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Waiver / Forfeiture of Right: Generally – Right to Presence / Testify; Sentencing: Accurate Information – New Factor

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v. Divanovic, 200 Wis. 2d 210, 220, 546 N.W.2d 501, 504–505 (Ct. App. 1996) and State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 670, 761 N.W.2d 612.

Right to Presence at Trial 

A defendant has a constitutional right (grounded in both confrontation and due process, Divanovic) and a statutory right (§ 971.04(1)) to presence at every stage of the criminal trial, subject to narrow exceptions, namely waiver in this instance. Vaughn was removed from the courtroom after repeated interruptions, and he declined an offer to return if he were to “act properly.” Illinois v. Allen, 397 U.S. 337, 343 (1970) says a defendant, if adequately warned about the consequences, may be removed from the courtroom for disruptive behavior. The question here is more fraught than that, because he was under the sway of a “developing mental illness,” ¶5. Developing, as perhaps displayed in his outbursts, but not diagnosed – to the contrary, he had been examined and found competent – until shortly after sentencing, when a prison psychiatrist diagnosed him as psychotic and he was committed to the Wisconsin Resource Center under ch. 51, ¶15. Vaughn thus argues that he couldn’t have knowingly and intentionally (via his disruptions) relinquished his right to presence “because of the overlay of his developing mental illness,” but this argument is defeated by the fact that at the time he was indisputably competent, within the meaning of § 971.13(1) and Godinez v. Moran, 509 U.S. 389 (1993):

¶24      … But this argument ignores the line drawn by Godinez when it observed that, for example, “a criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.”  Godinez, 509 U.S. at 400 (emphasis in orginal [sic]).  Of course, even a competent defendant may not be permitted self-representation unless:  “the defendant:  (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him, and (4) was aware of the general range of penalties that could have been imposed on him.”  State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716, 721 (1997).  But, significantly, being able to represent oneself is different than general competency to be tried because self-representation requires deeper levels of skill and understanding than does mere competency.  Godinez, 509 U.S. at 400.  Although Vaughn might not have been able to represent himself at his trial, a matter that we do not decide, he has not shown that he was not fully able to decide whether to participate in his trial or, as he did, endeavor to obstruct it.  Indeed, as we have seen, his psychiatric witness at the postconviction hearing admitted that he could not say that Vaughn’s obstructions and refusals to participate in his trial “was not voluntary,” and that what the psychiatrist said was Vaughn’s developing mental illness did “not necessarily mean he did not understand” what he was doing.

Competent to stand trial: necessarily, therefore, competent to waive the fundamental right to presence at trial. But, as the court indicates, not necessarily competent enough to waive the right to counsel in preference to self-representation. For further discussion on the point, see Brooks v. McCaughtry, 380 F.3d 1009, 1013 (7th Cir 2004) (“Wisconsin, as this case illustrates, has set a higher standard for waivers of the Faretta right than for competence to stand trial. … Because being competent to stand trial and having waived the right to counsel do not require the same information, and because the former competence does not imply an effective waiver in all cases, we do not think that Wisconsin’s approach violates the rule of Godinez.“). Also see,  Indiana v. Edwards, 554 U.S. 164 (2008) (“That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”). It is, though, a bit of a conundrum that Vaughn would have been mentally stable enough to waive his right to presence but not necessarily his right to counsel.

Right to Testify

Waiver of the right to testify, being fundamental in nature, must be effectuated by an on-the-record colloquy to ensure its knowing and voluntary quality, ¶25, citing State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485. However, as the court has noted, even a fundamental right may be forfeited through misconduct; and, by preventing the trial court from conducting a Weed colloquy, Vaughn forfeited his right to assert error in its absence:

¶26      …  By refusing to come to court so the trial court could personally explain what Weed requires must be explained, Vaughn made it, as a practical matter consistent with safety, impossible for the trial court to explain his right to testify, and determine whether his decision to not testify was, in Weed’s phrase, “knowing, intelligent, and voluntary.” …  Vaughn gave the trial court no choice but to forego what it wanted to do in order to ensure that his decision to not testify was knowing and voluntary.[5]  He cannot now complain, and we will not impose on the circuit courts a rule that not only would be pyrrhic in the sense that if an obstreperous defendant is dragged into court and still does not cooperate, dragging that defendant into court accomplishes nothing, but would also endanger everyone including the defendant.

Sentencing – Accurate Information 

The articulated reasons for sentence support the idea that the trial court did not rely on Vaughn’s mental health in fashioning sentence, and post-sentencing documentation of his mental illness therefore didn’t establish that his sentence was based on inaccurate information.

