2015 WI 44
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2692-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Roddee W. Daniel,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 354 Wis. 2d 51, 847 N.W.2d 855
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 46
OPINION FILED: April 29, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Wilbur W. Warren III
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: PROSSER, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Anthony J. Jurek, Middleton, and oral argument by Anthony J.
Jurek.
For the plaintiff-respondent, the cause was argued by
Tiffany M. Winter, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Kelli S. Thompson,
state public defender, and Joseph N. Ehmann, first assistant
state public defender, on behalf of the Wisconsin State Public
Defender. Oral argument by Joseph N. Ehmann.
2015 WI 44
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2692-CR
(L.C. No. 2008CF1035)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
APR 29, 2015
Roddee W. Daniel,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed and
cause remanded.
¶1 ANN WALSH BRADLEY, J. Petitioner, Roddee W. Daniel,
seeks review of a published decision of the court of appeals
that reversed an order of the circuit court.1 In a post-
conviction hearing, the circuit court concluded that Daniel's
defense counsel failed to show by clear and convincing evidence
1
State v. Daniel, 2014 WI App 46, 354 Wis. 2d 51, 847
N.W.2d 855 (reversing order of circuit court of Kenosha County,
Wilbur W. Warren III, Judge).
No. 2012AP2692-CR
that Daniel was incompetent. The court of appeals determined
that the circuit court erred because it failed to apply the
lower "preponderance of the evidence" burden of proof.
Accordingly, it remanded for a new competency hearing.
¶2 Although neither party challenges the court of
appeals' determination that the burden of proof here is a
preponderance of the evidence, Daniel contends that the court of
appeals' decision was erroneous because, upon remand, it permits
the circuit court to place the burden to prove incompetency on
defense counsel. He asserts that despite the fact that Daniel
and his defense counsel disagree about competency, once defense
counsel has raised the issue of competency, the burden of proof
should be on the State.
¶3 Considering the statute governing competency hearings,
the potential conflict of interest in placing the burden of
proof on defense counsel, and the relative interests and risks
at stake, we determine that once a defense attorney raises the
issue of competency at a postconviction hearing, the burden is
on the State to prove by a preponderance of the evidence that
the defendant is competent to proceed. Accordingly, we affirm
the court of appeals and remand to the circuit court to apply
the correct standard if Daniel's competency is challenged upon
remand.
I
¶4 Daniel has a long history of mental illness. He began
treatment for mental illness in 2004 at Rogers Memorial
Hospital-Milwaukee. Multiple medications have been prescribed.
2
No. 2012AP2692-CR
¶5 Daniel's treatment at Rogers Memorial ended in
September 2008 around the time that he was arrested and charged
with first-degree intentional homicide as party to a crime and
armed burglary as party to a crime. According to the complaint,
15-year old Daniel and a friend broke into a neighbor's home.
Daniel told police that as they looked around for items to take,
they noticed a woman asleep in her bed. The woman woke up and
started to run away. Daniel stated that his friend ran after
her and hit her multiple times with a baseball bat.2 Then, he
and his friend grabbed various items and left. The woman's
boyfriend discovered her body the next morning. Daniel was
arrested and held at Kenosha County Detention Center (KCDC)
pending trial.
¶6 The court granted defense counsel's request that
Daniel undergo an evaluation to determine his competency to
stand trial. Dr. Collins conducted the evaluation which
included an interview with Daniel. Her report indicates that
she had trouble engaging Daniel in a goal-directed, rational
exchange. However, he did acknowledge that he had been
institutionalized at Rogers Memorial because he "was hearing
voices" and that he had previously received mental health
treatment in connection with panic attacks.
¶7 Dr. Collins' evaluation also included a review of
Daniel's medical records from KCDC. Her report indicates that
2
Daniel's friend claimed that it was Daniel who hit the
woman.
3
No. 2012AP2692-CR
she believed there were discrepancies between some of the mental
health complaints Daniel made while at KCDC and staff
observations of his behavior. Dr. Collins further observed that
while at KCDC a diagnosis of "probable malingering" had been
offered. She deermined that there was not enough evidence to
support a conclusion that Daniel lacked substantial mental
capacity to factually and rationally understand the pending
proceeding and aid in his defense. Based on Dr. Collins'
report, the circuit court declared Daniel competent to stand
trial.
¶8 After a jury trial, Daniel was convicted of the crimes
charged. He was sentenced to life in prison without extended
supervision. During his subsequent incarceration, the
Department of Corrections determined that Daniel suffered from a
psychotic disorder and transferred him to the Wisconsin Resource
Center for treatment. Daniel's treating psychiatrist at the
Resource Center, Dr. Alba, challenged his decisional competency
and requested that Daniel be civilly committed pursuant to
Chapter 51.
