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COA remands for “nunc pro tunc” competency hearing

State v. Michele M. Ford, 2022AP187 & 2022AP188, 10/31/23, District I (one-judge decision; ineligible for publication); case activity

The takeaway from this procedurally convoluted case is that Ford succeeds in her appeal from an order finding her incompetent to stand trial in two misdemeanor cases. Specifically, the court reverses and remands for a “nunc pro tunc” competency hearing at which the circuit court will have to determine whether Ford was competent to proceed without relying on trial counsel’s statements to the evaluator, which the court holds violated the attorney-client privilege and amounted to ineffective assistance of counsel. (Op., ¶26).

Ford was charged in two misdemeanor cases and was evaluated for competency to stand trial in November 2021. The evaluator concluded that Ford was not competent but that she was likely to be restored to competency within the statutory time period. After a hearing, the circuit court signed a written order on November 12, 2021, finding Ford incompetent and ordered inpatient treatment at Mendota. Following treatment, Ford was found competent on January 31, 2022, and the proceedings were reinstated. Thereafter, Ford filed a notice of appeal from the November 12, 2021, order finding her incompetent. After initiating this appeal, Ford’s competency was again revisited and she was found incompetent on August 19, 2022. The proceedings were ultimately “administratively closed” as a result of the passing of the maximum penalty time Ford faced for the underlying misdemeanor offenses. (Op., ¶¶2-8).

Prior to addressing the legal issues decided by the court of appeals, including (1) the timeliness of Ford’s notice of appeal, (2) mootness, and (3) ineffective assistance of counsel, it’s worth noting the practical impact of the decision. As noted above, after filing the notice of appeal at issue here, Ford was later found incompetent again and was apparently committed for the maximum time available under the statute. See Wis. Stat. § 971.14(5)(a)1. The validity of that subsequent commitment is not at issue in this appeal and regardless of whether Ford should have been found incompetent to proceed in November 2021, she was again found incompetent in August 2021, which led to the discharge of these cases under Wis. Stat. § 971.14(6). In other words, whatever comes next on remand, it does not appear that a new retrospective competency hearing will change the ultimate outcome in Ford’s case.

Now to the issues decided by the court of appeals. First, the court rejects the state’s arguments that Ford’s notice of appeal was untimely. The state had argued that Wis. Stat. § 808.04(1)’s 45 day deadline was triggered by the filing of a “notice of activity” that was generated by the circuit court’s electronic filing system when the circuit court entered the November 12, 2021 written order. The court explains that to trigger the 45-day deadline “a formal, captioned and signed notice of entry of judgment stating the date the judgment was entered must be served on the opposing party within [21] days of the entry date.” (Op., ¶12). In a footnote, the court further explains why it agreed with Ford: “if the notice of activity generated by the electronic filing system constituted written notice, the forty-five day deadline would always apply because the notice of activity is always generated from the electronic filing system.” (Op., ¶12 n.3). Thus, Ford’s notice of appeal was timely since it was filed within 90 days of the court’s written order.

Second, the court rejects the state’s argument that Ford’s appeal is moot. In doing so, the court relies on Sauk County v. S.A.M., 2022 WI 46, which held that two consequences of an expired recommitment under Chapter 51 rendered an appeal not moot: (1) the restriction of one’s constitutional right to bear arms; and (2) the liability for the cost of one’s care. Citing Wis. Stat. § 46.10(2) for the proposition that Ford is liable for the cost of her care while committed under § 971.14, but that she would not be if the order appealed from were to be vacated, the court agrees with Ford that success on appeal would have a practical impact and therefore her appeal is not moot. (Op., ¶¶15-18).

Third, the substance of Ford’s challenge to the commitment order entered on November 12, 2021, is that it was based, in part, on her trial counsel’s participation with the court appointed evaluation of her competency. The evaluator apparently contacted Ford’s trial counsel, who offered opinions, perceptions, and impressions of Ford that were relied upon by the evaluator and by the circuit court to find her incompetent to proceed. The court agrees with Ford that this participation by trial counsel violated the attorney-client privilege and that as a result, Ford was prejudiced by trial counsel’s deficient performance. (Op., ¶19-24) (citing State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 869). As noted above, the remedy “is a nunc pro tunc competency hearing where Ford’s competency is evaluated without the benefit of trial counsel’s opinions, perceptions, and impressions of Ford’s mental competency.” (Op., ¶26).

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