2016 WI 23
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1228-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jimmie Lee Smith,
Defendant-Appellant.
REVIEW OF A DECISION FO THE COURT OF APPEALS
(Reported at 357 Wis. 2d 582, 855 N.W.2d 422)
(Ct. App. 2014 – Published)
PDC No. 2014 WI App 98)
OPINION FILED: April 7, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 6, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David L. Borowski
JUSTICES:
CONCURRED: ZIEGLER, J. concurs
DISSENTED: ABRAHAMSON, J., joined by BRADLEY, A. W., J.
dissent
NOT PARTICIPATING: BRADLEY, R. G., J. did not participate
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Christine A. Remington, assistant attorney general,
with whom on the briefs was Brad D. Schimel.
For the defendant-appellant, there was a brief by John T.
Wasielewski, and Wasielewski & Erickson, Milwaukee, and oral
argument by John T. Wasielewski.
2016 WI 23
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1228-CR
(L.C. No. 2009CF56)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. APR 7, 2016
Jimmie Lee Smith, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a
published decision of the court of appeals1 that reversed the
Milwaukee County Circuit Court's2 denial of defendant Jimmie Lee
Smith's (Smith) postconviction motion to vacate the judgment of
conviction.
¶2 Smith was convicted of second-degree sexual assault,
contrary to Wis. Stat. § 940.225(2)(a) (2013-14),3 and sentenced
1
State v. Smith, 2014 WI App 98, 357 Wis. 2d 582, 855
N.W.2d 422.
2
The Honorable David Borowski of Milwaukee County presided.
3
All further references to the Wisconsin statutes are to
the 2013-14 version, unless otherwise indicated.
No. 2013AP1228-CR
to 25 years of initial confinement and 15 years of extended
supervision. Subsequently, Smith filed a postconviction motion
to vacate the judgment of conviction, alleging that he was
incompetent at the time of trial and sentencing. The
postconviction court appointed experts to evaluate Smith and
conducted a retrospective competency evaluation. After an
evidentiary hearing, the postconviction court found that Smith
had been competent to stand trial and be sentenced.
¶3 The court of appeals reversed, and the State
petitioned for review. In its petition for review, the State
raises the following issues: (1) whether the court of appeals
improperly weighed evidence rather than deferring to the
postconviction court; (2) whether the court of appeals applied
an incorrect standard of review to the circuit court's finding
that Smith was competent at trial and sentencing, which finding
the State asserts is not clearly erroneous; and (3) whether the
court of appeals exceeded its constitutional authority by
engaging in improper fact finding.
¶4 We conclude that the court of appeals failed to apply
the clearly erroneous standard of review to the postconviction
court's finding of competency and improperly weighed evidence
rather than giving deference to the postconviction court's
finding. Reviewing the evidence under the proper standard, we
conclude that the postconviction court's finding that Smith was
competent to stand trial and be sentenced is not clearly
2
No. 2013AP1228-CR
erroneous. Accordingly, we reverse the decision of the court of
appeals.4
I. BACKGROUND
¶5 On the night of October 2, 2007, Smith followed the
victim, A.H., out of a bar, beat and raped her. During the
course of the attack, Smith hit A.H. in the face, punched her,
and slammed her head against the concrete until she was
unconscious. After A.H. regained consciousness, she went to a
nearby house and asked the occupants to call 911.
¶6 On January 7, 2009, the State charged Smith with
second-degree sexual assault, a violation of Wis. Stat.
§ 940.225(2)(a). Prior to trial, Smith made inculpatory
statements to police, and the circuit court held a Miranda5-
Goodchild6 hearing. At the hearing, the circuit court conducted
the following colloquy with Smith:
THE COURT: . . . Mr. Smith, do you understand that
you have the right to challenge both——well, challenge
any statements that you made to the police on two
grounds. The first ground is that you did not receive
your Miranda warnings; do you understand that?
4
Because we conclude that the court of appeals improperly
weighed evidence and applied an erroneous standard of review, we
do not address whether the court of appeals engaged in improper
fact finding. 118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶7,
359 Wis. 2d 30, 856 N.W.2d 486; Md. Arms Ltd. P'ship v. Connell,
2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15; Waters v.
Pertzborn, 2001 WI 62, ¶14, 243 Wis. 2d 703, 627 N.W.2d 497.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
6
State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133
N.W.2d 753 (1965).
3
No. 2013AP1228-CR
[SMITH]: Yes.
THE COURT: The second ground would be that the
statement was not voluntary; do you understand that?
[SMITH]: Yeah.
THE COURT: Voluntariness goes to police impropriety
or coercion only; do you understand that?
[SMITH]: Yes.
THE COURT: Do you wish to have a motion on either of
those two issues?
[SMITH]: I don't think so, Judge.
THE COURT: You don't think so or you don't want to?
[SMITH]: No.
THE COURT: All right. Have you had enough time to
talk to your lawyer?
[SMITH]: Yes.
THE COURT: Do you believe that's in your best
interest to proceed in this manner?
[SMITH]: Yes.
THE COURT: Do you understand that your lawyer could
argue the fact that you may have been confused, which
may go to the weight of the confession?
[SMITH]: Yes.
THE COURT: But certainly does not go to the
admissibility; do you understand that?
[SMITH]: Yes.
¶7 A jury trial began on October 12, 2009,7 where Smith
was represented by Attorney Stephen Sargent. After the State
7
The Honorable Jeffrey A. Conen of Milwaukee County
presided.
4
No. 2013AP1228-CR
presented its case-in-chief, the circuit court conducted another
colloquy with Smith:
THE COURT: . . . Mr. Smith, you have the right to
testify in this matter, you have the right to remain
silent. Do you understand that?
[SMITH]: Correct.
THE COURT: You make the choice yourself, sir. Do you
understand that?
[SMITH]: Correct.
THE COURT: Have you had enough time to talk to your
lawyer?
[SMITH]: Yes.
THE COURT: What's your choice?
[SMITH]: My choice was to waive it.
THE COURT: I'm sorry?
[SMITH]: Waive it.
THE COURT: To waive it? So do you want to testify or
do you not want to testify?
[SMITH]: I don't want to testify.
THE COURT: All right. And has anyone forced you to
do this?
[SMITH]: No.
THE COURT: Do you believe it's in your best interest?
[SMITH]: Yes.
THE COURT: And are you making this choice freely and
voluntarily?
[SMITH]: It's freely and voluntarily.
5
No. 2013AP1228-CR
¶8 Smith was convicted on October 14, 2009. Smith's
sentencing hearing was held on December 11, 2009, where he
continued to be represented by Attorney Sargent. At sentencing,
the State recommended the "maximum penalty of 25 years'
confinement followed by 15 years' extended supervision" due to
Smith's numerous previous convictions and pattern of violent,
sexual assault. Prior to imposing sentence, Smith made the
following statement:
[SMITH]: Today I want to say in court that I have
been through a lot in my life. I help peoples and I
got——I got this. I bail peoples out of jail, I got
this. I let peoples stay in my house, I got this. I
let peoples eat at my house, I got this.
Today [A.H.], I don't know what she lookin' for
out of me and why is she comin' to court like this?
What it is that she want from me? She in love with me
or something? Sayin' that she haven't took a shower
since this happened to her? What is wrong with her?
I let bygones be bygones. Peoples done throw salt on
me every day, every day out there on the street.
Peoples took money from me at the court sale, at the
courthouse. But I let it ride, they wouldn't even
give it back. I let it go.
I sit up North, did time behind bailin' this
girl, [], out of jail in Chicago, Illinois for child
neglect, because I went to court the day that she
was——she was in court, and I went and bailed her out
of jail. And then I hear all of this about me? And
she supposed to have been back in court. She never go
back. She never go back for her——for——to get her bail
back. But I'm the one who had to sign her bail as
being right to this day.
I am very, very sorry that I even helped this
lady. But these ladies are sayin' things like this
about me. And she ain't white like her, the lady
that——that I bailed out of jail, she's black. And her
daughter, I looked out for them when they was starvin'
to death, livin' out on the street corner. I'm out
6
No. 2013AP1228-CR
here tryin' to make a living every day at my job
workin', lost my job behind all of that, feedin' them,
lettin' them stay in the house, ended up getting' in
trouble with my landlord by buyin' air-conditionin'
and things without asking his permission, could I have
it in my apartment with the rent and——and included
with the lights.
And this is the thanks I get out of it? 12 years
like I murdered someone out there on the street? I
sat in there 12 years for bailin' her out of jail. I
didn't see all these troubles until I bailed her out
of jail. Helped her and her family.
And then my brothers, them too, I even brought
them to my house and helped them. When I lived with
them, they couldn't even pay the light bill. Wouldn't
even pay the light bill. The landlord was lettin'
them work off his job to pay the rent. And told him
to switch the lights in his name. He didn't even do
it.
So by me handin' over parts of my Quest card,
because I never gained footage after being locked up
after bailing [her] out of jail for being convicted of
child neglect, for $200 I had to put my name to that,
and now she's on the run and I get all of this out of
that? She never——She ain't——wouldn't go back to court
because I just see her last year. She worked at the
same company as I did, I see her there on the 27th and
National. She there.
And then this other lady back in——[], she don't
even know her name. She callin' me every day. I'm
over by my——my——my livin' relatives after I got out of
jail, never gained footage, never got a job, never got
back to my feet. I know nobody in this courtroom
don't care.
And——And at that one time I didn't care about my
$40 that I gave away to the courthouse, I gave away
$40 for a marriage license fee and I couldn't even get
it back from the courts. And this happened before all
of this stuff about bailin' [her] out of jail. And
the courts seemed like this is all my fault? This is
not all my fault.
