Corcoran v. State

Attorneys for Appellant                                  Attorneys for
Appellee
Susan K. Carpenter                                       Steve Carter
Public Defender of Indiana                               Attorney General
of Indiana

Joanna McFadden                                    Stephen R. Creason
Deputy Public Defender                                   Deputy Attorney
General
Indianapolis, Indiana                                    Indianapolis,
Indiana
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                           No. 02S00-0304-PD-00143

Joseph E. Corcoran
                                              Appellant (Petitioner below),

                                     v.

State of Indiana

                                               Appellee (Defendant below).
                      _________________________________

         Appeal from the Allen Superior Court, No. 02D04-9707-CF-465
                    The Honorable Frances C. Gull, Judge
                      _________________________________

  On Petition To Transfer from the Allen County Superior Court, No. 02S00-
                                 0304-PD-143
                      _________________________________

                              January 11, 2005

Sullivan, Justice.


      Joseph E. Corcoran, convicted of four murders and sentenced to  death,
indicated that he believed he should be put to  death  for  his  crimes  and
waived any further legal review of his convictions and sentence.  The  State
Public Defender took the position that he was not  competent  to  make  that
decision.  The trial court with responsibility for this case found  Corcoran
to be competent and the State Public Defender appealed  that  determination.
Recently, Corcoran recanted his waiver  of  further  review  and  now  seeks
dismissal of this appeal.  For the reasons set forth  in  this  opinion,  we
deny Corcoran’s recent request for dismissal and affirm  the  trial  court’s
determination of competency.



                                 Background



      Corcoran killed his brother, his sister’s fiancé, and two other men in
an incident at his sister’s home.   He  was  convicted  of  four  counts  of
murder in May, 1999, and sentenced  to  death.   Corcoran  sought  appellate
review only of his death sentence; he did not challenge the  convictions.[1]
 This Court affirmed the sentence.  Corcoran v. State, 774 N.E.2d 495  (Ind.
2002).  Corcoran filed a petition  seeking  rehearing  that  was  denied  on
March 4, 2003.  2003 Ind. Lexis 265 (Ind. 2003).


      Indiana law provides procedures for individuals sentenced to death  to
challenge their sentences even after they have been affirmed  by  the  State
Supreme  Court  by  means  seeking  “post-conviction  remedies.”   To  avail
oneself of these remedies, an individual  sentenced  to  death  must  comply
with certain provisions of the  Indiana  Rules  of  Criminal  Procedure  and
Rules of Procedure for Post-Conviction Remedies.


      Indiana Criminal Procedure Rule 24(G)(2) provides:


           On the thirtieth (30th) day following completion  of  rehearing,
      the Supreme Court shall enter an  order  setting  an  execution  date,
      unless counsel has appeared and requested a stay  in  accordance  with
      section (H) of this rule.


      Section H provides:


           Within thirty  (30)  days  following  completion  of  rehearing,
      private counsel retained by the inmate or the  State  Public  Defender
      (by deputy or by special assistant in  the  event  of  a  conflict  of
      interest) shall enter an appearance in the  trial  court,  advise  the
      trial court of the intent to petition for post-conviction relief,  and
      request the Supreme Court to extend the stay of execution of the death
      sentence . . . .  When the request to extend the stay is received, the
      Supreme Court will direct the trial court to submit a case  management
      schedule consistent with Ind. Code § 35-50-2-9(i) for approval.


      On April 2, 2003, the State Public Defender appeared and  requested  a
stay in accordance with these provisions.  This Court  granted  the  request
and, pursuant to our order, the trial  court  submitted  a  case  management
schedule requiring a Petition for Post-Conviction  Relief  to  be  filed  by
September 9, 2003.


      A  Petition  for  Post-Conviction  Relief  must  be  signed   by   the
petitioner.  Indiana Post-Conviction Rule 1(3).  Corcoran refused to sign  a
Petition.  On September 9, the State Public Defender  made  two  filings  of
relevance to us here with the trial court that has  jurisdiction  over  this
case.  First, she filed a Petition for Post-Conviction  Relief  unsigned  by
the petitioner.  And second, she filed a  request  to  determine  Corcoran’s
competency.  The trial court refused to allow the Petition  because  it  was
unsigned but did schedule a competency hearing.


      The trial court held a hearing on Corcoran’s  competency  in  October,
2003.  In December, 2003, the trial court found Corcoran to be competent  to
waive further challenges to his sentence and be executed.  The State  Public
Defender then sought our review of the  trial  court’s  determination.   The
State has not disputed that  the  State  Public  Defender  has  standing  to
appeal the trial court’s competency determination, although the  State  does
argue that the lawyers do not have standing to raise  any  other  issues  on
Corcoran’s behalf.[2]


      On November 16, 2004,  Corcoran  filed  a  request  with  this  Court,
accompanied by  an  affidavit  indicating  his  intention  to  pursue  post-
conviction relief after all, asking us to dismiss this appeal of  the  trial
court’s competency determination as moot and return this case to that  court
for post-conviction proceedings.


      As discussed supra, Corcoran has never  filed  a  petition  for  post-
conviction relief and the time to do so has, as best as  we  can  determine,
now passed.  See Crim. R. 24(H) (petitions  for  post-conviction  relief  in
capital  cases  must  be  filed  within  30  days  following  completion  of
rehearing).[3]   Therefore,  the  ability  of  Corcoran  to   obtain   post-
conviction review of his convictions or sentence at this point is  dependent
upon the resolution of issues raised by this appeal.  We conclude it  is  in
the best interest of the orderly processing  of  this  litigation  for  this
Court to complete review of the issues raised in this appeal at  this  time.
For this reason, Corcoran’s motion to dismiss this appeal is denied.


