Issue (adapted from Daniel’s PFR):
1. Under Wisconsin law, should the defendant bear the burden of proving incompetency? If so, is it by clear and convincing evidence or by a preponderance of the evidence?
2. When postconviction counsel questions the defendant’s competency, but the defendant insists that he is competent, what procedures should the circuit court employ?
3. What standard of review should an appellate court apply to a circuit court’s determination of a defendant’s competency to participate in postconviction proceedings?
Wisconsin’s statutes don’t address the procedures for determining a defendant’s competence during postconviction proceedings. We do know that it is measured by whether he “is able to assist counsel and make decisions pertaining to the criminal process ‘with a reasonable degree of rational understanding.'” Slip op. ¶7 (quoting State v. Debra A.E., 188 Wis. 2d 111, 126, 523 N.W.2d 727 (1994)). Beyond that, the court of appeals found §971.14(4) irrelevant because it governs competency decisions only through sentencing. It found more relevant Cooper v. Oklahoma, 517 U.S. 348 (1996), which examined Oklahoma’s statute governing competency at trial. The funny thing is, the Oklahoma’s statute governing competency at trial places the burden on the defendant, whereas Wisconsin’s counterpart places it on the State. So the court of appeals made quite a leap when it ruled here that a Wisconsin court may shift the burden to the defendant (or defense counsel) to prove competence by a preponderance/greater weight of the evidence. See our post re the court of appeals decision here.