7
No. 2013AP1228-CR
I also talked to [], I sent her a letter last
year. And then [], I went back to her house after I
got out of jail and she still wasn't workin' out
right. And then we——I ended up gettin' shot behind
all this. I got a bullet hole through my body and
laid up at Froedtert Hospital for almost six months
out there fightin' for my life because of these people
that hates on me.
I can prove it to you that I got the shot, it is
right here in my stomach. I got shot, laid up almost
90 days, I was fightin' for my life at Froedtert
because I bailed her out.
[ATTORNEY] SARGENT: Excuse me, your Honor. (Brief
discussion off the record.)
[SMITH]: It's got to be out there. I need to put
this out there on the table.
THE COURT: Well, we're going to have to put an end to
this because none of this really has a whole lot to
do——
[SMITH]: I know it don't have a whole lot, but, here,
I didn't set up in jail and then I got out and then I
couldn't even stay on my money, and then I get on SSI
and stay on it for like four or five checks and then
they cut it off. I get these lawyers $2,300 to
represent me. They——I still ain't on for all of this
pain and sufferin' that I'm goin' through for not
lookin' out for my life after I got my finger injured
by my family work helpin' this guy gettin' on the job
there. And he didn't even have the decency enough to
say I will invite you out to dinner for lookin' out
for me. He didn't even have the decency to do that
for me.
And then [], she come over to my house, I got the
settlement from the——from my gunshot, I buy a car, I
take her down there to see her family, she want to run
both of us off the highway, kill us both.
THE COURT: All right. Well, Mr. Smith, none of this
really has anything to do with——
[SMITH]: But this has got a lot to do with this case.
8
No. 2013AP1228-CR
THE COURT: It really doesn't. So we're going to cut
it off if you are not going to get to the point.
[SMITH]: The point is, if you want to hear what my
goal are, my goal is to get out of here to get back to
work and to get my Social Security. That's it. You
don't want to hear what I gotta say but you want to
sentence me, though. You want to give me the maximum
time, say that I'm a mean person. But I'm not mean.
This place is mean. They took money from me here.
And then when I write a letter to my family about it
back in Chicago telling them how I could stay in
Wisconsin with a stolen car from Chicago here, how
could I stay here, how could I stay here, I had to
sign my letters that I written to them because these
peoples here took my——took my marriage license fee and
then they took my adoption fee. Now, that is not fair
to me. You guys are not being fair.
THE COURT: We're done.
[SMITH]: I'm done but y'all——I just want to address——
When I want to talk, y'all don't want to hear the
truth.
THE BAILIFF: Now you are done.
The circuit court accepted the State's recommendation and
sentenced Smith to 25 years of initial confinement followed by
15 years of extended supervision.
¶9 On June 18, 2010, Smith's postconviction counsel,
Attorney John T. Wasielewski, filed a postconviction motion and
moved for a determination of whether Smith was presently
competent to assist in postconviction proceedings. On
September 13, 2010, a competency hearing was held, and the
postconviction court8 heard testimony from Dr. Deborah Collins
8
The Honorable Jean A. DiMotto of Milwaukee County
presided.
9
No. 2013AP1228-CR
who opined that Smith was not competent to proceed, but that he
was likely to regain competency within a reasonable period of
time. Given this testimony, the postconviction court set
another hearing date for December 10, 2010; however, prior to
this hearing, Dr. John Pankiewicz evaluated Smith, and opined
that Smith remained incompetent, but may regain competency
within a reasonable period of time. The postconviction court
again scheduled a follow-up hearing for March 14, 2011 where it
ultimately found that Smith was incompetent to proceed with
postconviction proceedings and was unlikely to regain competency
within a reasonable period of time. The postconviction court
also appointed a guardian ad litem, Attorney Scott Phillips, to
serve on Smith's behalf.
¶10 On September 30, 2011, Attorney Wasielewski filed a
postconviction motion to vacate Smith's judgment of conviction,
alleging that Smith had been incompetent at the time of trial
and sentencing. Smith sought to proceed under three theories of
recovery. First, Smith alleged "procedural incompetency,"
arguing that at the time of trial and sentencing, the circuit
court had reason to doubt his competency and, therefore, should
have sua sponte held a competency hearing. Second, Smith
alleged ineffective assistance of counsel, arguing that trial
counsel, Attorney Sargent, had reason to doubt his competency
and, therefore, should have moved for a competency hearing.
Third, Smith alleged "substantive competency," simply arguing
that he was convicted and sentenced while incompetent.
10
No. 2013AP1228-CR
¶11 The postconviction court9 ordered Dr. Collins and Dr.
Pankiewicz to conduct retrospective competency evaluations to
aid in determining whether Smith had been competent at the time
of trial and sentencing, which occurred in October and December
of 2009, respectively. On August 2, 2012, the postconviction
court held a competency hearing where both doctors testified for
Smith.
¶12 Dr. Pankiewicz testified that, for purposes of his
retrospective competency evaluation, he submitted a report dated
February 27, 2012. The report indicated that Dr. Pankiewicz had
reviewed various sources of information prior to rendering his
opinion. These sources included: his prior examinations of
Smith, which occurred on December 7, 2010 and March 3, 2011; Dr.
Collins' competency report dated July 21, 2010; Smith's records
from the Milwaukee County Jail, the Department of Corrections,
and the Wisconsin Resource Center; and portions of the
sentencing transcript.
¶13 Dr. Pankiewicz testified that Smith had a "substantial
record of mental illness going back at least 20 years,"
typically diagnosed as "psychotic disorder or schizophrenia."
Dr. Pankiewicz also testified that Smith's jail records played a
major role in developing his opinion because they "contained
observations of Mr. Smith during that period" and were the most
contemporaneous records available. The jail records indicated
9
The Honorable David Borowski of Milwaukee County presided
over the remaining postconviction proceedings.
11
No. 2013AP1228-CR
that he "exhibit[ed] unusual behavior at times; requiring
placement in the psychiatric special needs unit at the jail. He
was frequently viewed as rambling in his communications and
although prescribed anti-psychotic medications, typically
refused to cooperate with said treatment." Comparing the jail
records to Smith's sentencing allocution, Dr. Pankiewicz stated
that "Smith was demonstrating rambling speech, which was similar
to observations made by staff at the jail. So I believe that
was [] further evidence that he was symptomatic at the time."
¶14 Based on all of the foregoing, Dr. Pankiewicz opined
that "there [was] substantial cause to doubt [Smith's]
competency to stand trial in October 2009 [and be sentenced in
December 2009]."
¶15 During cross examination, Dr. Pankiewicz testified
that out of approximately 2,000 competency evaluations that he
performed during his career, "less than 10" of them were
conducted retrospectively. Dr. Pankiewicz also testified that,
although he had reviewed the transcript of the sentencing
allocution, he had not reviewed the transcripts of Smith's trial
colloquies; nor had he spoken with Smith's trial counsel,
Attorney Sargent. Finally, Dr. Pankiewicz admitted that his
retrospective competency evaluation, rendered nearly three years
after Smith's trial and sentencing, was not as strong as it
would have been had he been able to conduct a contemporaneous
examination in 2009.
¶16 Dr. Collins also testified at the competency hearing.
For purposes of her retrospective evaluation, Dr. Collins
12
No. 2013AP1228-CR
submitted a report dated September 16, 2011. Dr. Collins'
report indicated that she similarly relied on various sources
including: her previous examinations of Smith; Dr. Pankiewicz's
previous examinations of Smith; Smith's clinical and medical
records; Smith's sentencing allocution transcript. Dr. Collins
testified that Smith's records revealed that, "as early as 1993,
Mr. Smith had been identified with a psychotic disorder and, in
fact, at that time was the subject of civil commitment
proceedings in a court order for medication to treat his mental
illness." Dr. Collins also testified that the totality of
Smith's records "well-substantiates a diagnosis of a psychotic
disorder, and that [Smith], as early as March of 2009, was
actively symptomatic."
¶17 Dr. Collins ultimately opined that, "to a reasonable
degree of professional certainty," Smith was incompetent at
trial and sentencing. However, Dr. Collins also admitted that,
out of hundreds of competency evaluations she had conducted, she
estimated that only four had been conducted retrospectively.
Dr. Collins also stated that she "frame[d] [her] opinion
carefully because, of course, it's a retrospective evaluation
and reaching that ultimate conclusion is challenging, at best,
because the data is incomplete" without a contemporaneous
examination of Smith. According to Dr. Collins, a
contemporaneous examination typically is the most important
component of a competency evaluation.
¶18 On September 14, 2012, the postconviction court
continued the competency hearing. Smith's trial counsel,
13
No. 2013AP1228-CR
Attorney Sargent, testified in regard to Smith's competency.
Attorney Sargent said that he met with Smith approximately seven
times throughout his representation. Attorney Sargent said he
never had any reason to doubt Smith's ability to understand the
proceedings. Attorney Sargent further testified that Smith was
able to assist in his defense both at trial and sentencing.
¶19 For example, Attorney Sargent testified that Smith
denied the allegations of sexual assault, stating that he and
A.H. had consensual sex in an alley. Therefore, Attorney
Sargent and Smith agreed to go forward with a consent defense at
trial. Attorney Sargent and Smith also agreed that Smith would
not testify at trial because Attorney Sargent advised Smith that
he "would [not] come off well as a witness to the jury."
Additionally, Attorney Sargent testified that Smith understood
and assisted him during discussions of plea negotiations, as
well as jury selection. Specifically, during jury selection,
Attorney Sargent informed the circuit court that Smith wanted
"Juror 17 [to] be struck. It's by his request." The circuit
court responded, "Right. We talked about that yesterday, and I
said that that would be fine assuming that all the jurors would
be back today. It's my understanding they are all here."
Attorney Sargent then addressed Smith by asking, "I discussed
that with you; is that correct?" Smith responded, "Yes."
