People v. McGee (2026): Timely Second-Opinion Competency Evaluations Are Mandatory After a Completed CMHHIP Evaluation

I. Introduction

People v. McGee arises from a Larimer County prosecution charging Austin Rhys McGee with numerous felony sexual offenses involving a child. Over several years, multiple defense counsel sought competency evaluations; multiple evaluators opined McGee was competent, and the district court made final competency determinations without objection. In 2025, current defense counsel again raised competency concerns and obtained a new CMHHIP evaluation. After CMHHIP again found competency, the defense timely requested a second-opinion evaluation. The district court denied that request—reasoning that there were no “new” indicia of incompetency, that McGee was not entitled to a “fifth competency evaluation,” and that the court had ordered the latest CMHHIP evaluation merely “for the benefit of the Defense” despite believing the request was dilatory.

The Colorado Supreme Court took original jurisdiction to resolve a statutory question it characterized as novel and important: whether, after a CMHHIP competency evaluation has been completed, a court may deny a timely request for a second-opinion competency evaluation by effectively revisiting (and disapproving) the earlier order that authorized the initial evaluation.

II. Summary of the Opinion

The Court held the district court erred in denying McGee’s timely request for a second-opinion competency evaluation. The statutory framework in §§ 16-8.5-101, -103, -106, and -107 grants a right to a second-opinion evaluation upon a timely request once a CMHHIP evaluation has been completed. No provision gives trial courts discretion to deny a timely request on grounds such as the absence of new information, the number of prior evaluations, or perceived dilatory motive. Critically, the Court rejected the district court’s attempt to retroactively “undo” the earlier order granting the CMHHIP evaluation after that evaluation had already been completed.

The Supreme Court therefore made the rule to show cause absolute and remanded with directions that the district court grant the defense’s June 2025 request for a second-opinion evaluation.

III. Analysis

A. Precedents Cited

• In re People in Int. of S.G.H., 2025 CO 59: Cited for the general principle that C.A.R. 21 jurisdiction is discretionary and extraordinary. The Court relied on it to frame the procedural posture, emphasizing that original jurisdiction is reserved for situations where ordinary appellate review is inadequate or issues are of broad importance.
• People v. Rowell, 2019 CO 104 and Wesp v. Everson, 33 P.3d 191 (Colo. 2001): Used to articulate the familiar factors justifying C.A.R. 21 review: inadequate appellate remedy, irreparable harm, or issues of significant public importance not yet considered. These cases supplied the “gateway” standard the Court applied before reaching the merits.
• In re People in Int. of J.D., 2025 CO 14: Provided the Court’s key irreparable-harm rationale: harm from an erroneous competency finding occurs at the time of the finding and cannot be fully remedied on appeal. This supported immediate intervention because proceeding without the requested second-opinion evaluation risked trial and sentencing while incompetent.
• People v. Lindsey, 2020 CO 21: The Court treated Lindsey as the principal precedent describing Colorado’s competency framework and, importantly, recognizing trial-court discretion to deny the “rare” competency-evaluation motion that fails threshold statutory requirements (written motion, good-faith doubt, and specific supporting facts under § 16-8.5-102(2)(b)). McGee extends the analysis by drawing a sharp line: whatever discretion exists at the front end (whether to order the initial CMHHIP evaluation when threshold requirements are unmet) does not translate into discretion at the back end (whether to grant a timely second-opinion request once a CMHHIP evaluation has been completed).
• People v. Hollis, 2025 CO 54: Cited for the standard of review—statutory interpretation is reviewed de novo. This signaled the Court’s focus: the answer turns on the text and structure of the competency statutes, not on trial-court factfinding or discretionary balancing.
• People in Int. of W.P., 2013 CO 11: Cited for an observation (in a footnote) that legislative amendments gave defendants the right to a timely requested second-opinion evaluation. The Court used this as supportive context reinforcing the textual conclusion that second-opinion evaluations are mandatory when timely requested.

B. Legal Reasoning

The Court’s reasoning is primarily textual and structural, with three key moves.

1) Distinguishing “whether to order” from “what follows once ordered and completed”

The Court accepted (as the parties largely did) that under People v. Lindsey, 2020 CO 21, a trial court retains discretion to deny an initial competency-evaluation request if the moving party fails the threshold requirements in § 16-8.5-102(2)(b). But the Court framed the decisive question as one of sequencing and statutory consequence: once the court has already ordered a CMHHIP evaluation and the evaluation has been completed, the statutory provisions governing second-opinion evaluations take over.