¶9 Following a hearing on the matter, the court ordered
Daniel's civil commitment. It determined that medication or
treatment would have therapeutic value. It further determined
that due to mental illness, Daniel was not competent to refuse
psychotropic medication or treatment. Accordingly, the court
ordered that medication and treatment could be administered
without Daniel's consent during the period of commitment. Dr.
Alba later requested an extension of Daniel's civil commitment,
4
No. 2012AP2692-CR
which was granted. The court also extended Daniel's deadline
for filing a postconviction motion.
¶10 While Daniel was still under civil commitment, defense
counsel notified the court, pursuant to State v. Debra A.E., 188
Wis. 2d 111, 523 N.W.2d 727 (1994), that he had good faith
reason to doubt Daniel's competency to pursue postconviction
relief. He explained that he had spoken with Daniel multiple
times and that during those conversations Daniel equivocated in
regard to pursuing postconviction relief, oscillating between a
desire to pursue relief and a desire not to pursue relief.
Despite a variety of approaches, defense counsel was unable to
get Daniel to express any reasoning behind his decisions to
pursue or not pursue postconviction relief.
¶11 Defense counsel further explained to the court that
since Daniel's conviction, Daniel had been diagnosed as
schizophrenic, and had been civilly committed pursuant to
Chapter 51. He informed the court that his privately obtained
psychologist, Dr. Cumming, had evaluated Daniel and determined
that Daniel was not competent to seek postconviction relief.
Accordingly, defense counsel moved the court for a finding that
there was reason to believe that Daniel was incompetent and
asked the court to rule regarding Daniel's competency to seek
postconviction relief.
¶12 Attached to defense counsel's submission was a letter
from Dr. Cummings. His letter indicates that he met with Daniel
after reviewing Daniel's records. During their first meeting,
it was clear that Daniel lacked the capacity to understand the
5
No. 2012AP2692-CR
purpose of the visit or that Dr. Cummings' findings would be
used to aid Daniel's defense. During the second meeting, Daniel
told Dr. Cummings that he "didn't even know what an appeal was."
Based on Daniel's records and these interviews, Dr. Cummings
concluded to a reasonable degree of professional certainty that
Daniel was not competent to understand the appeal process or
make decisions about legal matters.
¶13 The court appointed a psychologist, Dr. Rawski, to
evaluate Daniel, but Daniel refused to meet with him.
Therefore, Dr. Rawski was unable to offer an opinion to a
reasonable degree of professional certainty as to Daniel's then
current state of competency to participate in legal proceedings.
He recommended that Daniel be transferred to a state psychiatric
institute for an inpatient assessment.
¶14 Following Dr. Rawski's recommendation, the court
ordered the State to transfer Daniel to a state psychiatric
institute for evaluation of his competency. There, he was
examined by Dr. Phelps, a forensic psychiatry fellow. Dr.
Phelps determined that Daniel's behaviors were not the product
of mental illness, but rather the result of a characterological
disorder. Although he acknowledged the possibility that Daniel
had a major mental illness, Dr. Phelps observed that Daniel had
denied symptoms of mental illness and, with one exception, had
not exhibited signs or symptoms of mental illness.
¶15 Dr. Phelps further acknowledged the possibility that
the medications Daniel took were effectively treating a mental
illness. However, observing that Daniel had previously
6
No. 2012AP2692-CR
demonstrated the capacity to stand trial and that he did not
demonstrate symptoms of a condition that would preclude his
capacity, Dr. Phelps concluded that Daniel had substantial
mental capacity to understand the proceedings and assist in his
own defense.
¶16 After the evaluations were complete, the court held a
competency hearing. At the start of the hearing, the circuit
court asked Daniel if he believed he was competent to proceed.
Daniel replied "Yeah." The court then asked Daniel if he
believed he understood what was involved in making a decision
about whether to appeal. Daniel again responded "Yeah."
Thereafter, defense counsel asked Daniel if he could explain
what it means to appeal a conviction. Daniel responded "No."
Counsel then asked Daniel "what happens if you don't appeal?"
Daniel replied "I can get charged with a crime."
¶17 Based on Daniel's statement that he was competent, the
court made an initial determination of competency. It placed
the burden on defense counsel to show that Daniel was
incompetent. To meet his burden, defense counsel presented the
testimony of Dr. Alba, Dr. Phelps, Dr. Collins, Daniel's social
worker at the Wisconsin Resource Center, and Dr. Cummings. He
also presented the reports from Dr. Alba, Dr. Phelps, and Dr.
7
No. 2012AP2692-CR
Cummings, Daniel's medical records from Rogers Memorial, and
Daniel's discharge summary from Rogers Memorial.3
¶18 The circuit court opined that based on Wis. Stat.