¶20 With respect to sentencing, Attorney Sargent said that
Smith was very animated and angry, and that he had advised Smith
to remain calm. He admitted that Smith's sentencing allocution
had little relevance and was not helpful to the court in
14
No. 2013AP1228-CR
sentencing. However, he did not view Smith's statements as
indicating a mental health issue but, rather, an anger issue.
¶21 On May 2, 2013, the postconviction court rendered its
decision. In so doing, the postconviction court acknowledged
the competence and experience of both Doctors Pankiewicz and
Collins; however, it noted the significant period of time that
had elapsed and that the doctors' retrospective opinions "could
not possibly be as solid" as if they had had contemporaneous
contact with Smith. Additionally, the postconviction court
noted that Attorney Sargent had approximately 25 years of
experience and "did not have any reason to question his client's
competence during the proceedings." Moreover, the
postconviction court gave credence to trial judge, Jeffrey A.
Conen's, considerable experience on the bench, that he conducted
multiple colloquies with Smith, and that he had never raised a
concern about Smith's competency at trial or sentencing.
¶22 The postconviction court made the following findings
with respect to Smith's competency at trial and sentencing:
Dr. Pankiewicz and Dr. Collins, again, I think
they are both very good doctors. They are both more
than competent in total, but the competency
determination, ultimately, is not theirs. It's a
legal determination. It's not a determination to be
made by doctors.
In a nutshell, I do not think that there's a
basis to vacate the sentence or the judgment of
conviction, I guess the judgment of conviction first
or the sentence in this case. I do not believe and do
not find that Mr. Smith was incompetent at the time of
his trial and sentencing. I am persuaded by the
State's argument, the State's brief, which I'm
15
No. 2013AP1228-CR
adopting, the testimony from Mr. Sargent more than and
over the testimony from the two doctors.
The testimony, while I respect it from the two
doctors, I think is not enough in this case for me to
believe that the defendant was not competent at the
time of his trial and sentencing. In fact, I believe
he was competent at the trial and sentencing.
I think the testimony from Mr. Sargent, who was
there, who dealt with the defendant, who met with the
defendant on multiple times, who sat in court with him
multiple times, who discussed this case with him
multiple times, is more persuasive and more relevant
to me in making this additional determination.
Again, competency, obviously is a legal decision.
It's a judicial determination. It's not, as the State
points out, a medical determination.
So I'm denying the defense motion. I think they
have not met their burden.
¶23 On September 16, 2014, the court of appeals reversed
the postconviction court's decision. State v. Smith, 2014 WI
App 98, ¶26, 357 Wis. 2d 582, 855 N.W.2d 422. The court of
appeals purported to apply the following standard of review:
"'The [postconviction] court's determination of whether there is
reason to doubt the defendant's competence and order an
examination is disturbed on appeal only if the [postconviction]
court exhibited an erroneous exercise of discretion or if the
[postconviction] court decision was clearly erroneous.'" Id.,
¶19 (alterations in original) (quoting State v. Garfoot, 207
Wis. 2d 214, 223-24, 558 N.W.2d 626 (1997)).
16
No. 2013AP1228-CR
¶24 After articulating two different standards of review,
an erroneous exercise of discretion and clearly erroneous
decision,10 the court of appeals said:
10
We note that it has not been uncommon in reviews of
competency determinations for courts to narrate the standard of
review as whether "the trial court exhibited an erroneous
exercise of discretion or if the trial court decision was
clearly erroneous," citing State v. Garfoot, 207 Wis. 2d 214,
223-24, 558 N.W.2d 626 (1997). However, in State v. Byrge, 2000
WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, we explained that
Garfoot decided that "competency to stand trial must be reviewed
under the deferential clearly erroneous standard." Byrge, 237
Wis. 2d 197, ¶33.
We note that the cite to Garfoot often is made without
acknowledging that Garfoot addressed two different
determinations that have two different standards of review.
First, Garfoot was concerned with determining whether there was
"reason to doubt" that Garfoot was competent, such that Wis.
Stat. § 971.14 is engaged and experts are appointed to evaluate
him and hold a competency hearing. Garfoot, 207 Wis. 2d at 223-
24. And second, Garfoot was concerned with reviewing whether
the circuit court's finding on competency was clearly erroneous.
Id. at 224.
In State v. McKnight, 65 Wis. 2d 582, 595-96, 223 N.W.2d
550 (1974) (which is cited in Garfoot), we explained that the
circuit court has discretion to refuse to conduct a competency
hearing when defendant does not provide threshold of facts
sufficient to raise the circuit court's doubt about defendant's
competency to proceed. Accordingly, in McKnight, we held that
"reason to doubt" competency is reviewed under the erroneous
exercise of discretion standard. Id.
(continued)
17
No. 2013AP1228-CR
[T]he standard on review is whether the whole record
reveals a reason to doubt Smith's competence at trial
and sentencing. The postconviction court was not the
same court who observed Smith at trial and sentencing.
The deference accorded the trial court's competence
assessment in Garfoot and Byrge does not apply to the
postconviction court here because the basis for that
deference does not exist here.
Id., ¶23 (citations omitted). The court of appeals concluded
that the postconviction court erred when it "weighed more
heavily the uninformed competence opinion[] of defense counsel
and the trial court——who knew nothing of Smith's extensive
mental health history, the DOC records, the jail records or the
two experts' opinions——and discounted the experts' evaluations."
Id. Ultimately, the court of appeals concluded that "the
experts' reports and testimony and the DOC and jail records all
furnish ample evidence that there is reason to doubt Smith's
competence at the time of trial and sentencing."11 Id., ¶26.
Case law appears to have conflated two different standards
of review for two different considerations that bear on
competency. We write to clarify the correct standard of review
so that as concerns relative to competency are raised, the
reviewing court applies an accurate lens that is particularized
to the type of circuit court decision under review. As we have
explained, "[u]nder the standard that applies to competency
determinations, we will not reverse the circuit court's decision
unless it was clearly erroneous." Byrge, 237 Wis. 2d 197, ¶46
(citing Garfoot, 207 Wis. 2d at 223-24). Under the standard
that applies to whether there was "reason to doubt" competency,
an appellate court should not reverse a circuit court's decision
unless it erroneously exercised its discretion in refusing to
conduct a competency hearing. McKnight, 65 Wis. 2d at 595-96.
11
The court of appeals addressed only Smith's "substantive
competency" claim. Smith, 357 Wis. 2d 582, ¶18.
18
No. 2013AP1228-CR
The court of appeals then vacated the judgment of conviction and
ordered a new trial. Id.
¶25 We granted the State's petition for review.
II. DISCUSSION
A. Standard of Review
¶26 A competency determination is functionally a factual
finding. State v. Byrge, 2000 WI 101, ¶33, 237 Wis. 2d 197, 614
N.W.2d 477. Therefore, we review the circuit court's competency
determination under a clearly erroneous standard of review that
is particularized to competency findings. Garfoot, 207 Wis. 2d
at 224; Byrge, 237 Wis. 2d 197, ¶45.
¶27 In Garfoot, we examined Pickens v. State, 96 Wis. 2d
549, 292 N.W.2d 601 (1980), overruled, in part, on other grounds
by State v. Klessig, 211 Wis. 2d 194, 212, 564 N.W.2d 716 (1997)
(expressly "affirm[ing] the holding in Pickens as still
controlling on the issue of competency"), wherein we held that
our review concerning whether a defendant is competent to
represent him or herself is limited to whether the circuit
court's determination is "'totally unsupported by the facts
apparent in the record.'" Garfoot, 207 Wis. 2d at 224 (quoting
Pickens, 96 Wis. 2d at 570). In Garfoot, we concluded "that the
same deference should be given to the trial court regarding
determinations of competence to stand trial as is given for
determinations of competence to represent oneself." Id. at 225.
In Byrge, we upheld Garfoot, explaining that, "we . . . do not
disturb our holding in Garfoot and adhere to the clearly
19
No. 2013AP1228-CR
erroneous standard for reviewing circuit court determinations in
competency proceedings." Byrge, 237 Wis. 2d 197, ¶45.
¶28 We repeatedly have reaffirmed the propositions of both
Pickens and Garfoot as controlling authority on the standard of
review applicable to both types of competency determinations;
namely, competency to proceed pro se and competency to stand
trial.12 For example, in State v. Imani, 2010 WI 66, ¶19, 326
Wis. 2d 179, 786 N.W.2d 40, we stated that "a circuit court's
determination that a defendant is incompetent to proceed pro se
'will be upheld unless totally unsupported by the facts.'"
(quoting Pickens, 96 Wis. 2d at 569-70 and citing Garfoot, 207
Wis. 2d at 224); see also State v. Jackson, 2015 WI App 45, ¶29,
363 Wis. 2d 484, 867 N.W.2d 814 (reviewing competency to proceed
pro se determination under "totally unsupported by the facts"
standard); Dane Cnty. Dep't of Human Servs. v. Susan P.S., 2006
WI App 100, ¶22, 293 Wis. 2d 279, 715 N.W.2d 692 (same); State
v. Ruszkiewicz, 2000 WI App 125, ¶38, 237 Wis. 2d 441, 613
N.W.2d 893 (explicitly applying the clearly erroneous standard
from Garfoot and Pickens).
¶29 To summarize, we review a circuit court's competency
to stand trial determination under the same standard under which
we review a competency to proceed pro se determination.
12
Of course, we recognize that, in making the determination
of whether a defendant is competent to proceed pro se, a circuit
court must consider different proofs than necessary to
determining whether a defendant is competent to stand trial.
State v. Imani, 2010 WI 66, ¶36, 326 Wis. 2d 179, 786 N.W.2d 40.
