PEOPLE
v.
WHYTE
Docket Nos. 95679, 95680.
Michigan Court of Appeals.
Decided January 4, 1988.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.
Henry J. Sefcovic, for defendant.
Before: M.J. KELLY, P.J., and CYNAR and DOCTOROFF, JJ.
M.J. KELLY, P.J.
Defendant appeals his convictions. We remand for a competency examination.
On November 25, 1985, defendant pled guilty to a charge of carrying a concealed weapon, MCL 750.227; MSA 28.424. This charge arose from an incident that took place on October 23, 1985, when defendant was found in possession of a knife concealed on his person. Defendant's plea was the result of an agreement with the prosecutor whereby defendant agreed to plead guilty to the CCW charge in exchange for the prosecutor's dropping an assault and battery charge that arose from the same incident.
Because defendant was on probation at the time of his arrest, he also faced a violation of probation charge. On November 27, 1985, his guilty plea on this charge was accepted.
On the CCW conviction, defendant was sentenced *411 to forty to sixty months in prison. On the probation violation charge, defendant was sentenced to twenty-four to forty-eight months in prison.
Defendant raises several issues in this appeal. We find one issue to be dispositive and will therefore address it first. Defendant claims that since there was a showing that he may have been incompetent, the trial court was obliged sua sponte to order that a psychiatric examination of defendant take place prior to accepting his plea. As authority for this position, defendant cites MCL 330.2026; MSA 14.800(1026), which provides in part:
Upon a showing that the defendant may be incompetent to stand trial, the court shall order the defendant to undergo an examination by personnel of either the center for forensic psychiatry or other facility officially certified by the department of mental health to perform examinations relating to the issue of incompetence to stand trial.
A defendant must be competent in order to plead guilty. People v Kline, 113 Mich App 733, 738; 318 NW2d 510 (1982). In Kline both trial counsel and the trial court had substantial evidence of defendant's questionable mental capacity prior to the plea hearing. Consequently, the Kline Court held that a remand was in order and the trial court was directed to commit the defendant to the Center for Forensic Psychiatry for an evaluation of competency.
Here, although trial counsel may have been aware of defendant's questionable competency to offer a knowing and voluntary plea, there is no record in the lower court file of a showing that the defendant may have been incompetent prior to the plea hearing. The first showing that defendant may have been incompetent, that is part of the *412 record and was seen by the two sentencing courts, was in the presentence investigation reports.
In People v Nelson Johnson, 58 Mich App 473; 228 NW2d 429 (1975), lv den 394 Mich 784 (1975), where defendant pled guilty, the issue of competency to plead was also raised. Similar to the issue raised here, Johnson claimed that the trial court committed error requiring reversal by failing to order sua sponte a competency hearing. Interpreting MCL 767.27a; MSA 28.966(11) (since repealed but substantially identical to that part of MCL 330.2026; MSA 14.800[1026] quoted above), the Johnson Court held:
Where facts are brought to the trial court's attention which raise a "bona fide doubt" as to a defendant's capacity to stand trial, it is the trial court's duty to raise the issue of competency. Pate, Warden v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966); People v Russell, 20 Mich App 47; 173 NW2d 816 (1969). Whether a "bona fide doubt" exists, however, is a decision within the discretion of the trial court which will only be reversed for an abuse of discretion. People v Groeneveld, 54 Mich App 424; 221 NW2d 254 (1974). [Johnson, supra at 475.]
In Johnson there was no showing made, prior to acceptance of defendant's plea, of defendant's incompetency. On appeal one issue raised was that the presentence report contained references to defendant's mental state, in that the psychological examination report contained in the presentence report diagnosed possible schizophrenia. The Johnson Court found that in view of the entire report there was no abuse of discretion in the trial court's failure to raise sua sponte the issue of incompetence.
Here, the presentence report related that, two *413 days after the incident which led to the CCW conviction, defendant Whyte was admitted as an in-patient at the White Pine Psychiatric Center. The report to the court in the CCW case stated, under the heading "Physical and Mental Health": defendant has a history of mental instability; defendant was diagnosed as having schizophrenic disorder, being paranoid (chronic with acute exacerbation, intermitent explosive disorder); defendant showed signs of depression, delusion, and hallucination; defendant was found to be mentally disabled under the Social Security Income program in October, 1984; and defendant had been involved in the Bay Arenac Community Mental Health Center since 1976. The recommendation of the agent who authored both presentence reports was in part that (1) defendant be placed in a long-term residential mental health program, (2) defendant continue in day care treatment at Adult Mental Health, and (3) defendant participate in individual mental health therapy.
With the disclosure of these reports to the trial courts in these cases there was a showing that defendant may have been incompetent to plead guilty to the charges against him.
[C]ases concerning competence to stand trial have stressed that the issue of incompetence can only be raised by evidence of incompetence. People v Blocker, 393 Mich 501, 508-510; 227 NW2d 767 (1975), People v Lucas, 393 Mich 522, 527-529; 227 NW2d 763 (1975). These cases indicate that competence is an ongoing matter and is appropriately presented whenever evidence of incompetence appears, whether "before, during or after the trial". People v Blocker, supra at 510. Where such evidence is presented, and no hearing has been held, appellate courts may order a new trial. Id. [People v Matheson, 70 Mich App 172, 180; 245 NW2d 551 (1976).]
*414 In Matheson, the Court concluded that a trial court must recognize its obligation to render a separate finding of competence where a plea is offered and the record provides "significant evidence of possible incompetence." Id. at 179. Here, with the inclusion of the presentence reports as part of the record, there is significant evidence of possible incompetency. Despite the fact that these reports were not part of the record until after the guilty pleas were accepted, it does not diminish the necessity to determine the issue of competency, because competency is an ongoing matter appropriately raised, "whenever evidence of incompetence appears." Id. at 180. Therefore, we remand to the trial courts for a determination of defendant's competency, and the trial courts are to make appropriate dispositions based on such determination.
Defendant also argues that his sentence of forty to sixty months on the CCW charge should shock the conscience of this Court. We disagree. The Sentencing Information Report recommended a minimum sentence of from zero to twelve months. The trial court articulated reasons for departure, including protection of society, deterring others, and the fact that the guidelines did not provide an appropriate sentence in this case.
Looking at the sentence alone, and the reasons articulated for departure from the guidelines, our conscience is not shocked and we find no abuse of discretion. See People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).
Appellate counsel also argues that because he is unable to communicate with his client, due to his client's incompetency, a guardian ad litem should be appointed for defendant. We decline to engraft such a device on a criminal proceeding.
Defendant's appellate counsel also obtusely *415 raises a claim of ineffective assistance of counsel. This claim is raised for the first time on appeal, there is no evidentiary record below or Ginther[1] hearing to support this claim and we therefore decline to address it.
Remanded.
NOTES
[1] People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).