      We proceed to address the issues initially raised in this appeal.



                                 Discussion




                                      I


      The  State  Public  Defender  attacks  the  trial  court’s  competency
determination on three grounds.  First, she  argues  that  the  trial  court
applied an improper standard to determine competency.  Second, she  contends
as a factual matter that Corcoran is incompetent  to  waive  post-conviction
review under any competency standard this  Court  might  choose  to  employ.
Third, she maintains that as a result of Corcoran’s incompetence,  he  could
not knowingly, voluntarily,  or  intelligently  waive  his  right  to  post-
conviction relief.



                                      A


      The State argues that the proper standard for determining the level of
competency necessary for Corcoran to  waive  his  right  to  post-conviction
review was that set forth in Dusky v. United States,  362  U.S.  402  (1960)
(per curiam).  In  Dusky,  the  Supreme  Court  held  that  a  defendant  is
competent to stand trial if “he has sufficient present  ability  to  consult
with his lawyer with a reasonable degree of rational understanding—and  .  .
. has a rational  as  well  as  factual  understanding  of  the  proceedings
against him.”  362 U.S. at 402.  The State relies on this standard  in  part
because it is consistent with  Indiana  Code  section  35-36-3-1,  Indiana’s
statutory trial competency standard.[4]


      The State Public Defender argues that the proper  competency  standard
is that announced in Rees v. Peyton, 384 U.S. 312 (1966) (per  curiam).   In
Rees, the Supreme Court  held  that  a  capital  defendant  may  withdraw  a
petition for  certiorari  only  after  it  is  determined  whether  “he  has
capacity to appreciate his position and make a rational choice with  respect
to continuing or abandoning further litigation or on the other hand  whether
he is suffering from  a  mental  disease,  disorder,  or  defect  which  may
substantially affect his capacity in the premises.”  Rees, 384 U.S. at 314.


      We are constrained to say  that  we  find  little  if  any  difference
between the standards enunciated in Dusky and Rees.  See Godinez  v.  Moran,
509 U.S. 389, 398 n.9 (1993) (acknowledging that the difference between  the
Dusky and Rees standards is not readily apparent and  may  only  be  one  of
terminology).  A number of federal courts  that  have  faced  this  question
have  been  unable,  or  felt  it  unnecessary,  to  attempt  to  discern  a
difference between the two tests.  See Dennis v. Budge, 378  F.3d  880,  889
(9th Cir. 2004)  (refusing  to  resolve  whether  there  is  any  difference
between the Rees and Dusky standards because the analytical  outcomes  under
each test would be the same); Michael v. Horn, 2004 U.S.  Dist.  Lexis  3702
(M.D. Pa. 2004) (relying on  both  the  principles  of  Rees  and  Dusky  to
determine competency  to  forego  a  collateral  challenge);  Groseclose  v.
Dutton, 594 F. Supp. 949, 957 n.4 (M.D. Tenn. 1984) (stating that  Dusky  is
analytically equivalent to the Rees competency test).


      Federal courts have been unwilling or unable  to  distinguish  between
the  Rees  and  Dusky  standards  because  both  tests  “highlight[  ]   the
constitutional  necessity  that  a   criminal   defendant   understand   the
proceedings and then be capable of aiding  his  legal  counsel  in  choosing
among legal alternatives.”  Groseclose, 594 F.Supp. at 957 n.4.  Under  both
standards, the inquiry focuses on the  individual’s  “discrete  capacity  to
understand and make rational decisions concerning the proceedings  at  issue
. . . .”  Mata v. Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000).   Further,
neither test treats “the presence or absence  of  mental  illness  or  brain
disorder [as] dispositive” proof of incompetence, but balances its  presence
or absence with other evidence.  Id.  Both tests appear to be equivalent  in
that each is applied in the same way to determine whether an individual  has
the capacity to comprehend the legal proceedings with which  he  or  she  is
confronted and assist his or her  counsel  in  choosing  among  the  various
legal alternatives.


      For these  reasons,  we  will  evaluate  the  post-conviction  court’s
competency determination under the principles of both standards.



                                      B



      We have previously been required to review a  post-conviction  court’s
competency determination in a capital proceeding. Timberlake v.  State,  753
N.E.2d 591, 597 (Ind.  2001).[5]   In  Timberlake,  we  held  that  a  post-
conviction  court’s  competency  findings  are  afforded  a  high  level  of
deference by a reviewing court.  The  court’s  decision  will  be  disturbed
only “if the evidence is without conflict and leads  only  to  a  conclusion
contrary to the result of the post[-]conviction court.”  Id. at 597.


      The post-conviction court here acknowledged in  its  written  findings
that Corcoran suffers from a mental illness.  The State also  concedes  that
Corcoran suffers from a mental illness.   At  the  competency  hearing,  the
State Public  Defender  presented  the  testimony  of  three  mental  health
experts,[6] each of whom  concluded  that  Corcoran  suffers  from  paranoid
schizophrenia.  One of the symptoms of Corcoran’s  condition,  according  to
the three experts, are recurrent delusions  that  Department  of  Correction
prison guards are torturing him through the use of  an  ultrasound  machine,
causing him substantial pain and uncontrollable twitching.


      On the basis of this diagnosis, all three experts  concluded  Corcoran
was unable to make a rational  decision  concerning  the  legal  proceedings
confronting him.  Each expert stated  that  Corcoran’s  decision  to  forego
post-conviction review of his sentence,  thereby  hastening  his  execution,
was premised on his desire to be relieved of the pain that  he  believes  he
experiences as a result of his delusions.  To  follow  the  experts’  logic,
Corcoran’s decision to forego post-conviction review cannot be  rational  if
based upon his delusions, which are irrational.