20
No. 2013AP1228-CR
Garfoot, 207 Wis. 2d at 225, affirmed by Byrge, 237 Wis. 2d 197,
¶45. We review a competency to proceed pro se determination and
uphold that finding unless it is totally unsupported by facts in
the record. Imani, 326 Wis. 2d 179, ¶19; Pickens, 96 Wis. 2d at
570; Jackson, 363 Wis. 2d 484, ¶29; Ruszkiewicz, 237 Wis. 2d
441, ¶38. Accordingly, the necessary corollary is that our
review of a circuit court's competency to stand trial
determination is limited to whether that finding is totally
unsupported by facts in the record and, therefore, is clearly
erroneous.13 Byrge, 237 Wis. 2d 197, ¶33; Garfoot, 207 Wis. 2d
at 224-25.
¶30 Retrospective competency determinations are inquiries
of the facts, but as they existed at a previous time. See
generally State v. Johnson, 133 Wis. 2d 207, 224-25, 395 N.W.2d
176 (1986). Accordingly, because retrospective determinations
of competency are factual determinations, they, too, are upheld
unless totally unsupported by facts in the record and,
therefore, clearly erroneous. See Byrge, 237 Wis. 2d 197, ¶33;
Garfoot, 207 Wis. 2d at 224-25; Wis. Stat. § 805.17(2)
(explaining that "[f]indings of facts shall not be set aside
13
Although we have not had occasion since Byrge and Garfoot
to apply this standard of review to a circuit court's
determination of a defendant's competency to stand trial, we
note that the court of appeals has done so. See, e.g., State v.
Dorman, Nos. 2013AP782-CR, 2013AP783-CR, 2013AP784-CR,
2013AP785-CR and 2013AP786-CR, unpublished slip op., ¶5 (Ct.
App. Aug. 21, 2014); State v. Colyer, No. 2012AP1090-CR,
unpublished slip op., ¶6 (Ct. App. Aug. 27, 2013).
21
No. 2013AP1228-CR
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses").
¶31 We have explained our rationale for deferring to the
circuit court's findings in regard to competency of a defendant:
The trial court is in the best position to make
decisions that require conflicting evidence to be
weighed. Although the court must ultimately apply a
legal test, its determination is functionally a
factual one[.]
The trial court's superior ability to observe the
defendant and the other evidence presented requires
deference to the trial court's decision that a
defendant is or is not competent to stand trial. Only
the trial court has the opportunity to view the
defendant. Only the trial court can judge the
credibility of witnesses who testify at the competency
hearing.
Garfoot, 207 Wis. 2d at 223.
¶32 In Smith's case, the court of appeals noted the
clearly erroneous standard of review, but it nevertheless
concluded that deference to the postconviction court's finding
was not warranted because "[t]he postconviction court was not
the same court [that] observed Smith at trial and sentencing."
Smith, 357 Wis. 2d 582, ¶23.
¶33 However, here, the postconviction court held an
evidentiary competency hearing, where it had the opportunity to
elicit and appraise testimony from Dr. Pankiewicz, Dr. Collins
and Attorney Sargent. Moreover, a retrospective competency
determination at a postconviction hearing is nonetheless,
22
No. 2013AP1228-CR
functionally, a factual finding. See Byrge, 237 Wis. 2d 197,
¶33.
¶34 Therefore, presented with conflicting evidence from
the doctors and Attorney Sargent, the postconviction court was
the only court in the position to weigh the evidence, assess
credibility, and reach a determination regarding Smith's
retrospective competency. Accordingly, our review is limited to
whether the postconviction court's finding that Smith was
competent at trial and sentencing is totally unsupported by
facts in the record and, therefore, clearly erroneous. Id.,
¶33; Garfoot, 207 Wis. 2d at 224-25.
B. General Competency Principles
¶35 "It has long been settled that due process of law
prohibits the conviction of an incompetent defendant." State ex
rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 512, 563 N.W.2d
883 (1997). "[T]he due process test for determining competency
considers whether the defendant: (1) 'has sufficient present
ability to consult' with his or her lawyer 'with a reasonable
degree of rational understanding;' and (2) 'has a rational as
well as factual understanding of the proceedings.'" Byrge, 237
Wis. 2d 197, ¶27 (quoting Dusky v. United States, 362 U.S. 402,
402 (1960)). "This two-part 'understand-and-assist' test
constitutes the core of the competency-to-stand-trial analysis."
Id., ¶28.
¶36 The "understand-and-assist" test is codified at Wis.
Stat. § 971.13(1), providing that "[n]o person who lacks
substantial mental capacity to understand the proceedings or
23
No. 2013AP1228-CR
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." Additionally, Wis. Stat. § 971.14 sets
forth the procedures for determining whether a defendant is
competent to stand trial and be sentenced. See id., ¶29 ("A
court 'shall proceed under [the provisions of § 971.14] whenever
there is reason to doubt a defendant's competency to proceed.'"
(alteration in original) (quoting Wis. Stat. § 971.14(1r)(a)).
Where there is a reason to doubt competency, the circuit court
must appoint at least one examiner to aid in the competency
determination, as well as hold a competency hearing where the
ultimate determination will be made. Id., ¶30.
¶37 Importantly, the inquiry whether a defendant is
competent to stand trial is a judicial, not a medical,
determination. Id., ¶31. "Although a defendant may have a
history of psychiatric illness, a medical condition does not
necessarily render the defendant incompetent to stand trial."
Id. "Elaborate diagnoses or elaborate psychiatric evaluations
directed to the ultimate treatment of the subject are of little
use to a court in determining [whether a defendant is
competent]." State ex rel. Haskins v. Cnty. Courts of Dodge &
Milwaukee Counties (Haskins I), 62 Wis. 2d 250, 265, 214 N.W.2d
575 (1974). Notwithstanding mental illness, many defendants are
able to "interact adequately with defense counsel and possess a
sufficient understanding of the proceedings." Rodney J. Uphoff,
The Role of the Criminal Defense Lawyer in Representing the
Mentally Impaired Defendant: Zealous Advocate or Officer of the
24
No. 2013AP1228-CR
Court?, 88 Wis. L. Rev. 65, 70 (1988). Consequently, the
circuit court should not make a competency determination simply
"on the basis of rubber stamping the report of a psychiatrist."
Haskins I, 62 Wis. 2d at 264. Rather, the circuit court must
"weigh evidence that the defendant is competent against evidence
that he or she is not." Garfoot, 207 Wis. 2d at 222-23.
Ultimately, the circuit court's determination is concerned with
the defendant's "present mental capacity to understand and
assist at the time of the proceedings." Byrge, 237 Wis. 2d 197,
¶31 (emphasis added).
¶38 As we recognized in Johnson, such a determination is
particularly difficult, although not impossible, when it is
conducted retrospectively. Johnson, 133 Wis. 2d at 224-25. As
a defendant's competency may fluctuate over time,
retrospectively determining what a defendant's ability to
understand and assist in his defense was in the past is
"inherently difficult." Id. at 224; Indiana v. Edwards, 554
U.S. 164, 175 (2008) (recognizing that mental illness and
competency present complex issues that vary in degree, change
over time, and "interfere[] with an individual's functioning at
different times in different ways."); 9 Christine M. Wiseman &
Michael Tobin, Criminal Practice and Procedure § 17:12 (2d ed.
2008) (explaining that a competency determination is distinct
from a defendant's mental health history and that competency may
be affected by treatment and medication of an on-going mental
health concern).
25
No. 2013AP1228-CR
¶39 Bearing these general principles in mind, we will
review the postconviction court's retrospective competency
determination under the proper deferential standard of review.14
C. Theories of Relief
¶40 As a preliminary matter, we note that Smith moved to
vacate the judgment of conviction, and presented three theories
to the postconviction court, all relating to whether he was
competent at the time of trial and sentencing. First, Smith
alleged a "procedural competency" claim, arguing that, at the
time of trial and sentencing, the circuit court had reason to
doubt his competency and, therefore, should have sua sponte held
a competency hearing under Wis. Stat. § 971.14. Second, Smith
alleged an ineffective assistance of counsel claim, arguing that
trial counsel, Attorney Sargent, had reason to doubt his
competency and, therefore, should have moved for a competency
hearing pursuant to § 971.14. Third, Smith alleged a
"substantive competency" claim, simply arguing that he was
convicted and sentenced while incompetent in violation of due
process.15
14
We note that at the postconviction hearing, Smith's
attorney asserted that he had the burden to prove that Smith was
incompetent at trial and sentencing. The State agreed. The
court of appeals did not address the burden of proof, and
neither party briefed the burden of proof. Accordingly, we do
not address it.
15
To our knowledge, Wisconsin courts previously have not
characterized claims as "substantive competency" or "procedural
competency." However, as Smith characterizes them in this
manner, we address them as such.
26
No. 2013AP1228-CR
¶41 Although Smith reasserts these three claims to us in
his briefing, all of these claims are not properly before us, as
they were raised in neither the State's petition for review nor
Smith's response to the State's petition for review. Jankee v.
Clark Cnty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297.
¶42 However, even if Smith's claims were properly before
us, Smith and the court of appeals mistakenly applied an
incorrect standard of review and employed an erroneous remedy.
To explain further, Smith's "procedural competency" and
ineffective assistance claims both are grounded in his argument
that the circuit court and trial counsel had reason to doubt
Smith's competency, and because no hearing was held, the circuit
court erred.
¶43 In regard to holding competency hearings at the trial
stage, we have repeatedly noted that before competency
proceedings are required, evidence giving rise to a reason to
doubt competency must be presented to the circuit court. State
v. McKnight, 65 Wis. 2d 582, 595, 223 N.W.2d 550 (1974). In
addition, whether there is evidence that does give rise to a
reason to doubt a defendant's competency is a question left to
the sound discretion of the circuit court. Id. at 596.
¶44 On appeal, where the record reveals doubt about a
defendant's competency at the time of trial and sentencing, the
remedy is not to vacate the judgment of conviction and order a
new trial. Rather, the remedy is a remand to determine whether
a meaningful retrospective competency hearing can be held.
