F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 5, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-2002
MELVIN CLYDE COLLINS II,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-02-663)
Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with her on the brief), Denver, Colorado, for Defendant-
Appellant.
Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States
Attorney, with her on the briefs), Albuquerque, New Mexico, for Plaintiff-
Appellee.
Before TACHA, Chief Circuit Judge, EBEL, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Melvin Clyde Collins II appeals his conviction on the ground that he was
deprived of counsel at his competency hearing. At his competency hearing, the
district court was presented with two issues: a motion to withdraw filed by Mr.
Collins’s lawyer and the issue of Mr. Collins’s competency. The district court
addressed the competency issue before the withdrawal motion. As a result, Mr.
Collins’s lawyer, believing that there had been a breakdown in the attorney-client
relationship, did not comment on Mr. Collins’s competency and did not introduce
available evidence that may have affected the competency determination. Mr.
Collins claims that this conduct constituted a constructive denial of counsel. Mr.
Collins also appeals his sentence under United States v. Booker, 125 S. Ct. 738
(2005). Because Mr. Collins was not represented by counsel at his competency
hearing, we VACATE the conviction and REMAND for a new trial consistent
with Mr. Collins’s constitutional rights.
I.
On April 23, 2002, Mr. Collins was charged with two counts of sexually
abusing a minor under age sixteen and one count of sexually abusing a minor
under age twelve, in violation of 18 U.S.C. §§ 2241(c), 2246(2)(A), 2246(2)(B),
and 1152. The court appointed Mr. William L’Esperance to represent Mr.
Collins. After his indictment, Mr. Collins filed, and the court granted, a motion
requesting a psychological examination to determine whether he was competent to
stand trial. Mr. Collins was evaluated by Bureau of Prisons psychologist, Dr. Jim
Womack. After interviewing Mr. Collins, administering three personality tests,
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and interviewing Mr. Collins’s wife, Dr. Womack diagnosed Mr. Collins with
paranoid personality disorder. Dr. Womack did not diagnose Mr. Collins with
schizophrenia or delusional disorder, despite Mr. Collins’s statement that he was
diagnosed with these disorders in childhood. Dr. Womack found Mr. Collins
competent to stand trial. In his report, Dr. Womack wrote:
The defendant currently does not suffer from a mental disease or defect
which would render him unable to understand the nature and consequences
of the proceedings against him or to assist properly in his own defense. He
evidenced a good command of court room personnel and procedures. He
most likely will be a difficult client with whom to work; however, potential
conflicts can be attributable to the client’s personality disorder and not a
psychotic process or cognitive deficiencies.
After the evaluation was completed, the court scheduled a competency hearing for
December 2, 2002.
Before the competency hearing, Mr. Collins submitted a letter to the court
requesting that his current counsel, Mr. William L’Esperance, be replaced. In this
letter, Mr. Collins claimed that Mr. L’Esperance was lying to him, insulting both
him and his wife, and colluding with the prosecution and the FBI. Mr. Collins
also sent a letter to the New Mexico State Bar Association Disciplinary Board
attempting to discredit Mr. L’Esperance. In response to this letter, Mr.
L’Esperance filed a motion to withdraw, claiming that he questioned his ability to
adequately communicate with Mr. Collins and noting that the lack of
communication between himself and Mr. Collins hampered the investigation. Mr.
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L’Esperance filed his motion to withdraw on December 2, 2002—the date of Mr.
Collins’s competency hearing.
At the hearing, the court considered the issue of Mr. Collins’s competency
before addressing Mr. L’Esperance’s pending motion to withdraw. The district
court began the competency hearing by inquiring whether there was any issue as
to competency in light of the competency evaluation submitted by Dr. Womack
that found Mr. Collins competent to stand trial. Mr. L’Esperance responded by
stating:
Your Honor, I will not comment on that. I have had new materials
disclosed, including the defendant’s DD-214 of the military records, site
reports, and other matters that were not available to the reviewing staff.
And under the circumstances that we are about this morning and the
[withdrawal] motion I have filed, I will not comment on that.
R. Vol. IV, p. 3.) The court then questioned the government on its perspective
regarding competency. Government counsel informed the court that if the court
were to grant Mr. L’Esperance’s motion to withdraw, the issue of competency
should be the “first item of business to be taken up by any new counsel” that
would be appointed. The government also stated that, while it thought the
competency evaluation “speaks for itself,” the government found military records
that “may be relevant to the new counsel to reconsider the competency issue.”