      Corcoran, however, made no statement to any of the experts  evaluating
him indicating that he wished to end his appeals  in  order  to  escape  his
paranoid delusions.[7]  Corcoran’s prison medical records and the  testimony
of each expert indicated that his psychotic symptoms were  being  controlled
through various psychiatric medications.  Corcoran  himself  spoke  directly
to his reasons for not pursuing post-conviction review  and  the  contention
that his  delusions  were  prompting  his  actions  at  the  post-conviction
hearing stating:


           See, I want to waive my appeals because I am guilty  of  murder.
      I think that I should be executed for what I have done and not because
      I am supposedly tortured with ultrasound or whatever.  I am guilty  of
      murder.  I should be executed.  That is all there is to it.   That  is
      what I believe.  I believe the death penalty is a just punishment  for
      four counts of murder, and I believe that I should be executed since I
      am guilty of four counts of murder.


(Super. Ct. Hr’g Tr. at 89).  Corcoran’s explicit denial that his  delusions
prompted him to waive his right to post-conviction review and his  reasoning
that his death sentence is commensurate with the  crime  he  committed  (the
conclusion to which both the original trial  court  jury  and  judge  came),
makes it impossible for  this  Court  to  conclude  that  “the  evidence  is
without conflict and leads only to a conclusion contrary to  the  result  of
the post[-]conviction court.”  Timberlake, 753 N.E.2d at 597.


      Moreover, there is substantial evidence of record  that  Corcoran  was
aware of his legal position and the consequences of his decision  to  forego
any further post-conviction review.  When asked  whether  Corcoran  has  the
capacity to understand his legal position, Dr. George Parker, who  evaluated
Corcoran in preparation for his post-conviction hearing stated:


           He has a very clear awareness of the status of his case.  He  is
      aware he has been sentenced to death.  He is aware that he is  in  the
      appeals process.  He has a good memory of the events that  have  taken
      place from the time of the offense to the  trial,  to  the  sentencing
      phase, and then through the more extensive appeals phase.  He is aware
      of the attorneys’ positions and how, how the  attorneys  have  changed
      over the course of the trial and then [the] appeals process.   So,  he
      has a good understanding of what is at issue.


(Super. Ct. Hr’g Tr. at 48).  Dr. Robert Kaplan, who also evaluated
Corcoran, testified that Corcoran was aware that by not continuing with
post-conviction review that he would be executed.


      Corcoran was questioned directly by both the State’s attorney and  the
presiding judge regarding his awareness of the  proceedings  and  his  legal
position.  The State’s attorney asked the following questions:


           Question:   Do you understand that by waiving these appeals, you
      are going to make that happen (his execution) relatively soon?


           Corcoran:   Yes, I understand.


           Question:   Do you understand that this appellate process is the
      opportunity for you to fight to stay alive?


           Corcoran:   Yes, I understand.


           Question:   And you are willing to accept the sentence that  was
      handed down by this Court?


           Corcoran:   Correct.


(Super. Ct. Hr’g. Tr. at 13).


      The post-conviction court then questioned Corcoran with respect to the
entire history of his case.  Corcoran stated that he was aware that  he  had
been convicted of four capital crimes.  He related that  he  understood  the
purpose of his initial direct appeal to the Indiana Supreme Court to  review
his death sentence and that his appeal had  been  unsuccessful.   The  judge
then asked the following questions in order to  ascertain  Corcoran’s  level
of awareness of the post-conviction proceedings taking place:


           The Court:  [Do] you understand that these proceedings are  your
      last attempt to review this case?


           Corcoran:   Yes, I understand.


           The Court:  Do you also understand that if the review here, were
      it necessary  up  on  appeal,  is  unsuccessful,  that  you  would  be
      executed?


           Corcoran:   Yes, I understand.


           The Court:  Has anyone, Mr. Corcoran, forced you to  waive  your
      rights to appeal?


           Corcoran:   No.


           The Court:  Has anyone threatened you to waive  your  rights  to
      appeal?


           Corcoran:   No.


           The Court:  Did anybody tell you, anybody at all, tell you  that
      you would get more favorable treatment if you  waived  your  right  to
      appeal?


           Corcoran:   No.


           The Court:  You understand that the two ladies sitting  to  your
      left are appointed by the Court to represent you?


           Corcoran:   Right, yes.


           The Court:  Do you trust their judgment?


           Corcoran:   I disagree with them, but I trust their judgment


           The Court:  What do you disagree with them about?


           Corcoran:   They didn’t have to call a competency  hearing,  but
      they did anyway.  I disagree with calling the competency hearing.


           The Court:  You disagreed with them filing that motion?


           Corcoran:   Correct.


           The Court:  And you understand what their  (defense  attorneys’)
      responsibilities are?


           Corcoran:   Yes.


           The  Court:   And   what   [the   deputy   attorney   general’s]
      responsibilities are?


           Corcoran:   Yes.


           The Court:  And what my responsibilities are?


           Corcoran:   Yes.


           The Court:  And you know what we are doing here today?


           Corcoran:   Yes.


           The Court:  What were we doing here today?


           Corcoran:   Determining my competency whether or not I  am  able
      to make a decision or not.


(Super. Ct. Hr’g Tr.  at  87-88).   Both  the  State’s  and  post-conviction
judge’s questioning of Corcoran reaffirm the testimony of  Dr.  Parker  that
Corcoran was able to appreciate the gravity of his legal  position  and  the
consequences of his choice to waive  further  post-conviction  review.   The
portions of the record described and set forth  supra  are  also  sufficient
evidence to support the post-conviction court’s determination that  Corcoran
made his choice knowingly, voluntarily, and intelligently.

