Follett v. State

• Decision Date: 19 April 2006
• Docket Number: No. 05-63.,No. 04-133.,04-133.,05-63.
• Citation: 2006 WY 47,132 P.3d 1155
• Parties: David E. FOLLETT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1155

132 P.3d 1155

2006 WY 47

David E. FOLLETT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-133.

No. 05-63.

Supreme Court of Wyoming.

April 19, 2006.

Rehearing Denied May 3, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Mike Cornia, Evanston, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robin Sessions Cooley, Deputy Attorney General.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

KITE, Justice.

[¶ 1] After undergoing a mental evaluation which indicated he was competent to stand trial, David Follett pled guilty to one count of third degree sexual assault in violation of Wyo. Stat. Ann. §§ 6-2-304(a)(i) and 6-2-306(a)(iii) (LexisNexis 2005). The district court sentenced him to a term of ten to twelve years in the state penitentiary, and Mr. Follett appealed. Mr. Follett also filed a motion to withdraw his guilty plea, claiming the district court should have ordered a second mental evaluation before accepting the plea. The district court denied Mr. Follett's motion to withdraw his guilty plea, and he appealed that determination, as well. Mr. Follett's two appeals were consolidated for decision. We affirm.

ISSUES

[¶ 2] Mr. Follett presents the following issues on appeal:

I. Was the appellant's right to due process violated when the court accepted his guilty plea?

II. Whether the denial of the motion to withdraw guilty plea was an abuse of discretion?

The State presents a single appellate issue:

Whether the court properly accepted appellant's guilty plea and whether it abused its discretion in denying appellant's subsequent motion to withdraw the plea after sentencing?

FACTS

[¶ 3] Mr. Follett lived next door to the thirteen-year-old female victim and her family. He and his wife were well-acquainted with the victim's family, and the victim and her younger sister often visited the Follett home. Approximately two years before the charged offense, Mr. Follett told the victim's father angels had directed him to teach the victim about sex. He claimed he would have to answer to Gideon's sword if he did not obey the angel. The men agreed Mr. Follett should not be alone with the victim. Nevertheless, in July of 2003, Mr. Follett, who was sixty-five years old, had sexual intercourse with the young girl in his motor home which was parked outside his residence. Shortly thereafter, Mr. Follett confessed to the victim's father that he had "broken his trust."

[¶ 4] The State charged Mr. Follett with one count of third degree sexual assault in violation of Wyo. Stat. Ann. §§ 6-2-304(a)(i) and 6-2-306(a)(iii). Through his attorney, Mr. Follett filed a motion for a mental evaluation and stay of the proceedings pursuant to Wyo. Stat. Ann. §§ 7-11-301(a) and 7-11-304(d) (LexisNexis 2005). The circuit court entered an order granting the defense motion, and a mental health professional evaluated Mr. Follett on September 25, 2003. The evaluator filed a report on October 13, 2003, indicating she had no concerns about Mr. Follett's competence to stand trial. The report also concluded Mr. Follett did not meet the threshold criteria for a defense of not guilty on the basis of mental defect because he admitted he knew what he was doing was wrong when he committed the offense.

[¶ 5] Mr. Follett waived his preliminary hearing and the case was bound over to the district court on October 24, 2003. The district court arraigned him on November 13, 2003, at which time Mr. Follett pleaded not guilty, not guilty by reason of mental illness and not triable because of mental defect. Trial was set for February 17, 2004. An order setting a change of plea hearing was subsequently entered, and the hearing was held on February 6, 2004. Mr. Follett pled guilty to the charge without the benefit of a plea agreement. He provided a factual basis for the guilty plea, and the district court accepted his plea. The district court subsequently sentenced Mr. Follett to serve not less than ten nor more than twelve years in the Wyoming State Penitentiary. He filed a notice of appeal of the judgment and sentence on April 26, 2004.

[¶ 6] Mr. Follett retained new defense counsel who filed a motion to withdraw his guilty plea. The defense argued, since Mr. Follett entered pleas of not guilty and not triable because of mental illness or defect after the competency evaluation was completed, the district court should have sua sponte ordered a second evaluation before it accepted his guilty plea.¹ The district court denied Mr. Follett's motion to withdraw his guilty plea, and he appealed to this Court. Mr. Follett's two cases were consolidated for decision on appeal.

DISCUSSION

Competency Procedures

[¶ 7] Mr. Follett argues his right to due process was violated because the district court did not follow the statutorily mandated procedures for determining whether he was competent to proceed with the trial court proceedings. In particular, he claims the district court should not have accepted his guilty plea without ordering a competency hearing.

[¶ 8] "A criminal defendant may not be tried unless he is competent, and he may not waive his right to counsel or plead guilty unless he does so "competently and intelligently." Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The same standard of competency applies whether a defendant goes to trial or pleads guilty. Godinez, 509 U.S. at 398, 113 S.Ct. 2680. The United States Supreme Court has ruled that a defendant is competent, under the standards of due process, if he has "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has `a rational as well as factual understanding of the proceedings against him.'" Godinez, 509 U.S. at 396, 113 S.Ct. 2680, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). The determination of whether a defendant is mentally fit to proceed must be made by the trial court. Hayes v. State, 599 P.2d 558, 563 (Wyo.1979). "It is not in the nature of a defense to the charge. It is a threshold issue, necessary to be resolved to prevent a violation of due process through conviction of a person incompetent to stand trial." Id. Moreover, the competency requirement continues from the time of arraignment through sentencing. See Godinez, 509 U.S. at 403, 113 S.Ct. 2680 (Kennedy, J., concurring); deShazer v. State, 2003 WY 98, ¶ 20, 74 P.3d 1240, 1248 (Wyo. 2003).

[¶ 9] Wyo. Stat. Ann. § 7-11-301 et. seq. sets forth the requirements for determining whether a criminal defendant is competent to stand trial. The statutes are designed to protect criminal defendants' due process rights. deShazer, 2003 WY 98, ¶ 26, 74 P.3d at 1251. Under the principles articulated in Godinez and the clear language of the statutes, the statutory requirements pertain to all trial court proceedings, including change of plea proceedings. Wyo. Stat. Ann. § 7-11-303 (LexisNexis 2005) provides, in pertinent part:

(a) If it appears at any stage of a criminal proceeding, by motion or upon the court's own motion, that there is reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed, all further proceedings shall be suspended.

(b) The court shall order an examination of the accused by a designated examiner. The order may include, but is not limited to, an examination of the accused at the Wyoming state hospital on an inpatient or outpatient basis, at a local mental health center on an inpatient or outpatient basis, or at his place of detention.

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(d) The clerk of court shall deliver copies of the report to the district attorney and to the accused or his counsel. The report is not a public record or open to the public. After receiving a copy of the report, both the accused and the state may, upon written request and for good cause shown, obtain an order granting them an examination of the accused by a designated examiner of their own choosing.

Wyo. Stat. Ann. § 7-11-304 (LexisNexis 2005) provides specific protections when a defendant pleads not guilty or not triable on the basis of mental illness or defect. That statute provides, in relevant part:

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(d) In all cases where a plea of "not guilty by reason of mental illness or deficiency" is made, the judge shall order the defendant examined as provided in W.S. 7-11-303(b). If an examination provided in W.S. 7-11-303(b) was made, the report may be received in evidence and no new examination shall be required unless, in the discretion of the court, another examination is necessary. Within five (5) days after receiving a copy of the report, both the accused and the state, upon written request, may obtain an order granting them an examination of the accused by a designated examiner of their own choosing. The clerk of court shall deliver copies of the report or reports to the district attorney and to the accused or his counsel. All reports required by this subsection shall conform to the requirements of W.S. 7-11-303(c). These reports are not public records or open to the public.

[¶ 10] In deShazer, 2003 WY 98, ¶ 12, 74 P.3d at 1244-45, we adopted the standards articulated by the United States Court of Appeals for the Tenth Circuit to review competency issues.

Although competence is a factual issue, that term ... is not self-defining. Because competency to stand trial is an aspect of substantive due process, . . . the legal standard by which competency is to be evaluated is constitutionally mandated. Accordingly, the components of that standard, required as they are by the Constitution, do not vary according to the views of a particular court. The Constitution can require but one gauge against which to determine whether, because of his...