MELTON, PRESIDING JUSTICE.
constitutional issue involved in this case is identical to
the one that was presented in, and is resolved by, this
Court's decision in Carr v. State, - Ga. - (Case
No S18A0100, decided June 18, 2018). In Carr, this
Court sustained a due process challenge to OCGA §
17-7-130 (c), which is a statute that had been applied to
require the defendant who had been accused of violent
offenses in that case and who had been found to be mentally
incompetent to stand trial to be transferred to the physical
custody of the Georgia Department of Behavioral Health and
Developmental Disabilities (the department) for further
evaluation. Specifically, we held that,
[b]ecause the nature of automatic commitment [under
the portion of OCGA § 17-7-130 (c) applicable to] all
those defendants [who had been accused of violent crimes and
found to be mentally incompetent to stand trial] does not
bear a reasonable relation to the State's purpose of
accurately determining the restorability of individual
defendants' competence to stand trial, that aspect of
OCGA § 17-7-130 (c) violates due process when applied to
defendants who have been deprived of their liberty based
solely on that statutory provision.
(Emphasis in original.) Id. slip op. at 32 (5) (b).
of background, in the instant case, Ryan L. McGouirk was
arrested in January 2016 and charged with the violent
offenses of aggravated child molestation, child molestation,
cruelty to children (for causing pain to a child by having
the child touch him sexually), and arson in the first degree.
See OCGA § 17-7-130 (a) (11) (A) (ii) and (ix) (The
definition of "violent offense" for purposes of
proceedings upon a plea of mental incompetence to stand trial
includes "[a] sexual offense" or "[a]rson in
the first degree or in the second degree."). McGouirk
was subsequently released on bond. Following his indictment,
McGouirk filed special pleas of mental incompetence to stand
trial. See OCGA § 17-7-130 (b) (2).
hearing in June 2017, a doctor from the department, Dr.
Elizabeth Donegan, testified that she performed a competency
evaluation on McGouirk in August 2016. The doctor found that
McGouirk was not competent to stand trialand, although she
was uncertain he could attain competency, she could provide a
better sense of his restorability after providing restoration
services. Dr. Donegan found no indications that McGouirk was
in need of psychiatric hospitalization for stabilization and
recommended that the court consider outpatient commitment for
competency restoration. However, because McGouirk had been
charged with "violent offenses" as defined by OCGA
§ 17-7-130, based solely on the provisions of OCGA
§ 17-7-130 (c) he was to be transferred "to the
physical custody of the department."
argued that the inpatient requirement under OCGA §
17-7-130 (c) violated his equal protection and due process
rights, and he asked that the court order outpatient
services. The trial court denied McGouirk's request and
ordered that he be committed to an inpatient facility for
competency restoration as soon as the department had an
inpatient opening. The trial court granted McGouirk a
certificate of immediate review, and he filed an application
for interlocutory appeal, which this Court granted.
determined in Carr, supra, where, as here, McGouirk
was released on bond and was found to be mentally incompetent
to stand trial, and where he was subjected to automatic
commitment to the physical custody of the department pursuant
to OCGA § 17-7-130 (c) solely based on the fact that he
was a mentally incompetent individual who had been accused of
committing violent crimes, OCGA § 17-7-130 (c) was not
"applied constitutionally to [McGouirk]."
Id. slip op. at 2. In order for the trial court to
apply OCGA § 17-7-130 (c) in a constitutional manner to
McGouirk, the court must exercise its discretion to make
"an individualized determination of whether
[McGouirk's] confinement reasonably advances the
government's purpose" (Carr, supra, slip
op. at 2) of accurately determining whether "there is a
substantial probability that [McGouirk] will attain mental
competency to stand trial in the foreseeable future."
OCGA § 17-7-130 (c). Indeed,
[r]ather than the particular crime with which
[McGouirk] is charged, it is his particular mental
condition that affects whether his commitment is
reasonably related to the goal of accurately evaluating his
likelihood of attaining competence so he can be tried. Only
in those cases where detention is in fact reasonably related
to this objective does the State's interest justify
depriving the defendant of his strong liberty interest. . . .
Neither the crime of which a defendant is accused - a crime
of which he must constitutionally be presumed innocent - nor
the finding of incompetency to stand trial is itself a
sufficient ground to detain a citizen.
(Citations omitted; emphasis in original.) Carr,
supra, slip op. at 28-29 (5) (a).
order to make its determination,
the trial court should proceed as it does in determining how
to evaluate mentally incompetent defendants accused of
nonviolent offenses. To ensure that the nature of commitment
to the department is appropriate for the particular
defendant, the court should consider all relevant evidence
and make a finding as to whether the evaluation required by
OCGA § 17-7-130 (c) should be conducted on an inpatient
or outpatient basis. . . . If the court determines that
inpatient evaluation is not appropriate for [McGouirk, who
is] a mentally incompetent defendant charged with a violent
offense and [who is] not already detained for another, lawful
reason, then the portion of § 17-7-130 (c) requiring
commitment of [McGouirk] to the physical custody of the
department cannot be applied as a matter of constitutional
Id. slip op. at 32-33 (5) (b).