      Corcoran’s  awareness  of  his  legal  position  and  his  ability  to
formulate a rational  justification  for  forgoing  further  post-conviction
review make him competent to waive such review under either Rees  or  Dusky.
The evidence supports the trial court’s conclusion that Corcoran has both  a
rational understanding of and can appreciate his legal  position.   Further,
the evidence does not conclusively indicate  that  Corcoran’s  decision  was
not made in a rational manner.  Thus, we are unable to  conclude  that  “the
evidence as a whole  lead[s]  unerringly  and  unmistakably  to  a  decision
opposite that reached by the post-conviction court,” and so  we  affirm  its
competency  finding.   Timberlake  v.  State,  753  N.E.2d  at  597  (citing
Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999)).



                                     II



      In addition to  challenging  the  post-conviction  court’s  competency
determination, the State  Public  Defender  raises  two  additional  claims.
First, the State Public Defender contends  that  the  Constitution  and  the
Indiana death penalty  statute  required  this  Court's  “review  of  issues
regarding Corcoran’s convictions” even though he affirmatively  waived  such
review.  Second, the State  Public  Defender  maintains  that  it  would  be
unconstitutional to  execute  “a  severely  mentally  ill  person,  such  as
Corcoran.”


      The State, as  noted  in  footnote  2  supra  and  accompanying  text,
contends that the State Public Defender is not entitled  to  litigate  these
claims in this proceeding.


      We agree with the State on  this  point.   Corcoran  himself  did  not
authorize this proceeding within the timeframe  required  by  Criminal  Rule
24(H) and without his authority, neither the trial court in this  proceeding
nor this  Court  has  jurisdiction  to  review  claims  for  post-conviction
relief.  See P-C R. 1(3) (A petition for post-conviction  relief  “shall  be
submitted in a  form  in  substantial  compliance  with  the  standard  form
appended to this rule . . . . The petition shall be made under oath and  the
petitioner shall verify  the  correctness  of  the  petition.”).   While  we
recognize and appreciate that the State Public Defender raises these  claims
in the sincere belief that Corcoran is incompetent and  did  not  knowingly,
voluntarily, and intelligently waive his right  to  post-conviction  review,
that belief alone is not sufficient to overcome the rule’s requirement.


      In any event, had we found Corcoran incompetent or  otherwise  not  to
have knowingly, voluntarily, and intelligently waived  his  right  to  post-
conviction review, we in all likelihood would have  remanded  to  the  post-
conviction court for its review of these claims.  But  we  feel  constrained
to say that both contentions appear to constitute  free-standing  claims  of
error that would not be available for post-conviction review.   Williams  v.
State, 808 N.E.2d 652, 659 (Ind. 2004) (“If  the  issue  is  not  raised  on
direct appeal, a  claim  of  ineffective  assistance  of  trial  counsel  is
properly presented in a post-conviction proceeding, but as a  general  rule,
‘most free-standing claims of error are not available  in  a  postconviction
proceeding because of the doctrines of waiver and res judicata.’”)  (quoting
Timberlake, 753 N.E.2d at 597-98).





                                     III



      To litigate the post-conviction claims discussed in Part II,  Corcoran
himself would  need  to  authorize  such  a  proceeding.   As  discussed  in
Background, supra, Corcoran has recently indicated a desire to do so but  it
appears to us that the deadline for filing a  petition  for  post-conviction
relief has long since passed.  See Crim. R. 24(H).  The  procedural  posture
of Corcoran’s case and our precedent in Judy v. State, 416 N.E.2d  95  (Ind.
1981), cause us to reflect upon whether  we  should  extend  to  individuals
sentenced  to  death  automatic  post-conviction  review  in   addition   to
automatic review on direct appeal.


      In Judy v. State, the defendant had been convicted of four  counts  of
murder and sentenced  to  death.   Judy,  416  N.E.2d  at  100.   After  his
conviction and sentencing, Judy requested that he be permitted to waive  his
appeal.  Id.  We found Judy competent to waive his appeals, but  refused  to
allow him to do so without further review to ensure that  his  sentence  had
been imposed fairly.[8]  Id. at 102.   We  held  that  “the  death  sentence
cannot be imposed on anyone in this State until  it  has  been  reviewed  by
this Court and found to  comport  with  the  laws  of  this  State  and  the
principles of our state and federal constitutions.”  Id.
      In addition to promoting society’s interest  in  certainty  that  when
capital punishment is imposed, it is appropriate in light of the  nature  of
the offense and character of the offender, automatic post-conviction  review
would assure that issues unavailable or otherwise not raised at  trial  that
bear upon the propriety of  the  sentence  would  be  reviewed.   The  State
Public Defender’s request here that we review Corcoran’s  waiver  of  review
on  direct  appeal  of  issues  relating  to   his   convictions   and   the
constitutionality of  the  execution  of  a  severely  mentally  ill  person
illustrates this point.  While  as  free-standing  claims  of  error,  these
contentions would unlikely be available  for  post-conviction  review,  they
could well form the basis of claims of ineffective assistance  of  trial  or
direct appeal counsel.  See generally   Woods  v.  State,  701  N.E.2d  1208
(Ind. 1998) (concluding that collateral review will often be the only  means
to contest the effectiveness of trial or direct appeal counsel).   Automatic
post-conviction review would permit adjudication  of  whether  Corcoran  was
the victim of constitutionally  deficient  performance  by  counsel  at  his
trial and during his direct appeal.


