Criminal Procedure — competency

Listen to this article

Wisconsin Court of Appeals

Criminal

Criminal Procedure — competency

Where postconviction proceedings cast into doubt whether the defendant was competent at the time of trial, it was error to deny the defendant’s motion for a new trial.

“Although obvious hazards attend retrospective competency hearings, including the passage of time, ‘“mere passage of time may not make the effort meaningless.”’ Johnson, 133 Wis. 2d at 225 (citation omitted). In fact, ‘[t]he passage of even a considerable amount of time may not be an insurmountable obstacle if there is sufficient evidence in the record derived from knowledge contemporaneous to trial.’ Id. (citation and quotation marks omitted). Here, although there was no pretrial competency evaluation done and Smith did not testify at the postconviction hearing, two medical experts each provided evaluations, based on numerous historical and legal documents, concluding that Smith was incompetent at the time of his trial and sentencing. Nonetheless, the postconviction court concluded that Smith’s experienced defense counsel, and the judge who presided over both the trial and the sentencing, were in better positions to observe Smith. Because neither raised concerns, the postconviction court concluded that Smith, in fact, was competent both during trial and at sentencing. 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 (‘Because a competency determination depends on the [trial] court’s ability to appraise witness credibility and demeanor, “there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court.”’) (citation omitted).”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1228-CR State v. Smith

Dist. I, Milwaukee County, Conen, Borowski, JJ., Kessler, J.

Attorneys: For Appellant: Wasielewski, John T., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison