In re Fleming

• Court: Washington Supreme Court
• Writing for the Court: IRELAND, J.
• Citation: In re Fleming, 16 P.3d 610, 142 Wash.2d 853 (Wash. 2001)
• Decision Date: 25 January 2001
• Docket Number: No. 68732-3.
• Parties: In the Matter of the Personal Restraint of Jon Royal FLEMING, Petitioner.

16 P.3d 610

142 Wash.2d 853

In the Matter of the Personal Restraint of Jon Royal FLEMING, Petitioner.

No. 68732-3.

Supreme Court of Washington, En Banc.

Argued November 28, 2000.

Decided January 25, 2001.

Jon Royal Fleming, Monroe, Suzanne Lee Elliott, Seattle, for Petitioner.

Gary Burleson, Mason County Pros., Carol L. Case, Deputy Mason County Pros., Shelton, for Respondent.

IRELAND, J.

In this personal restraint petition, Jon Royal Fleming claims that in light of two psychological evaluations, he should have been afforded a competency hearing before the entry of his guilty plea. Finding that counsel was ineffective in failing to apprise the court that defendant's competence was in doubt following psychological evaluations, we reverse the Court of Appeals, grant the personal restraint petition (PRP) of Jon Royal Fleming, vacate the guilty plea and remand for further proceedings.

FACTS

Jon Royal Fleming, an inmate at Washington State Penitentiary since 1996, is serving a 20-year sentence for two counts of burglary in the first degree in violation of RCW 9A.52.020 and one count of unlawful possession of a firearm in the first degree in violation of RCW 9.41.040(1)(a). The conviction was based on the petitioner's plea of guilty.

The conviction stemmed from incidents that occurred on February 6, 1996. After consuming quantities of beer and methamphetamine, Fleming went to the home of some friends. He had for some time believed that bikers and FBI or CIA agents were out to get him. He became convinced that they were outside the house and were about to come in and kill him. He told his friends of those beliefs, and also told them that he had two handguns. He asked one friend to drive him to Harstine Island. When the man refused, Fleming allegedly pointed a gun at him and prevented him from leaving. Fleming eventually went to a nearby residence, where he banged on the door and demanded entry, saying there were people out to get him. The occupant offered to call the police. Fleming declined that offer and demanded entry. He finally left after the occupant fired a warning shot. Fleming broke his leg running away, but managed to make it to another house, where he again demanded entry. The owner did not immediately respond, so Fleming broke in. The owner shot him in the stomach. Due to these February 6 incidents, Fleming was charged with a total of 13 counts in Mason County.

On February 22, 1996, Fleming's first attorney, J.W. Boothe, asked for funds for a "psychological/mental health evaluation." The court authorized Dr. Brett Trowbridge to conduct an evaluation. Boothe withdrew from representation due to her inability to communicate with Fleming.

On March 4, 1996, Dr. Trowbridge opined that Fleming was "psychotic at the time of the crime. Psychological Evaluation by Brett Trowbridge at 2. Dr. Trowbridge's evaluation goes on to state that Fleming is "marginally competent" to stand trial. Id. at 3. The evaluation also states that it is "clear to me that he was unable to distinguish right from wrong and was incapable of appreciating the nature and quality of his conduct due to his paranoid and borderline personality characteristics, as well as his amphetamine psychosis." Id. at 3.

On May 2, 1996, Fleming's second attorney, Don Lundahl, moved for an order authorizing mental health services at public expense. During May, Dr. Ulysses Whitehead met with Fleming on five occasions for a total of 15 hours.

On June 20, 1996, Lundahl gave notice that he would be relying on a diminished capacity defense. On June 25, 1996, Dr. Whitehead filed an evaluation concluding Fleming "is presently able to understand the nature and purpose of the proceedings taken against him, but is presently unable to cooperate in a rational manner with counsel in presenting a defense and is not able to prepare and conduct his own defense in a rational manner without counsel and therefore is judged presently mentally incompetent to stand trial." Psychological Evaluation by Ulysses Whitehead at 9 (emphasis added). Dr. Whitehead's evaluation recommends "[t]he court should seriously consider committing the client to a maximum security unit of a state hospital for intensive and long-term psychiatric care for his chronic and severe psychotic disorder and drug dependence." Id.