§ 971.14(4)(b) (2011-12)4, if the defendant claims to be
competent, the defendant shall be found competent unless the
State proves by clear and convincing evidence that the defendant
is not competent. The court observed that in this case, the
State agreed with Daniel that he was competent and so it was not
in the position to disprove his assertion of competency.
However, the court determined that the clear and convincing
standard still should be applied: "the standard should be the
same for establishing incompetence, notwithstanding the party is
other than the State who is asserting it, and that's the basis
which this decision will be framed." It then concluded that
defense counsel had failed to show by clear and convincing
evidence that Daniel was incompetent.
¶19 On appeal, the court of appeals observed that the
circuit court could allocate the burden of persuasion to the
defendant or defense counsel in a postconviction competency
proceeding. State v. Daniel, 2014 WI App 46, ¶2, 354 Wis. 2d
3
The court gave the parties time after the hearing to
submit written closing arguments. During that time, Daniel
submitted a hand-written note, stating that he wanted to plead
guilty. It states: "this is Roddee DanieL i want to plead
Guilty for the murder of [C.W.] I want to plead Guilty. Im
admitting that I killed [C.W.]."
4
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
8
No. 2012AP2692-CR
51, 847 N.W.2d 855. However, the court of appeals determined
that a circuit court must utilize the lower "preponderance of
the evidence" burden of proof when doing so. Id. Because the
circuit court had applied an incorrect burden of proof, the
court of appeals reversed and remanded. Id. It further
declared that if Daniel's competency is questioned upon remand,
the circuit court shall address the issue de novo. Id.
II
¶20 At issue in this case is who bears the burden of proof
at a postconviction competency hearing when defense counsel and
the defendant disagree on competency.5 In this case of first
impression in our state, we examine statutory authority and
prior case law. Ultimately, this issue presents a question of
law which this court reviews independently of the decisions
rendered by the circuit court and the court of appeals. Acuity
Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶31, 298 Wis. 2d 640, 726
N.W.2d 258.
III
¶21 To provide context for our discussion, we begin with a
brief overview of competency. For purposes of criminal trials,
competency refers to the defendant's "present mental capacity to
5
The petition for review presented this as two issues: who
bears the burden of proof and what is the correct procedure to
follow when a defendant and defense counsel disagree about a
defendant's competency. However, in the parties' arguments the
second issue was subsumed into the first. Accordingly, we
address them as one issue.
9
No. 2012AP2692-CR
understand the proceedings and assist in his or her defense."
Wis. Stat. § 971.14(3)(c); see also Dusky v. United States, 362
U.S. 402, 402 (1960) ("the test [for competency] must be whether
he has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding -- and
whether he has a rational as well as factual understanding of
the proceedings against him."); State v. Byrge, 2000 WI 101,
¶27, 237 Wis. 2d 197, 614 N.W.2d 477 ("a defendant is
incompetent if he or she lacks the capacity to understand the
nature and object of the proceedings, to consult with counsel,
and to assist in the preparation of his or her defense.").
¶22 Courts have long followed the rule that incompetent
defendants should not be forced to face criminal proceedings
during their incompetency. State ex rel. Matalik v. Schubert,
57 Wis. 2d 315, 321, 204 N.W.2d 13 (1973). Wisconsin codified
this rule in 1878, and it currently appears in our statutes at
Wis. Stat. § 971.13.6
6
Wisconsin Stat. § 4700 (1878) stated:
When any person is indicted or informed against for
any offense, if the court shall be informed, in any
manner, that there is a probability that such accused
person is, at the time of his trial, insane, and
thereby incapacitated to act for himself, the court
shall, in a summary manner, make inquisition thereof,
by a jury or otherwise, as it deems most proper; and
if it shall be thereby determined, that such accused
person is insane, his trial for such offense shall be
postponed indefinitely . . . .
The current Wis. Stat. § 971.13(1) provides: "No person who
lacks substantial mental capacity to understand the proceedings
(continued)
10
No. 2012AP2692-CR
¶23 As Justice Kennedy has succinctly explained,
competence to stand trial is integral to a number of other
constitutional rights:
Competence to stand trial is rudimentary, for upon it
depends the main part of those rights deemed essential
to a fair trial, including the right to effective
assistance of counsel, the rights to summon, to
confront, and to cross-examine witnesses, and the
right to testify on one's own behalf or to remain
silent without penalty for doing so.
Riggins v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J.,
concurring). Thus, the Supreme Court has stated that the
prohibition on the prosecution of incompetent individuals is
"fundamental to an adversary system of justice," Drope v.