      On the other hand, post-conviction proceedings  differ  markedly  from
direct  appeal.   They  occur  after  the  direct  appeal  stage  when   the
defendant’s  and  society’s  interests  in  prolonging  capital   litigation
weakens.  One commentator has formulated this analysis as follows:


           A defendant seeking to waive proceedings for the first  time  at
      the  post-conviction  relief  stage  is  more  likely  to  have   been
      appropriately convicted and sentenced  than  a  defendant  seeking  to
      waive proceedings at the early stages.  Such a defendant has  received
      a full trial, full  sentencing  hearing  and  full  appellate  review.
      Every stage serves as a checkpoint, an additional safeguard  filtering
      out the impurities.  A defendant  is  less  likely  to  be  wrongfully
      sentenced to death after each stage.  Information  is  gained  at  the
      completion of each stage.  Any other  conclusion  would  suggest  that
      each [previous]  proceeding  serves  no  valuable  purpose  and  would
      degrade the entire capital proceeding to nothing more  than  a  random
      game of chance.  Therefore, because each stage reduces the chance that
      a defendant has been inappropriately sentenced to death, the  risk  of
      arbitrary application of the death penalty is much lower at the  post-
      conviction relief stage than at previous stages.


Anthony J. Casey, Maintaining the Integrity of Death:  An Argument for
Restricting a Defendant’s Right to Volunteer for Execution at Certain
Stages in Capital Proceedings, 30 Am. Jour. Crim. L. 75, 103 (2002).  We
generally agree.

      We conclude that,  at  the  post-conviction  stage,  the  interest  in
achieving finality outweighs the benefits of  mandating  further  review.[9]
We decline to extend automatic post-conviction review to  capital  litigants
who do not seek such review within the time limits imposed upon them by  the
Indiana Rules of Criminal Procedure.



                                 Conclusion



      We affirm the post-conviction court’s competency finding with  respect
to Corcoran’s ability to waive further collateral review.  We hold that  the
State Public Defender does not have standing to raise the other  claims  she
presents without Corcoran’s consent.  And we decline to adopt a policy  that
would extend automatic post-conviction review to all death sentences.


      The parties are entitled to  seek  rehearing  from  this  decision  in
accordance with Indiana Appellate Rule 54.  In the event  rehearing  is  not
sought or denied, this Court shall enter an order on the 30th day  following
completion of appellate review, i.e., the later to  occur  of  the  date  of
this decision if rehearing is not sought or the  date  rehearing  is  denied
setting an execution date.  See Criminal Rule 24(H).

Shepard, C.J., and Dickson and Boehm, JJ.,  concur.   Rucker,  J.,  dissents
with separate opinion.
Rucker, Justice, dissenting.

      I respectfully dissent because I believe Corcoran is not competent  to
waive his right of post-conviction review.


      At his sentencing hearing several years ago,  the  trial  court  found
that Corcoran “has proved the mitigating circumstance that he was under  the
influence of a mental or emotional disturbance at the time the murders  were
committed on July 26, 1997.”  Corcoran v. State, 774 N.E.2d 495,  499  (Ind.
2002).  Although this circumstance was assigned  little  weight,  the  trial
court nonetheless found that “Dr. Engum’s opinion at  trial  was  consistent
with the  opinions  of  the  Court  appointed  experts  that  the  Defendant
suffered from a personality disorder, either paranoid personality  disorder,
or schizotypal personality disorder.”  Id.  It is apparent that  since  July
1997 Corcoran’s mental state has deteriorated  significantly.   So  much  so
that his personality disorder has now  developed  into  full-blown  paranoid
schizophrenia.  In short, Corcoran is seriously mentally ill.  And how  does
his  mental  illness  manifest  itself?   Corcoran  is  under  the  paranoid
delusion that prison guards are  torturing  him  with  sound  waves.   As  a
result, Corcoran wants the State to execute him in order to  end  the  pain.
I am not willing to accommodate him.

      The majority places great weight on Corcoran’s own representation that
he is not incompetent and wishes  to  forgo  further  judicial  review,  not
because of his paranoid delusions,  but  rather  because  he  is  guilty  of
murder and should be  punished.   According  to  the  majority,  “Corcoran’s
awareness of his legal position and his  ability  to  formulate  a  rational
justification  for  forgoing  further  post-conviction   review   make   him
competent to waive such review . . . .”  Slip op. at 10.

      In Rees v. Payton, the Supreme Court declared that in the context of a
party’s ability  to  waive  his  right  to  further  appeals  a  court  must
determine,  “whether  [the  petitioner]  has  capacity  to  appreciate   his
position  and  make  a  rational  choice  with  respect  to  continuing   or
abandoning further litigation or on the other hand whether he  is  suffering
from a mental disease, disorder, or defect which  may  substantially  affect
his capacity in the premises.”   384  U.S.  312,  314  (1966)  (per  curiam)
(emphasis added).  This test is slightly different than  the  one  announced
in Dusky v. United States, 362 U.S.  402  (1960)  (per  curiam),  where  the
Court considered the standard for determining  competency  to  stand  trial.
In Dusky the Court stated that the “test [for competency]  must  be  whether
he has sufficient  present  ability  to  consult  with  his  lawyer  with  a
reasonable degree of rational understanding – and whether he has a  rational
as well as factual understanding of the proceedings against  him.”   Id.  at
402.

      In my view, the ability to consult with one’s lawyer and  to  have  an
understanding of the legal proceedings is not quite the same as the  ability
to make a rational decision to forgo additional judicial review.  It is  not
inconceivable that a defendant may have the ability to consult with  counsel
and have complete understanding of the  proceedings  against  him  and  yet,
because  of  a  mental  disease  or  defect,  make  an  irrational  decision
regarding the pursuit of further litigation.   See,  e.g.,  Dennis  ex  rel.
Butko v. Budge, 378 F.3d 880, 888 n.4 (9th Cir. 2004) (maintaining that  the
proper Rees question as applied to a defendant suffering  a  mental  illness
but understanding the court proceedings is:  “If  the  person  is  suffering
from  a  mental  disease  or  defect  which  does  not  prevent   him   from
understanding his legal position and the  options  available  to  him,  does
that disease or defect, nevertheless, prevent him  from  making  a  rational
choice among his options?”) (emphasis added) (citing Rumbaugh v.  Procunier,
753 F.2d 395, 398 (5th Cir. 1985)).