State v. Weber, 146 Wis. 2d 817, 823 n.3, 433 N.W.2d 583 (Ct.
27
No. 2013AP1228-CR
App. 1988). In such an instance, if a meaningful, retrospective
competency hearing can be held, then the circuit court must hold
the hearing. State v. Haskins (Haskins II), 139 Wis. 2d 257,
267, 407 N.W.2d 309 (Ct. App. 1987) (citing Johnson, 133 Wis. 2d
207, 226-27). If a circuit court determines at a retrospective
competency hearing that the defendant was competent at the time
of trial, the judgment of conviction stands. Id. However, if
after a competency hearing is held, the circuit court finds that
the defendant was not competent when he was tried, only then is
it appropriate to vacate the judgment of conviction and order a
new trial. Id.
¶45 Therefore, even if we were to address Smith's
"procedural competency" and ineffective assistance claims, the
appropriate remedy for those claims is a retrospective
competency hearing to determine whether Smith was competent at
the time of trial and sentencing. Of course, Smith already has
been afforded a retrospective competency hearing by the
postconviction court that determined Smith was competent at the
time of trial and sentencing. Consequently, Smith has been
afforded the available relief under his "procedural competency"
and ineffective assistance claims.
¶46 Furthermore, in granting relief based on Smith's
"substantive competency" claim, the court of appeals stated that
the record "furnish[ed] ample evidence that there is reason to
doubt Smith's competence at the time of trial and sentencing."
Smith, 357 Wis. 2d 582, ¶26. Based on this conclusion, reached
after applying an incorrect standard of review, the court of
28
No. 2013AP1228-CR
appeals vacated the judgment of conviction and granted a new
trial. Id. As set forth above, and fully in note 10, supra,
where the record reveals a reason to doubt competency, the
remedy is a retrospective competency hearing, not a new trial.
A determination that the defendant was incompetent is a
necessary finding before a new trial may be ordered. Haskins
II, 139 Wis. 2d at 267.
¶47 In Smith's case, the postconviction court held a
retrospective competency hearing that resulted in its finding
that Smith was competent at the time of trial and sentencing.
Therefore, the issue appropriate for appellate review is whether
that factual finding of the postconviction court is totally
unsupported by facts in the record and, therefore, clearly
erroneous. Byrge, 237 Wis. 2d 197, ¶33 (citing Garfoot, 207
Wis. 2d at 225).
¶48 We now turn to our review of the postconviction
court's competency determination under the proper standard of
review.
D. Application
¶49 As set forth above, contrary to the court of appeals'
approach, our review of the postconviction court's competency
determination is limited to whether the postconviction court's
finding that Smith was competent at trial and sentencing is
clearly erroneous. Id. We have explained that, particularized
to competency determinations, a competency finding is clearly
erroneous when it is totally unsupported by facts in the record.
Garfoot, 207 Wis. 2d at 224. We conclude that the
29
No. 2013AP1228-CR
postconviction court's finding of competency is supported by
facts of record and, therefore, it is not clearly erroneous.
¶50 The postconviction court heard testimony from Dr.
Collins and Dr. Wasielewski, both opining that Smith was
incompetent at the time of trial and sentencing, which occurred
in September 2009 and December 2009, over two years prior to the
doctors' retrospective competency determinations. The doctors'
evaluations relied heavily on Smith's jail records that
documented his mental health conditions and behavior near the
time that he was tried and sentenced. The doctors noted that
Smith's sentencing allocution similarly tracked some of the
rambling talk that the jail records indicated. According to Dr.
Collins, Smith was likely "actively symptomatic" at trial and
sentencing.
¶51 The postconviction court also heard testimony from
Attorney Sargent, who testified that at no point during his
representation did he question Smith's ability to understand and
assist in his defense. Attorney Sargent gave various examples
where he discussed defense strategy with Smith. During numerous
interactions, Attorney Sargent observed that Smith was able to
understand and assist in his defense, including plea
negotiations, jury selection, and whether to testify. The
record also shows that Smith was able to conduct a coherent and
responsive colloquy with the circuit court at both the Miranda-
Goodchild hearing, and when he waived his right to testify at
trial. Particularly with respect to waiving his right to
testify, Smith showed understanding of the proceedings and the
30
No. 2013AP1228-CR
consequences of his choice, as well as the ability to
appropriately respond using more than mere "yes" or "no"
answers. The record also reflects Smith's ability to confer
with Attorney Sargent regarding jury selection.
¶52 In its decision, the postconviction court correctly
noted that, although the doctors were well-respected and
competent, the ultimate finding of competency is a judicial
determination rather than a medical one. Stated otherwise, a
defendant can have mental health concerns and nevertheless be
competent to stand trial and be sentenced, so long as he can
understand the proceedings and assist counsel. Byrge, 237
Wis. 2d 197, ¶31.
¶53 The postconviction court stated that the doctors'
retrospective evaluations were not convincing enough to
establish that Smith had been incompetent at the time of trial
and sentencing. Instead, the postconviction court believed
Attorney Sargent's testimony that Smith was able to understand
and assist in his defense. The postconviction court further
relied on the circuit court's interaction with Smith during
multiple colloquies, which did not give rise to concern about
Smith's competency. Accordingly, the postconviction court made
the factual finding that Smith had been competent at the time of
trial and sentencing.
¶54 In reversing the postconviction court, the court of
appeals noted that the postconviction court rejected experts'
testimony, notwithstanding its acknowledgement of their
professional qualifications. Smith, 357 Wis. 2d 582, ¶24. The
31
No. 2013AP1228-CR
court of appeals emphasized that Attorney Sargent was not aware
of Smith's jail records or the mental health history and bizarre
behavior that they revealed. Id., ¶25. Therefore, according to
the court of appeals, the experts' testimony was more convincing
than Attorney Sargent's testimony. Id.
¶55 We conclude that the decision of the court of appeals
is grounded in an improper weighing of evidence. The
postconviction court was not required to accept the testimony of
experts. Byrge, 237 Wis. 2d 197, ¶48 ("Elaborate psychiatric
evaluations sometimes introduce a clinical diagnosis that may
not speak to competency to proceed."). Rather than
rubberstamping experts' retrospective evaluations, the
postconviction court weighed evidence and ultimately was
convinced by Attorney Sargent's testimony. See Medina v.
California, 505 U.S. 437, 450 (1992) ("[D]efense counsel will
often have the best-informed view of the defendant's ability to
participate in his defense.").
¶56 The testimony at the competency hearing could have
resulted in two different findings: Smith was competent or not
competent at the time of trial and sentencing. We review the
record for evidence that supports the postconviction court's
finding. See Garfoot, 207 Wis. 2d at 224. As set forth above,
the record does contain evidence that supports the
postconviction court's finding that Smith was competent at trial
and sentencing. Accordingly, the postconviction court's
competency determination is not clearly erroneous.
32
No. 2013AP1228-CR
¶57 Furthermore, an appellate court is not at liberty to
disturb a postconviction court's factual finding of competency
simply because it would have weighed the evidence differently.
See Byrge, 237 Wis. 2d 197, ¶33. Therefore, we conclude that
the court of appeals erred when it weighed the evidence and
failed to give proper deference to the postconviction court's
competency finding.
III. CONCLUSION
¶58 In light of the foregoing, we conclude that the court
of appeals failed to apply the clearly erroneous standard of
review to the postconviction court's finding of competency and
improperly weighed evidence rather than giving deference to the
postconviction court's finding. Reviewing the evidence under
the proper standard, we conclude that the postconviction court's
finding that Smith was competent to stand trial and be sentenced
is not clearly erroneous. Accordingly, we reverse the decision
of the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
¶59 REBECCA G. BRADLEY, J., did not participate.
33
No. 2013AP1228-CR.akz
¶60 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I
concur in the court's conclusion that the court of appeals
"failed to apply the clearly erroneous standard of review to the
postconviction court's finding of competency and improperly
weighed evidence rather than giving deference to the
postconviction court's finding." Majority op., ¶58. I further
agree that that the postconviction court's finding of competency
is reviewed under the clearly erroneous standard of review, and
that the postconviction court's competency determination is not
clearly erroneous. See id.
¶61 However, I would not decide the question of the proper
formulation of the clearly erroneous standard in this specific
context. As the opinion of the court makes clear, we have
stated in prior cases that the applicable formulation of the
clearly erroneous standard with respect to competency to proceed
pro se and competency to stand trial determinations is whether
the circuit court's determination is "totally unsupported by the
facts apparent in the record." Id., ¶27-28 (citations omitted).
It is less clear, however, that this "particularized" clearly
erroneous standard, id., ¶26, is applicable in cases involving
review of retrospective competency determinations, pursuant to
which a postconviction court reviews proceedings held before the
trial court.
¶62 This question has not been briefed by the parties or
argued before this court. Resolution of the question is
unnecessary because the circuit court's decision was not clearly
erroneous, whether reviewed under the "totally unsupported"
1
No. 2013AP1228-CR.akz
formulation set forth in the opinion of the court or reviewed
under the formulation set forth in the dissent. The court may
well be correct in applying the "totally unsupported"
formulation of the clearly erroneous standard to retrospective
competency determinations, but this case is not the setting in
which to decide that question.
¶63 For the foregoing reasons, I respectfully concur.
2
No. 2013AP1228-CR.ssa
¶64 SHIRLEY S. ABRAHAMSON, J. (dissenting). At issue in
this case is what standard of review an appellate court applies
in reviewing a circuit court's retrospective evaluation at a
postconviction hearing of a criminal defendant's competency to
stand trial.
¶65 The majority opinion sets forth the facts and
procedural history of the instant case at length. To clarify
the procedural history of the instant case, I have included as
Attachment A an outline of the relevant procedural history.