Missouri, 420 U.S. 162, 172 (1975), and the conviction of an
accused person while he is legally incompetent violates due
process, Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). See also
State v. Garfoot, 207 Wis. 2d 214, 221, 558 N.W.2d 626 (1997)
(observing that the prohibition is an issue of "fundamental
fairness").
¶24 Consistent with those statements, the Supreme Court
has further determined that "the failure to observe procedures
adequate to protect a defendant's right not to be tried or
convicted while incompetent to stand trial deprives him of his
due process right to a fair trial." Drope, 420 U.S. at 172; see
also State v. Wanta, 224 Wis. 2d 679, 692, 592 N.W.2d 645 (Ct.
or assist in his or her own defense may be tried, convicted or
sentenced for the commission of an offense so long as the
incapacity endures."
11
No. 2012AP2692-CR
App. 1999) ("competence to stand trial in a criminal proceeding
[is] a fundamental right requiring due process protections").
¶25 Wisconsin's codified procedures to protect a defendant
from being tried while incompetent can be traced back to 1878.
Wis. Stat. § 4700 (1878). The current procdures are found in
Wis. Stat. § 971.14. Under the statute, if there is reason to
doubt a defendant's competency, the court "shall appoint one or
more examiners having the specialized knowledge determined by
the court to be appropriate to examine and report upon the
condition of the defendant." Wis. Stat. § 971.14(2)(a). Copies
of the report are delivered to the State, the defendant, and
defense counsel. Wis. Stat. § 971.14(4)(a). If each waives the
opportunity to present evidence on the issue, "the court shall
promptly determine the defendant's competency." Wis. Stat.
§ 971.14(4)(b).
¶26 The statute directs that in the absence of waivers,
the court shall hold an evidentiary hearing on the defendant's
competency. Wis. Stat. § 971.14(4)(b). It describes the
hearing as follows:
At the commencement of the hearing, the judge shall
ask the defendant whether he or she claims to be
competent or incompetent. If the defendant stands mute
or claims to be incompetent, the defendant shall be
found incompetent unless the state proves by the
greater weight of the credible evidence that the
defendant is competent. If the defendant claims to be
competent, the defendant shall be found competent
unless the state proves by evidence that is clear and
convincing that the defendant is incompetent. If the
defendant is found incompetent and if the state proves
by evidence that is clear and convincing that the
defendant is not competent to refuse medication or
12
No. 2012AP2692-CR
treatment, under the standard specified in sub. (3)
(dm), the court shall make a determination without a
jury and issue an order that the defendant is not
competent to refuse medication or treatment for the
defendant's mental condition and that whoever
administers the medication or treatment to the
defendant shall observe appropriate medical standards.
Wis. Stat. § 971.14(4)(b).
¶27 To protect the right to these competency proceedings,
in State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986), the
Wisconsin Supreme Court placed a duty on defense counsel to
raise the issue of defendant's competency whenever there is
reason to doubt it. In that case, despite strong indications of
defendant's incompetency, defense counsel had made a "strategic
decision" to not raise the issue prior to or during defendant's
criminal trial. Id. at 214. The question before the court was
whether counsel's failure to do so constituted representation
which fell below an objective standard of reasonableness. Id.
at 218.
¶28 In its analysis, the Johnson court explained that the
procedure for determining competency laid out in Wis. Stat.
§ 971.14 is "a critically important fail-safe device for the
benefit of accused persons who may not be able to fully
cooperate and assist in their defense." Id. at 218-19 (quoting
Matalik, 57 Wis. 2d at 322). It further observed that the
protection is illusory if, when there is a reason to doubt
defendant's competency, neither the court nor counsel seek the
procedures provided by the State for determining competency.
Id. at 219. The court held that "where defense counsel has a
reason to doubt the competency of his client to stand trial, he
13
No. 2012AP2692-CR
must raise the issue with the trial court" and "[t]he failure to
raise the issue of competency makes the counsel's representation
'fall below an objective standard of reasonableness.'" Id. at
220.7
¶29 The Wisconsin Supreme Court subsequently recognized
that the right to a competency determination extends to
postconviction proceedings. In Debra A.E., 188 Wis. 2d 111,
defense counsel was unable to determine whether the defendant
was willing to accept the risks of pursuing postconviction
relief because the defendant would not speak to him.
Accordingly, he requested a competency proceeding, which the
circuit court denied. Id. at 121-22.
