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Postconviction counsel may raise defendant’s competence to stand trial though trial court and trial counsel had no such concerns

State v. Jimmie Lee Smith, 2014 WI App 98, petition for review granted 6/12/15; case activity

If you’re working on a competency issue, read this decision.  Neither the trial court nor defense counsel raised the subject of Smith’s competency at the time of trial.  And Smith had not received a pre-trial competency exam. That’s why the postconviction court rejected Smith’s claim that he was incompetent at the time of trial. There was no contemporaneous evidence to support it. The court of appeals reversed, vacated the conviction, and remanded the case for a new trial.

Although no one raised the question of whether Smith was competent to stand trial for 2nd degree sexual assault before or during his trial in October 2009, the sentencing hearing two months later revealed that something was seriously wrong with him.  Then multiple times between June 2010 and March 2011, the court found Smith incompetent to assist with postconviction proceedings and ultimately appointed a GAL for that purpose.  Postconviction counsel argued that Smith was incompetent at the time of trial and documented a history of mental illness dating back to 1993, supplemented by two medical expert opinions.

The circuit court was suspicious of Smith’s postconviction claim that he was incompetent at the time of trial because no one who interacted with him at that time raised concerns about his competence:

[I]f this opens a door, you can do this on every case then. Defense can do this on every case. Come back and challenge the defense attorney at the time, say he or … she didn’t raise competency two years later. Oh, now find the doctor. Slip op. ¶13

The court of appeals found those concerns unreasonable:

The postconviction court weighed more heavily the uninformed competence opinions of defense counsel and the trial court—who knew nothing of Smith’s extensive mental health history, the DOC records, the jail records or the two experts’ opinions—and discounted the experts’ evaluations. In so doing, the postconviction court erred. As shown above, with regard to the substantive competence issue, the standard on review is whether the whole record reveals a reason to doubt Smith’s competence at trial and sentencing. See Pate v. Robinson, 383 U.S. 375, 386 (1966). The postconviction court was not the same court who observed Smith at trial and sentencing. The deference accorded the trial court’s competence assessment in Garfoot and Byrge does not apply to the postconviction court here because the basis for that deference does not exist here. See Byrge, 237 Wis. 2d 197, ¶45 . . .  Slip op. ¶23.

Johnson does not stand for the proposition that an otherwise competent retrospective evaluation should be rejected simply because experts expressing the present opinion about a defendant’s past competency did not interview the defendant during that past time. If the opinion of experts can be rejected because neither expert interviewed the defendant contemporaneously with the time in question, then there could never be a retrospective determination of incompetence. That is not the law. See Johnson, 133 Wis. 2d at 225. Slip op. ¶24.

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