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.