¶30 On review, the Wisconsin Supreme Court observed that
the decisions to pursue postconviction relief and what
objectives to pursue must be made by the defendant, not defense
counsel. Id. at 125. Because those tasks were required of the
defendant, the court determined that a defendant "is incompetent
to pursue postconviction relief under sec. 809.30, Stats. 1991-
7
In 1984 the ABA adopted a standard substantially similar
to that announced in State v. Johnson, 133 Wis. 2d 207, 395
N.W.2d 176 (1986). ABA Criminal Justice Mental Health Standard
7-4.2(c) provides that:
Defense counsel should move for evaluation of the
defendant's competence to stand trial whenever the
defense counsel has a good faith doubt as to
defendant's competence. If the client objects to such
a motion being made, counsel may move for an
evaluation over the client's objection.
This standard remains in effect today.
14
No. 2012AP2692-CR
92, when he or she is unable to assist counsel or to make
decisions committed by law to the defendant with a reasonable
degree of rational understanding." Id. at 126.
¶31 The Debra A.E. court then proceeded to prescribe the
process for postconviction competency proceedings. Id. at 131.
It stated that if the State or defense counsel has a good faith
reason to doubt a defendant's competency, counsel should advise
the court and move for a ruling on competency. Id. The circuit
court may also raise the issue of reason to doubt a defendant's
competency sua sponte. Id. If there is reason to doubt a
defendant's competency, the circuit court may hold a hearing.
Id. at 132. "In conducting any hearing the circuit court should
be guided by sec. 971.14(4), Stats. 1991-92, to the extent
feasible." Id.
¶32 Having set forth the background on competency
proceedings, we turn now to the issue of who bears the burden of
proof at a postconviction competency hearing when the defendant
and defense counsel disagree about competency. We acknowledge
that, as a general matter, the burden of proof is frequently
assigned to the moving party. See, e.g., State v. West, 2011 WI
83, ¶65, 336 Wis. 2d 578, 800 N.W.2d 929; Larry v. Harris, 2008
15
No. 2012AP2692-CR
WI 81, ¶50, 311 Wis. 2d 326, 752 N.W.2d 279.8 However, we are
not convinced that the general rule applies to this case. Here,
defense counsel, as an officer of the court, was obligated to
alert the court of his doubt about competency under Johnson, 133
Wis. 2d 207. Thus, we decline to view the fulfillment of this
duty in the same manner as a typical motion.
¶33 As the parties concede, there is currently no statute
directly governing postconviction competency proceedings.9
8
There are several situations in which this rule does not
apply. See, e.g., State v. Subdiaz-Osorio, 2014 WI 87, ¶73, 357
Wis. 2d 41, 849 N.W.2d 748 (after defendant raised the issue,
the burden was on State to show that exigent circumstances
justified a warrantless search); State v. Jerrell C.J., 2005 WI
105, ¶17, 283 Wis. 2d 145, 699 N.W.2d 110 (upon defendant's
suppression motion, the burden was on the State to prove
confession was voluntary); State v. Jiles, 2003 WI 66, ¶23, 262
Wis. 2d 457, 663 N.W.2d 798 (where the defendant moved to
suppress various admissions, the burden was on the State to show
that the defendant received and understood his Miranda
warnings). Indeed, under Wis. Stat. § 971.14(4)(b) when the
defense counsel raises the issue of competency at defendant's
request, the burden is explicitly on the State to prove
competency.
9
We have previously determined that Wis. Stat. § 971.14, by
its terms, "govern[s] competency determinations only through the
sentencing stage of a criminal trial." State v. Debra A.E., 188
Wis. 2d 111, 128 n.14, 523 N.W.2d 727 (1994). As Debra A.E.
explained, "[t]his conclusion follows from reading sec. 971.14
in its entirety and with sec. 971.13, as well as from the
legislative history underlying these two sections." Id.
The legislative history reveals that the drafters of the
proposed legislation were mindful that Wis. Stat. § 971.14 left
unaddressed incompetency in postconviction proceedings:
[T]he Committee had not devoted sufficient attention
to how to handle the case of a defendant who is
incompetent to assist counsel in post-conviction
(continued)
16
No. 2012AP2692-CR
Following Debra A.E., we look to Wis. Stat. § 971.14(4) for
guidance.
¶34 Wisconsin Stat. § 971.14(4)(b) defines the burden in
terms of the defendant's position. If the defendant asserts
competency, the State must prove incompetency by clear and
convincing evidence and if the defendant asserts incompetency,
the State must prove competency by the greater weight of the
credible evidence:
At the commencement of the hearing, the judge shall
ask the defendant whether he or she claims to be
competent or incompetent. If the defendant stands mute
or claims to be incompetent, the defendant shall be
found incompetent unless the state proves by the
greater weight of the credible evidence that the
defendant is competent. If the defendant claims to be
competent, the defendant shall be found competent
unless the state proves by evidence that is clear and
convincing that the defendant is incompetent.
proceedings. To try to address this in a general
competency statute was opening Pandora's box . . . the
issue of competency ought to be the defendant's right
to raise up to the point of the imposition of sentence
but not afterwards. . . . The competency statute
should be limited to proceedings up to and including
sentencing.
