State v. Jimmie Lee Smith

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