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Criminal Procedure – competency — burden of persuasion

By: WISCONSIN LAW JOURNAL STAFF//April 9, 2014//

Criminal Procedure – competency — burden of persuasion

By: WISCONSIN LAW JOURNAL STAFF//April 9, 2014//

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Wisconsin Court of Appeals

Criminal

Criminal Procedure – competency — burden of persuasion

A court may allocate the burden of persuasion to the defendant (or defense counsel) in a postconviction competency proceeding, but must utilize the lower “preponderance/greater weight of the evidence” burden of proof when doing so.

“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.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP2692-CR State v. Daniel

Dist. II, Kenosha County, Warren, J., Reilly, J.

Attorneys: For Appellant: Jurek, Anthony J., Middleton; For Respondent: Moeller, Marguerite M., Madison; Zapf, Robert D., Kenosha

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