¶66 The majority opinion, the court of appeals, and I
agree that the "clearly erroneous" standard of review applies to
a circuit court's retrospective evaluation of a criminal
defendant's competency to stand trial. Two cases apply this
standard of review to a circuit court's evaluation of a
defendant's competency to stand trial: State v. Byrge, 2000 WI
101, ¶4, 237 Wis. 2d 197, 614 N.W.2d 477; and State v. Garfoot,
207 Wis. 2d 214, 216-17, 558 N.W.2d 626 (1997).1
1
In State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614
N.W.2d 477, the court held that a circuit court's findings
regarding competency to stand trial "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 position to apply the law to the facts." Byrge, 237
Wis. 2d 197, ¶4.
In State v. Garfoot, 207 Wis. 2d 214, 558 N.W.2d 626
(1997), this court held that "[b]ecause the trial court is in
the best position to observe the witnesses and the defendant and
to weigh the credible evidence on both sides, appellate courts
should only reverse . . . determinations [of competency to stand
trial] when they are clearly erroneous." Garfoot, 207
Wis. 2d at 225.
1
No. 2013AP1228-CR.ssa
¶67 The difference between the court of appeals opinion
and the majority opinion revolves around the formulation of the
"clearly erroneous" standard. The court of appeals correctly
stated: "A finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed."2
¶68 This formulation of the "clearly erroneous" standard
and a closely related formulation stating that findings of fact
are clearly erroneous when "'they are against the great weight
and clear preponderance of the evidence'" are deeply rooted in
Wisconsin law and are applied in a variety of contexts. See
Hon. Kitty Brennan, Standards of Appellate Review, § VI.A.1.a.,
in Michael S. Heffernan, Appellate Practice and Procedure in
Wisconsin (6th ed. 2015) (citing cases).
¶69 The court has applied the "great weight and clear
preponderance" formulation in, for example, Phelps v. Physicians
Insurance Co., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615, a
tort case authored by Justice Roggensack; State v. Arias, 2008
WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748, a Fourth Amendment
search and seizure case also authored by Justice Roggensack; and
J.A.L. v. State, 162 Wis. 2d 940, 966, 471 N.W.2d 493 (1991), a
2
State v. Smith, 2014 WI App 98, ¶19, 357 Wis. 2d 582, 855
N.W.2d 422 (quotation omitted); see also Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1986) (quoting a virtually
identical formulation of the "clearly erroneous" standard).
2
No. 2013AP1228-CR.ssa
case reviewing a juvenile court's determination of mental
illness under Wis. Stat. § 48.18(5) (1989-90).
¶70 Nonetheless, the majority opinion, without the support
of briefs or oral argument by either the State or the defendant
regarding the formulation of the "clearly erroneous" standard,
breaks new ground, while pretending to apply precedent. The
majority opinion sets forth a new articulation of the "clearly
erroneous" standard. It explains that our review of a circuit
court's finding regarding an accused's competency to stand trial
"is limited to whether that finding is totally unsupported by
facts in the record and, therefore, is clearly erroneous."3
¶71 I write separately to make two points.
¶72 First, the majority opinion's "totally unsupported by
the facts" formulation of the "clearly erroneous" standard was
first referenced in the competency to stand trial context in
State v. Garfoot, 207 Wis. 2d 214, 224, 558 N.W.2d 626 (1997).
This standard is derived from a distinct context——a circuit
court's determination of a defendant's competency to defend him
or herself pro se. Since Garfoot, this court has not applied
the "totally unsupported by the facts" standard in reviewing a
circuit court's determination of a defendant's competency to
stand trial.
3
Majority op., ¶29 (citing Byrge, 237 Wis. 2d 197, ¶33;
Garfoot, 207 Wis. 2d at 224-25); see also majority op., ¶30
("[R]etrospective determinations of competency . . . , too, are
upheld unless totally unsupported by facts in the record and,
therefore, clearly erroneous.") (citations omitted).
3
No. 2013AP1228-CR.ssa
¶73 Moreover, not only is the majority opinion's
formulation of "clearly erroneous" inconsistent with other cases
articulating the "clearly erroneous" standard of review, but the
majority opinion also grants far too much deference to a
postconviction circuit court's retrospective competency
determinations. A postconviction court conducting a
retrospective competency determination, unlike the trial court,
does not have the opportunity to observe the defendant at trial.
¶74 Accordingly, I would adhere to our existing, well-
settled articulations of the "clearly erroneous" standard in
reviewing the postconviction court's evaluation of Smith's
competency to stand trial.
¶75 Second, applying the accepted formulations of the
"clearly erroneous" standard of review to the facts of the
instant case, I am left with a "definite and firm conviction"
that the postconviction court made a mistake in finding the
defendant, Smith, competent to stand trial. The postconviction
court's conclusion is contrary to the "great weight and clear
preponderance of the evidence."
¶76 As a result, I would affirm the court of appeals and
remand the matter to the circuit court to vacate Smith's
conviction and sentence and order a new trial.
¶77 For these reasons, I dissent and write separately.
I
¶78 I start with the basics. Trial of an incompetent
criminal defendant deprives the defendant of his or her due
process right to a fair trial and violates state law. See Wis.
4
No. 2013AP1228-CR.ssa
Stat. § 971.13(1);4 State v. Byrge, 2000 WI 101, ¶¶27-28, 237
Wis. 2d 197, 614 N.W.2d 477. A challenge to competency to stand
trial cannot be waived. State v. Johnson, 133 Wis. 2d 207, 218
n.1, 395 N.W.2d 176 (1986).
¶79 Although the majority opinion purports to apply the
"clearly erroneous" standard adopted in Garfoot and Byrge in
reviewing the postconviction court's determination of Smith's
competency to stand trial,5 the majority opinion verbalizes a new
articulation of "clearly erroneous": A competency determination
is "clearly erroneous," states the majority opinion, if it is
"totally unsupported by facts in the record."6
¶80 This articulation of the "clearly erroneous" standard
is significantly flawed.
¶81 First, the majority opinion relies on Garfoot as the
source of its articulation of the "clearly erroneous" standard.
This reliance is misguided.
¶82 Garfoot invoked the "totally unsupported" language
from Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980), a
very different case than Garfoot, Byrge, or the instant case.
4
Wisconsin Stat. § 971.13(1) provides: "No person who
lacks substantial mental capacity to understand the proceedings
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."
5
See majority op., ¶26.
6
Majority op., ¶29 (citing Garfoot, 207 Wis. 2d 214, 224)
(emphasis added).
5
No. 2013AP1228-CR.ssa
¶83 In Pickens, the court reviewed a trial judge's
determination of an accused's competency to represent himself at
trial. Pickens was not a competence to stand trial case.
Rather, the issue in Pickens was the defendant's competence to
represent himself at trial.7 Competence to represent oneself at
trial and competence to stand trial are distinct inquiries.8
¶84 The Pickens court held that whether the accused "is or
is not competent to represent himself will be upheld unless
totally unsupported by the facts apparent in the record."
Pickens, 96 Wis. 2d at 570. Pickens offered no citation or
authority supporting its formulation of the standard of review.
¶85 Although the Garfoot court stated that the Pickens
standard is "essentially a 'clearly erroneous' standard of
review," and that "the same deference should be given to the
trial court regarding determinations of competence to stand
trial as is given for determinations of competence to represent
oneself,"9 this court has not applied the Pickens formulation in
cases addressing the issue of a defendant's competence to stand
trial since Garfoot.
¶86 For instance, in Byrge, a competence to stand trial
case that followed soon after Garfoot, the court did not apply
7
See Pickens, 96 Wis. 2d at 568-69.
8
See Pickens, 96 Wis. 2d at 567 ("[C]ompetency to stand
trial is not the same as competency to proceed pro se . . . .").
9
Garfoot, 207 Wis. 2d at 224-25.
6
No. 2013AP1228-CR.ssa
the Pickens "totally unsupported by the facts apparent in the
record" standard.10
¶87 In sum, the formulation——"totally unsupported by the
facts apparent in the record"——derived from Pickens is applied
almost exclusively in cases addressing a defendant's competency
to defend him or herself at trial.11
¶88 One unsupported sentence in Garfoot, taken out of
context, is the majority opinion's sole support for its
formulation of the "clearly erroneous" standard.
¶89 Second, as I stated previously, the majority opinion's
"totally unsupported by facts in the record" formulation of the
"clearly erroneous" standard is inconsistent with numerous
Wisconsin cases that apply the "clearly erroneous" standard.
10
See generally Byrge, 237 Wis. 2d 197.
11
For cases reviewing circuit court determinations
regarding a defendant's competency to represent him or herself
at trial under the Pickens formulation, see, for example, State
v. Imani, 2010 WI 66, ¶19, 326 Wis. 2d 179, 786 N.W.2d 40; State
v. Brown, No. 2015AP522-CR, unpublished slip op., ¶59 (Wis. Ct.
App. Oct. 9, 2015); State v. Mason, No. 2013AP573-CR,
unpublished slip op., ¶6 (Wis. Ct. App. Jan. 14, 2014); State v.
Dehler, Nos. 2009AP1500-CR & 2009AP1501-CR, unpublished slip
op., ¶16 (Wis. Ct. App. Aug. 10, 2010); State v. Ruszkiewicz,
2000 WI App 125, ¶38, 237 Wis. 2d 441, 613 N.W.2d 893.
The only cases I could find applying the "totally
unsupported by the facts" Pickens formulation in reviewing
determinations of a defendant's competency to stand trial or to
assist in postconviction proceedings appear to be State v.
Dorman, Nos. 2013AP782-86-CR, unpublished slip op., ¶5 (Wis. Ct.
App. Aug. 21, 2014); State v. Colyer, No. 2012AP1090-CR,
unpublished slip op., ¶6 (Wis. Ct. App. Aug. 27, 2013), and
State v. Meeks, 2002 WI App 65, ¶10, 251 Wis. 2d 361, 643
N.W.2d 526, which was reversed on other grounds in State v.
Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859.
7
No. 2013AP1228-CR.ssa
¶90 Numerous Wisconsin cases conclude that a finding of
fact is clearly erroneous when "it is against the great weight
and clear preponderance of the evidence." See, e.g., Phelps v.
Phys. Ins. Co., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615
(Roggensack, J., majority) (internal quotation marks omitted)
(reviewing a trial court's determination regarding the
employment status of a medical resident under this formulation
of the "clearly erroneous" standard); State v. Arias, 2008 WI
84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748 (Roggensack, J.,
majority) (reviewing circuit court findings of fact regarding a
search and seizure); J.A.L. v. State, 162 Wis. 2d 940, 966, 471
N.W.2d 493 (1991) (reviewing a juvenile court's determination of
mental illness under Wis. Stat. § 48.18(5) (1989-90)).
¶91 These cases demonstrate that a finding of fact may be
clearly erroneous even when there is evidence to support the
finding.
¶92 Third, the United States Supreme Court has analyzed
the "clearly erroneous" standard. It has adopted in United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), a similar
formulation of the "clearly erroneous" standard that Wisconsin
case law has adopted and that I espouse in this dissent.
¶93 The United States Supreme Court stated: "A finding is
'clearly erroneous' when although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
Gypsum, 333 U.S. at 395 (footnotes omitted).
8
No. 2013AP1228-CR.ssa
¶94 The Gypsum Court relied on Federal Rule of Civil
Procedure 52(a), which provides that reviewing courts must not
overturn factual findings unless clearly erroneous and must give
due regard to the opportunity of the trial court to assess
witness credibility.
¶95 Federal Rule of Civil Procedure 52(a) is nearly
identical to Wis. Stat. § 805.17(2), which provides in relevant
part: "Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses."
¶96 Given the similarities between Federal Rule of Civil
Procedure 52(a) and Wis. Stat. § 805.17(2), a United States
Supreme Court case, such as Gypsum, interpreting the "clearly
erroneous" standard is instructive. See Rao v. WMA Secs., Inc.,
2008 WI 73, ¶47, 310 Wis. 2d 623, 752 N.W.2d 220 ("Because the
Wisconsin rules . . . mirror the federal rules, federal law is
also instructive in interpreting the Wisconsin rules.").
¶97 Under United States Supreme Court (and Wisconsin)
precedent, a finding of fact is clearly erroneous even when
there is evidence to support the finding, if an appellate court
"on the entire evidence is left with the definite and firm
conviction that a mistake has been committed."12
12
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948); see also Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1986) (quoting Gypsum, 333 U.S. at 395).
9
No. 2013AP1228-CR.ssa
¶98 Fourth and finally, both Garfoot and Byrge dealt with
evaluations of competency to stand trial made prior to trial.13
These fact situations justify greater deference to trial court
findings regarding a defendant's competency to stand trial than
is justified when a postconviction court (different than the
trial court) conducts a retrospective evaluation of a
defendant's competency to stand trial.
¶99 As the court of appeals noted in the instant case, in
Garfoot and Byrge this court contended that deference to the
circuit court's competency determination was warranted because
the trial court had superior ability to observe the defendant
and appraise witness credibility and demeanor.14 These
considerations are absent or significantly weaker when a
postconviction court (different than the trial court) conducts a
retrospective evaluation of a defendant's competency to stand
trial.15
¶100 In sum, the majority opinion's conclusion that a
circuit court's finding regarding a defendant's competency to
13
See Garfoot, 207 Wis. 2d at 217; Byrge, 237 Wis. 2d 197,
¶13.
14
See Byrge, 237 Wis. 2d 197, ¶75 ("[A] competency hearing
presents a unique category of inquiry in which the circuit court
is in the best position to appraise witness credibility and
demeanor and therefore to apply the law to the facts.");
Garfoot, 207 Wis. 2d at 225 ("Because the trial court is in the
best position to observe the witnesses and the defendant and to
weigh the credible evidence on both sides, appellate courts
should only reverse such determinations when they are clearly
erroneous.") (citing Wis. Stat. § 805.17(2)).
15
Smith, 357 Wis. 2d 582, ¶23.
10
No. 2013AP1228-CR.ssa
stand trial should be upheld so long as it is not "totally
unsupported" by facts in the record does not comport with
Wisconsin or United States Supreme Court precedent, and is an
unreasonable interpretation of the "clearly erroneous" standard
of review. According to the majority opinion, a circuit court's
determination of competency to stand trial would survive appeal
even in the face of overwhelming contrary evidence and even in
circumstances such as those in the present case in which the
postconviction court stands in little better position than an
appellate court in determining the defendant's competency at a
point in time several years prior.
¶101 Accordingly, I disagree with the majority opinion's
formulation of the "clearly erroneous" standard of review. I
conclude that a circuit court's retrospective determination of a
defendant's competency to stand trial is clearly erroneous when,
"although there is evidence to support [the circuit court's
conclusion], the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed," or when the postconviction court's finding is
contrary to the "great weight or clear preponderance of the
evidence."16
II
16
Phelps v. Phys. Ins. Co., 2009 WI 74, ¶39, 319 Wis. 2d 1,
768 N.W.2d 615 (quotation omitted); Smith, 357 Wis. 2d 582, ¶19
(quotation omitted).
11
No. 2013AP1228-CR.ssa
¶102 I conclude, as did the court of appeals, that the
postconviction court erred as a matter of law in finding that
Smith was competent to stand trial.17
¶103 The postconviction court reached its decision based on
two errors of law:
(1) The postconviction court was skeptical of
retrospective competency determinations. Yet
retrospective competency evaluations are well-
established in Wisconsin law.
(2) The postconviction court did not consider the medical
evidence presented by the medical experts. The
postconviction court seemed to rely solely on the
testimony of Smith's trial counsel.
(1)
¶104 The postconviction court erred as a matter of law by
being skeptical of retrospective competency determinations.
¶105 Even before hearing the evidence regarding Smith's
competency to stand trial, the postconviction court expressed
skepticism toward retrospective evaluations of a defendant's
competency to stand trial, stating: "To say someone——if this
opens a door, you can [retrospectively challenge trial
competency] [i]n every case then. Defense can do this on every
case. Come back and challenge the defense attorney at the time,
17
Two judges presided at postconviction proceedings. This
review is of Milwaukee County Judge David Borowski's finding of
competency to stand trial.
12
No. 2013AP1228-CR.ssa
say he or she didn't raise competency two years later. Oh, now
find a doctor."
¶106 Similarly, even before hearing the testimony of the
medical experts, the postconviction court was skeptical of the
testimony, remarking that "[the medical expert is] making a
decision based not which [sic] she's observing, not what she's
seeing at the time, not what he is or is not perceiving, not his
ability in an interview contemporaneous to the proceedings.
She's going back two years."
¶107 Throughout the competency proceedings, the
postconviction court dismissed even the possibility of a
retrospective competency proceeding, let alone the idea that "a
meaningful retrospective hearing may be possible by analyzing
the pertinent legal and medical records, in combination with a
current medical evaluation, to produce a hindsight picture of
[the defendant's] competency at the time of trial." See State
v. Johnson, 133 Wis. 2d 207, 225, 395 N.W.2d 176 (1986)
¶108 In sum, the transcript of the postconviction court's
comments shows that the court believed that only the individuals
"who were present" at the time of trial can credibly assess the
defendant's competency to stand trial. In effect, the
postconviction court gave little weight to any testimony or
medical expert report in the retrospective competency hearing.
¶109 The postconviction court's views of retrospective
competency hearings do not accurately reflect Wisconsin law.
Retrospective evaluation of a defendant's competency to stand
trial is appropriate and well-established in our case law when a
13
No. 2013AP1228-CR.ssa
defendant's competency is questioned after a conviction at trial
or the acceptance of a guilty plea. See Johnson, 133 Wis. 2d at
225; State v. Haskins, 139 Wis. 2d 257, 267, 407 N.W.2d 309 (Ct.
App. 1987).
¶110 This court has observed that "the mere passage of time
may not make [a retrospective competency hearing] meaningless,"
and "a meaningful . . . hearing may be possible by analyzing the
pertinent legal and medical records, in combination with a
current medical evaluation, to produce a hindsight picture of
[the defendant's] competency at the time of trial." Johnson,
133 Wis. 2d at 225 (internal quotation marks omitted).
¶111 The majority opinion paints the postconviction court's
evaluation of the court-appointed medical experts' testimony as
an assessment of the court-appointed medical experts'
credibility and states that the postconviction court is the only
court able to evaluate credibility.18
¶112 The postconviction court said nothing that directly or
indirectly challenged the credibility of these particular
experts. The postconviction court praised both medical experts,
extolling their experience, credentials, and ability.19
18
See majority op., ¶34 ("[T]he postconviction court was
the only court in the position to weigh the evidence, assess
credibility, and reach a determination regarding Smith's
retrospective competency.").
19
The postconviction court commented positively about the
two testifying medical experts as follows:
"Dr. Collins is an absolute expert in the field; I
have the utmost respect for her; she’s testified
multiple times . . . ."
(continued)
14
No. 2013AP1228-CR.ssa
¶113 The only flaw the postconviction court identified in
the medical experts' testimony was that the medical experts'
conclusions were not supported by an interview of Smith at the
time of trial and sentencing.
¶114 This flaw relates to the concept of retrospective
competency evaluation and could have been said about any medical
expert conducting a retrospective competency evaluation.
¶115 Rejection of the medical experts' testimony solely
because it is not based on an interview of Smith at the time of
trial and sentencing is inconsistent with Johnson, which clearly
authorizes retrospective competency evaluations, including
evaluation by medical experts. Thus, the postconviction court's
evaluation of the record is contrary to law and the
postconviction court's finding of fact regarding Smith's
competency is based on an error of law.
