PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Russell, S.J.
WILLIAM JOSEPH BURNS
OPINION BY
v. Record No. 090863 JUSTICE S. BERNARD GOODWYN
January 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis L. Hupp, Judge
In this appeal we consider whether the circuit court erred
in granting summary judgment to the Commonwealth in a proceeding
remanded to the circuit court, pursuant to Code § 8.01-654.2,
for determination of a claim of mental retardation by a person
sentenced to death for a capital offense.
Background and Material Proceedings Below
The Circuit Court of Shenandoah County convicted Burns of
capital murder, among other crimes, and sentenced him to death.
This Court upheld Burns’ capital conviction and sentence on
direct appeal. Burns v. Commonwealth, 261 Va. 307, 541 S.E.2d
872 (2001).
Burns raised a claim of mental retardation in habeas corpus
proceedings in this Court. While his petition was pending, the
Supreme Court of the United States decided Atkins v. Virginia,
536 U.S. 304, 321 (2002), which prohibits execution of persons
who are mentally retarded. In response thereto, the General
Assembly enacted legislation implementing procedures governing
the determination of the mental retardation of individuals
facing a capital sentence. Code §§ 8.01-654.2; 19.2-264.3:1;
19.2-264.3:1.1; 19.2-264.3:1.2; 19.2-264.3:3; and 19.2-264.4;
see also Atkins v. Commonwealth, 266 Va. 73, 79, 581 S.E.2d 514,
517 (2003) (describing these statutes as emergency legislation
enacted in response to the holding of the Supreme Court of the
United States in Atkins v. Virginia). Thereafter, this Court
determined that Burns’ claim of mental retardation was not
frivolous and, after two rehearings, remanded his case to the
Circuit Court of Shenandoah County, pursuant to Code § 8.01-
654.2, for a jury determination of his mental retardation claim.
Burns v. Warden, 269 Va. 351, 354, 609 S.E.2d 608, 610-11
(2005).
Mental Retardation Proceeding
In the instant remanded proceeding concerning Burns’ claim
of mental retardation, Burns’ counsel began to notice that Burns
was exhibiting odd behavior and questioned Burns’ competence. *
Dr. J. Gregory Olley, the psychologist appointed by the circuit
court pursuant to Code § 19.2-264.3:1.2 to assist Burns,
*
During his original criminal trial, Burns was evaluated
and found to be incompetent and unable to aid in his own
defense. Burns received medication and treatment that restored
his competency. After Burns was restored to competency, his
trial proceeded and he was convicted of capital murder. Burns
v. Commonwealth, 261 Va. at 313, 541 S.E.2d at 877. After
Burns’ conviction, the forensic psychological unit evaluated
him. The evaluator, Dr. Mario J.P. Dennis, found that Burns
experienced a psychotic disorder that included personality
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concluded that Burns’ mental health had to be addressed before
he could complete a mental retardation evaluation on Burns in
conformity with the requirements mandated by Code § 19.2-
264.3:1.1. Additionally, a neuropsychiatrist appointed by the
circuit court determined that Burns suffered from “psychosis,
impairment of autobiographical memory, derailment of language
and thought, and significant social deterioration,” which
rendered Burns incompetent to rationally assist counsel in his
own defense. Burns’ counsel filed a motion to declare Burns
incompetent and to secure treatment, pursuant to Code § 19.2-
169.2, to restore Burns to competence.
The Commonwealth filed a motion opposing the motion to
declare Burns incompetent and a motion to change the style of
the case. The Commonwealth argued that the instant matter was
not a criminal proceeding, nor a post-conviction habeas
proceeding, but instead a “specific proceeding” created by the
General Assembly. According to the Commonwealth, the
proceeding, authorized by Code § 8.01-654.2, was a “collateral,
post conviction proceeding,” and because Burns was not a
defendant in a criminal matter, he did not have a Sixth
Amendment right to be competent in the proceeding. Thus, the
Commonwealth argued, Code §§ 19.2-169.1 and 19.2-176, which
decompensation, social withdrawal and disordered affect, and
erratic, possibly assaultive behavior.
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guarantee a criminal defendant the right to a competency
evaluation before and after sentencing, were inapplicable. The
Commonwealth requested the style of the case be changed to In
re: William Joseph Burns or Burns v. Warden to reflect the
unique nature of the proceeding.
Burns filed a motion in opposition to the Commonwealth’s
motions, arguing that the statutory scheme for mental
retardation determinations allows Burns to retain his criminal
trial rights. Burns also argued that this Court had already
rejected the Commonwealth’s arguments when it stated in Burns v.
