in competency determinations: it preserves trial-court discretion at the front end (threshold compliance under People v. Lindsey) while making the post-report second-opinion procedure mandatory when timely invoked. Given the constitutional and statutory stakes of trying an incompetent defendant, the ruling provides clearer, more uniform guardrails for competency proceedings going forward.