Judicial Council Insanity Defense Committee Summary of
Proceedings, April 24, 1981, at 4.
Currently a bill is pending in the legislature that would
address this hole in our statutes: Section 1149 of Assembly Bill
90 (2015) proposes the creation of Wis. Stat. § 975.39, entitled
"Competency to pursue postconviction relief," which delineates
how questions of competency should be addressed during
postconviction proceedings.
17
No. 2012AP2692-CR
Wis. Stat. § 971.14(4)(b) (emphasis added).10
¶35 The statute does not appear to contemplate the
scenario where the State takes the same position as the
defendant and in contrast it is defense counsel who is
questioning competency. However, we find it informative that
regardless of the scenario, the statute places the burden of
proof on the State. This reflects the legislature's policy
choice and we see no reason to alter this statutory approach.
Thus, the statute's framework suggests that when the issue of
competency has arisen, and the State wants to proceed, the State
will bear the burden of proving competency.
¶36 This interpretation of the statute is consistent with
our prior description of the statute's procedures. In Byrge,
237 Wis. 2d 197, ¶29, we stated that a court will follow the
procedures of Wis. Stat. § 971.14 if there is reason to doubt a
defendant's competency to proceed. We explained that a reason
to doubt competency can be raised by either party or by the
court. Id. We observed that once a reason to doubt competency
has been raised, the court will appoint an examiner to conduct a
competency examination and, absent a waiver, will hold a
competency proceeding. Id., ¶30. Then, without reference to
10
As the court of appeals observed, "[t]he differing
burdens of proof at the trial stage serve the twin due process
goals of protecting an incompetent defendant's right not to be
tried while incompetent and the preconviction defendant's right
to liberty by reducing the risk of committing a competent
person." Daniel, 354 Wis. 2d 51, ¶8 n.4 (citing State v. Wanta,
224 Wis. 2d 679, 695, 592 N.W.2d 645 (Ct. App. 1999)).
18
No. 2012AP2692-CR
who raised the issue of competency, we stated that "[t]he court
must find the defendant incompetent unless the State can prove,
by the greater weight of the credible evidence, that the
defendant is competent." Id.11
¶37 Admittedly, Wis. Stat. § 971.14 does not directly
answer the question of who bears the burden of proof when a
defendant disagrees with defense counsel regarding competency.
Further, as stated above, the statute does not directly govern
competency hearings during postconviction proceedings and is
referred to solely as guidance. Our prior interpretation of
that statute, however, supports a conclusion that regardless of
whether it is the defendant or defense counsel that raises
competency, once the issue is raised, the burden is on the
State.
¶38 This conclusion is further supported by the untenable
result of the alternative procedure. Were we to place the
burden of proving incompetency on defense counsel when defendant
asserts competency it would create a conflict between an
attorney's duty as an advocate and an attorney's duty as an
officer of the court.
¶39 Attorneys' obligations to their clients are set forth
in the Supreme Court Rules. One of the primary obligations is
11
The United States Supreme Court has likewise read Wis.
Stat. § 971.14(4)(b) as "requir[ing] the prosecutor to prove the
defendant's competence to stand trial once a question about
competency has been credibly raised." Cooper v. Okalahoma, 517
U.S. 348, 361-62 and n.18 (1996).
19
No. 2012AP2692-CR
that of confidentiality. Supreme Court Rule 20:1.6(a) prohibits
an attorney from disclosing information relating to
representation without a client's consent:
A lawyer shall not reveal information relating to the
representation of a client unless the client gives
informed consent, except for disclosures that are
impliedly authorized in order to carry out the
representation, and except as stated in pars. (b) and
(c).12
12
SCR 20:1.6(b)-(c) are not relevant here. They state:
(b) A lawyer shall reveal information relating to
the representation of a client to the extent the
lawyer reasonably believes necessary to prevent the
client from committing a criminal or fraudulent act
that the lawyer reasonably believes is likely to
result in death or substantial bodily harm or in
substantial injury to the financial interest or
property of another.
(c) A lawyer may reveal information relating to
the representation of a client to the extent the
lawyer reasonably believes necessary:
(1) to prevent reasonably likely death or
substantial bodily harm;
(2) to prevent, mitigate or rectify substantial
injury to the financial interests or property of
another that is reasonably certain to result or has
resulted from the client's commission of a crime or
fraud in furtherance of which the client has used
the lawyer's services;
(3) to secure legal advice about the lawyer's
conduct under these rules;
(4) to establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and
the client, to establish a defense to a criminal
charge or civil claim against the lawyer based upon
conduct in which the client was involved, or to
(continued)
20
No. 2012AP2692-CR
SCR 20:1.6(a).
