When postconviction counsel questions a defendant’s competency to understand his or her § 809.30 appellate rights or ability to effectively communicate with counsel but the defendant asserts he or she is competent, defense counsel has the burden of proving the defendant is incompetent by the preponderance or greater weight of the evidence.
Daniel’s postconviction lawyer raised the issue of competency and obtained an evaluation. At a competency hearing Daniel himself claimed he was competent, and the state agreed. Postconviction counsel disagreed, and was allowed to present further evidence, including competing experts. The circuit court ruled that postconviction counsel had to prove by clear and convincing evidence that Daniel was not competent, and that he had not met that burden. (¶¶3-5).
A postconviction defendant’s competency is measured by whether he or she is able to assist counsel and make decisions pertaining to the criminal process “with a reasonable degree of rational understanding.” State v. Debra A.E., 188 Wis. 2d 111, 126, 523 N.W.2d 727 (1994). But Debra A.E. says little about the process for determining competency, holding only that it requires an exercise of discretion, which “will vary depending on the facts,” and that if an evidentiary hearing is held, the court “should be guided by [§] 971.14(4) … to the extent feasible.” Id. at 131-32. Because that statute places the burden of persuasion on the state regardless of whether the defendant claims to be competent or incompetent, the court of appeals concludes it provides no guidance here. (¶8). Instead, the court looks to Cooper v. Oklahoma, 517 U.S. 348 (1996), which addressed Oklahoma’s statutory requirement presuming a defendant to be competent to stand trial unless the defendant proved his or her incompetence by clear and convincing evidence. (¶9).
¶11 Although Cooper dealt with the test for competence to stand trial rather than competence in a postconviction proceeding, we see no distinction in the difference. The right to direct appeal from a criminal conviction is guaranteed by article I, section 21 of the Wisconsin Constitution. See State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). Wisconsin Stat. § 809.30 codifies that right. Competence during the constitutionally guaranteed direct appeal is equally as important and worthy of protection as is competence to stand trial. See Debra A.E., 188 Wis. 2d at 119, 129-30 (incompetent defendants have right to “fair opportunity” for postconviction relief). Placing a higher burden of persuasion on the defense to prove the defendant’s incompetence, whether at trial or upon direct appeal, risks denying constitutional protections to a defendant who is more likely than not (although not clearly and convincingly) incompetent. See id. at 133-36 (outlining protections available for incompetent defendants in postconviction proceedings). We may not impose procedural burdens incompatible with the United States Constitution. State v. Byrge, 2000 WI 101, ¶28 n.7, 237 Wis. 2d 197, 614 N.W.2d 477.
Thus, the circuit court erroneously imposed a higher burden of proof on defense counsel, and the use of an unconstitutional burden of proof can’t be deemed harmless when the facts of the case show the court’s conclusion might have been different under a correct burden of proof. United States ex rel. Bilyew v. Franzen, 686 F.2d 1238, 1246 (7th Cir. 1982). Accordingly, the case is remanded for the circuit court to apply the proper legal standard to the facts of the case. (¶¶12-13).
The majority opinion doesn’t say who would bear the burden of proof if Daniel had agreed with his lawyer that he was not competent. Would § 971.14(4) apply, meaning the state would have to prove Daniel is competent? That’s the implicit conclusion of a concurrence by Judge Neubauer (¶15), which notes the disagreement between Daniel and his lawyer makes this case different from the scenarios covered by § 971.14(4)(b), and that allocating the burden to postconviction counsel makes sense here because counsel “is the party objecting to the defendant’s position….”