Warden that all defendants in capital cases who allege mental
retardation, regardless of the procedural posture of their cases
on the date that Atkins v. Virginia was decided, are afforded
the same procedures by statute. Burns v. Warden, 268 Va. 1, 3,
597 S.E.2d 195, 196 (2004), aff’d on reh’g, 269 Va. 351, 352-54,
609 S.E.2d 608, 609-11 (2005).
The circuit court heard argument on the motions and ruled
that the proceeding was a specific proceeding that was neither
wholly civil nor wholly criminal. The circuit court changed the
caption of the case to In re: William Joseph Burns. Noting that
Burns was the moving party, the circuit court ruled that, as in
a civil case, Burns’ competence was irrelevant because he was
represented by counsel, and declined to determine Burns’
competence. A trial date was set for the special proceeding,
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along with the dates for expert reports to be exchanged
beforehand.
At the time designated for the filing of expert
disclosures, Burns filed a notice stating that he did not intend
to present expert testimony in support of his claim. Attached
to the notice was a declaration from Dr. Olley. In his
declaration, Dr. Olley stated that Burns was not competent to
stand trial because of his psychosis. Dr. Olley further stated
that Burns’ psychosis interfered with his attempts to assess
Burns’ intellectual functioning in conformity with accepted
professional practice and that professional practice obliged him
to address Burns’ mental illness before administering a
standardized intelligence test.
Responding to this filing, the Commonwealth filed a “Motion
for a Final Order.” In this motion, the Commonwealth argued
that expert testimony was necessary to prove whether Burns was,
in fact, mentally retarded because the relevant statute requires
proof of significant limitations in intellectual functioning and
adaptive behavior that must be assessed in conformity with
specific professional standards. See Code § 19.2-264.3:1.1(A).
The Commonwealth stated that Burns’ notice that he did not
intend to present expert testimony was an admission of a failure
of proof and an implied withdrawal or waiver, which entitled the
Commonwealth to judgment.
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At the hearing on the Motion for Final Order, the circuit
court reiterated that Burns’ competence was not at issue because
the proceeding was not a criminal proceeding. The circuit court
opined that the presence of competent counsel was enough for
Burns to go forward with the proceeding. Because Burns admitted
that he lacked an expert witness on the issue of whether he is
mentally retarded, the circuit court ruled that Burns could not
satisfy his burden of proof on the mental retardation issue.
The circuit court granted the Commonwealth’s Motion for a Final
Order, treating it as a motion for summary judgment. We granted
Burns’ petition for appeal.
Analysis
Burns argues that because the remanded proceeding was not a
civil proceeding, but rather a criminal or quasi-criminal
proceeding, the circuit court erred in granting summary judgment
in favor of the Commonwealth and in ruling the issue of Burns’
mental competence was not relevant. The Commonwealth responds
that the proceeding in the circuit court was not a criminal
trial or a criminal sentencing, but rather a “specific”
proceeding created to determine a claim raised in a habeas
petition; Burns was not entitled to the rights of a criminal
defendant because the proceeding was civil in nature. Also, the
Commonwealth argues, because the proceeding on remand was civil
in nature, the circuit court did not err in ruling that the
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issue of Burns’ mental competence was irrelevant and in granting
summary judgment based on Burns’ lack of an expert witness.
In order to decide the issues presented in this case, we
must first determine whether the adjudicatory procedure mandated
by Code § 8.01-654.2 is criminal or civil in nature. Whether a
statutory scheme is civil or criminal is an issue of statutory
construction. Smith v. Doe, 538 U.S. 84, 92 (2003). Courts,
when conducting a statutory construction analysis, “consider the
statute’s text and its structure to determine the legislative
objective.” Id. This Court reviews issues of statutory
construction de novo. Farrakhan v. Commonwealth, 273 Va. 177,
180, 639 S.E.2d 227, 229 (2007).
Burns’ mental retardation determination was remanded to the
Circuit Court of Shenandoah County pursuant to Code § 8.01-
654.2. This statute is one of several promulgated by the
General Assembly in direct response to Atkins v. Virginia, 536
U.S. at 321. See Atkins v. Commonwealth, 266 Va. at 79, 581
S.E.2d at 517.
In Atkins v. Virginia, the Supreme Court of the United
States held that it was unconstitutional to execute a mentally
retarded individual. 536 U.S. at 321. The analysis in Atkins
v. Virginia focused on the Eighth Amendment, which protects
citizens and residents from cruel and unusual punishment. Id.
The Eighth Amendment prohibits “excessive” sanctions and as a
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precept of justice “punishment for crime should be graduated and
proportioned to the offense.” Id. Atkins v. Virginia left it
to the states to determine which individuals are so impaired as
“to fall within the range of mentally retarded offenders about
whom there is a national consensus.” Id. at 317.