¶40 The importance of this rule is stressed by the
official comments to SCR 20:1.6, which describe it as
"fundamental" to the attorney-client relationship. S.C.R.
20:1.6, ABA Comment 2; see also Foley-Ciccantelli v. Bishop's
Grove Condo. Ass'n, 2011 WI 36, ¶100, 333 Wis. 2d 402, 797
N.W.2d 789 ("Maintaining confidentiality of information relating
to representation is a fundamental principle in the attorney-
client relationship."). The obligation to keep client
communications secret is further protected by Wis. Stat.
§ 905.03(2) which grants a client the privilege to refuse
disclosure of communications with the client's attorney.
¶41 In State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666
N.W.2d 859, this court observed the potential conflict between
an attorney's duty to a client to maintain confidentiality and
an attorney's duties as an officer of the court under Johnson,
133 Wis. 2d 207. Meeks involved a competency hearing at which
the State offered the testimony of the defendant's former
attorney. Id., ¶7. Over defense counsel's objection, the
former attorney testified about her opinions, perceptions, and
impressions of the defendant's competency. Id., ¶¶7-8.
respond to allegations in any proceeding concerning
the lawyer's representation of the client; or
(5) to comply with other law or a court order.
SCR 20:1.6(b)-(c).
21
No. 2012AP2692-CR
¶42 On review, this court determined that the former
attorney's testimony revealed confidential information protected
by SCR 20:1.6(a) and Wis. Stat. § 905.03(2). Id., ¶40. It
stated that "it is difficult, or nearly impossible, for an
attorney to testify regarding an opinion of the client's
competency to proceed without violating the attorney-client
privilege." Id., ¶37. It further explained that, "[a]n
attorney's opinion of a client's mental competency is based
largely upon private communications with the client." Id., ¶40.
¶43 Admittedly, the circumstances in Meeks differ from the
facts presented in this case. Meeks addressed a former
attorney's testimony at a competency hearing as opposed to
present counsel raising the issue of competency. Nevertheless,
Meeks provides guidance through its remarks on the interplay
between an attorney's duty as an officer of the court and the
attorney-client privilege. In response to arguments about the
duty under Johnson, 133 Wis. 2d 207, the court held that "the
former attorney's duty as an officer of the court does not,
under the circumstances set forth herein, trump the attorney-
client privilege." Id., ¶43. The court then explained that
Johnson's requirements were limited to merely raising the issue
of competency:
An attorney's duty under Johnson demands a very narrow
and limited breach of the attorney-client privilege.
The attorney is merely obligated to 'raise the issue
[of competency] with the trial court.' There is no
requirement that the attorney testify about his or her
reasons for raising the issue or the opinions,
22
No. 2012AP2692-CR
perceptions, or impressions that form the basis for
his or her reason to doubt the client's competence.
Id., ¶46.
¶44 There is an obvious difference between raising an
issue and having to prove it. Meeks instructs that an
attorney's duties under Johnson are limited to the former. Were
we to put the burden of proof on defense counsel, it would
require more, upsetting the delicate balance that we laid out in
Meeks. The "limited breach" of attorney-client privilege
necessary to fulfill the Johnson obligation would turn to an
open door, requiring attorneys to divulge significant
information gained through private communications with their
clients. Such a result is unpalatable and militates in favor of
placing the burden on the State.
¶45 A consideration of the relative interests at stake in
postconviction competency hearings further suggests that the
burden of proving competency should be on the State. Burdens of
proof "reflect and protect social values. Courts must reduce
the risk facing the party that has an interest of 'transcending
value' by placing the burden of proof on the other party."
Benjamin James Vernia, The Burden of Proving Competence to Stand
Trial: Due Process at the Limits of Adversarial Justice, 45
Vand. L. Rev. 199, 226 (1992) (citing Speiser v. Randall, 357
U.S. 513, 525 (1958)); see also Santosky v. Kramer, 455 U.S.
745, 757 (1982) ("[s]tandards of proof . . . are shaped by the
risk of error inherent in the truth-finding process");
Addington v. Texas, 441 U.S. 418, 423 (1979) ("The standard
23
No. 2012AP2692-CR
serves to allocate the risk of error between the litigants and
to indicate the relative importance attached to the ultimate
decision.").