The court then asked the government to submit an order finding Mr. Collins
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competent to stand trial, but noted that “if the new attorney wants to revisit this
issue, then [the court will] certainly . . . do that.”
On December 5, 2002, the district court entered a written order finding Mr.
Collins competent to stand trial. The order did not allude to the possibility that
additional information, such as military records, was available but not considered,
and did not mention the district court’s willingness to revisit the competency
issue with new counsel, which the court had expressed at the hearing. Mr.
L’Esperance approved the order as “to form only” on behalf of Mr. Collins. On
December 6, 2002, the district court entered an order permitting Mr. L’Esperance
to withdraw as counsel. Mr. Troy Prichard was appointed as substitute counsel
for Mr. Collins.
Seven months later, the grand jury returned a superseding indictment,
amending the second count to allege that the victim was a Laguna Indian. At the
pretrial conference, on September 9, 2003, Mr. Prichard renewed the issue of Mr.
Collins’s competency. Mr. Prichard informed the court that previous counsel had
raised the issue of competency almost a year earlier, that Mr. Collins had been
evaluated, and that the court had concluded he was competent. Mr. Prichard then
stated that he was “concerned as to [Mr. Collins’s] competence today, and
specifically, his ability to meaningfully assist [Mr. Prichard] during his trial.”
Mr. Prichard further noted that he did “not sense a great deal of logic in terms of
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[his] client’s comprehension of the issues and the consequences of this case.”
Mr. Prichard suggested that the court “have this [sic] same person that did the
evaluation do just a quick review prior to trial.” The district court denied Mr.
Prichard’s request for a renewed competency hearing. The court explained that
Mr. Collins already had a competency hearing, that he was deemed competent to
stand trial, and that the trial was scheduled for next week and would not be
postponed.
The jury convicted Mr. Collins on three counts of sexual abuse. Before the
sentencing hearing, Mr. Collins filed a motion for downward departure based on
his extraordinary mental and emotional conditions. The court denied the motion.
The court adopted the factual findings contained in the presentence report,
including a finding that the victim was in Mr. Collins’s custody, care and
supervisory control. The court sentenced Mr. Collins to 292 months in prison.
Mr. Collins now appeals his conviction and sentence.
II.
Mr. Collins claims that Mr. L’Esperance’s lack of representation at the
competency hearing and the district court’s refusal to grant Mr. Prichard’s request
to revisit the issue of competency before trial amounted to a deprivation of Mr.
Collins’s Sixth Amendment right to counsel. He contends that he was
constructively denied counsel under United States v. Cronic, 466 U.S. 648 (1984).
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The government, in contrast, suggests that this issue is properly analyzed as a
question of competence of counsel, under Strickland v. Washington, 466 U.S. 668
(1984). If so, the issue should be raised on collateral review rather than direct
appeal, to permit the development of an evidentiary record that will allow a court
to determine whether Mr. L’Esperance’s conduct prejudiced Mr. Collins.
A. Sixth Amendment Violation
The Sixth Amendment entitles a defendant to the assistance of counsel at
every critical stage of a criminal prosecution. Kirby v. Illinois, 406 U.S. 682, 690
(1972); United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Critical
stages are those steps of a criminal proceedings that hold significant
consequences for the accused. Bell v. Cone, 535 U.S. 685, 695-96 (2002). Thus,
a defendant is entitled to counsel at any proceeding where an attorney’s assistance
may avoid the substantial prejudice that could otherwise result from the
proceeding. Coleman v. Alabama, 399 U.S. 1, 9 (1970). We have not previously
had opportunity to consider whether a competency hearing is a critical stage.
Other circuits, however, have held that competency hearings are critical stages,
and we agree. See Appel v. Horn, 250 F.3d 203, 215 (3d Cir. 2001); United States
v. Klat, 156 F.3d 1258, 1262 (D.C. Cir. 1998); United States v. Barfield, 969 F.2d
1554, 1556 (4th Cir. 1992); Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir.
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1986). Indeed, the government does not contest that the competency hearing is a
critical stage, at which the defendant is constitutionally entitled to representation
by counsel. Cf. 18 U.S.C. § 4247(d) (creating a statutory right to counsel at
competency hearings).