      In any event, even assuming the two tests are  indistinguishable,  the
fundamental requirement underlying any notion of competency  still  must  be
one of rationality.  See, e.g., Matheney v.  Anderson,  377  F.3d  740,  747
(7th Cir. 2004) (Under Dusky, a defendant may not be tried unless he has  “a
rational as well as factual understanding of the proceedings against  him.”)
(citations omitted); Budge, 378 F.3d at 890 (“The question under Rees . .  .
is not whether mental illness substantially affects a decision, but  whether
a mental disease . . . substantially  affects  the  prisoner’s  capacity  to
appreciate his options and make a rational choice among  them.”)  (citations
omitted); Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir. 1989)  (Under  Rees,
the question is “whether [the defendant] had the capacity to appreciate  his
position and make a rational decision . . . .”).

      In this case, the three  mental  health  professionals  testifying  at
Corcoran’s competency hearing concluded that Corcoran was not  competent  to
make a rational decision concerning  his  litigation.   Their  testimony  on
this point should be given credence.  The first mental  health  professional
to testify was Doctor Robert G.  Kaplan,  a  clinical  psychologist.   After
reviewing voluminous  documents,  including  the  psychological  reports  of
several  other  doctors,  and  after  interviewing  Corcoran   himself   for
approximately  four  hours,  Dr.  Kaplan  reached  certain  conclusions.   I
recount the following exchange in some detail:

           [Defense Counsel]  Okay. Do  you  think  Mr.  Corcoran  has  the
           capacity to appreciate  the  legal  position  in  any  of  these
           things?


           [Dr. Kaplan]  No.


           [Defense Counsel]  Why are you saying that?


           [Dr. Kaplan]  I believe that he is delusional, that  there  are,
           that he is suffering from  a  severe  mental  illness,  paranoid
           schizophrenia that is causing him to believe  things  about  his
           situation that has affected  his  ability  to  make  appropriate
           decisions regarding his defense and how to proceed.


           [Defense Counsel]  What is this delusion?


           [Dr. Kaplan]  He has actually two delusions.  The first delusion
           is that the guards are operating an ultrasound machine  that  is
           causing him, his body to twitch and move uncontrollably, that it
           is causing him pain as well.  Um, and he has another delusion in
           which he believes that he is saying  things,  um,  without,  um,
           knowing what he is saying that is causing other  people  to,  to
           um, become angry at him, to make fun of him.

(Super. Ct. Hr’g Tr. at 11-12).


           . . . .

           [Defense Counsel]  Okay.  Does Mr. Corcoran have the capacity to
           make a rational choice with respect to abandoning litigation?


           [Dr. Kaplan]  No.


           [Defense Counsel]  Why is that?


           [Dr. Kaplan]  Again, he has, he has—he has a psychosis which  is
           paranoid schizophrenia that is leading him to believe that,  you
           know, one of the reasons that he wants  to  die  is  because  he
           doesn’t want to continue  with  this  speech  disorder  that  he
           really doesn’t have.  And another reason  he  wants  to  die  is
           because he doesn’t want to  continue  to  be  a  victim  of  the
           guards’ ultrasound machine.  And that is a highly bizarre belief
           that is not likely to be in existence either.

(Super. Ct. Hr’g Tr. at 14).


           . . . .

           [Defense Counsel]  Is  Mr.  Corcoran  suffering  from  a  mental
           disease, disorder, or defect?


           [Dr. Kaplan]  He is suffering from a very severe mental  disease
           and defect.


           [Defense counsel]  What mental disease is that?


           [Dr. Kaplan]  Paranoid schizophrenia.


           [Defense Counsel]  Does that mental disease affect his  capacity
           to make a rational choice in abandoning this litigation?


           [Dr. Kaplan]  Could you repeat the question?


           [Defense Counsel]  Does his paranoid  schizophrenia  affect  his
           capacity  to  make  a  rational  choice   to   abandon   further
           litigation?


           [Dr. Kaplan]  Yes.


           [Defense Counsel]  At the risk of  being  repetitive,  how,  how
           does his paranoid schizophrenia affect his rational choice?


           [Dr. Kaplan]  His paranoid schizophrenia is creating  a  reality
           in his mind that doesn’t exist, and on the basis of the  reality
           that doesn’t exist, he is making the decision about  whether  he
           wishes to proceed with his defense against the death penalty  or
           not.  In addition to that, the paranoid  schizophrenia  is  also
           affecting his ability to think logically.

(Super. Ct. Hr’g Tr. at 16-17).
           . . . .

           [Defense Counsel]  So, is [Mr. Corcoran], um, pretending  to  be
           mentally ill?


           [Dr. Kaplan]  No.  I, I also administered tests of  malingering,
           psychological tests of malingering.  And they clearly showed  he
           was not malingering any mental disorder.   Again,  if  anything,
           they showed that he was trying to  cover  up  his  psychological
           symptoms and tried to look better than he really was.

(Super. Ct. Hr’g Tr. at 28).


      The defense also called to the stand Doctor George Parker, a  forensic
psychiatrist at  the  Indiana  University  School  of  Medicine.   Like  Dr.
Kaplan, Dr. Parker examined numerous documents  containing  the  evaluations
of other mental health professionals and conducted clinical interviews  with
Corcoran on two separate occasions.  His testimony was consistent with  that
of Dr. Kaplan.