¶46 An erroneous decision that a defendant is competent
implicates weighty interests of the defendant in postconviction
proceedings. Such an error would substantially hinder a
defendant's ability to pursue postconviction relief or an appeal
because defense counsel's ability to act without direction from
a client is limited. Ultimate decisions regarding the objective
of representation, and whether to undertake a postconviction
proceeding or an appeal are left solely to the client. Debra
A.E., 188 Wis. 2d at 125-26; see also SCR 20:1.2 ("a lawyer
shall abide by a client's decisions concerning the objectives of
representation and, as required by SCR 20:1.4, shall consult
with the client as to the means by which they are to be
pursued."). Accordingly, in some circumstances, an erroneous
decision that a defendant is competent could prevent a defendant
from seeking postconviction relief or filing an appeal
altogether, affecting the defendant's right to appeal a criminal
conviction.
¶47 In contrast, an erroneous decision that a defendant is
incompetent will have little impact on the State. As indicated
by the procedures identified in Debra A.E., the only impact on
the State of a defendant being declared incompetent is a delay
of the postconviction proceedings. 188 Wis. 2d at 134 (stating
"defense counsel may request a continuance or enlargement of
time for filing the necessary notices or motions for
24
No. 2012AP2692-CR
postconviction relief" and permitting defendants who regain
competency to raise issues that could not have been raised
earlier due to incompetency). Further, in many cases, no delay
will even occur. Id. at 133-34 (directing defense counsel to
initiate or continue to seek relief on defendant's behalf where
the defendant's assistance and decisionmaking are not necessary
and there is no risk to the defendant). Thus, an erroneous
finding of incompetency will place little burden on the State.
¶48 Balancing the risk to a defendant of losing the
ability to seek postconviction relief or file an appeal against
the risk of the State having to face a delay in an appeal or
postconviction proceeding, we conclude that the potential
consequences of error additionally suggest that the burden in a
postconviction competency hearing be placed on the State once
the issue has been raised.
¶49 We decline to adopt the State's suggestion that
competency be presumed at a postconviction hearing when the
defendant was previously determined to be competent to stand
trial. Competency is not static. As we observed in Meeks,
"[g]iven the nature of mental illness, a defendant may have been
competent during a prior proceeding, but incompetent now, and
vice versa." 263 Wis. 2d 794, ¶50.
¶50 Further, competency has a different meaning in
different circumstances. Compare Debra A.E., 188 Wis. 2d at 126
(At a postconviction proceeding a defendant is incompetent to
pursue postconviction relief "when he or she is unable to assist
counsel or to make decisions committed by law to the defendant
25
No. 2012AP2692-CR
with a reasonable degree of rational understanding.") with
Byrge, 237 Wis. 2d 197, ¶27 ("a defendant is incompetent [to
stand trial] if he or she lacks the capacity to understand the
nature and object of the proceedings, to consult with counsel,
and to assist in the preparation of his or her defense.").
Thus, the fact that a defendant was deemed competent to stand
trial should not create a presumption that the defendant is
competent at a later date when the same defendant pursues
postconviction relief.
IV
¶51 In this case, defense counsel raised reason to doubt
defendant's competency. In response, the State contended that
the defendant was competent. The burden should have been on the
State to prove defendant's competency by a preponderance of the
evidence. The circuit court, however, placed the burden on
defense counsel to prove incompetency by clear and convincing
evidence and determined that defense counsel did not meet that
burden.
¶52 As we stated in Byrge, 237 Wis. 2d 197, ¶4, "[t]he
findings of a circuit court in a competency to stand trial
determination will not be upset unless they are clearly
erroneous because a competency hearing presents a unique
category of inquiry in which the circuit court is in the best
26
No. 2012AP2692-CR
position to apply the law to the facts."13 In this case,
however, the circuit court applied the wrong law by incorrectly
placing the burden on defense counsel to prove incompetency by
clear and convincing evidence. Because we agree with the court
of appeals that it is unclear whether the circuit court would
have reached the same result had it applied the correct burden,
we remand with the instruction that if Daniel's competency
remains at issue, a new competency hearing be conducted.
V
¶53 In sum, considering the statute governing competency
hearings, the potential conflict of interest in placing the
burden of proof on defense counsel, and the relative interests
and risks at stake, we determine that once a defense attorney
raises the issue of competency at a postconviction hearing, the
burden is on the State to prove by a preponderance of the
evidence that the defendant is competent to proceed.
Accordingly, we affirm the court of appeals and remand the cause
to the circuit court to apply the correct standard if Daniel's
competency is still challenged.
By the Court.—The decision of the court of appeals is
affirmed and the cause is remanded to the circuit court.
¶54 Justice DAVID T. PROSSER did not participate.
13
Although State v. Byrge, 2000 WI 101, 237 Wis. 2d 197,
614 N.W.2d 477, addressed competency to stand trial we see no
reason to apply a different standard to a decision regarding
competency for a postconviction proceeding.
27
No. 2012AP2692-CR
28
No. 2012AP2692-CR
1