The contested issue is whether Mr. Collins was constructively denied
counsel at his competency hearing or whether his claim is properly cognizable as
a claim for ineffective assistance of counsel. If Mr. Collins was constructively
denied counsel at his competency hearing, then he need not show prejudice to
establish a Sixth Amendment violation. Cronic, 466 U.S. at 659; Turrentine v.
Mullin, 390 F.3d 1181, 1207-08 (10th Cir. 2004).
“The Constitution’s guarantee of assistance of counsel cannot be satisfied
by mere formal appointment.” Cronic, 466 U.S. at 654-55. The importance of
the Sixth Amendment right to counsel derives from the adversarial nature of our
justice system, which is premised on the “well-tested principle that truth--as well
as fairness--is best discovered by powerful statements on both sides of the
question.” Penson v. Ohio, 488 U.S. 75, 84 (1988) (internal quotation marks
omitted). Because it is unlikely that a criminal defendant will adequately be able
to test the government’s case without representation, id., the adversarial process
requires that a defendant “have ‘counsel acting in the role of an advocate.’”
Cronic, 466 U.S. at 656 (quoting Anders v. California, 386 U.S. 738, 743 (1967)).
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The right to counsel, therefore, is the “right of the accused to require the
prosecution’s case to survive the crucible of meaningful adversarial testing.” Id.
Accordingly, “if counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing, then there has been a denial of Sixth Amendment
rights that makes the adversary process itself presumptively unreliable.” Id. at
659. This Circuit has been reluctant to find constructive denials of counsel, and
has found a “complete absence of meaningful adversarial testing only where the
evidence ‘overwhelmingly established that [the] attorney abandoned the required
duty of loyalty to his client,’ and where counsel ‘acted with reckless disregard for
his client’s best interests and, at times, apparently with the intention to weaken
his client’s case.’” Turrentine, 390 F.3d at 1208 (quoting Osborn v. Shillinger,
861 F.2d 612, 624 (10th Cir. 1988)). In this case, where counsel sought to
withdraw and attempted to fulfill his ethical obligation in the meantime by
preserving but not arguing his client’s position, the language of “reckless
disregard for his client’s interest” is inapt. We have no criticism of Mr.
L’Esperance for his professional performance in this case. Even without a breach
of loyalty, however, where there has been a “complete absence of adversarial
testing,” a Sixth Amendment violation is established under Cronic without the
showing of prejudice that is otherwise required under Strickland. See Cronic, 466
U.S. at 654; Strickland, 466 U.S. at 692.
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At his competency hearing, Mr. L’Esperance sought to withdraw from
representation and apparently took the position that the lawyer-client relationship
had already effectively broken down. Because the district court chose to address
the withdrawal motion after the competency hearing, however, Mr. L’Esperance
was still serving as Mr. Collins’s counsel, at least formally. As the Supreme
Court explained in Cronic, however, formal representation alone is not enough to
satisfy the Sixth Amendment. Cronic, 466 U.S. at 654-55. The question is
whether the government’s case for competency was subject to meaningful
adversarial testing. If Mr. L’Esperance failed to test the prosecution’s case, then
Mr. Collins was constructively denied counsel under Cronic. Review of the
record provides no doubt that Mr. Collins was constructively denied counsel at his
competency hearing.
Before the competency hearing, Mr. L’Esperance filed a motion to
withdraw explaining that he could not adequately communicate with Mr. Collins
and that this lack of communication impaired his ability to investigate the case.
Although this may establish a breakdown in the attorney-client relationship, the
relatively common factual underpinning of Mr. L’Esperance’s motion to withdraw
does not alone establish a deprivation of counsel. Rather, it is Mr. L’Esperance’s
statements at the hearing, coupled with the district court’s decision to enter an
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order finding Mr. Collins competent, that constituted a constructive denial of
counsel.
At the competency hearing, Mr. L’Esperance stated that he would “not
comment” when the district court inquired whether there were any outstanding
issues relating to Mr. Collins’s competency in light of the competency evaluation
submitted by Dr. Womack. Mr. L’Esperance informed the district court that there
was additional information, such as military records and site reports, that were
previously unavailable to Dr. Womack, but stated that he would “not comment”
on them because of his pending motion to withdraw. Mr. L’Esperance did not
introduce the newly discovered military records and site reports into evidence.