           [Defense Counsel]  Does [Mr. Corcoran]  have  a  mental  disease
           that affects his capacity to make rational  choices  to  abandon
           further litigation?


           [Dr. Parker]  Absolutely.


           [Defense Counsel]  And how?


           [Dr. Kaplan]  His diagnosis is schizophrenia, and  the  symptoms
           that lead to that diagnosis have a direct bearing on his thought
           process and why he believes that his execution would be,  as  he
           says, a blessed relief.  The daily torment of  his  symptoms  of
           psychosis,  his  lack  of   understanding   of   the   emotional
           consequence to that decision make that a very irrational thought
           process.

(Super. Ct. Hr’g Tr. at 55-56).

      With respect to whether Corcoran may appear to be normal, lucid and in
control of his faculties, the following exchange is instructive.

           [Dr. Parker]  Um, so, he does his best to minimize the  severity
           of his symptoms, to downplay  that  he  might  have  any  mental
           disorder.  That has been  a  consistent  theme  throughout  this
           process. . . .  Um, he has a real desire to  appear  bad  rather
           than  mad.   So,  he  wants  to  be  –  it  is  better  for  him
           psychologically to appear that  he  is  criminally  responsible,
           than to admit that he has a serious mental illness that may have
           contributed to his behavior in  the  past.   It  speaks  to  how
           powerful the stigma is against serious mental illness,  that  he
           would rather be executed than admit that schizophrenia might  be
           contributing to his desire to die.


           [Defense Counsel]  When someone is trying to  appear  normal  or
           more normal or bad, I mean, would you need to  spend  more  time
           with that person in order to come across these delusions?


           [Dr. Parker]  Well certainly, I think Mr. Corcoran did,  if  you
           did a brief interview of him, might be able to convince  someone
           things are actually okay.  He presents that  way.   He  is  very
           calm.  He is organized  in  his  thought  process.   He  is  not
           stupid.  He is a bright man.  He knows  a  lot  of  things.   He
           speaks well for himself.  Um, but just because  he  speaks  well
           and in an organized way and understands sort of  the  nature  of
           what is going on, the proceedings that are  going  against  him,
           doesn’t mean that he has got an understanding at its  foundation
           that is logical.  And the more time you spent with him, the more
           time you begin to understand how his thought process is a little
           bit skewed.  And, in fact, the deeper you go, the more skewed it
           appears.  And you can begin to understand how he might feel that
           execution  might  be  preferable  to  life   as   he   currently
           experiences in [sic].

(Super. Ct. Hr’g Tr. at 56-57).

      Finally, defense counsel called to the stand Doctor Edmund Haskins,  a
clinical neuropsychologist.  Similar  to  the  approach  of  the  other  two
testifying doctors, Dr. Haskins also examined Corcoran’s voluminous  medical
records and conducted a  clinical  interview,  which  lasted  two  to  three
hours, a few weeks before the hearing.  Portions of Dr.  Haskins’  testimony
follow.

           [Defense Counsel]   Okay.   Does  Joe  –  Mr.  Corcoran  have  a
           capacity to make a rational choice with  respect  to  abandoning
           his litigation?


           [Dr. Haskins]  I don’t believe so.


           [Defense Counsel]  And why?


           [Dr. Haskins]  The reason is, that in order to make  a  rational
           decision, one has to  adequately  hold  in  mind  the  available
           options one is considering.  You have to consider  the  options.
           You have to make reasoned judgments, weighing the pros and  cons
           of both options or whatever the options happen to  be.   In  Mr.
           Corcoran’s case, in the  context  of  this  particular  decision
           about, um,  waiving  his  right  to  post-conviction  review,  I
           believe that his psychoses do not permit him to reason and  make
           a reasoned decision in that way.  I have to perhaps add that  in
           reviewing the results of the neuropsychological testing that was
           done with Mr. Engum back with, Dr. Engum back in 1999,  clearly,
           he did very well on that testing.  His  ability  to  perform  on
           tests of memory, tests  of  attention  and  concentration,  even
           tests of reasoning, was intact at that time.


           Um, but that is not really the issue that we  are  dealing  with
           here.  We are dealing  with  his  ability  to  make  a  reasoned
           decision  in  this  particular  case.   In  the  context  of   a
           neuropsychological evaluation, um, when doing puzzles  or  doing
           other kinds  of,  of  nonemotional  [sic]  tasks,  um,  academic
           intellectual type tasks, he can do very well with that.  He is a
           very bright man.  He has good cognitive ability.


           Unfortunately,   his   paranoid   schizophrenia,   however,   is
           preventing him from being able  to  put  that  to  use  in  this
           particular case.  So, rather than being able to consider all the
           options and weigh all of the alternatives, he is  choosing  only
           that alternative which will most  inexorably  lead  to  his  own
           death, and he is doing  that  on  the  basis  of  this  paranoid
           delusion that he is being persecuted and tormented.

(Super.  Ct.  Hr’g  Tr.  at  66-67).   Each  of  the  three  mental   health
professionals testifying at Corcoran’s  competency  hearing  explained  that
Corcoran’s individual thought processes have been  affected  by  his  mental
illness.  Such competency determinations involve a thorough assessment of  a
person’s mental capabilities, taking into account  the  impact  that  mental
illness has on those capabilities.