On July 5, 1996, the court addressed the matter of the Third Amended Information, which did not add new charges, but did add some firearm enhancements. During this proceeding, Charles Bonet, appeared apparently as co-counsel for Fleming, while Lundahl was on vacation. Fleming then requested new appointed counsel, which the court denied.

On July 8, 1996, while represented by Bonet, Fleming entered a plea of guilty. In the Alford plea,¹ the prosecutor agreed to recommend to the sentencing judge as follows: (1) dismissal of the remaining charges in the third amendment with prejudice; (2) restitution on all counts; (3) no deadly weapons enhancement; (4) no exceptional sentence; and (5) all time to run concurrently. In addition, Fleming made the following statement in his Alford plea agreement:

I make no admissions, but believe a judge or jury could find me guilty, based upon evidence to be presented at trial, beyond a reasonable doubt. Therefore I wish to take advantage of the State's offer and plead guilty to Counts IV, V, and VII of the third amended information.

Statement of Def. on Plea of Guilty at 3.

Prior to sentencing, Fleming asked to withdraw his guilty plea causing his attorney, Lundahl, to request withdrawal from representation. After Lundahl withdrew, Fleming's fourth court appointed attorney, Ann Farrell was appointed. The motion to withdraw guilty plea was based on Fleming's claim that he entered into the guilty plea involuntary because his counsel had wrongly informed him of newly discovered damaging information. That motion was denied on September 26, 1996. The court stated: "Mr. Fleming knowing, voluntarily, and intelligently entered a plea of guilty, or entered pleas of guilty on the date in question." Report of Proceedings (RP) at 33. The trial judge subsequently imposed an exceptional sentence of 176 months in prison based on Fleming's extensive prior criminal history and his offender score of 12, which exceeds the maximum offender score of 9.

A notice of appeal was filed, and appellate counsel, Thomas Doyle, was appointed for Fleming. However, counsel found no issue to raise on appeal and promptly filed an Anders brief² and moved to withdraw. The Court of Appeals permitted the withdrawal of counsel and affirmed Fleming's conviction. The mandate was issued on April 22, 1998.

There is no indication in the record that either Dr. Whitehead's or Dr. Trowbridge's report was ever presented to the various trial court judges who handled this matter. There is no indication that the experts' evaluations were actually sent to anyone other than defense counsel. In addition, counsel did not mention the issue of competency at the plea hearing, sentencing, or during the motion to withdraw the guilty plea. Nothing in the presentence report indicates that the evaluator was aware of the psychological evaluations.

PROCEDURAL HISTORY

The trial court accepted Fleming's guilty plea, imposed sentence, and denied his motion to withdraw that plea. The Court of Appeals affirmed in a commissioner's ruling on the merits. Fleming subsequently filed a timely PRP raising numerous issues, including a claim that he was incompetent to plead guilty. The chief judge dismissed the petition and held that the trial court complied with RCW 10.77.060 by ordering the evaluations.

Fleming now seeks review of an order of the chief judge of Division Two of the Court of Appeals dismissing his PRP. This court accepted review and appointed Suzanne Elliott as counsel for Fleming.

ANALYSIS

Standard of Review

To prevail on a PRP alleging constitutional error for denial of a competency hearing, the petitioner must show he or she is under restraint and the restraint is unlawful under the provisions of RAP 16.4(c). Fleming has been restrained; he is presently incarcerated. He must show that he was denied a competency hearing, and as a result, his guilty plea was "entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington." RAP 16.4(c)(2). Or Fleming must show that the psychological evaluations were material facts that existed, "which have not been previously presented and heard, which in the interest of justice require vacation of the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government[.]" RAP 16.4(c)(3). The burden of proof is a preponderance of the evidence. In re Personal Restraint of Cook, 114 Wash.2d 802, 814, 792 P.2d 506 (1990) (citing In re Personal Restraint of Hews, 99 Wash.2d 80, 89, 660 P.2d 263 (1983)).

Competency

The United States Supreme Court has held that the Fourteenth Amendment's due process clause prohibits the conviction of a person who is not competent to stand trial. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The constitutional standard for competency to stand trial is whether the accused has "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding'" and to assist in his defense with "`a rational as well as factual understanding of the proceedings against him.'" Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (quoting Solicitor General Rankin for the U.S.).

Washington law affords greater protection by providing that "[n]o incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." RCW 10.77.050. "Requiring that a criminal defendant be competent has a modest aim: It seeks to...