¶116 In sum, the postconviction court's skepticism toward
retrospective competency evaluations was an error of law that
totally undermined the postconviction court's factual finding.
(2)
¶117 The postconviction court's approach to finding that
Smith was competent to stand trial seems to have been that had
Smith been incompetent to stand trial, the trial court, the
"Dr. Pankiewicz and Dr. Collins are very experienced
doctors, and I've seen both of them testify. I read
reports from both of the them. Dr. Pankiewicz said
he's done I think 2000 evaluations. . . . and Dr.
Collins, obviously, has done hundreds and hundreds of
evaluations."
15
No. 2013AP1228-CR.ssa
State, and Smith's trial counsel would have raised the
competency issue at the time of trial or sentencing. Because no
one raised the issue at the time of trial or sentencing, the
postconviction court reasoned that Smith was competent to stand
trial.
¶118 This reasoning led the postconviction court to
seemingly consider only the testimony of Smith's trial counsel.
¶119 The postconviction court explained its reliance on the
trial court's failure to address the competency issue as the
basis for its decision to find competence as follows:
The center of the defendant's argument is this: The
people directly involved with the defendant during the
trial and sentencing, his attorney and the presiding
judge, failed to notice that the defendant was not
competent. The evidence that proves their collective
failure is the testimony of doctors who had no contact
with the defendant during the trial or at sentencing.
In other words, people who were not present at the
relevant time know more than the people who were
present.
¶120 In other words, because the issue of Smith's
competency to stand trial was not raised or considered at the
trial or at sentencing, the postconviction court seemed
convinced that Smith was obviously competent. According to the
postconviction court, if Smith were incompetent, someone would
have raised the issue at trial or sentencing.
¶121 This line of reasoning is misguided and is not borne
out by the trial court record. The postconviction court failed
to recognize that gaps existed in the trial court record and the
information at Smith's trial counsel's disposal. Had the gaps
been filled at trial or sentencing, the trial court, the State,
16
No. 2013AP1228-CR.ssa
or Smith's defense counsel might have had reason to doubt
Smith's competency.
¶122 In the instant case, neither the circuit court judge,
who presided at Smith's trial, nor the State's nor Smith's trial
counsel raised questions regarding the defendant's competency to
stand trial prior to or during the trial or sentencing. As a
result, the circuit court had no reason to hold competency
proceedings or appoint medical experts to assess the defendant's
competence prior to or at the time of trial or sentencing. See
Wis. Stat. § 971.14(1r)(a), (2)(a) (requiring competency
proceedings and the appointment of medical examiners whenever
"there is reason to doubt a defendant's competency to proceed").
¶123 In contrast with the limited record in the trial court
regarding Smith's competence to stand trial, the medical experts
had access to records that the trial court and trial counsel did
not have.
¶124 The records upon which the medical experts relied
demonstrate that Smith had a well-documented history of mental
illness dating back to at least 1993, that he was previously
diagnosed with either a "delusional disorder" or
"schizophrenia," and that civil commitment proceedings were
initiated against him.20 In the months leading up to conviction
and sentencing, Smith's medical records showed he was acting
strangely and exhibiting psychotic symptoms.21
20
See Smith, 357 Wis. 2d 582, ¶12.
21
See id.
17
No. 2013AP1228-CR.ssa
¶125 During the same month as his trial, jail staff noted
that Smith was "'confusing past cases with current,' 'talking to
himself,' and acting 'confrontational,'" and medical records
showed Smith was rambling and out of touch with reality.22
¶126 After sentencing, Smith was described as "actively
psychotic," refusing medication for diabetes because he feared
that nursing staff would kill him with shots and by feeding him
"whole foods."23
¶127 At sentencing, Smith was given an opportunity to speak
in his own behalf. Smith's statement was rambling. It was
largely irrelevant and incoherent. Unfortunately, neither the
circuit court nor trial counsel for the State or Smith viewed
Smith's allocution as raising any concern about Smith's
competency. They let Smith speak and then ignored the possible
implications of his behavior.
¶128 Neither the circuit court judge nor the State's trial
counsel nor Smith's trial counsel were fully aware at the time
of conviction and sentencing of the medical and jail records
(later available to the medical experts).
¶129 The postconviction court failed to consider seriously
these pertinent records. Instead, the postconviction court
simply adopted the position of Smith's trial counsel that Smith
was competent, and ignored Smith's trial counsel's ignorance of
the contents of records upon which the medical experts based
22
See id.
23
See id.
18
No. 2013AP1228-CR.ssa
their opinions. The postconviction court also seemingly ignored
reasons to be skeptical of defense counsel's testimony.24
¶130 The majority opinion supports the postconviction
court's approach by pointing to two colloquies between Smith and
the circuit court (namely Judge Conen, who presided over Smith's
trial) as demonstrating Smith's competence.25
¶131 The colloquies are weak. The first colloquy (which
occurred at the Miranda-Goodchild hearing), does not reveal very
much about Smith's mental state. Smith responds to the circuit
court's questions with only a "yes," "no," or "yeah." Smith's
responses in the second colloquy (concerning his right to
testify) are only slightly more developed.26
¶132 Colloquies resulting in simple answers are generally
viewed as ineffective for determining the accused's mental
state. The goal of a colloquy is to get the accused to speak in
his or her own words so that the accused's mental condition and
24
As Robert D. Miller and Edward J. Germain wrote,
"[d]efense attorneys cannot be considered as objective or
uninvolved witnesses to the competency of their clients, either
at the time of the original trial or at retrospective competency
hearings." Robert D. Miller & Edward J. Germain, The
Retrospective Evaluation of Competency to Stand Trial, 11 Int'l
J. L. & Psychiatry 113, 123 (1988). Defense counsel have an
interest in not being found ineffective for failing to raise
competency issues.
Miller and Germain also raise the question whether a trial
judge's view of a defendant's competency may be questionable as
well. See id. at 124.
25
See majority op., ¶¶6-7.
26
See id.
19
No. 2013AP1228-CR.ssa
understanding can be evaluated. One-word responses are not
persuasive.27
¶133 At least one of the court-appointed medical experts
stated that Smith's answers in the colloquies on which the
majority opinion relies are not inconsistent with Smith "being
sick and symptomatic at the same time [as the colloquies]."
¶134 Moreover, as two Wisconsin medical experts wrote in an
article regarding retrospective competency evaluations:
"Unfortunately [court] records will usually not reveal as much
about a defendant's mental state as a focus[]ed clinical
evaluation, unless it was so disordered as to have been obvious
to everyone involved in the process." Robert D. Miller & Edward
J. Germain, The Retrospective Evaluation of Competency to Stand
Trial, 11 Int'l J. L. & Psychiatry 113, 124 (1988).
¶135 Given the significant weight of the medical
evaluations prepared by the two medical experts and the
postconviction court's erroneous dismissal of this evidence, I
conclude, as did the court of appeals, that the postconviction
court's finding that Smith was competent to stand trial was an
error of law.
¶136 Accordingly, I would affirm the decision of the court
of appeals and remand the matter to the circuit court to vacate
Smith's conviction and sentence and order a new trial.
27
See State v. Brown, 2006 WI 100, ¶58 n.27, 293
Wis. 2d 594, 716 N.W.2d 906 (discussing circumstances in which a
colloquy should be expanded to ensure a defendant's
understanding).
20
No. 2013AP1228-CR.ssa
¶137 For the reasons set forth, I dissent and write
separately.
¶138 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
21
No. 2013AP1228-CR.ssa
ATTACHMENT A: Procedural History
The relevant procedural history is as follows:
• On October 2, 2007, victim A.H. was beaten and raped.
• On January 7, 2009, Smith was charged with second-degree
sexual assault of A.H.
• On October 12, 2009, a jury trial began before Judge
Jeffrey A. Conen of Milwaukee County. Smith did not
testify at trial.
• On October 14, 2009, the jury convicted Smith of second-
degree sexual assault.
• On December 11, 2009, at the sentencing hearing, Smith
gave a rambling and incoherent allocution. Judge Conen
sentenced Smith to 25 years of initial confinement and 15
years of extended supervision.
• On June 18, 2010, Smith's postconviction counsel filed a
motion for an evaluation of Smith's competency to assist
in postconviction proceedings.
• On September 13, 2010, a competency hearing was held
before Judge Jean DiMotto of Milwaukee County at which
the defendant's medical expert, Dr. Deborah Collins,
testified that Smith was not competent to proceed.
• On March 14, 2011, after a court-appointed medical
expert, Dr. John Pankiewicz, concluded that Smith was
incompetent to proceed and unlikely to regain competency
within a reasonable period of time, Judge DiMotto found
Smith incompetent to assist in postconviction
1
No. 2013AP1228-CR.ssa
proceedings. A guardian ad litem was appointed for
Smith.
• On September 30, 2011, Smith's postconviction counsel
filed a motion to vacate Smith's conviction and sentence,
alleging that Smith was incompetent at the time of trial
and sentencing.
• The postconviction court, Judge David Borowski of
Milwaukee County, ordered Drs. Collins and Pankiewicz to
conduct a retrospective evaluation of Smith's competency
at the time of trial and sentencing. A court-appointed
medical expert and a medical expert selected by Smith
reviewed records, including the prior psychiatric
examinations of Smith, jail and medical records, and the
transcripts of Smith's allocution.
• On August 2, 2012, Judge Borowski held a competency
hearing at which both medical experts testified that
Smith was incompetent at the time of trial and
sentencing.
• On September 14, 2012, Judge Borowski continued the
competency hearing, at which Smith's trial counsel
testified that he had no reason to doubt Smith's
competency to stand trial.
• On May 2, 2013, Judge Borowski denied Smith's motion to
vacate his conviction and sentence and order a new trial,
finding that Smith was competent to stand trial.
2
No. 2013AP1228-CR.ssa
1