      I acknowledge that the existence  of  delusions  and  a  diagnosis  of
paranoid schizophrenia do not necessarily preclude rational  decision-making
and competence.  However,  all  three  experts  unanimously  concluded  that
Corcoran’s decision to welcome and hasten his own  death  is  based  on  his
delusional perception of reality  and  has  no  basis  in  rational  thought
whatsoever.  The majority as well as the  trial  court  dismiss  the  mental
health experts’ conclusions on the basis of  Corcoran’s  own  representation
that his decision to die is based  upon  the  fact  that  he  murdered  four
people and therefore  deserves  the  ultimate  sanction.   However,  as  Dr.
Parker explained:

           [I]t is better for him [Corcoran] psychologically to appear that
           he is criminally responsible,  than  to  admit  that  he  has  a
           serious mental illness that may have contributed to his behavior
           in the past.  It speaks to how powerful the  stigma  is  against
           serious mental illness, that he would rather  be  executed  that
           admit that schizophrenia might be contributing to his desire  to
           die.


(Super.  Ct.  Hr’g  Tr.  at  56-57).   Obviously,  Corcoran  is  a  man   of
considerable intelligence and expressive  powers.   But  the  fact  that  he
offers what otherwise might be considered a  rational  explanation  for  his
decision to die is itself intricately related to his mental illness.

      Although I remain opposed to the execution of the  seriously  mentally
ill, see Corcoran, 774 N.E.2d at 502 (Rucker, J., dissenting), that  is  not
the precise issue before us today.  Rather,  defense  counsel  merely  seeks
the opportunity to pursue post-conviction relief on Corcoran’s behalf.   The
uncontroverted   evidence   that   Corcoran   is   a   delusional   paranoid
schizophrenic  is,  in  my  view,  insufficient  to  support  a  finding  of
competence as contemplated by the test articulated in either Rees or  Dusky.
 Thus, I am of the view that Corcoran is in no position to waive  his  right
of post-conviction relief and that this cause  should  be  remanded  to  the
post-conviction court  for  its  review  of  the  claims  counsel  makes  on
Corcoran’s behalf.






      -----------------------
[1] Corcoran, “by counsel and personal affidavit, filed a written waiver  of
his right to appeal his convictions but retained the  right  to  appeal  his
sentence.”  Corcoran v. State, 739 N.E.2d 649, 651 n.2 (Ind. 2000).
[2] “The State does not challenge the Public Defender’s standing  to  appeal
the competency determination.  While a challenge  that  standing  is  absent
may be possible, the State believes that a litigant's competency in a  death
penalty case must be reviewable.   Just  as  an  attorney  has  standing  to
question a defendant’s  competency  to  stand  trial,  so  too  should  that
attorney have standing to raise the issue on appeal.  Indeed, that has  long
been the practice not only in this State but nationally as well.   As  such,
the State believes that the Public  Defender’s  standing  in  this  case  is
limited to the competency issue only  and  all  other  issues  may  only  be
raised by Corcoran.  Corcoran has not done so;  this  Court  should  decline
the Public Defender’s invitation to conduct what is  essentially  the  post-
conviction review that Corcoran does not want to pursue.”  Br.  of  Appellee
at 18-19.
[3] The determination of the timeliness of a  petition  for  post-conviction
relief initially is a matter for the post-conviction court, not this  Court.
 While there may be some basis for Corcoran to proceed  notwithstanding  the
time  deadline  of  Criminal  Rule  24(H),  it  is  not  apparent   to   us.
Consequently, we proceed  on  the  assumption  that  a  petition  for  post-
conviction relief filed by  Corcoran  at  this  point  would  ultimately  be
dismissed as not timely under Criminal Rule. 24(H).
[4] Indiana Code section 35-36-3-1 reads in relevant  part  that  “[i]f  the
court  finds  that  the  defendant  has  the  ability  to   understand   the
proceedings and assist in the preparation of the  defendant’s  defense,  the
trial shall proceed.”
[5] In Timberlake, we stated that any:
      claim of incompetence in a  post-conviction  proceeding  presents  two
      distinct issues:  (1) whether [petitioner is] “incompetent,” or unable
      to assist his counsel in the preparation of his case and to understand
      the  nature  of  the  post-conviction  proceedings,  and  (2)  whether
      “competence,” as  that  term  is  understood  in  cases  addressing  a
      defendant’s  due  process  rights  at  trial,  is  required  in  post-
      conviction proceedings.
753 N.E.2d 591, 600 (Ind. 2001).
[6] Clinical psychologist, Dr. Robert G. Kaplan, forensic psychiatrist,  Dr.
George Parker, and clinical neuro-psychologist, Dr. Edmund C. Haskins,  each
separately  examined  Corcoran.   Each  expert  reviewed  Corcoran’s  mental
health records  and  conducted  interviews  with  him  in  coming  to  their
conclusions.
[7] Drs. Kaplan’s  and  Haskins’s  conclusions  were  derived  from  letters
Corcoran wrote to his attorneys and sister stating  his  willingness  to  be
put to death to gain a sense of relief from prison life.
[8] Thirty-seven of the 38 states  that  allow  the  death  penalty  require
appellate review of capital convictions and sentences.  See  U.S.  Dep’t  of
Justice, Bureau  of  Justice  Statistics,  Bulletin:  Capital  Punishment  3
(2000).
[9] In fact, only one state requires collateral review of  death  sentences.
New Jersey prohibits capital defendants from waiving post-conviction  review
in part because “there are some issues  that  one  simply  cannot  raise  on
direct appeal . . . .”  New Jersey v. Martini, 677  A.2d  1106,  1100  (N.J.
1996).  The Supreme Court of New Jersey cites issues  such  as  ineffective-
assistance  of  counsel  claims  as  “particularly  well-suited  for   post-
conviction review.”  Martini, 677 A.2d at 1110.  Nevertheless, even the  New
Jersey  Court  recognizes  the  state’s  “strong   interest   in   achieving
finality,” id., at this stage in the  proceedings  and  provides  a  capital
defendant who does not desire post-conviction  review  only  an  abbreviated
hearing schedule.  Id. at 1113.