¶27      There is no doubt but that:  “[a] defendant has a constitutionally protected due process right to be sentenced upon accurate information.”  State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 185, 717 N.W.2d 1, 3.  “A defendant who requests resentencing due to the circuit court’s use of inaccurate information at the sentencing hearing ‘must show both that the information was inaccurate and that the court actually relied on the inaccurate information in the sentencing.’”  Id., 2006 WI 66, ¶26, 291 Wis. 2d at 192–193, 717 N.W.2d 1, 7 (one set of internal quotation marks and quoted source omitted).  Our review is de novo.  See id., 2006 WI 66, ¶9, 291 Wis. 2d at 185, 717 N.W.2d at 3.

¶28      Vaughn hangs his hat on the report and testimony at the postconviction hearing by the psychiatrist who said that Vaughn had been developing a mental illness, which was in its incipient stages during the trial. Vaughn has not, however, shown that the trial court viewed him as wholly without mental illness or “actually relied” on Vaughn’s mental health in imposing sentence.

Sentencing – New Factor

¶36      The postconviction court determined that Vaughn’s mental health was a “new factor” in the sense that the trial court was unaware of the analyses offered by the psychiatrist in his post-sentencing report and at the postconviction hearing.  On our de novo review, we agree.  The postconviction court also determined, though, that it had to decide “whether this factor unknown at the time of sentencing frustrated the Judge’s intent at sentencing and therefore requires a new sentencing of the defendant.”  The postconviction court held that it did not:  “It appears to this court that the diagnosis of the defendant has not frustrated the sentence no [sic–nor?] caused Mr. Vaughn any difficulties in receiving appropriate treatment.”  Vaughn’s appeal complains that the postconviction court applied the wrong standard because Harbor held that there is no requirement that the new factor “frustrate” the sentence in order to justify modification of that sentence.  See id., 2011 WI 28, ¶52, 333 Wis. 2d at 78, 797 N.W.2d at 840 (withdrawing language from earlier cases “that suggests an additional requirement that an alleged new factor must also frustrate the purpose of the original sentence”).  The post-sentencing court may still, however, consider whether the new factor frustrates the original sentencing scheme.  See id., 2011 WI 28, ¶50, 333 Wis. 2d at 78, 797 N.W.2d at 840 (“A circuit court might conclude that its entire approach to sentencing would have been different had it been aware of a fact that is ‘highly relevant to the imposition of sentence.’  Even so, the court may not be able to conclude that the new fact, which would have changed its entire approach to sentencing, necessarily frustrates the purpose of the original sentence it imposed.”) (quoted source omitted).  See also State v. Ninham, 2011 WI 33, ¶89, 333 Wis. 2d 335, 384, 797 N.W.2d 451, 476 (“In determining whether to exercise its discretion to modify a sentence on the basis of a new factor, the circuit court may, but is not required to, consider whether the new factor frustrates the purpose of the original sentence.”).

¶37      Vaughn contends that the postconviction court viewed the frustrate-the-sentence element as a prerequisite (when, as we have seen, it is one consideration that the post-sentencing court may apply), and seeks a remand for an exercise of discretion that is consistent with the Harbor rule.  The postconviction court’s use of the word “nor” (a disjunctive word) (apparently mistyped as “no,” as we have seen), shows that the postconviction court did not use the “frustration” factor as the deal-breaker in connection with Vaughn’s request for sentence modification, but, rather, also considered whether Vaughn’s then current mental health warranted a modification of his sentence.  It concluded that it did not because Vaughn’s sentence has not “caused Mr. Vaughn any difficulties in receiving treatment.”  Indeed, as we have seen, the statutes specifically permit the civil commitment of persons confined to prison if that becomes necessary for the prisoner’s care and treatment in a mental-health environment that might be more appropriate than a prison.  See Wis. Stat.§ 51.20(1)(ar) (civil commitment of a “mentally ill” prisoner in need of treatment where “appropriate less restrictive forms of treatment have been attempted with the individual and have been unsuccessful”).  Accordingly, we cannot say that the postconviction court erroneously exercised its discretion in concluding that Vaughn did not show that his sentence should be modified.

Pre-Harbor, it was settled that “worsening health is not a new factor,” State v. Michels, 150 Wis. 2d 94, 95, 441 N.W.2d 278 (Ct. App. 1989); and, more particularly, because failure of prison to provide appropriate mental-health treatment is enforceable by writ, it is not ground for sentence modification, State v. Johnson210 Wis.2d 196, 204-05, 565 N.W.2d 191 (Ct. App. 1997), citing State v. Lynch, 105 Wis. 2d 164, 171, 312 N.W.2d 871 (Ct. App. 1981). By eliminating the new factor “frustrate sentence” requirement, Harbor seemingly cast such results in doubt. 2011 WI 28, ¶52 (“We withdraw any language from Michels and the cases following Michels that suggests an additional requirement that an alleged new factor must also frustrate the purpose of the original sentence.”). But while “sentence-frustration” might not be required, the court holds, it nonetheless remains a proper consideration.

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