2) The second-opinion provisions impose a mandatory duty upon timely request

The Court canvassed the relevant statutes: § 16-8.5-103(3) (timely request within 14 days after receipt of the CMHHIP report), § 16-8.5-101(18) (definition of “second-opinion evaluation”), § 16-8.5-106(1)-(2) (defense can select an evaluator; court must provide “reasonable opportunity”), and § 16-8.5-107 (payment for indigent defendants). From these provisions, the Court drew a straightforward conclusion: the framework contains no grant of discretion to deny a timely requested second-opinion evaluation once a CMHHIP evaluation has been completed.

3) The trial court’s three stated rationales were incompatible with the statutory design

• No “new indicia” requirement: The district court demanded “new indic[i]a of incompetency” or a “different medical or psychological explanation.” The Supreme Court rejected that requirement as extra-statutory; timeliness, not novelty, controls.
• Counting “how many evaluations” misses the statutory category: While this was the fifth evaluation overall, it was the defense’s timely request for a second-opinion evaluation “for the purpose of testing or challenging” the most recent CMHHIP conclusion. The statutory entitlement attaches to that procedural posture.
• No retroactive nullification once the evaluation is complete: The Court’s most practically significant holding is that the trial court could not, after completion of the CMHHIP evaluation, retroactively decide the earlier order should not have been granted due to perceived dilatory motive. The opinion’s “train left the station” framing reflects a finality principle grounded in the statute’s sequence: completion of the CMHHIP evaluation triggers the right to request a second-opinion evaluation; courts cannot erase that trigger after the fact.

C. Impact

1) Clarifies a mandatory procedural entitlement. McGee decisively resolves an open question: Colorado trial courts may police deficient competency motions at the threshold under Lindsey, but once a CMHHIP evaluation has been completed, a timely second-opinion request must be granted. This will likely standardize trial-court practice and reduce inconsistent treatment of second-opinion requests.

2) Reallocates how courts address suspected delay tactics. The opinion implicitly channels “dilatory motive” concerns to the front-end decision—i.e., whether the initial motion satisfies § 16-8.5-102(2)(b) and merits an evaluation. After ordering and completion, delay concerns cannot justify blocking the statutory second-opinion process.

3) Strengthens competency reliability and appellate insulation. Because competency errors create immediate and irreparable harm (as emphasized via In re People in Int. of J.D., 2025 CO 14), ensuring access to a timely second-opinion evaluation may reduce later constitutional and statutory challenges to proceedings conducted while allegedly incompetent.

4) Practical effect on case management. McGee may increase the number of second-opinion evaluations in multi-evaluation cases, potentially adding time. But the Court treated that as a legislative choice embedded in the statutes, not a discretionary case-management matter.

IV. Complex Concepts Simplified

1) “Competent to proceed”

Under § 16-8.5-101(12), a defendant is incompetent if, due to mental or developmental disability, they cannot (a) consult with counsel with a reasonable degree of rational understanding, or (b) rationally and factually understand the proceedings. If incompetent, they cannot be tried or sentenced (§ 16-8.5-102(1)).

2) CMHHIP evaluation vs. “second-opinion evaluation”

A CMHHIP evaluation is the court-ordered evaluation performed by the state hospital system. A “second-opinion evaluation” (as defined in § 16-8.5-101(18)) is performed outside the department’s direction or funding—often by a private forensic evaluator. It serves as an independent check on the CMHHIP conclusions.

3) Timeliness (the 14-day window)

§ 16-8.5-103(3) gives either party 14 days after receiving the CMHHIP report to request a second-opinion evaluation, a hearing, or both. In McGee, the defense request was timely, which is why the statutory entitlement attached.

4) C.A.R. 21 “original jurisdiction”

Instead of waiting for a final judgment and then appealing, a party can seek extraordinary relief when waiting would be inadequate—especially where the claimed harm cannot be undone later. The Court relied on cases including People v. Rowell, 2019 CO 104 and In re People in Int. of J.D., 2025 CO 14 to explain why competency disputes can warrant immediate review.

V. Conclusion

People v. McGee establishes an important procedural bright line in Colorado competency practice: once a CMHHIP competency evaluation has been completed, a timely request for a second-opinion competency evaluation must be granted. Trial courts cannot impose extra-statutory prerequisites such as “new” evidence, cannot deny based on the number of prior evaluations, and cannot retroactively invalidate the earlier order to avoid the statutory consequence. The decision strengthens the predictability of competency proceedings and confirms that the legislature—not case-management discretion— controls access to timely second-opinion evaluations.