Burns v. Com.

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



                                 2
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.

                                  3
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,


                                   4
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.


                                   5
     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


                                 6
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


                                    7
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:




                                   8
          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



                                9
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-


                                  10
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


                                11
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


                                12
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



                                13
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




                                14
circuit court for further proceedings consistent with this

opinion and this Court’s order entered on March 11, 2005.

                                           Reversed and remanded.




                               15