Even the prosecution conceded that the new information “may be relevant to the
new counsel” and that the issue of competency should be the “first item of
business to be taken up by any new counsel.” Notwithstanding the prosecution’s
recommendation, the district court entered an order finding Mr. Collins
competent, without having opportunity to review the new records cited by both
Mr. L’Esperance and the prosecution as relevant.
At no point during the competency hearing did Mr. L’Esperance subject the
prosecution’s competency case to “meaningful adversarial testing.” Instead, Mr.
L’Esperance did just the opposite—he remained silent because of his pending
motion to withdraw. After recognizing and informing the court of a breakdown in
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the attorney client relationship, Mr. L’Esperance did not attempt to represent Mr.
Collins, but rather abstained from providing the court with information relevant to
the issue of competency.
Several courts have held that a defendant is denied his Sixth Amendment
right to counsel where his attorney fails to test the prosecution’s case because
counsel slept through portions of the trial. See, e.g., Burdine v. Johnson, 262
F.3d 336, 349 (5th Cir. 2001) (en banc); Tippins v. Walker, 77 F.3d 682, 687 (2d
Cir. 1996); Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984). In those
cases, prejudice is presumed because sleeping counsel could not confer with the
client, object to testimony, or perform adequate cross-examinations. Tippins, 77
F.3d at 686. Although Mr. L’Esperance was conscious and awake during Mr.
Collins’s competency hearing, his conduct is akin to the conduct of counsel who
sleeps through portions of trial. Mr. L’Esperance declined to present mitigating
evidence, which he acknowledged was relevant to his client’s competency,
because of his pending motion to withdraw. Unable to communicate with his
client and awaiting a decision on his motion to withdraw, Mr. L’Esperance was
not in a position to serve as Mr. Collins’s counsel. As a result, Mr. L’Esperance
did not engage his legal skills in advocating Mr. Collins’s position at his
competency hearing.
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Mr. L’Esperance’s failure to serve as Mr. Collins’s advocate is manifested
in his repeated declarations that he would “not comment” on his client’s
competency and in his refusal to present military records and other information
that, by both his own and the prosecution’s admissions, were relevant to Mr.
Collins’s competency. Because Mr. L’Esperance stood silent, citing his motion to
withdraw, and did not subject the prosecution’s case to adversarial testing, we
hold that Mr. Collins was constructively denied counsel when the district court
entered an order finding Mr. Collins competent without allowing new counsel to
revisit the competency issue. Accordingly, Mr. Collins has established a Sixth
Amendment violation under Cronic, and he need not demonstrate prejudice from
Mr. L’Esperance’s conduct.
B. Remedy
Because we find that Mr. Collins was constructively denied counsel at his
competency hearing, we must determine the proper remedy for this constitutional
violation. Mr. Collins contends that he is entitled to automatic reversal because
violation of his Sixth Amendment rights constituted structural error. A Sixth
Amendment violation requires automatic reversal only when the constitutional
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violation pervades the entire criminal proceeding. Satterwhite v. Texas, 486 U.S.
249, 257-58 (1988). In those circumstances, the constitutional violation affects
the “framework within which the trial proceeds, rather than simply [causing] an
error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310
(1991). Here, deprivation of the right to counsel at Mr. Collins’s competency
hearing affected the framework within which the trial proceeded only if it resulted
in Mr. Collins standing trial while incompetent.
Thus, the pertinent question is whether the deprivation of Mr. Collins’s
Sixth Amendment right to counsel resulted in the district court erroneously
finding him competent to stand trial. That question is not easily answered.
Competency hearings address a defendant’s psychological state of mind at a
specific point in time. A defendant may be competent to stand trial today, even
though incompetent to assist in his defense six months ago. For that reason, the
Supreme Court has disfavored retrospective competency hearings, see Drope v.
Missouri, 420 U.S. 162, 183 (1975), and this Circuit has permitted them only in
limited circumstances, see McGregor v. Gibson, 248 F.3d 946, 962-63 (10th Cir.
2001) (en banc). Four factors are considered in assessing whether a meaningful
retrospective competency determination can be made consistent with a
defendant’s due process rights:
(1) [T]he passage of time, (2) the availability of contemporaneous
medical evidence, including medical records and prior competency
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determinations, (3) any statements by the defendant in the trial
record, and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position to interact with
defendant before and during trial.
Id.
