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SCOW: State bears burden at postconviction competency hearings

State v. Roddee W. Daniel, 2015 WI 44, 4/29/15, affirming and modifying a published court of appeals decision; opinion by Justice Bradley; case activity (including briefs)

This opinion clarifies the procedure for determining the competency of a defendant during postconviction proceedings by holding that once the issue of a defendant’s competency has been raised, the state bears the burden of showing by a preponderance of the evidence that the defendant is competent to proceed.

While § 971.14 creates a procedure for addressing competency before sentencing, no comparable statute establishes a procedure for determining competency during postconviction proceedings. State v. Debra A.E., 188 Wis. 2d 111, 132, 523 N.W.2d 727 (1994), however, held that when competency becomes an issue during postconviction proceedings, the court should follow § 971.17 “to the extent feasible.” Under § 971.14(4)(b), if a defendant whose competency is questioned asserts competency, the state must prove incompetency by clear and convincing evidence; likewise, if the defendant asserts incompetency, the state must prove competency by the greater weight of the credible evidence. But what about the situation that arose here, where postconviction counsel raised the issue of competency but Daniel asserted he was competent, and the state agreed with Daniel? (¶¶11, 16, 18).

As the supreme court notes, “[t]he statute does not appear to contemplate the scenario where the State takes the same position as the defendant and in contrast it is defense counsel who is questioning competency.” (¶35). The trial court and court of appeals decided that Daniel’s postconviction counsel had the burden of proving incompetency because he was the only person claiming Daniel wasn’t competent (though the court of appeals did hold the trial court imposed the wrong standard of proof, which should have been a preponderance of the evidence, not clear and convincing). (¶¶16-19). The supreme court holds it was improper to impose the burden on Daniel’s defense counsel; rather, the state has the burden of proving Daniel was competent. (¶37).

While § 971.14 doesn’t expressly say who bears the burden of proof when a defendant disagrees with defense counsel regarding competency, § 971.14(4)(b) does place the burden of proof on the state regardless of whether the defendant is asserting competency or incompetency. “This reflects the legislature’s policy choice and we see no reason to alter this statutory approach.” (¶35). It’s also consistent with State v. Byrge, 2000 WI 101, ¶30, 237 Wis. 2d 197, 614 N.W.2d 477, which stated, without reference to who raised the issue of competency, that “[t]he court must find the defendant incompetent unless the State can prove, by the greater weight of the credible evidence, that the defendant is competent.” (¶36).

Further, placing the burden on defense counsel when defendant asserts competency would have “the untenable result” of creating a conflict between an attorney’s duty as an advocate and an attorney’s duty as an officer of the court.” (¶38). That’s because under State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986), defense counsel has a duty to raise competency whenever there is reason to doubt the defendant is competent. Yet counsel must also maintain confidentiality, SCR 20:1.6. Thus, there’s a potential conflict between complying with Johnson and the rules of ethics, as recognized in State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859, which held a lawyer couldn’t be called as a witness at a competency hearing regarding a former client. Imposing on defense counsel the duty to prove incompetency creates the same conflict:

¶43  …. Meeks provides guidance through its remarks on the interplay between an attorney’s duty as an officer of the court and the attorney-client privilege. In response to arguments about the duty under Johnson, 133 Wis. 2d 207, the court held that “the former attorney’s duty as an officer of the court does not, under the circumstances set forth herein, trump the attorney-client privilege.” Id., ¶43. The court then explained that Johnson‘s requirements were limited to merely raising the issue of competency: ….

¶44  There is an obvious difference between raising an issue and having to prove it. Meeks instructs that an attorney’s duties under Johnson are limited to the former. Were we to put the burden of proof on defense counsel, it would require more, upsetting the delicate balance that we laid out in Meeks. The “limited breach” of attorney-client privilege necessary to fulfill the Johnson obligation would turn to an open door, requiring attorneys to divulge significant information gained through private communications with their clients. Such a result is unpalatable and militates in favor of placing the burden on the State.

Finally, the interests at stake in postconviction competency hearings favor placing the burden of proving competency on the state. Burdens of proof should reduce the risk facing the party that has an interest of “transcending value” by placing the burden of proof on the other party. (¶45). Thus:

¶46  An erroneous decision that a defendant is competent implicates weighty interests of the defendant in postconviction proceedings. Such an error would substantially hinder a defendant’s ability to pursue postconviction relief or an appeal because defense counsel’s ability to act without direction from a client is limited. Ultimate decisions regarding the objective of representation, and whether to undertake a postconviction proceeding or an appeal are left solely to the client. Debra A.E., 188 Wis. 2d at 125-26; see also SCR 20:1.2 (“a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by SCR 20:1.4, shall consult with the client as to the means by which they are to be pursued.”). Accordingly, in some circumstances, an erroneous decision that a defendant is competent could prevent a defendant from seeking postconviction relief or filing an appeal altogether, affecting the defendant’s right to appeal a criminal conviction.

An erroneous decision that a defendant is incompetent, however, will have little impact on the state. At most there will be a delay of post conviction proceedings till the defendant is competent, Debra A.E., 188 Wis. 2d at 134, and maybe not even that, id., at 133-34 (directing defense counsel to seek relief on defendant’s behalf where the defendant’s assistance and decision-making are not necessary and there is no risk to the defendant).

The court also rejects the state’s argument that competency should be presumed during postconviction proceedings if the defendant was determined to be competent to stand trial. Competency is not static, and in any event competency has a different meaning in different circumstances. (¶¶49-50).

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{ 1 comment… add one }
  • Dana Smetana April 30, 2015, 8:28 am

    What if the defense attorney has evidence to present regarding incompetency, ie, social worker, jail workers, doctors to show that a client is incompetent ?
    This information is given to the attorney in the course of representation. Is it a violation of the attorney’s duty to the client who thinks he is competent to present this evidence? Now that it is clear the state has the burden can we still put on the evidence to show that the defendant is not competent if we don’t disclose conversations by the defendant to between attorney and client? This has always seemed like a fine line to walk. What if the Judge asks why you are challenging competency? Can you disclose conversations? I think not but one of our judges will not order the evaluation unless we give him details about why we are raising competency.

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