In 2003, the General Assembly enacted Code §§ 19.2-
264.3:1.1 and 19.2-264.3:1.2 establishing the procedure for
determining defendants’ future claims of mental retardation
arising in capital murder cases. Code § 19.2-264.3:1.1 defines
mental retardation and states the requirements for assessing
mental retardation for purposes of a capital sentencing. The
statute states that “the issue of mental retardation, if raised
by the defendant in accordance with the notice provisions” in
Code § 19.2-264.3:1.2, shall be determined as part of the
sentencing proceeding required in capital cases pursuant to Code
§ 19.2-264.4. Code § 19.2-264.3:1.1(C). Code § 19.2-264.3:1.2
provides for a defendant to have expert assistance when the
issue of the defendant’s mental retardation is relevant to a
capital sentencing.
The General Assembly also enacted Code § 8.01-654.2 in
2003. It provides redress for certain individuals who had been
sentenced to death before April 29, 2003. Code § 8.01-654.2
states:
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Notwithstanding any other provision of law, any
person under sentence of death whose sentence became
final in the circuit court before April 29, 2003, and
who desires to have a claim of his mental retardation
presented to the Supreme Court, shall do so by one of
the following methods: (i) if the person has not
commenced a direct appeal, he shall present his claim
of mental retardation by assignment of error and in his
brief in that appeal, or if his direct appeal is
pending in the Supreme Court, he shall file a
supplemental assignment of error and brief containing
his claim of mental retardation, or (ii) if the person
has not filed a petition for a writ of habeas corpus
under subsection C of § 8.01-654, he shall present his
claim of mental retardation in a petition for a writ of
habeas corpus under such subsection, or if such a
petition is pending in the Supreme Court, he shall file
an amended petition containing his claim of mental
retardation. A person proceeding under this section
shall allege the factual basis for his claim of mental
retardation. The Supreme Court shall consider a claim
raised under this section and if it determines that the
claim is not frivolous, it shall remand the claim to
the circuit court for a determination of mental
retardation; otherwise the Supreme Court shall dismiss
the petition. The provisions of §§ 19.2-264.3:1.1 and
19.2-264.3:1.2 shall govern a determination of mental
retardation made pursuant to this section. If the
claim is before the Supreme Court on direct appeal and
is remanded to the circuit court and the case wherein
the sentence of death was imposed was tried by a jury,
the circuit court shall empanel a new jury for the sole
purpose of making a determination of mental
retardation.
If the person has completed both a direct appeal
and a habeas corpus proceeding under subsection C of
§ 8.01-654, he shall not be entitled to file any
further habeas petitions in the Supreme Court and his
sole remedy shall lie in federal court.
Pursuant to Code § 8.01-654.2, once this Court decides, as
a threshold issue, that the claim of mental retardation is not
frivolous, the claim is remanded to the circuit court to
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determine the issue of mental retardation. The requirement that
a nonfrivolous claim be remanded applies whether the claim is
raised in the context of a direct appeal or a petition for
habeas corpus. Burns v. Warden, 269 Va. at 353, 609 S.E.2d at
610. Code § 8.01-654.2 provides a single, specific procedure to
determine the issue of mental retardation, regardless of the
context in which the issue arises. Id. Adjudication of the
issue of mental retardation does not occur as part of a direct
appeal or habeas corpus proceeding in this Court, but in the
specific proceeding, established through Code § 8.01-654.2, to
be conducted on remand. Id.
Code § 8.01-654.2 directs that the provisions of Code
§§ 19.2-264.3:1.1 and 19.2-264.3:1.2 govern the determination of
mental retardation on remand. Those same criminal procedure
statutes govern the determination of the mental retardation
claims of individuals charged with or convicted of capital
murder after April 29, 2003. Code § 19.2-264.3:1.1(C)
specifically refers to the mental retardation determination
taking place “as part of the sentencing proceeding required by
§ 19.2-264.4.” Code § 19.2-264.4 is the general sentencing
proceeding statute applicable upon a finding that a defendant is
guilty of an offense that may be punishable by death. Such a
proceeding is limited to determining whether the defendant shall
be sentenced to death or life imprisonment. See Code § 19.2-
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264.4. It is a criminal proceeding.
The procedures set forth in Code §§ 19.2-264.3:1.1 and
19.2-264.3:1.2 apply to all determinations of a defendant’s
mental retardation relevant to a capital sentencing. Under the
statutory scheme approved by the General Assembly, the same
procedure applies for determining a defendant’s claim of mental
retardation arising in a capital murder case, whether the claim
is raised by a defendant charged with or convicted of capital
murder after April 29, 2003 or by a person sentenced to death
before April 29, 2003.