Here, as in McGregor, the factors weigh against conducting a retrospective
competency hearing. See id. at 963 (four factor test not satisfied where eleven
years passed since the date of the competency hearing, only one psychiatrist
testified for the state at the defendant’s initial competency hearing, and defense
counsel raised significant questions as to the defendant’s competency). A modest
amount of time, three years, has passed since Mr. Collins’s competency
evaluation and hearing. Mr. Collins made few remarks during his proceedings,
but at his sentencing hearing he expressed his strong belief that his lawyers were
conspiring with the government to prosecute him and that the “government’s been
after [him] for years.” Mr. Collins’s substitute defense counsel, Mr. Prichard,
questioned Mr. Collins’s competency immediately before trial, stating that he was
“concerned as to [Mr. Collins’s] competence today, and specifically, his ability to
meaningfully assist [Mr. Prichard] during his trial,” and explaining that he did
“not sense a great deal of logic in terms of [his] client’s comprehension of the
issues and the consequences of this case.” Finally, and most importantly, there is
insufficient contemporaneous medical evidence to permit a retrospective
competency determination. There was no medical testimony presented at Mr.
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Collins’s competency hearing, and Mr. Collins did not have the opportunity to
cross-examine Dr. Womack, the only evaluating psychologist, as to his finding of
competency. This lack of contemporaneous medical evidence regarding Mr.
Collins’s competency at his competency hearing three years ago, coupled with Mr.
Prichard’s serious and detailed questions regarding Mr. Collins’s competency
immediately before trial and the paucity of record evidence on the subject, lead us
to conclude that a new hearing on the limited issue of competency will not ensure
that Mr. Collins was indeed competent to stand trial in 2003.
Another possible remedy would be to order a limited remand of the case to
determine whether counsel could have made certain decisions or arguments that
might have changed the result of the competency hearing. This was the approach
taken by the D.C. Circuit in United States v. Klat, 156 F.3d 1258, 1264 (D.C. Cir.
1998). In Klat, a defendant appeared without counsel at her competency hearing
because the district court permitted counsel to withdraw at her arraignment and
did not appoint new counsel after the defendant had filed a request to proceed pro
se. Id. at 1261-62. The court found that the defendant could not knowingly and
voluntarily waive her right to counsel until the issue of competency was resolved.
Id. 1262-63. Accordingly, the defendant in Klat was entitled to counsel at her
competency hearing and the district court’s failure to appoint counsel for that
hearing constituted a Sixth Amendment violation. Id. Rather than reversing the
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defendant’s conviction, however, the D.C. Circuit remanded the case to the
district court for a determination of whether counsel could have made tactical
decisions or arguments that might have changed the outcome of the competency
hearing. Id. at 1264. The D.C. Circuit held that if “the district court determines
that the competency hearing could have come out differently absent the Sixth
Amendment violation, reversal is required because the violation . . . would serve
to contaminate the entire criminal proceeding.” Id.
We need not decide whether the remedy proposed in Klat is the appropriate
remedy for this type of constitutional violation because the record available in
this case enables us to answer the question the D.C. Circuit remanded to the
district court. Mr. L’Esperance’s statement to the district court at the competency
hearing, while limited, did mention military records and site reports that related to
the issue of competency. Even the prosecution admitted that the undisclosed
information “may be relevant” to the competency issue. Thus, the transcript from
the original competency hearing reveals an investigation, tactical decisions, and
possible arguments that could have been made by counsel on behalf of Mr.
Collins. Where, as here, the record reveals arguments that could have been made
by counsel at the competency hearing, reversal is appropriate.
Because evidence could have been introduced and arguments made that
likely could have affected the outcome of Mr. Collins’s competency hearings, it is
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impossible to say that the violation of his Sixth Amendment rights did not
pervade his entire trial. Accordingly, we must reverse Mr. Collins’s conviction
and order a new trial. If a question as to Mr. Collins’s competency again arises,
the district court should order a psychological evaluation of Mr. Collins’s current
mental state and conduct a new competency hearing, at which Mr. Collins is
represented by counsel. 1
CONCLUSION
For the reasons set forth above, we VACATE Mr. Collins’s conviction and
REMAND for a new trial consistent with this opinion.
1
Mr. Collins also challenges his sentence under United States v. Booker,
125 S. Ct. 738 (2005). Because we reverse his conviction and order a new trial,
we need not address this issue here.
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