This unitary procedure imposed by the statutory scheme
appears to have been designed to provide those individuals,
whose claims of mental retardation are remanded to the circuit
court pursuant to Code § 8.01-654.2, the same procedural
protections and rights as are given to defendants charged with
or convicted of a capital offense after the Atkins v. Virginia
decision. The Commonwealth argues that the specific proceeding,
on remand, to determine the mental retardation of individuals,
such as Burns, whose claims of mental retardation were brought
before this Court by way of a writ of habeas corpus should be
treated as civil proceedings, while those specific proceedings
ordered after consideration of a direct appeal should be treated
as criminal proceedings, providing different constitutional
rights on remand based upon the context in which the issue was
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raised. The Commonwealth is correct that, pursuant to Code
§ 8.01-654.2, the remanded claim of mental retardation is
adjudicated in a special proceeding in circuit court. However,
the nature of the proceeding conducted on remand is not governed
by the context in which the issue was raised before this Court,
but rather by consideration of the legislative objective of the
statute which created it. See Burns v. Warden, 269 Va. at 353,
609 S.E.2d at 610; Smith, 538 U.S. at 92-93.
The mandated use of a unitary criminal procedure for
determining mental retardation, along with consideration of the
constitutional protection such determinations are designed to
afford, indicate that the General Assembly intended that all
claims remanded, pursuant to Code § 8.01-654.2, be treated as
criminal proceedings. Therefore, we hold that the proceedings
to determine the mental retardation of a person sentenced to
death, undertaken upon remand of a case to the circuit court
pursuant to Code § 8.01-654.2, are criminal in nature. Any
person whose claim is so remanded shall be afforded, in such
proceeding, the same rights as those afforded to a defendant in
a criminal sentencing proceeding.
The statutory scheme indicates that a mental retardation
determination conducted upon remand to the circuit court is a
part of a capital murder case, and that proceeding is criminal
in nature. The purpose of determining the mental retardation of
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a person charged with or convicted of capital murder is the same
in all capital murder cases in which the issue arises — whether
the defendant’s mental retardation should prohibit the
defendant’s execution. This case, which was remanded to the
circuit court pursuant to Code § 8.01-654.2, is no different.
Our directions to the circuit court stated:
[U]pon a finding that Burns is not mentally retarded,
the sentence of death entered on May 12, 2000 remains
in full force and effect. Upon a finding that Burns is
mentally retarded, the trial court shall enter an order
vacating the sentence of death and re-sentencing Burns
in accordance with Code § 19.2-264.3:1.1(D).
Burns v. Warden, 269 Va. at 354, 609 S.E.2d at 611.
Code § 8.01-654.2 is a transitional statute that the
General Assembly enacted to address the rights of a limited
number of capital murder defendants. Id. The General Assembly
promulgated Code § 8.01-654.2 to allow certain defendants
sentenced to death before April 29, 2003 the opportunity to
present their claims of mental retardation. When those mental
retardation claims are found by this Court to be “not
frivolous,” Code § 8.01-654.2 creates a dispositional vehicle,
which allows those defendants the same protections and
procedures concerning the presentation of their mental
retardation claims given to individuals charged or convicted of
capital murder after April 29, 2003. All the proceedings on
remand pursuant to Code § 8.01-654.2 must be criminal in nature
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in order to carry out the intent of the General Assembly.
Rule 3:20 allows summary judgment to be entered in civil
actions. However, Part 3 of the Rules of the Supreme Court of
Virginia only applies to civil actions. Rule 3:1. Because the
proceeding remanded pursuant to Code § 8.01-654.2 was criminal
in nature, the circuit court erred in granting summary judgment
to the Commonwealth.
The Supreme Court of the United States has held that trying
an incompetent criminal defendant violates the right to due
process. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); Medina
v. California, 505 U.S. 437, 453 (1992). A defendant is
considered incompetent if he does not have the present ability
to consult with his lawyer “with a reasonable degree of rational
understanding [and] a rational as well as factual understanding
of the proceedings against him.” Cooper, 517 U.S. at 354
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).
Because the remanded proceeding was criminal in nature, the
circuit court erred in ruling that Burns’ competence was
irrelevant and in refusing to adjudicate Burns’ competence.
Upon review of the record and upon consideration of the
arguments presented, we find reversible error in the judgment of
the circuit court. Accordingly, for the reasons stated, we will
reverse the circuit court’s judgment and remand the case to the
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circuit court for further proceedings consistent with this
opinion and this Court’s order entered on March 11, 2005.
Reversed and remanded.
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